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Commission of Inquiry
Concerning Certain Activities of the
Royal Canadian Mounted Polic e
First Report
Security and
Informatio n
October.9, 1979
�SECURITY AND INFORMATION
��COMMISSION OF INQUIRY
CONCERNING CERTAIN ACTIVITIES OF TH E
ROYAL CANADIAN MOUNTED POLIC E
First Repor t
SECURITY AND INFORMATIO N
October 9, 1979
�©Minister of Supply and Services Canada 1980
Available in Canada through
Authorized Bookstore Agent s
and other bookstores
or by mail from
Canadian Government Publishing Centre
Supply and Services Canad a
Hull, Quebec, Canada KlA OS9
Catalogue No. CP32-37/1980-1E Canada : $5 .95
ISBN 0-660-10493-8 Other Countries : $7 .1 5
Price subject to change without notice
�November 26, 197 9
TO HIS EXCELLENC Y
THE GOVERNOR GENERAL IN COUNCI L
MAY IT PLEASE YOUR EXCELLENC Y
We, the Commissioners appointed by Order in Council P .C . 1977-1911
dated 6th July, 1977, to inquire into and report upon certain activities of the
Royal Canadian Mounted Police ,
BEG TO SUBMIT TO YOUR EXCELLENCY
THIS FIRST REPORT ENTITLED :
"SECURITY AND INFORMATION"
""~V ►-yt,w.C-!~
Mr . Justice D .C . McDonald (Chairman )
D .S . Rickerd, Q .C .
G . Gilbert, Q .C .
v
��Table of Contents
Page
. ..
Foreword . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix. . . . . . . . . . . . . . . . . .
.
THE OFFICIAL SECRETS ACT
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. . . . . . . . . . . . . . . . . . . . .
. ..
'Part I : BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . .. .. .. . . . . . . . . . . . . . . . . . . . . . .. . 3.
..
A . Legislative History . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 3. . . . . . . . . . . . . . . . . .
B . Enforcement of the 1939 Official Secrets Act . . . . . . . . . . . . . . . . . . . . . 4. . . . . .
.
Part I1 : LEGISLATIVE REFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9. . . . . . . . . . . . . . . . . .
. ..
. . .. .
Part I11 : SCOPE OF ESPIONAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . .. .. .. . . .. .. .. . . .. .. ... 1.. l . .
Part IV : COMMUNICATING TO A FOREIGN POWER INFORMATION PREJUDICIAL TO THE SECURITY OF THE STATE . . . 1 3
.
. ..
Part V : OTHER ESPIONAGE OFFENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .17 . . . . . . . . . . . .
. . ..
A : "Prohibited Place" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. . . . . . . . . . . . . . . .
B . Harbouring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .18 . . . . . . . . . . . . . . . . . . . . . .
.. .
C . Possession of Espionage Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 18. . . . . . . . . .
...
D . Secret Foreign Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1 . 9 . . . . . . . . . . . . . . . . . .
.. .
Part VI : LEAKAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .2 1 . . . . . . . . . . . . . . . . . . . . . .
. ..
Part V11 : SOME GENERAL ISSUES, . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . ._. . . . .._ . .. . 29
.
.
.
A . Attorney General's Fiat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . ... .29 . . . . . .
. . ..
B . In Camera Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. . . . . . . . . . . . . . . . . . . . . .
. .. .
C . Procedure for Trying the Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32. . . . . . . . . . . . .
. . ..
D . Penalties . . . . . . . . . . . . . . . . . .. .. .. .. .. .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . ... 33
.
. ...
E . Presumptions and Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 . . . . . . . . . . . . . . .
. .. .
F . The Applicability of the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 . . . . . . . . . . . . . .
G . Location of the Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .3.6 . . . . . . . . . . . . . . .
. . .
vii
�Page
FREEDOM OF INFORMATIO N
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39. . . . . .1 . . . . . . . . . .
. .. .
Part I : PROTECTION OF SECURITY AND INTELLIGENCE
INFORMATION FROM DISCLOSURE UNDER FREEDOM OF INFORMATION LEGISLATION . . . . . . . . . . . . . . . . . . . . . . .. .4 .1 . . .
. ..
A . The Competing Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41. . . . . . . . . . . .
. .. .
B . Protecting those Interests Affected by Non-Disclosure o f
Security and Intelligence Information . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 44. . . . .
. . ...
C . Specific Security and Intelligence Information that should be
Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .4. 5. . . . . . . . . . . . . . . . .
. . .
D . The Method of Protection of Security and Intelligence Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .4.6. . . . . . . . . . . . . . . . .
..
Part II : PROTECTION OF ADMINISTRATION OF CRIMINAL
JUSTICE INFORMATION FROM DISCLOSURE UNDER
FREEDOM OF INFORMATION LEGISLATION . . . . . . . . . . . . . .. . 5. 1
. ..
Part III : A TIME LIMIT ON NON-DISCLOSURE OF SECURITY
AND INTELLIGENCE INFORMATION_ . . . . . . . . . . . . . . . . . . . . . . . . . 5. 3 . . .
. .. .
Part IV : REVIEW OF GOVERNMENT DECISIONS . . . . . . . . . . . . . . . . . . . . .. . 5. 5. . .
. ..
Part V : DISCLOSURE OF SECURITY AND INTELLIGENCE
INFORMATION IN THE COURSE OF JUDICIAL PRO. .. .
CEEDINGS . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 5 . 7 . . . . . . .
Part VI : DISCLOSURE OF ADMINISTRATION OF JUSTICE
INFORMATION IN THE COURSE OF JUDICIAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .6 1 . . . . . . . . . . . . . . .
. ...
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 63 . . . . . . . . . . . . . . . . .
.. ..
. ....
SUMMARY OF RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 . . . . . . . . . .
APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .71. . . . . . . . . . . . . . . . . .
.. .
Footnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 .7 . . . . . . . . . . . . . . . . .
. .. .
viii
�SECURITY AND INFORMATIO N
Foreword
One of the responsibilities of our Commission, as set out under Part (c) of
our terms of reference, is to advise and report on the "adequacy of the laws of
Canada as they apply to . . . [the] policies and procedures" governing the
"activities of the R .C .M .P . . . .in the discharge of its responsibility to protect
the security of Canada ."' In this report we examine the laws which impose
criminal sanctions for the disclosure of information whose release may be
prejudicial to national security or to the administration of criminal justice . In
particular, we have studied the Official Secrets Act, R .S .C . 1970 c . 0-3 and
freedom of information legislation as it relates to security and the administration of criminal justice .
The Official Secrets Act, R .S .C ., 1970, c . 0-3, has provided the R .C .M .P .
with a statutory basis for the investigation and prosecution of persons suspected
of having committed espionage and security related offences against the state .
Bôth the 1946 Royal Commission to Investigate the Facts Relating to the
Circumstances Surrounding the Communication by Public Officials and Other
Persons in Positions of Trust of Secret and Confidential Information to Agents
of a Foreign Power ( the Taschereau/Kellock Commission) and the 1969 Royal
Commission on Security ( the Mackenzie Commission) concluded that the
Official Secrets Act required some major alterations . Only a few of the
recommended statutory changes were ever implemented . The recent prosecutions against both Dr . Alexander Peter Treu and against the Toronto Sun, its
publisher Donald Creighton and its editor Peter Worthington, have also been
instrumental in drawing public attention to some of the limitations of this Act .
The Government of Canada is currently studying the general question of
access to government information and has expressed its intention to introduce
freedom of information legislation within the near future . The Official Secrets
Act and freedom of information legislation are interrelated in at least two
respects . In the first place, freedom of information laws require certain
categories of government information to be made available to the public,
whereas the "leakage" provisions of the Official Secrets Act make it an offence
to disclose certain types of government information . Obviously there must be
consistency between the provisions of freedom of information legislation and
the offences prescribed for the unauthorized disclosure of government information . Second, the Official Secrets Act has been the subject of much criticism
for having created what is considered to be an unnecessary climate of secrecy .
Thus, its reform may be regarded as a necessary element in increasing
accessibility to government information . For these reasons, we are reporting o n
ix
�, some aspects of the Official Secrets Act and are making recommendations for
substantial revision of this statute . We have also considered the impact of
freedom of information legislation on the security of Canada and the administration of criminal justice .
We have not addressed in this report the important issues relating to
search and seizure and the interception and seizure of communications which
arise out of two separaté provisions of the Official Secrets Act and which have
been the subject of a good deal of evidence before the Commission . These
questions will be discussed at length in a later report .
x
�THE OFFICIAL SECRETS AC T
Introduction
1 . The Official Secrets Act, R .S .C . 1970, c . 0-3, has been the subject of
widespread criticism for a number of years . The Taschereau/Kellock Commission set up in 1946 following the Gouzenko revelations recommended that the
Act be "studied in the light of the information contained" in its report and
proceedings, "and, if thought advisable, that it be amended to provide additional safeguards ." ( page 689) As a result of this report, a number of relatively
minor changes were made in 1950 . The 1969'Mackenzie Commission accurately described the Act as "an unwieldy statute, couched in very broad and
ambiguous language" and concluded that "consideration should be given to a
complete revision of the Canadian Official Secrets Act ." (page 75) The court
in the recent Toronto Sun preliminary inquiry also commented that a "complete redrafting of the Canadian Official Secrets Act seems appropriate and
necessary ." In 1973, the provision governing the authorized interception and
seizure of communications for national security purposes ( section 16) was
added to the Official Secrets Act although it is arguable that this provision
might have been more appropriately placed in the Criminal Code . The
"complete revision" of the Official Secrets Act, which was contemplated by the
Mackenzie Commission never materialized and many of the concepts and
much of the language of the British Official Secrets Acts of 1911 and 1920
remain an integral part of our Canadian Act .
2 . The Act is complicated by the fact that it deals with two separate,
although sometimes related, concepts - espionage ( section 3) and "leakage,"
that is the improper disclosure of government information (section 4) . In recent
years, the leakage provisions have proved to be the principal source of critical
comment . The prosecutions against Treu and against the Toronto Sun and its
publisher and editor involved the leakage section . Considerable criticism has
also been levelled at the comparable provisions in the British legislation . Such
expressions of concern in Britain led to the creation of a Departmental
Committee under the chairmanship of Lord Franks which conducted extensive
hearings on the subject and issued a report in 1972 recommending a number of
statutory changes . On the basis of this report the British government in July,
1978 published a White Paper on Reform of section 2 of the Official Secrets
Act of 1911 .
1
��Part I :
BACKGROUND
A . Legislative Histor y
3 . Concern over the repercussions from a series of incidents which occurred
during the 1880s and which involved the improper use of secret government
information prompted the British government to pass the first Official Secrets
Act in 1889 . In 1878, fôr example, a disgruntled clerk by the name of Marvin
divulged to a newspaper for compensation the contents of a secret Anglo-Russian treaty concerning the Congress of Berlin . He was charged with stealing
the paper upon which the treaty had been written but because he had only
memorized the treaty the prosecution was unsuccessful . A statute, virtually
identical to the British Official Secrets Act, was enacted in Canada in 1890 .
The Canadian Act was transferred to the first Canadian Criminal Code two
years later in 1892 . These provisions remained in the Criminal Code until their
repeal in 1939 .
4 . As the First World War approached, it became increasingly apparent that
the espionage sections of the British Act provided insufficient safeguards
against the activities of German agents who were "holidaying" in England and
photographiiig harbours and other strategic, though not technically prohibited,
areas . Moreover, it was thought to be too difficult to prove under the 1889 Act
that an accused possessed information with the intention of communicating it
to a foreign state or. to any agent of a foreign state . In 1911, a new Act was
passed with very little parliamentary debate, although it had been the subject
of prior intensive study by the government . As the Franks Committee stated
"[The] House of Commons took half an hour to pass the 1911 Bill through all
its stages, but the long series of official files recording the events leading up to
this legislation stretches well back into the 19th century" (page 23) . The Act
created a number of presumptions in favour of the Crown which related to the
offence of assisting a foreign state : It also made it an offence, with a three year
minimum penalty, to obtain or communicate "any . .. information which. . . might be . .. useful to an enemy" (section 1(1)(c)) . This provision was
designed to prevent Germans from openly obtaining strategic information .
Important changes were made in the espionage provisions and the anti-leakage
section was broadened so that receipt of official information became an
offence . This 1911 extension of criminal liability to the recipient of official
information, which most frequently affects members of the press, has proved to
be the most controversial section of the Act .
5 . The 1911 British Act also specified that its provisions should apply to the
Dominions overseas . It thus became part of the law of Canada and appeare d
3
�the following year in the Statutes of Canada in a list of Imperial Acts that
were applicable to this country .
6. After the First World War, the British government introduced further
changes to . the Official Secrets Act, particularly with respect to espionage,
which would make permanent certain wartime Defence of the Realm Regulations which the government wished to preserve in peacetime . It was against a
background of great social unrest that the British Act of 1920 was enacted .
The threat of communism loomed menacingly after the Russian Revolution
and the renewed activities of the I .R .A . brought the possibility of civil war in
Ireland perilously close . The main debate on the 1920 legislation took place
shortly after Bloody Sunday when I .R .A . terrorists assassinated fifteen British
intelligence officers in Dublin . The Act was actually introduced at a time when
the streets of London were blockaded .
7 . During the passage of the 1920 statute through the British Parliament, the
Attorney General moved an amendment that it not apply to several of the
Dominions, including Canada . As he stated "It is not being applied to the
Dominions or to India because the Dominions and India have under contemplation legislation which goes somewhat further ." (Hansard 1920, Vol . 12, col .
969) No such legislation, however, was introduced by the Canadian government at that time .
8 . Until Canada enacted its Official Secrets Act in 1939, it was governed by
the 1911 English législation and the analogous provisions which had been
introduced into the Criminal Code in 1892 which had not yet been repealed .
The 1939 Canadian legislation combined the 1911 and the 1920 British Acts
into one act . The Minister of Justice, Ernest Lapointe, in introducing the
legislation in the House of Commons on April 12, 1939, stated that "the
purpose of the Bill is to consolidate the two Acts and, by an Act of the
Parliament of Canada, make them the law of this country ." (Hansard 1939,
page 2705) Several minor amendments were made in 1950 and again in 1967 .
The 1970 revision of the statutes incorporated some stylistic changes . As noted
above, in 1973 section 16 dealing with the interception and seizure of communications was enacted .
B . Enforcement of the 1939 Official Secrets Act
9 . Well over half of the Canadian prosecutions under the Official Secrets Act
arose as a result of the defection of Igor Gouzenko in 1946 and his revelations
about a series of spy rings operating in Canada . Almost all of these prosecutions were instituted under the espionage section of the Act (section 3),
although the leakage section (section 4) was used alone in one case and as an
additional count in another . Many of the prosecutions also involved charges of
conspiracy to breach the Official Secrets Act which were brought under the
Criminal Code .
10. Since the Gouzenko revelations only the following four cases have been
tried in Canada under the Official Secrets Act : Biernacki in 1961, Featherstone in 1967, Treu in 1978, and Toronto Sun, Creighton and Worthington i n
4
�1978 .z The latter two involved prosecutions under the leakage section of the
Act .
,
11 . The Biernacki case dealt with the important issue as to what type of
information is covered by the Act . Biernacki was a landed immigrant from
Poland who was collecting information which might be useful in developing
espionage activities in Canada. To this end, he had collected data about
residents in Canada of Polish birth or extraction . He was charged with five
counts under section 3, the espionage section of the Act . The last two counts
involved section 9, the attempt section . This case was dismissed at the
preliminary inquiry on the basis that the kind of information Biernacki had
been amassing was not of the type envisaged by the Act since such information
was non-governmental and in the public domain . Furthermore, it was decided
that Biernacki's activities had not gone far enough to'constitute an attempt
under section 9 .
12 . Featherstone was convicted under-section 3, the espionage section, and
sentenced to two and one half years for trying to pass secret marine charts to
the Russians . The charts showed the position of various shipwrecks lying off
the east coast of Canada . This would have constituted valuable information for
any foreign government wishing to hide its submarines beside the wrecks so as
to avoid detection .
13 . Treu was charged with two counts under the Official Secrets Act for the
illegal retention of documents (section 4(1)(c)) and for the failure to take
reasonable care of the documents (section 4(1)(d)) : The documents, which
contained information relating to NATO's secret air defence commun'ication
system, had been obtained by him during his term of employment with
Northern Electric Co . Ltd . He was tried and convicted, after an in caméra
hearing, and sentenced to two years on the first count and one year concurrent
on the second . Treu appealed both conviction and sentence to the Quebec
Court of Appeal . On February 20, 1979, that Court unanimously set aside the
conviction and entered an acquittal because on the whole of the evidence there
was a reasonable doubt . The Court of Appeal did not examine the secret
material produced at the in camera trial because "the contents were largely
irrelevant . What mattered was the Appellant's state of mind, and not the
technical data which . .. was set out in the exhibits" (per Kaufman, J .A :) .
13A . There has been considerable discussion in the news media and public
criticism of the recent "persecution" of Treu . The public record, however, fails
to tell the whole story . In August, 1973, the Security Service learned that Treu
was personally responsible for the tender to the People's Republic of China in
Hong Kong of a prospectus which contained much secret technical, scientific
and military information relating to . NATO's air defence communication and
surveillance systems . In November, 1973, the R .C .M .P . requested a legal
opinion of the Department of Justice as to the likelihood of a successful
prosecution of Treu under the Official Secrets Act . According to the Department of Justice, Treu admitted in a statement in March, 1974, that he had
prepared the prospectus and had been instrumental in having it relayed to
officials of the P .R .C ., but that he was under the impression that he wa s
I
5
�authorized to do so . Although evidence existed to support a charge under one
of the espionage sections [sections 3(1), 4(1)(a) or 4(1)(b)] for the unauthorized communication or use of classified information in a manner prejudicial to
the interests of national security, the Department of Justice decided against
recommending the prosecution of Treu under the espionage provisions because
of the refusal of certain key witnesses to testify . On the basis of representations
submitted to him in writing by the Department of Justice, the Attorney
General of Canada decided, as required under section 12 of the Act, to
prosecute Treu under two of the "leakage" sections [sections 4(l)(c) and
4(l)(d)] for the illegal retention of and failure to take reasonable care of
classified information . In its recommendation to the Attorney General the
Department suggested that particular consideration be given to two factors .
The first was the desirability of taking appropriate action to protect the
security of NATO documents to avoid jeopardizing Canada's relationships
with other NATO countries . The second factor was the necessity of reinforcing
adherence to proper security procedures by persons handling classified official
documents .
14 . An aspect of the proceedings which contributed to the public notion that
Treu was being unfairly harassed was the fact that the trial was conducted in
camera . Mr. Justice Kaufman stated in his reasons for judgment in the Court
of Appeal that the "sense of mystery" surrounding the case was thereby
"immeasurably heightened ." It should be pointed out that when the Crown
applied to the trial judge for an order that the trial be conducted in camera,
counsel for Treu advised the court that he had no representations to make on
the application . The position of Treu's counsel was given very limited press
coverage . It can therefore be seen how the public received the mistaken
impression that Treu had become the unwitting victim of a deliberate "persecution" on the part of the government .
15 . The . .most recent case involved publication by the Toronto Sun of a
document classified as "top secret" which outlined suspected Russian espionage activity in Canada . The Toronto Sun and its publisher and editor were
charged with the receipt and subsequent publication of a document in contravention of sections 4(1)(a) and 4(3) of the Official Secrets Act . The charges
were dismissed at the preliminary inquiry stage on April 23, 1979 . The court
concluded that the document, if it had ever been secret, was no longer so .
Earlier disclosures had "brought the document, now `shopworn' and no longer
secret, into the public domain . "
16 . One aspect of the Toronto Sun case, which was the source of much public
comment, was the allegedly arbitrary manner in which the Attorney General
had exercised his discretion in deciding to prosecute under the Official Secrets
Act . Although much of the security information contained in the R .C .M .P .
document "Canadian Related Activities of the Russian Intelligence Services,"
which was published by the Toronto Sun had previously been televised in a
C .T .V . documentary and had been discussed by Mr . Tom Cossitt in the House
of Commons, only the Toronto Sun, its publisher and editor were prosecuted .
16A . It was decided by officials of the Department of Justice not to recommend to the Attorney General of Canada that charges be laid against C .T .V .
6
�since all of the information which had been released by the television network
was considered to have already , become public knowledge. In considering this
question, the Department of Justice had divided the contents of the top secret
document into sixteen different items . Twelve of these items were regarded as
already in the public domain but the other foùr were still considered to be
secret . The C .T .V . programme contained information which was either in - the
public domain or which was not considered to be prejudicial to national
security . The Toronto Sun article, on the other hand, contained information
which had not been published previously and which was considered to be
prejudicial to security .
16B. Unlike C .T .V ., Mr . Cossitt had disclosed some of "the information
contained in the four items still considered to be secret . Although in the
opinion of officers of the Department of Justice there was evidence to support a
charge against Mr . Cossitt under the Official Secrets Act, it was decided by
the Attorney General of Canada, after extensive consultations with the Solicitor General and officials, not to proceed against Mr . Cossitt . According to the
Attorney General an important factor was that Mr . Cossitt might be able to
rely ôn the privilege afforded Members of Parliament to give him immunity
from prosecution .
17 . In the following statement in the House of Commons on March 17, 1978,
the Attorney General explained why he did not give his consent to a prosecution against Mr. Cossitt :
In the present situation, the hon , member for Leeds [Mr . Cossitt] has
made statements in the House which must clearly have been based upon
highly classified national security information . In my judgment, the hon .
member's use of the secret information he was not entitled to have was
contrary to the national interest. However, by law, his statements cannot
constitute the foundation for a prosecution under the Official Secrets Act
since it is well established that no charge in a court can be based on any
statement made by an hon . member in this House .
The hon . member for Leeds did, however, make additional statements .
In my view, these statements did not add substantially to what he had
already said in the House . There is some doûbt as to the extent to which a
court would view these statements as being protected by any parliamentary
privilege or immunity. The existence of this doubt guides me in my decision
whether or not to provide my consent to a prosecution .
The obligation of the Attorney General in deciding whether or not to
provide his consent under the Official Secrets Act calls into play the many
factors I referred to earlier. In my view, an Attorney 'General should not
provide such a consent unless the case is free from substantial doubt.
Having considered the evidence produced in the investigation to date,
and having considered applicable legal and parliamentary principles, I have
concluded that I should not consent to a prosecution against the hon .
member for Leeds .
(Hansard, March 17, 1978, p. 3882 )
7
�18. In both the Treu and the Toronto Sun cases, the Crown prosecutor
worked in liaison with R .C .M .P . officers from both Criminal Investigation
Branch (C .I .B .) and the Security Service . The stage preparatory to the
institution of proceedings by the Justice Department was conducted with the
involvement of the Criminal Investigation Branch of the R .C .M .P ., which was
officially in charge of the investigation . In a later report, we will discuss the
responsibilities of the C .I .B . and the Security Service respectively with regard
to the investigation of espionage offences .
19 . It must be noted that rriany espionage cases are disposed of without
instituting a prosecution or, in fact, without the matter ever' being brought to
the attention of the Department of Justice . If a case involves the participation
of foreign agents or members of a diplomatic staff, it may be expedient to
resolve the problem through deportation, voluntary departure or a declaration
of persona non grata . The persona non grata procedure is instituted by a host
government against foreign diplomats whose activities are regarded as unacceptable or whose conduct is seen as unbecoming that normally expected of
persons working in the diplomatic field . Since 1959, twenty-one diplomats from
the U .S .S .R ., Eastern Europe, and the People's Republic of China have been
declared personae non gratae as a result of engaging in offensive intelligence
activities directed against Canada . In addition, a number of other diplomats
from the same countries and from Cuba have been asked less formally to leave,
for similar reasons . In such cases the machinery of the Official Secrets Act is
not invoked . The decision to declare a diplomat persona non grata is taken by
the Secretary of State for Extérnal Affairs after receiving information from the
Security Service of the R .C .M .P .
8
�Part II:
LEGISLATIVE REFOR M
20 . Any discussion of the reform of the Official Secrets Act is incomplete
without mentioning the relationship of this statute to freedom of information
legislation, since each deals with a different aspect of accessibility to government information . A Freedom of Information Act deals with the type of
government information which must be released on request . It says ' nothing
about the kind of information which may be released by the government . The
Official Secrets Act deals with the. improper communication of information
which has not already been released . Although the two Acts deal with different
concepts, they are interrelated in that the Official Secrets Act creates in the
words of the Franks Committee "a general atmosphere of unnecessary secrecy ." This point is developed by the 1978 British White Paper which refers to
freedom of information laws in its discussion of the Official Secrets Act . The
White Paper states :
This White Paper is mainly concerned with the new legislation for the
reform of section 2 of the Official Secrets Act 1911 ( The Canadian section
4) . Strictly speaking, questions of open government do not depend on
section 2, which is concerned only with the information that needs to be
protected from unauthorized disclosure by criminal sanctions . Nevertheless, the Franks Report suggested .
. that there was a link between the two .
topics and that section 2 had some effect in creating a general aura of
secrecy . The Government believes that section 2 in its present form becaus e
of its very wide ambit does have an inhibiting effect on openness in
government . It is in no doubt that reform of this section is not only a much
needed improvement of the criminal law but a necessary preliminary to
greater openness in government . (pages 18-19)
The 1977 Canadian Government's Green Paper entitled, "Legislation on
Public Access to Government Documents," states that the "broad scope of the
Official Secrets Act," amongst other things, "constitutes a substantial disincentive to any public servant releasing government documents to a citizen ."
(pages 14-15 )
21 . We are convinced that it is wrong to include offences dealing with
espionage and offences dealing with the unauthorized disclosure of government
information in the same statute . These offences deal with fundamentally
different kinds of behaviour and different levels of threat to the state . Continuation of the Official Secrets Act with both offences under the umbrella of
the same legal instrument is inconsistent with the steps being taken in Canada
to achieve greater openness in government .
9
�22 . But much more is needed by way of legislative reform than the mere
dismantling of the Official Secrets Act and the recognition of espionage and
leakage as separate kinds of offences . The definitions' of these offences in the
Official Secrets Act leave much to be desired . As our account of the Act's
historical background indicates, it is now time for this part of our law to be
revised so that it is both clear and in tune with the values and needs of
contemporary Canada .
23. Our plan of attack in making recommendations for this programme of
legislative reform will be to consider how the espionage and leakage offences
should be defined, then to discuss certain problems common to both offences
and finally to indicate the options for locating these offences in the statutes of
Canada .
10
�Part III :
SCOPE OF ESPIONAG E
24. Section 3 of the Act, the "spying" section, provides that :
3 . (1) Every person is guilty of an offence under this Act who for
any purpose prejudicial to the safety or interests of the State,
(a) approaches, inspects, passes over, or is in the neighbourhood of, or
enters any prohibited place ;
(b) makes any sketch, plan, model or note that is calculated to be or
might be or is intended to be directly or indirectly useful to a
foreign power ; or
(c) obtains, collects, records, or publishes, or communicates to any
other person any secret official code word, or password, or any
sketch, plan, model, article, or note, or other document or information that is calculated to be or might be or is intended to be
directly or indirectly useful to a foreign power .
25 . The Official Secrets Act is not the only statute that deals with espionage .
Under Part II of the Criminal Code, entitled "Offences against Public Order,"
section 46(2)(b) provides that :
Everyone commits treason who, in Canada, . . .
(b) without lawful authority, communicates or makes available to an
agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a
military or scientific character that he knows or ought to know
may be used by that state for a purpose prejudicial to the safety or
defence-of Canada .
26. It will be noted that the wording of section 46(2)(b) overlaps with section
3(1) of the Official Secrets Act . We can see no reason for maintaining both
section 3(1) of the Official Secrets Act and section 46(2)(b) of the Criminal
Code .
WE RECOMMEND THAT new espionage legislation incorporate in a
single enactment the offences relating to espionage now set out in section
3(1) of the Official Secrets Act and section 42(2)(b) of the Criminal Code .
[Recommendation I ]
27 . In passing, we would note that this is not the only section of the Criminal
Code which deals with matters relating to national security . Section 52, the
sabotage section, makes it an offence to damage or destroy property for a
"purpose prejudicial to the safety, security or defence of Canada . . ." Other
.
offences in the Code which have security overtones include forging or using a
forged passport (section 58), the fraudulent use of a certificate of citizenship
(section 59), and the offences of speaking seditious words, publishing a
seditious libel or being party to a seditious conspiracy (sections 60-62) .
11
��Part IV:
COMMUNICATING TO A FOREIGN POWER
.INFORMATION PREJUDICIAL TO TH E
SECURITY OF THE STAT E
28 . In considering the wording of offences relating to espionage, we are
anxious that the law be expressed clearly and precisely . As with all crimes, the
citizen is entitled to know what conduct will render him liable to prosecution .
In our view, the Official Secrets Act falls short of the precision that is required
in criminal law .
29 . Furthermore, espionage legislation should deal with communication of
information only when the communication is directed to a foreign power . Such
communications by their very nature will normally be clandestine . As noted
above, offences relating to the leakage of government information should be
dealt with in legislation separate from espionage legislation . We discuss such
leakage offences later in this report .
WE RECOMMEND THAT espionage offences apply only to conduct
which relates to the communication of information to a foreign power .
[Recommendation 2 ]
30 . It has been pointed out that espionage conducted on behalf of a foreign
group, such as 'a terrorist faction, might not fall within the term "foreign
power" used in section 3 of the present Act . This possible omission must -be
corrected to ensure that all such groups are included in the definition .
WE RECOMMEND THAT new espionage legislation define the term
"foreign power" to include a foreign group that has not achieved recognition as an independent state .
[Recommendation 3 ]
31 . A key question concerning the Official . Secrets Act is whether the
espionage section 3(1)(c) should apply only,to the communication of information that is "official and secret ." Section 3(1)(a) speaks of communicating
"any secret official code word, or password, or any sketch, plan, model, article
or note, or other document or information ." To date, all prosecutions in
Canada under section 3 of the Act have been pursuant to section 3(1)(c) . The
words "secret official" did not appear in Britain in the 1889 or 1911 U .K . Acts .
They were, in fact, added by a schedule at the end of the 1920 Act and were
referred to in the Act itself as "minor details ." No one suggested that by
adding these words they were changing the meaning of the 1911 Act . As we
know, the 1911 Act was introduced in part to control the activities of German
agents who weré openly collecting information that was clearly not secret o r
13
�,official (e .g . sketching harbours) . So it is not at all surprising that in Britain, to
quote the Franks Committee, "it is clear that the words `secret official' qualify
only the words `code word, or password' ." (page 125 )
32 . When Canada enacted the Official Secrets Act in 1939, there was no
indication that a substantial departure from the 1911 and 1920 English
legislation was intended . However, Canadian courts have given a different
1
interpretation to the wording of section 3 .
.
33. In the Biérnacki case the charge against the accused was dismissed at the
preliminary hearing . The information being collected by . Biernacki was, according to the judgment, not the type of information contemplated by section
3(1)(c) of the Act . It was held that the words "secret official" qualify not only
"code word or password" but also the rest of the clause, e .g . "secret official . : .
information ." Similarly, in the Toronto Sun prosecutions,,the court assumed
that the information had to be secret . In Boyer (1948, one of the Gouzenko
cases) and the Commission of Inquiry into Complaints made by George Victor
Spencer (1966) the same approach was taken .
34. Whichever interpretation is correct, the section should be redrafted to
remove the existing doubt as to its interpretation . The problem is that the
collation and communication to a foreign power of information accessible to all
Canadians may, in certain cases, be prejudicial to our national security . For
example, the photographing of pipelines, dams, and harbours could be used by
the foreign country for sabotage purposes or for bombing in the event of war .
The report of the, Commission of Inquiry showed that Spencer had supplied
agents of the Soviet Union with names and dates of birth gathered from
tombstones in Canadian cemeteries which could be used in the establishment of
false identities .
35 . The Mackenzie Report stated that the ideal act "should protect unclassified information from attempts at collection and dissemination which are
prejudicial to the interests of the state or intended to be useful to a foreign
power" (page 77) . It is not clear whether the reference to "unclassified
information" meant only that information which is in the government's possession or whether it .included non-governmental information . For our purposes, it
is unnecessary to draw a distinction between the two since the communication
to a foreign agent of information accessible to the public, such as the
"tombstone" in ' gathered by Spencer, may be as prejudicial to
security as the communication to a foreign power of unclassified government
information .
36 . We are convinced that any provision relating to espionage should cover
the disclosure of, or an overt act with the intention to disclose, information
whethér accessible to the public or not, either from government sources or
private sources, if disclosure is, or is capable of being, prejudicial to the
security of the state . We do feel, however, that the communication of information- which is accessible to the public should be a lesser offence than the
communication of secret government information .
14
�WE RECOMMEND THAT new espionage legislation cove r the disclosure
of, or an overt act with the intention to disclose, information whether
accessible to the public or not, either from government sources or private
sources, if disclosure is, or is capable of being, prejudicial to the security
of Canada .
[Recommendation 4 ]
37 . The present Act requires the prosecution to prove that the, accused acted
"for any purpose prejudicial to the safety or interests of theistate ." The treason
section in the Criminal Code, section 46(2)(b), on the other 'hand, refers to
information that may be used by a foreign state "for a purpose prejudicial to
the safety or defence of Canada ." We think that the language of Section 3 of
the Official Secrets Act - "the safety or interests of the state" - is too broad .
We prefer the use of the phrase "the security of Canada . "
38. In Canada, the term "security of Canada" is synonymous with,"national
security ." While one cannot . be exhaustive, "the security of Canada" involves
at least two concepts . The first is the . need to preserve the territory of out
country from attack . The second concept is the need to preserve and maintain
the democratic processes of government . Any attempt to subvert those processes by'violent means is à threat to the security of Canada .
39. If the espionage legislation refers to "the security of Canada," we do not
think it necessary to make a distinction between espionage in wartime and
espionage in peacetime . In the United States, the 1971 Brown Commission,
whose recommendations have not yet been implemetited, recommended that in
wartime there -must be a more extensive definition of espionage than in
peacetime .' The term "security of Canada," however, seems sufficiently flexible
to enable a court to take into considération the special conditions that apply in
wartime when virtually any contact with the enemy is inimical to the security
of the state .
40. We believe that the phrase "security of Canada," if it is used in the
definition of espionage, should be defined with as much precision as is possible
so that people will know the kinds of conduct that will subject them to
prosecution . On the other hand, as we have said, it is not possible to be
exhaustive . Moreover, no matter what detail is added by way of definition, a
judge or a jury is going to have to apply the criteria to the facts of a particular
case . Yet the definition should go at least as far as identifying the two concepts
already mentioned . Perhaps the kind of detail that should be stated is along the
lines used in the Australian Security and Intelligence Organization Bill 1979 .
Its definition of "security," and of several phrases found in that definition, is
found in Appendix III . When we report on the functions of a security and
intelligence agency for Canada we shall have more to say about the meaning of
"the security of Canada . "
41 . To assist in the drafting of the proposed new legislation, we would suggest
that the basic clause setting out the offence of espionage read as follows :
No person shall :
(a) obtain, collect, record or publish any information with the intent
of communicating such information to a foreign power, o r
(b) communicate information to a foreign power ,
15
�if such person knows that the foreign power will or might use such
information for a purpose prejudicial to the security of Canada or acts with
reckless disregard of the consequences of his actions to the security of
Canada .
42 . It will be noted that the proposed offence imposes criminal liability when
an accused has knowledge that a foreign power might use information for a
purpose prejudicial to the security of Canada or acts in a reckless manner
heedless that such consequences may result . Although our proposed language
includes an objective standard, which would apply in cases in which the
accused does not have knowledge of the consequences of his actions, espionage
may result in such serious damage to the security of the nation that we feel
that such an objective standard is required . On the other hand, we would point
out that in s .46(2)(b), the treason section, and in s .212(c), the constructive
murder section, of the Criminal Code, an accused may be convicted if he knows
or "ought to know" the consequences of his actions . In our opinion, however,
the narrower standard of reckless disregard for the consequences is appropriate
for the serious offence of espionage .
WE RECOMMEND THAT new espionage legislation include the following basic provision with respect to the offence of espionage :
No person shall :
(a) obtain, collect, record or publish any information with the intent of
communicating such information to a foreign power, o r
(b) communicate information to a foreign power ,
if such person knows that the foreign power will or might use such
information for a purpose prejudicial to the security of Canada or acts
with reckless disregard of the consequences of his actions to the security
of Canada .
[Recommendation 5 ]
16
�Part V :
OTHER ESPIONAGE OFFENCE S
A . "Prohibited Place "
43 . The Act in section 3(1)(a) contains a complicated definition of "prohibited place" and makes it an offence to "approach," "inspect," or even be "in the
neighbourhood of" such a place . Generally speaking, "prohibited place"
includes defence establishments and places so declared by order of the Governor in Council . There have been no prosecutions in Canada under this section
of the Act . The notion of the "prohibited place" was no doubt sensible in 1911
but is it necessary today? We do not think so . The concept of obtaining
information for a purpose prejudicial to the security of Canada incorporated in
the offence of espionage'discussed above, would cover activities related to
defence establishments, while the offence of sabotage in the Criminal Code
(section 52) would cover damage to property . Section 52 reads as follows :
52 . (1) Every one who does a prohibited act for a purpose prejudicial to
(a) the safety, security or defence of Canada, o r
(b) the safety or security of the naval, army or air forces of any state
other than Canada that are lawfully present in Canada ,
is guilty of an indictable offence and is liable to imprisonment for ten years .
(2) In this section, "prohibited act" means an act or omission tha t
(a) impairs the efficiency or impedes the working of any vessel,
vehicle, aircraft, machinery, apparatus or other thing, o r
(b) causes property, by whomsoever it may be owned, to be lost,
damaged or destroyed .
(3) No person does a prohibited act within the meaning of this section
by reason only tha t
(a) he stops work as a result of the failure of his employer and himself
to agree upon any matter relating to his employment ,
(b) he stops work as a result of the failure of his employer and a
bargaining agent acting on his behalf to agree upon any matter
relating to his employment, o r
(c) he stops work as a result of his taking part in a combination of
workmen or employees for their own reasonable protection as
workmen or employees .
(4) No person does a prohibited act within the meaning of this section
by reason only that he attends at or near or approaches a dwelling-house or
plâce for the, purpose only of obtaining or communicating information .
1953-54, c. 51, s . 52 .
44 . The "prohibited place" subsection was used in England in 1961 in the
Chandler case to extend the Act to cases of sabotage . In that case, members of
the Committee of 100, a group formed to further the aims of the Campaign for
Nuclear Disarmament, were charged with conspiracy to breach the comparabl e
17
�British "espionage" section by physically disrupting the operation of Wethersfield air base then used by American planes carrying nuclear weapons . They
were convicted . Their appeals reached the House of Lords . It was argued that
the section was not meant to cover such conduct but was limited to spying . The
House of Lords dismissed the appeals of the accused persons from their
convictions stating, in the words of Lord Reid, that "it is impossible to suppose
that the section does not apply to sabotage and what was intended to be done in
this case was a kind of temporary sabotage ."' In our opinion, in Canada, such
conduct should be dealt with ûnder the sabotage section of the Criminal Code,
section 52(2)(a), in that the act would impede the "working of any . .
aircraft . "
WE RECOMMEND THAT the provisions of section 3(1)(a) of the
Official Secrets Act relating to a prohibited place be repealed'and not b e
included in new legislation.
[Recommendation 6] '
B . Harbourin g
45 . A person may be convicted under the present section 8 of the Official
Secrets Act if he has knowledge, or if he has reasonable grounds for supposing,
that a person .on his premises is about to commit or has committed an offence .
The marginal note indicates that this section refers to "harbouring spies" and
not to harbouring persons who might merely be guilty of carelessness or
leakage of government information . We think that criminal liability for
harbouring should only apply in cases in which the accused has knowledge that
the person on his premises has committed or is about to commit an espionage
offence .
WE RECOMMEND THAT the provisions of section 8 of the Official
Secrets Act, the harbouring section, be retained but that the new legislation should make it clear that the provisions would only apply in cases in
which the accused has knowledge that the person on his premises has
committed or is about to commit an espionage offence .
[Recommendation 7 ]
C . Possession of Espionage Instrument s
46 . Although it is not now an offence, we think that there should be provision
for the prosecution of persons who, without lawful excuse, are found in
possession of instruments of espionage such as code books, secret writing
materials and microdot equipment . In such a case, the Crown would not be
required to prove that any communication- or other act of espionage has been
committed . The Act now makes it an offence to use false documents of identity
in order . to obtain admission to a "prohibited place" or for any purpose
prejudicial to the safety or interests of the state (section 5) . The possession of
such false documents could be included in the definition of instruments of
espionage and we think that this would be appropriate . The , use of such
documents, however, can be adequately prosecuted under other provisions of
the Criminal Code and we therefore do not think that a similar offence shoul d
18
.
�be contained in the legislation relating to espionage . The wording of the offence
of possession of instruments of espionage could well follow the language of
section 309 of the Criminal Code concerning possession of housebreaking
instruments .
WE RECOMMEND THAT the new legislation include the offence of
possession of instruments of espionage . Under this provision it would be an
offence to be found in possession without lawful excuse of instruments of
espionage, which would include false documents of identity .
[Recommendation 8 ]
D . Secret Foreign Agent s
47. There may be secret foreign agents operating in Canada whose activities
may be detrimental to the security of Canada and yet who could not be
prosecuted under the espionage laws recommended above . For instance, a
secret agent of a foreign power operating over a long period of time may
develop a network of contacts who, in the event of war, would be useful to that
foreign power . Moreover, there is considerable evidence that in recent years
foreign intelligence agencies have changed their emphasis from classical
espionage involving theft of a country's secrets to activities designed to develop
secret agents of influence within strategic sectors of society, such as government, industry and education . These secret agents may not, for a long period of
time, elicit, collect, record or publish information but, nevertheless, their
activities may be inimical to Canada's security interests . However, it may be
difficult to draw the line between the legitimate "lobbying" activities of a
foreign government and the work of an agent of influence .
48 . This problem might be solved in part by the adoption of legislation which
would require all agents of foreign governments to file a detailed registration
statement with the government describing the nature of their agency relationship and the extent of the activities performed on behalf of their foreign
principals . Those who operate as agents and fail to register would be guilty of
an offence . One alternative to the adoption of such legislation would be the
enactment of a provision which would make it an offence to be the secret agent
of a foreign power . The Commission is considering these questions and will be
reporting on them at a later stage .
19
��Part VI :
LEAKAGE
49. Section 4, the "leakage" section of the Official Secrets Act, imposes
criminal sanctions for the improper communication of government information .
It provides that :
4. (1) Evèry person is guilty of an offence under this Act who, having in
his possession or control any secret official code word, or pass word, or any
sketch, plan, model, article, note, document or information that relates to
or is used in a prohibited place or anything in such a place, or that has been
made or obtained in contravention of this Act, or that has been entrusted in
confidence to him by any person holding office under Her Majesty, or that
he has obtained or to which he has had access while subject to the Code of
Serv ice Discipline within the meaning of the National Defence Act or
owing to his position as a person who holds or has held office under Her
Majesty, or as a person who holds or has held a contract made on behalf of
Her Majesty, or a contract the performance of which in whole or in part is
carried out in a prohibited place, or as a person who is or has been
employed under a person who holds or has held such an office or contract ,
(a) communicates the code word, password, sketch, plan, model,
article, note, document or information to any person, other than a
person to whom he is authorized to communicate with, or a person
to whom it is in the interest of the State his duty to communicate
it ;
(b) uses the information in his possession for the benefit of any
foreign power or in any other manner prejudicial to the safety or
interests of the State ;
(c) retains the sketch, plan, model, article, note, or document in his
possession or control when he has no right to retain it or when it is
contrary to his duty to retain it or fails to comply with all
directions issued by lawful authority with regard to the return or
disposal thereof; o r
(d) fails to take reasonable care of, or so conducts himself as to
endanger the safety of the sketch, plan, model, article, note,
document, secret official code word or pass word or information .
(2) Every person is guilty of an offence under this Act who, having in
his possession or control any sketch, plan, model, article, note, document or
information that relates to munitions of war, communicates it directly or
indirectly to any foreign power, or in any other manner prejudicial to the
safety or interests of the State .
(3) Every person who receives any secret official code word, or pass
word, or sketch, plan, model, article, note, document or information,
knowing, or having reasonable ground to believe, at the time when he
receives it, that the code word, pass word, sketch, plan, model, article, note,
document or information is communicated to him in contravention of this
Act, is guilty of an offence under this Act, unless he proves that th e
21
�communication to him of the code word, pass word, sketch, plan, model,
article, note, document or information was contrary to his desire .
(4) Every person is guilty of an offence under this Act wh o
(a) retains for any purpose prejudicial to the safety or interests of the
State any official document, whether or not completed or issued
for use, when he has no right to retain it, or when it is contrary to
his duty to retain it, or fails to comply with any directions issued
by any Government department or any person authorized by such
department with regard to the return or disposal thereof ; o r
(b) allows any other person to have possession of any official document issued for his use alone, or communicates any secret official
code word or pass word so issued, or, without lawful authority or
excuse, has in his possession any official document or secret
official code word or pass word issued for the use of some person
other than himself, or on obtaining possession of any official
document by finding or otherwise, neglects or fails to restore it to
the person or authority by whom or for whose use it was issued, or
to a police constable . R .S ., c .198, s .4 .
50. Although the words "secret official" are used in the section, as we have
already seen they perhaps qualify only the words "code word" and possibly
"password ." Thus, it is possible that all government information, whether
classified or not, is subject to the section . This is clearly the interpretation
given to the comparable section (section 2) of the British Act .
51 . It will be noted also that the section deals with elements of espionage and
with the concept of prejudice to "the safety or interests of the state," which are
intermixed with the idea of communication of government information to
unauthorized persons . The section prohibits :
(i) communication of government information to unauthorized persons .
s.4(l)(a )
(ii) use of government information for the benefit of a foreign power .
s .4(1)(b)
(iii) illegal retention of information . s .4(l)(c )
(iv) neglect or failure to take reasonable care of such information .
s .4(l)(d )
(v) communication to a foreign power, of information which relates to
munitions of war . s .4(2 )
(vi) receipt of government information . s .4(3 )
(vii) retention of information for a purpose prejudicial to the safety or
interests of the state . s .4(4 )
(viii) authorization of the possession of information by other persons .
s .4(4)
52 . The Franks Committee in the United Kingdom, which reported in 1972,
stressed the "catch-all" nature of section 2, which is virtually identical to
section 4 of the Canadian Act :
The main offence which section 2 creates is the unauthorized communication of official information (including documents) by a Crown servant . The
leading characteristic of this offence is its catch-all quality . It catches all
official documents and information . It makes no distinctions of kind, and
no distinctions of degree . All information which a Crown servant learns in
22
�the course of his duty is "official" for the purposes of section 2, whatever
its original source . A blanket is thrown over everything ; nothing escapes .
The section catches all Crown servants as well as all official information .
Again, it makes no distinctions according to the nature or importance of a
Crown servant's duties . All are covered : Every Minister of the Crown,
every civil servant, every member of the Armed Forces, every police officer,
performs his duties subject to section 2 . (page 14 )
53. Similar concerns were voiced in Canada in the debate on the subject in
the House of Commons about the broad scope of our section 4 . On June 9,
1978, Mark R . MacGuigan, who was at the time chairman of the Standing
Committee on Justice and Legal Affairs, said that section 4 :
is so sweeping that it is almost difficult to conceive that in strict law any
minister or public servant could lawfully communicate any significant
information . . .
This is the broadest possible language imaginable . In section 4 the law
allows him to communicate only to a person to whom he is authorized to
communicate or a person to whom it is in the interest of the state to
communicate.
Such a section can have a very chilling effect on the operations of
people in government .
(Hansard 1978, page 6251 )
54. Sir Lionel Heald, a former Attorney General of England, described the
breadth of the English section by stating that section 2 "makes it a crime,
without any . possibility of a defence, to report the number of cups of tea
consumed per week in a government department, or the details of a new carpet
in the minister's room . . The Act contains no limitation as to materiality,
.
substance, or public interest ." (The Times, March 20, 1970 )
55 . Whether or not the Attorney General of England was correct in his
interpretation of the English section 2, there can be no question but that
section 4 of the Canadian Act is too wide in that it imposes criminal liability in
many unnecessary situations . Most of these situations could be handled, as they
now are, by internal disciplinary action . We believe that criminal penalties
should be imposed . for the unlawful disclosure of only certain specified types of
government information . The 1978 British White Paper, for example, recommended that criminal liability attach to the unauthorized disclosure of government information falling into such categories as defence, internal security,
international relations, law and order, confidences of the citizen, and security
and intelligence . Cabinet documents and information pertaining to the value of
sterling were expressly omitted from this list . Law and order and security and
intelligence are the two classes of information with which this Commission is
exclusively concerned .
56 . We believe that it should be an offence to disclose without authorization
government information relating to security and intelligencè whether or not
such information is classified . The British White Paper stated that, "information relating to security and intelligence matters is deserving of the highest
protection whether or not it is classified . This is pre-eminently an area where
the gradual accumulation of small items of information, apparently trivial i n
23
�themselves, could eventually create a risk for the safety of an individual or
constitute a serious threat to the interests of the nation as a whole" (page 16) .
In our view, this observation applies with equal force to Canada .
WE RECOMMEND THAT new legislation with respect to the disclosure
of government information should make it an offence to disclose without
authorization government information relating to security and intelligence .
[Recommendation 9 1
,57. In a prosecution for the unauthorized disclosure of government information relating to security and intelligence the Crown may wish to rely on the
security classification of a document in order to show that disclosure was not
authorized . In this context, the question arises as to whether, in the course of
such a prosecution, a security classification should be considered conclusive or
whether a court should be permitted to review the security classification given
to a document by the government . In the past, this has not been an issue in
Canada or England because all government information, whether classified or
not, has been covered by the Act . The Mackenzie Commission recommended
that in any new legislation the Minister's designation be conclusive . The
Franks Committee also took the position that decisions about classification
should be reserved to the government . The Franks Committee did, however,
recommend a safeguard which required the appropriate Minister to certify that
at the time of the alleged disclosure, as distinct from the time of classification,
the information was properly classified . We would recommend a different
safeguard . We think that a court should not be bound by the government's
classification, even though the judge or jury might be reluctant to disagree with
it . If the courts have the responsibility to determine questions relating to the
security of Canada in the case of espionage, we fail to see why they should not
also have responsibility to review, in the course of a criminal prosecution
involving unauthorized disclosure, the appropriateness of the security classification assigned to government information .
WE RECOMMEND THAT the new legislation should empower the court
trying an offence of unauthorized disclosure of government information
relating to security and intelligence to review the appropriateness of the
security classification assigned to such government information .
[Recommendation lo ]
58. Also, we believe that it should be a criminal offence to disclose government information of a highly sensitive character which disclosure could
adversely affect the administration of criminal justice . In this category, we
would include information relating to the investigation of crime, the gathering
of intelligence on criminal organizations or individuals and the security of
prisons and reform institutions . However, we believe that it should be a defence
to a charge of unauthorized disclosure that the accused believed, and had
reasonable grounds for believing, that the disclosure of such information was
for the public benefit . This defence is consistent with the defences in the
Criminal Code in respect of sedition 61(b) and defamatory libel (section 273) .
WE RECOMMEND THAT new legislation with respect to the unauthorized disclosure of government information should make it an offence to
24
�'disclose government information relating to the administration of criminal
justice the disclosure of which would adversely affect :
(a) the investigation of criminal offences ;
(b) the gathering of criminal intelligence on criminal organizations or
individuals ;
(c) the security of prisons or reform institutions ;
or might otherwise be helpful in the commission of criminal offences .
[Recommendation 11]
WE RECOMMEND THAT it should be a defence to such a charge if the
accused establishes that he believed, and had reasonable grounds for
believing the disclosure of such information was for the public benefit .
[Recommendation 12 ]
59. Section 4 of the Act permits communication by a person only to someone
with whom he is authorized to communicate . If the section were construed so
as to require express authorization in every case in which a civil servant
discusses government business, then many thousands of offences would be
committed every day, particularly with the great increase in consultation that
has been taking place at all levels of government . But the courts would
undoubtedly interpret the section to permit some form of implied authorization . As the Franks Report stated :
Actual practice within the Government rests heavily on a doctrine of
implied authorization, flowing from the nature of each Crown servant's job
. . . Ministers are, in effect, self-authorizing . They decide for themselves
what to reveal . Senior civil servants exercise a considerable degree of
personal judgment in deciding what disclosures of official information they
may properly make, and to whom . More junior civil servants, and those
whose duties do not involve contact with members of the public, may have
a very limited discretion, or none at all . (page 14 )
Thus, the normal process of consultation, the background briefing or even the
government authorized leak, would not contravene the Official Secrets Act .
Nevertheless, this aspect of the interpretation of the section is not as free from
doubt as it should be and implied authorization should be specifically mentioned in the section . Moreover, we believe that it should be a defence to a
charge of unlawful disclosure of government information that even if there was
pot express or implied authority to disclose, the accused had reasonable
grounds to believe and did believe that he was authorized to disclose such
information .
WE RECOMMEND THAT the offence of unauthorized disclosure of
government information relating to security and intelligence and the
administration of criminal justice provide that a person shall not be
convicte d
(a) if he had reasonable grounds to believe and did believe that he was
authorized to disclose such information, or ,
(b) if he had such authorization, which authorization may be express or
' implied . '
[Recommendation 13 ]
60. The most controversial part of the leakage provisions of the Official
Secrets Act is section 4(3) which directly affects the press . This subsection
provides that :
25
�4(3) Every person who receives any secret official code word, or pass word,
or sketch, plan, model, article, note, document or information, knowing, or
having reasonable ground to believe, at the time when he receives it, that
the code word, pass word, sketch, plan, model, article, note, document or
information is communicated to him in contravention of this Act, is guilty
of an offence under this Act, unless he proves that the communication to
him of the code word, pass word, sketch, plan, model, article, note,
document or information was contrary to his desire .
There have been many prosecutions in England under the comparable provision . The prosecution against the Toronto Sun was the first such prosecution
against a newspaper in Canada . The British White Paper (page 17) proposes
that the "mere receipt of protected information" by those who are neither
Crown servants nor government contractors should not be a criminal offence,
but that communication by the recipient should be . This will not satisfy those
who wish to be able to print unlawfully leaked information without fear of
prosecution . Nevertheless, in the case of government information relating to
security and intelligence or the administration of criminal justice, positive
harm would result in most cases if the information were published . Consequently, we agree with the British position that communication of such
information by the recipient be a criminal offence .
WE RECOMMEND THAT the communication of government information relating to security and intelligence or the administration of criminal
justice by a person who receives such information, even though such
information is unsolicited, be an offence .
[Recommendation 14]
61 . Section 4 also makes the following "passive" acts offences :
(i) illegal retention of documents when a person has no right to retain
them or when it is contrary to his duty to retain them . s .4(l)(c)
(ii) retention of documents for any purpose prejudicial to the safety or
interests of the state . s .4(4 )
(iii) failure to take reasonable care of documents or information .
s .4(1)(d)
We agree with the intent of section 4(1)(c) that the retention of certain
government information be an offence . The section should be drafted in such a
way, however, so as to make it clear that there is a duty to return such
documents to an authorized person as soon as po'ssible and without any demand
from the government . In other words, we feel that all citizens, including
members of the press, are under a public duty to return documents relating to
security and intelligence or to the administration of criminal justice should
such documents come into their hands .
WE RECOMMEND THAT it be an offence to retain government documents relating to security and intelligence or to the administration of
criminal justice notwithstanding that such documents have come into the
possession of a person unsolicited and that there has been no request for
the return of such documents .
[Recommendation 15 ]
62 . We do not agree, however, that criminal liability should attach to the
negligence of a civil servant or a government contractor who fails to take
26
�reasonable care of secret government information unless such conduct shows
wanton or reckless disregard for the lives or safety of other persons or their
}iroperty . In other circumstances, the appropriate means of discouraging such
negligence are vigilant administration and disciplinary action .
WE RECOMMEND THAT the failure to take reasonable care of government information relating to security and intelligence or to the administration of criminal justice not be an offence unless such conduct shows
wanton or reckless disregard for the lives or property of other persons.
[Recommendation 16 1
27
��Part VII :
SOME GENERAL ISSUES . .
63 . We now propose to turn our attention to some general issues under the
Official Secrets Act which relate to both espionage and leakage .
A . Attorney General's Fia t
64 . Section 12 of the Official Secrets Act requires that the Attorney General
of Canada give his personal consent to the institution of all prosecutions under
the Act . The section does not appear to apply to a charge of conspiring to
breach the Act since such charges are brought pursuant to the Criminal Code .
Because questions of national security are involved, as well as, in many cases,
international relations, we think that the decision to prosecute, whether it is for
the offence of espionage, or for conspiracy to commit such offences, or for the
unauthorized disclosure of that federal government information discussed in
this report should be made by the Attorney General of Canada . For the same
reasons, it is our view that the conduct of such prosecutions should be the
responsibility of the Attorney General of Canada .
WE RECOMMEND THAT the consent of the Attorney General of
Canada be required for the prosecution of espionage offences, conspiracy
to commit espionage offences, or offences relating to the unauthorized
disclosure of thât federal government information discussed in this report .
Similarly, the conduct of such prosecutions should be the responsibility of
the Attorney General of Canada.
[Recommendation 17 1
B . In Camera Trials
65 . It is a fundamental principle of our democratic system that trials should
be conducted in public and not in secret . Even espionage trials which concern
the security of the state should not be held completely in camera . The Official
Secrets Act does not contemplate a hearing completely in camera . Instead, it
envisages the commencement of proceedings in public and specifically requires
that sentencing take place in public . Section 14(2) of the Act provides that
"the passing of sentence shall in any case take place in public" but that the
court may make an order that "all or any portion of the public shall be
excluded during any part of the hearing," if, "in the course of proceedings
. .. application is made . . that the publication of any evidence to be given or
.
of any statement to be made in the course of the proceedings would be
prejudicial to the interests of the State ." By way of contrast, the American
constitution requires a fully "public" trial . This has resulted in the prosecutio n
29
�having to choose between publicly disclosing information which would be
prejudicial to the interest of the state and the alternative of running the risk of
having the prosecution dismissed if it fails to disclose the information .
66. While section 2(f) of the Canadian Bill of Rights states that an accused
must be "proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal," we should not assume that this provision
will influence the interpretation of the specific words of section 14(2) of the
Official Secrets Act .
67. As we have noted, the in camera hearing in the Treu case gave rise to
considerable controversy . The application for the in camera hearing was made,
to quote the Hon . Otto Lang speaking on behalf of the Minister of Justice,
"because the documents . which would be reviewed included a large number of
NATO documents and testimony of witnesses concerning those documents"
(Hansard 1978 page 6243) . Although the accused's counsel did not formally
consent to a clôsed hearing, neither did he make any objection . Moreover,
when Treu's convictions were quashed by the Quebec Court of Appeal, no
criticism was made of the in camera procedure . In fact, Kaufman, J .A ., was of
the view that the trial judge "faced with an application for the exclusion of the
public .had little choice but to grant this since, at the outset, he could hardly
foresee the nature of the case and the importance of each piece of evidence . His
discretion was therefore severely restricted, and no blame should be attached to
his decision to proceed in camera . It was, at the time, the only safe course to
adopt . "
67A . The Toronto Sun case, which was not held in camera, points out the
difficulties which can be experienced by the prosecution in handling confidential documents and evidence . At an early stage of. the preliminary inquiry, the
defence was given access to the Security Service files by the Crown and
subsequently the defence asked the judge to issue a subpoena to compel
production of R .C .M .P . files . This turn of events was a cause of embarrassment to the Security Service . After extensive consultations had taken place in
Ottawa and the documents had been reviewed by the Solicitor General, it was
decided to rely on Section 41 of the Federal Court Act and refuse to produce
the files . The affidavits of the Solicitor General which were filed in Court
under Section 41 stated that more than 17,000 documents could not be
produced, but that the majority of these documents could be made available to
the trial .judge who could then determine whether they were appropriate for
release . After the Court had made a preliminary examination of . the documents, the Crown changed its position and indicated that the prosecution
would proceed without relÿing on the dôcuments at all . This case illustrates the
importance of adequate consultation before the trial, and indeed where possible
before the charges are laid, among the Security Service, the Solicitor General
and the Attorney Generalof Canada .
68. In our view, it would be in the public interest to have all espionage trials
conducted in public to the greatest extent possible, notwithstanding the consent
of the accused to have, the entire proceedings in camera . This will require th e
30
�presiding judge to hold in camera only those parts of the trial that must be kept
confidential for reason'sof national security .
69 . For these reasons, a pre-trial proceeding in camera might in some cases
reduce or even eliminate the need for an in camera trial . Such a proceeding
could be used in cases in which secret infôrmation is likely to be disclosed in
the course of the prosecution . The judge would be required to rule in advance
of the trial as to the admissibility in public of any intelligence information and
as to the manner in which the testimony of intelligence community witnesses
would be received . In Featherstone, for example, the judge consénted to
witnesses from the Security' Service testifying anonymously in camera on
condition that the testimony; without attribution, would later be releaséd to the
press .
70. The legislation should make it clear that the words "any part of the
hearing" ~ in s .14(2) may not be construed so as to permit the exclusion of the
public for the entirety of the trial except in rare circumstances in which public
disclosure of every part of the evidence would constitute a threat to national
security . Once this is made clear, the prosecution could not, even with the
consent or non-objection of the defence, follow the course of asking for a
completely in camera trial . The prosecution would have to ask for the exclusion
of the public at that point of the trial -when it became necessary to lead
sensitive evidence or became necessary to ask the witnesses for the defence
questions the answers to which would be sensitive .
71 . We therefore are of the view that section 14(2) permitting in . camera
proceedings be retained in respect of . espionage offences and in respect of
unlawful disclosure of those categories of government information discussed
above. Section 14(2) should be amended, however, so that the phrase "prejudicial to the interest of the State" will read "prejudicial to the security of Canada
or to the proper administration of criminal justice ." Finally; in order to
emphasize the duty of the trial judge to hold as'much of the trial as possible in
public, the last clause of section 14(2) might read "but excépt for the
foregoing, the trial proceedings, including the passing of sentence, shall take
place in public ." The section should also provide for an in camera pre-trial
procedure as indicated above .
WE REÇOMMEND with respect to s.14(2) ,of the Official Secrets Act
which permits "in camera" proceedings that:
(a) the provisions of section 14(2) be retained and made applicable to all
offences, either offences in new legislation or in .the Criminal Code, in
which the Crown may be required to adduce evidence the disclosure of
which would be prejudicial to the security of Canada or to the proper
administration of criminal justice .
(b) the phrase "prejudicial to the interest of the state" read "prejûdicial
to the security of Canada or to the proper administration of criminal
justice ."
(c) the last clause of the section read ".but except for the foregoing, the
trial proceedings, including the passing of sentence, shall take place in
public."
31
�(d) the legislation make provision for the holding of an in camera pre-trial
conference for the purpose of dealing with procedural questions relating to the handling of evidence which might have to be received in
camera .
[Recommendation 18 ]
C . Procedure for Trying the Case s
72 . All offences in the Official Secrets Act can be tried either summarily or
by indictment . This is at the option of the Crown whose election cannot be
challenged by the accused . If the Crown proceeds summarily, the possible
maximum penalty is twelve months or a fine of five hundred dollars or both ; if
by indictment, the maximum penalty is fourteen years . The 1920 British
Official Secrets Act also permits a summary trial, but this does not apply to
the espionage section . Perhaps nowhere else in Canadian criminal law is there
such a wide discrepancy between the penalty for the indictable offence and the
penalty for the summary offence . Furthermore, nowhere else in Canadian
criminal law can an accused be deprived of a jury for such a serious offence or
one with such important political overtones . In the case of espionage offences
and leakage offences relating to security and intelligence and the administration of criminal justice, we do not feel that the summary conviction procedure
should be retained .
WE RECOMMEND THAT offences dealing with espionage and the
unauthorized disclosure of information relating to security and intelligence
and the administration of criminal justice should be required to be tried by
indictment and not by summary conviction .
[Recommendation 19 ]
73 . One aspect of . trial by jury which has recently been the subject of
controversy in the United Kingdom is the "vetting" of the jury panel in
advance of the case. In the ABC case, a list of jurors was obtained by an ex
parte application to a judge to enable the prosecution to check the jury panel
for "disloyal" members . (Sunday Times, Oct . 1, 1978) In Canada, the names,
addresses and the occupations of the members of the jury panel are usually
available to the prosecution and the defence in advance of the trial . Furthermore, the Crown in Canada has a very wide right to ask jurors to "stand
aside," which can be used to weed out jurors who might be regarded as
potential security risks .
74. While we believe that the Crown should be permitted to conduct security
checks on prospective jurors, we do not think that the Crown should have any
greater right than the defence to obtain a list of jurors in .advance of the trial .
If such a list is obtained, then both sides should be able to make whatever
inquiries are permitted in any criminal case .
WE RECOMMEND THAT the Crown have no special right to "vet" a
jury in security cases over and above the rights now provided in the
Criminal Code and under provincial law .
[Recommendation 20 ]
32
�75 . It is not clear whether jurors who hear evidence in camera are governed
by the existing leakage'provisions of the Official Secrets Act . Prestimably they
are . In' our opinion, the legislation should specifically provide that jurors are
subject to the leakage provisions .
WE RECOMMEND THAT new legislation provide that jurors - who
participate in proceedings in camera be subject to the offences relating to
the unauthorized disclosure of government information .
[Recommendation 21 ]
D . Penaltie s
76 . The penalties imposed by the Act need to be reassessed . In our opinion,
the penalty for espionage may be too low whereas the penalty for leakage is
clearly too high .
77. The penalty for espionage is now a maximum of fourteen years, having
been raised in 1950 from seven years . Espionage is an extremely serious
offence . Its extraordinary gravity in certain circumstances is illustrated by the
fact that the English courts have imposed extremely long sentences (Blake in
1961 received 42 years) by resorting to the imposition of cumulative sentences
on multiple counts. We consider the maximum sentence for espionage should
be life imprisonment to be imposed in the discretion of the trial, judge in
appropriate cases . On the other hand, as noted above, if the information
communicated to a foreign power is information accessible to the public then
the penalty should be less .
WE RECOMMEND THAT the maximum penalty ' for espionage be life
imprisonment, except in the case of the communication to a foreign power
of information accessible to the public in which case the maximum penalty
should be six years.
[Recommendation 22 ]
78 . The fourteen year penalty is surely inappropriate for leakage cases . The
maximum penalty in Britain is now only two years . In our opinion, the penalty
should be more in line with section 111 of the Criminal Code, dealing with
breach of trust by a public officer, which carries a maximum penalty of six
years .
WE RECOMMEND THAT the maximum penalty in a case of unauthorized disclosure of government information relating to security and intelligence or the administration .of criminal justice, be six years .
[Recommendation 23 ]
E. ' Presumptions and Attempt s
79 . The Act's "unusual evidential and procedural provisions" appeared to the
Mackenzie Commission to be "extraordinarily onerous ." (page 23) There is no
doubt that the extent of the evidentiary provisions in section 3 of the Official
Secrets Act is unusual and probably unnecessary . Some of the provisions were
introduced in 1911 to make it easier for the Crown to-prove that the accused's
purpose was prejudicial to the interests of the state . Further and stronge r
33
�evidentiary provisions were added in the 1920 legislation . The relevant parts of
section 3 read as follows :
3 . (2) On a prosecution under this section, it is not necessary to show that
the accused person was guilty of any particular act tending to show a
purpose prejudicial to the safety or interests of the State, and, notwithstanding. that no such act is proved against him, he may be •convicted if,
from the circumstances of the case, or his conduct, or his known character
as proved, it appears that his purpose was a purpose prejudicial to the
safety or interests of the State ; and if any sketch, plan, model, article, note,
document or information relating to or used in any prohibited place or
anything in such a place, or any secret official code word or pass word is
made, obtained, collected, recorded, published or communicated by any
person other than a person acting under lawful authority, it shall be
deemed to have been made, obtained, collected, recorded, published or
communicated for a purpose prejudicial to the safety or interests of the
State unless the contrary is proved .
(3) In any proceedings against a person for an offence under this
section, the fact that he has been in communication with, or attempted to
communicate with, an agent of a foreign power, whether within or outside
Canada, is evidence that he has, for a purpose prejudicial to the safety or
interests of the State, obtained or attempted to obtain information that is
calculated to be or might be or is intended to be directly or indirectly ûseful
to a foreign power .
(4) For the purpose of this . section, but without prejudice to the
generality of the foregoing provisio n
(a)~ a person shall, unless he proves the contrary, be deemed to have
been in communication with an agent of a foreign power i f
(i) he has, either within or outside Canada, visited the address
of an agent of a foreign power or consorted or associated
with such agent, o
r (ii) either within or outside Canada, the name or address of, o r
any other information regarding such an agent has been
found in his .possession, or has been supplied by him to any
other person, or has been obtained -by him from any other
person ;
(b) "an agent of a foreign power" includes any person who is or has
been or is reasonably suspected of being or having been employed
by a foreign power either directly or indirectly for the purpose of
committing an act, either within or outside Canada, prejudicial to
the safety or interests of the State, or who has or is reasonably
suspected of having, either within or outside Canada, committed,
or attempted to commit, such an act in the interests of a foreign
power; an d
(c) any address, whether within or outside Canada, reasonably suspected of being an address used for the receipt of communications
intended for an agent of a foreign power, or any address at which
he resorts for the purpose of giving or recéiving communications,
or at which he carries on any business, shall be deemed to be the
address of an agent of a foreign power, and communications
addressed to such an address to be communications with such an
agent.
34
�80 . Section 3(2) of the Act makes"it easier for the Crown in a variety of
ways . In the first place, it states that "it is not necessary to show that the
accused person was guilty of any particular act tending to show a purpose
prejudicial to thé safety or interestsof the .State." This makes clear what would
probably . have been the interpretation in any case . The section also says that
the accused "may be convicted if, .from the circumstances of the case, or his
conduct, or his known character as proved it appears that his purpose was a
purpose prejudicial to the safety or interests of the State ." This provision
changes the law because it allows as evidence material concerning the
accused's character which would not normally be permitted as evidence-inchief in a criminal case, and because it allows the introduction of similar fact
evidence which is not usually permitted . • Finally, the section provides that, if
any information relating to a prohibited place is unlawfully communicated, "it
shall be deemed to have been . .. communicated for a purpose prejudicial to
the safety or interests of the State unless the contrary is proved," thus shifting
the onus of proof from the Crown to the accused person . It is interesting to
note that the American Justice Department had proposed legislation in their
1911 Espionage Act modelled on this section of the British Act, but it was
eliminated by the House Judiciary Committee on the ground that it was
regardéd as "not fâir . "
81 . Section 3(3) provides that the fact of an accused's communication with a
foreign agent "is evidence that he has, for a purpose prejudicial to the safety or
interests of -the State, obtained or attempted to obtain information that . . .
might-be .-. . useful to a foreign power ." Section 3(4) provides that a person
"shall, unless he proves the contrary, be deemed to have been in communication with an agent of a foreign power" if he has visited the address of the agent
or associated with the agent or the name or address of the agent is found in his
possession . "Agent" . is . defined to include any person who is "reasonably
suspected" of being employed by . a foreign power for the purpose of committing an act-prejudicial to the safety or interests of the state .
82 . . These provisions would appear to us to be unnecessary . Convictions can
surely be obtained in serious espionage cases without them . This was the view
of one of the principal prosecutors in the Gouzenko trials, John 'Cartwright,
later the Chief Justice of Canada, who stated that he did not "think that any of
those who were convicted were convicted because of any special statutory
presumptions .which the Act contains ." (quoted in Hansard 1950, page 4013)
In our. opinion, the, Crown~ .does not require the assistance of these unusual
presumptions, especially having regard to the normal inferences that a judge
and jury can draw from circumstantial evidence .
WE RECOMMEND THAT the presumptions' in favour of the Crown in
section 3 of the Official Secrets Act not be incorporated in the new
legislation .
[Recommendation 24 1
83 . Section 9 of the Act establishes the following as offences:
(1) an attempt to commit any offence under the Act
(2) the soliciting, incitihg or persuading of another person to commit
an offence
35
�(3) the aiding and abetting the commission of an offence, and,
(4) the doing of any act preparatory to an offence .
Although we agree with the general purpose of this section, we do not feel that
there is any justification for an offence of doing of'"any act preparatory to the
commission of an offence ." Making an offence of an act of mere preparation,
as distinct from conspiring to commit an offence, is beyond the normal scope of
the criminal law (although comparable language is used in the Code in relation
to the extremely grave offence of high treason, s .46(2)(d)) . We therefore
recommend that the offence of preparatory acts be repealed .
WE RECOMMEND THAT the offence of doing an act preparatory to the
commission of an offence under the Official Secrets Act be removed but
that the other offences found in section 9 be retained in the new legislation
and made applicable to the offences of espionage and the unauthorized
disclosure of government information relating to security and intelligence
and the administration of criminal justice .
[Recommendation 25 ]
F . The Applicability of the La w
84 . The espionage and leakage laws apply to all persons who commit an
offence within Canada . Where such conduct occurs abroad, the Official
Secrets Act applies to those persons who were Canadian citizens at the time of
the commission of the offence (section 13(a)) or who owed allegiance to the
Crown at the time the document or information was obtained (section 13(b)) .
In our opinion, these provisions should continue to apply to espionage offences
and to leakage offences relating to security and intelligence . This permits
prosecution in broader circumstances than those provided under section 46(3)
of the Criminal Code relating to treason, which appears to allow a defector
from Canada to avoid a treason charge if he communicates secrets after he
leaves Canada and after he has renounced his citizenship . We believe that such
a person should not be able to escape a conviction under the Official Secrets
Act should he return to Canada .
WE RECOMMEND THAT the provisions of sections 13(a) and 13(b) of
the Official Secrets : Act which make the Act applicable to offences
committed abroad be retained in the new legislation .
[Recommendation 26 ]
85 . It should be noted that the Official Secrets Act is also applicable to the
disclosure of provincial information because section 4 applies to information
obtained "owing to his position as a person who holds or has held office under
Her Majesty" and that the latter phrase is defined by section 2 to include "any
office or employment in or under any department or branch of the government
of Canada or of any province . . . ." There have been no reported cases relating
to the disclosure of provincial information .
G . Location of the Provision s
86 . In order to effect our recommendations, we feel that the Official Secrets
Act should be repealed and replaced with new legislation . This .legislation in so
36
�far as it relates to espionage could- take the .form of a new act or an equally
acceptable solution would be to place all national security offences in one part
of the Criminal Code .
.
~
WE RECOMMEND THAT the Official Secrets Act be' iepealed and ' '
replaced with new , legislation with respect to espionage, which should•be
incorporated in a new statute or placed in one part of the Criminal Code
with all other national security offences .
[Recommendation 27 ]
87 . As we have stated above, espionage is quite distinct from the léakage of
government information and therefore offences relating to leakage should be
clearly separated from national security offences either in a separate statute
dealing with government information or in a different part ôf'the Criminal
Code .
WE RECOMMEND THAT the legislative provisions with respect to the
unauthorized disclosure of information relating to security and intelligence
and the administration of criminal justice be clearly separated from the
legislative provisions with respect to espionage.
[Recommendation 28 ]
37
��FREEDOM OF INFORMATION
Introductio n
88 . , We turn now to another aspect of security and information, viz ., freedom
of . information legislation . . It will be recalled that, unlike the "leakage"
provisions canvassed above, freedom of, information legislation affords a general public right of access to government information, and not a prohibition
against its disclosure . Such a statutory right of access is invariably qualified by
the exemption of certain classes of documents from disclosure, such as cabinet
minutes and national defence matters .
89 . Our terms of reference do not allow us to make any comments on the
merits or demerits of freedom of information legislation per se . However, we do
believe that it is within our mandate to make recommendations as to how such
legislation should apply to security and intelligence activities and the administration of criminal justice . Consonant with the principle of openness in
government, there is a considerable body of information relating to security
and intelligence activities which can and should be made public. Such things as
the mandates (role and functions) of the security agencies, the general controls
regulating their activities (permissible powers of investigation) and the manner
of their accountability should be debated in public and the government's
position should be made known . But there are areas of the government's
security and intelligence activities which cannot be made public without
completely destroying their effectiveness . Similarly, there are areas of the
administration of criminal justice as to which the disclosure of information
would cause grave damage to the criminal justice system .
90 . Underlying the principle of openness in government is the assumption
that such openness will aid in making the government more accountable to the
governed . In the fields of security and intelligence and the administration of
criminal justice we believe that there is considerable scope for openness but on
the other hand there are a number of specific types of information which
should remain secret . We appreciate that there are two ways of approaching
freedom of information legislation . The general principle can be either that all
government information is to be accessible to the public except for certain
specified information which is to remain secret, or that all government
information is to remain secret except for certain specified information which
is to be made public. Similar principles can be applied to any particular
category of government information as, for example, security and intelligence .
We do not feel that it is necessary or appropriate for us to decide what the
general principle should be . In this report we have set out certain categories of
security and intelligence information that we think should be made public and
we have recommended categories of security and intelligence information an d
39
�administration of criminal justice information that we feel should remain
secret . In describing those categories in this report we have referred to them as
exemptions : this has been done on the assumption that Parliament will opt for
the general principle that openness should be the rule and secrecy the exception . We wish to emphasize that in those areas where non-disclosure is to
prevail methods of accountability can and should be implemented which will
serve as a satisfactory substitute for public disclosure, and will also protect
individuals aggrieved by the security apparatus of government or the crimina l
justice system .
91 . A related matter to be examined is whether, in judicial proceedings, there
should be statutory provisions limiting disclosure of evidence concerning questions of security and intelligence, and the nature of any such provisions .
40
�Part I:
,PROTECTION OF SECURITY AND
INTELLIGENCE INFORMATION FRO M
DISCLOSURE UNDER FREEDOM
OF INFORMATION LEGISLATIO N
A . The Competing Interest s
92 . There are a number of competing interests which must be balanced in
determining how much security and intelligence information ought to be
protected from disclosure . There are two main interests which weigh in favour
of relaxing the strictures on disclosure of such information . First, there is the
public's interest in the scrutiny and control of all arms of government,
including the security activities . A broader public consciousness of security
agencies' operations, generated by greater freedom of information, might go
some distance in satisfying this interest . Also militating in favour of greater
openness is the right of a citizen to some recourse if he believes he has
unjustifiably been adversely affected by the security machinery of government
(e .g., failure to obtain a security clearance) .
93. The reason for greater secrecy, on the other hand, is simple but weighty :
if the government is to function effectively in the security and intelligence field,
then most, although not all, of its operations and activities must remain secret .
If the operational and investigative techniques and structures are revealed and
the extent of resources and capabilities is known, the effectiveness of the
activities is being undermined . It is essential to bear in mind that serious
threats to the security of Canada are posed by foreign intelligence agencies and
terrorist groups . These organizations are highly secretive and have developed
sophisticated and well financed techniques for obtaining information about the
counter-intelligence operations directed against them . A right of access to the
operational or organization files relating to security and intelligence would
virtually destroy the government's capacity for maintaining surveillance of
foreign intelligencé agencies and terrorist groups operating in Canada .
94 . In balancing the interests which are involved we feel that much more
information with respect to security and intelligence can be made available
than has been the case in the past . All of the general authority granted to the
government's security and intelligence agencies (the definition of their role and
functions), all the general controls imposed on those activities (their permissible powers of investigation) and the manner of their accountability can and
should be the subject of public knowledge and debate . However, we believe
that virtually all operational and administrative security and intelligenc e
41
�information must be exempt from disclosure under freedom of information
legislation . The following factors lead us to this latter conclusion .
(a) Penetration is one of the principal modes of operation of hostile
intelligence agencies . Such penetration is assisted immeasurably by the
use by hostile agencies of operational and administrative information
obtained under freedom of information legislation, unless adequate
exemptions are provided .
(b) Security and intelligence activities cannot be carried out effectively
without the . use of informants . Informants are the main source of
information for security and intelligence agencies . Whether the informants are paid or voluntary they invariably provide the information on
the basis that their identity will be kept secret and that every effort will
be made to ensure that it remains so . Their reasons for wanting their
identity to remain secret are myriad and include fear of physical
retaliation, harassment or ostracism . Any uncertainty about the ability
of agencies to keep sources confidentiâl will result in a "drying up" of
such sources .
(c) Information provided by foreign governments and foreign intelligence
agencies is usually given on the express undertaking that it will not be
disclosed to anyone outside of the agency to which it is provided . If
confidentiality cannot bé gûaranteed for this information it too will
"dry up" .
(d) Disclosure of the identities of organizations and individuals which are
-the targets of the security and intelligence agencies or the methodology
used in the "targetting"-would permit the targets to take action to
thwart the investigations of the agencies .
(e) There are alternative means of satisfying the competing interests
mentioned above .
We gain additional comfort in our conclusion by the lessons drawn from a
comparative study of freedom of information legislation in other western
democracies, which we discuss below .
95 . Let us first examine what alternative measures would satisfy the societal
interests which are at stake in determining the extent of freedom of information legislation exemptions. There are a number of ways of ensuring informed
democratic scrtitiny and control over government security, and intelligence
activities besides legislatiôn providing for' disclosure of information . For example, there might be rigorous scrutiny mechanisms, subject to democratic
control, which could review and survey such activities as well as make public
enough information to satisfy the electorate that :
(i) the security needs of the country are being met ; and
(ii) the conduct of the security and intelligence agencies is acceptable .
As for the desirability of an individual citizen having assurance that confidential government information concerning him is accurate and is not being
misused, there are certainly alternatives to his having immediate recourse to
the government's security and intelligence files . There might be a board of
review or appeal which could investigate and'adjudicate upon the case of the
individual who has been refused a security clearance, or even of an individual
who suspects that he is being monitored or interfered with by the government's
security and intelligence activities . It is more difficult, indeed impossible t o
42
�find alternatives to secrecy as a condition for the effective operation of the
government's security and intelligence activities . The more that is revealed
about the government's capabilities, priorities and techniques, the easier it will
be for hostile agencies and "targetted" organizations and individuals to counter
its efforts .
96 . Thus, while the interests of an informed electorate and of fair treatment
of citizens by the security apparatus of government may be met otherwise than
by opening the government's security and intelligence files to the public,,there
are no practical alternatives to the requirement of secrecy as a condition of the
effective functioning of that security apparatus .
97 . It should also be pointed out that allowing public access to most security
and intelligence files would not really promote the interest of democratic
control over the security agencies, and would not offer much protection to the
individual with "security" problems . For as a means of monitoring security and
intelligence activities, freedom of information legislation is at best a haphazard
way of "spot-checking" those activities . The capacity of freedom of information legislation to attain this goal would depend on the chance that the files
requested are those which would reveal undesirable or improper activity, and
that the right requests for general information are made . Further, there is no
guarantee that truly important information will be released, such as a document indicating a breakdown in the chain of authority . The function of
scrutinizing the operations of a security or intelligence agency should be
systematic and continual . It is a sensitive and important task, which must be
performed assiduously by highly competent people who are also responsible to
democratically elected representatives . A freedom of information law, as an aid
to the public in policing security and intelligence activities, is of dubious
effectiveness . In the case of the individual who believes he has been wronged by
a security or intelligence agency, the simple knowledge of what information the
government has on him is not in itself enough : he must be allowed to state his
case and he must have a remedy . This right to be heard and to obtain redress
may be possible without his having access to security and intelligence files .
98 . Support for our view is found in the experience of some other western
democracies . Seven foreign states have been surveyed ; the United States, Great
Britain, Australia, Sweden, Norway, Finland and Holland . Britain does not
have any freedom of information legislation . Sweden, despite its deserved
reputation for open government and its constitutionally entrenched freedom of
information law, has framed its statutory exemptions broadly enough to cover
comfortably the activities of its security and intelligence service . Such is also
the case with Norway and Finland, which have broad security exemptions . The
freedom of information proposals in the Netherlands and Australia would
clearly exempt security and intelligence agency files . The difficulties encountered by U .S . security and intelligence and law enforcement agencies which
have arisen as a result of loosely drafted security exemptions have been fairly
well documented . The main problems faced by these agencies are the disclosure
of certain information from investigative files, the release of material which
sheds light on investigative techniques and procedures, and the revelation o f
43
�information which is helpful in the identification of confidential sources . These
problems are serious ones, and serve to alert us to the dangers of incomplete
protection of the government's security and intelligence files from a public
right of access.
B . Protecting those Interests Affected by
Non-Disclosure of Security and Intelligence
Informatio n
99 . It is important that we add one qualification to our position against
disclosure of certain security and intelligence information . The adoption of
such an approach to security and intelligence exemptions must be conditional
on the early establishment of measures which will satisfy the need for informed
democratic control over the security agencies, and which will protect the rights
of individual citizens who feel aggrieved by the security machinery of
government .
100. We are committed in principle to the establishment of new, more
effective, democratically responsible mechanisms and procedures to oversee
and control the government's security activities . There are several forms of
scrutiny and control mechanisms which we are considering . We are still
developing our proposals in this regard, and will make our recommendations in
detail in a later report . One method of control to which we are firmly
committed is that each security agency should be required to disclose to the
appropriate Attorney General any evidence in that agency's records of illegal
or improper conduct by members of the agency . We are examining the
mechanisms whereby that may be achieved .
101 . Throughout this Report we refer to the government's "security and
intelligence activities" and to "security and intelligence agencies" . These
phrases require more precise definition . At the present time there is little public
knowledge of the responsibilities of various components of the "security and
intelligence community", aside from the 1975 Cabinet Directive to the
R .C .M .P . Security Service . A prime responsibility of our Commission is to
make recommendations to the government of Canada as to the form and
content of the mandate which should govern the security service's activities in
the future . This we shall do in a later report . Unless the mandates of the other
agencies of government responsible for security and intelligence are also clearly
spelled out in some public form, there will be great uncertainty about the
application of the exemptions we are recommending . Those responsible for
applying and reviewing the application of the exemptions will otherwise lack
any clear guide as to which agencies' files are to be protected . Therefore, in our
view, the government, in order to ensure proper administration of the exemptions, should publish, so far as possible, the terms of reference of all agencies of
government carrying out security and intelligence activities .
44
�C . Specific Security and Intelligence
Information that should be Protecte d
102 . What specific types of information pertaining to the government's
security and intelligence activities need protection? We find that the' main
classes of such information are :
1 . operations file s
2 . intelligence information files
3 . information obtained from confidential sources
4 . policy papers and intelligence analyse s
5 . manuals and directives of security and intelligence agencies
6 . management, personnel and financial information, of security and
intelligence agencies
7 . resources information with respect to security and intelligence agencies
8 . information received in confidence from foreign governments and
security and intelligence agencie s
9 . structures of security and intelligence agencie s
10 . intra-governmental structural relationships respecting security and
intelligence
11 . inter-governmental structural relationships respecting security and
intelligence
These classes should be explained briefly .
103. Operations files would include records of past and present security and
intelligence investigations and operations . The need for secrecy with regard to
what the security and intelligence agencies are doing, and what they have done,
seems clear . Disclosure of such information would assist hostile agencies and
"targetted" organizations and individuals in their attempts to neutralize
Canadian security and intelligence operations .
104. Intelligence information files would comprise both highly sensitive
information and apparently innocuous pieces of knowledge (e .g ., néwspaper
clippings) . The release of either type of information would assist hostile
agencies and "targetted" organizations and individuals in divining what our
security agencies know, what they do not know, and, in the case of newspaper
clippings and other "low sensitivity" information, what specific matters the
agencies are interested in .
105 . Information obtained on the basis that the source will remain confidential would include information from individual informants which, if released,
might reveal their identities . Also protected should be information obtained
from other Canadian security and intelligence organizations, law enforcement
agencies, and public institutions such as hospitals and universities . Release of
such information would quickly discourage informants, be they individuals,
agencies, organizations or institutions, from entrusting confidential information
to the security agencies .
106 . Policy papers and security analyses would include documents relating to
the role and operations of the security and intelligence agencies, as well as
perceived security threats . Release of such information would enable hostil e
45
�agencies to chart the direction and plans of our security and intelligence
agencies .
107 . Security and intelligence agencies' manuals and directives would
include internal documents comprising operational, procedural and technical
instructions to security and intelligence agencies' members . Disclosure of such
information would reveal to hostile agencies, in precise detail, how the security
or intelligence agency operates .
108 . Management, personnel and financial information would relate to documents concerning the command structures of the security and intelligence
agencies, their personnel policies and practices and their planning and management systems . It would also include any details of the financing of the agencies
but would not include general information about the overall costs of the
government's security and intelligence activities . Release of any detailed
information would assist hostile agencies in their efforts to penetrate the
security and intelligence agencies .
109 . Resources information would include documents relating to human,
physical and technical resources of the security and intelligence agencies .
Disclosure of this information would reveal to hostile agencies the capabilities
and limitations of our security and intelligence agencies .
110 . Information received in confidence from foreign governments and security and intelligence agencies comprises a large part of the information of
Canadian government security and intelligence agencies . Virtually all of that
information is delivered to our agencies on the distinct understanding that it
will not be disclosed without the express prior consent of the supplier . Unless
such understandings are honoured the foreign governments and agencies will
cease to supply the information, which would have a crippling effect on our
agencies' effectiveness .
111 . Information concerning the structures of our individual security and
intelligence agencies and the intra-governmental and 'inter-governmental
structures in which they operate would serve as invaluable data in the hands of
hostile security agencies, both for purposes of penetration and for thwarting the
activities of our security and intelligence agencies . Such information is indispensable to a hostile agency if it is to fully understand the operations of our
security and intelligence agencies .
D . The Method of Protection of Security
and Intelligence Informatio n
112 . The drafting of security and intelligence exemptions in freedom of
information legislation is extremely complex . Indeed, the question of how the
information is protected is as important as the initial decision as to what should
be protected . While we do not intend to assume the role of the legislative
draftsman, we have some comments on how certain security and intelligence
leakage problems may be avoided by certain drafting techniques .
46
�113 . First, we believe there should be a special exemption for security and
intelligence documents . "Law enforcement", "national defence" and "foreign
relations" extend to only part of security and intelligence agencies' activities .
They do not cover, for example, the collection and dissemination of domestic
intelligénce which has for its end something other than law enforcement
proceedings, as, for example, security clearance investigations . Nor is it
realistic to describè much of the work of investigating activities of foreign
intelligence agents as "law enforcement" or "national defence" . Frequently the
reason the activities of such groups or persons are of concern is not because
there is an imminent danger that they will break the law or because their
activities will lead to an invasion in the foreseeable future . The extreme
sensitivity of this area of government operations requires that such an exemption be heavily weighted in favour of secrecy, more so than is required for
matters such as trade secrets and internal working papers of departments.
WE RECOMMEND THAT there be a specific exemption from disclosure
in freedom of information legislation for certain security and intelligence
documents .
[Recommendation 29 ]
114 . Second, the security and intelligence exemption should be frâmed so
that it covers not only documents in the files of the security and intelligence
agencies, but also information in any other government departments, such as
the Department of the Solicitor General and the Privy Council Office, which
relates to the security and intelligence subject matters discussed above .
WE RECOMMEND THAT the exemption for security and intelligence
documents extend to all departments and agencies of the government .
[Recommendation
30]
115. Third, the statutory test used to determine whether a request for
information may be granted should be one which refers to the nature, or
subject-matter, of the document requested . It should not be a test which
requires the assessment of possible or probable harm to a specified interest
which might'be suffered if the material in question is disclosed . The disadvantage of such a "damage to interest" test is in the difficulty of its application to
highly sensitive material such as security and intelligence information . The
task of forecasting accurately damage which may be incurred by the release of
security information is impossible . Especially when this test is coupled with a
"severability" requirement (i .e ., that if only a portion of the record is sensitive,
then only that part is to be retained and the rest of the record released), the
judgment whether the release of certain parts of the document would or could
harm the specified interest becomes an exceedingly delicate and complex
decision. It is easy even for a skilled intelligence analyst to make a mistake,
especially in a case where it is a question of deciding whether the disclosure of
certain facts might help a target identify a confidential source . Moreover, in
security and intelligence as in no other area of government information
gathering, such a test would impose a real difficulty upon the government's
security and intelligence agencies . Security intelligence usually consists of a
large number of facts, any one of which standing alone appears to be
insignificant . However, the sum of them may be significant . To require
47
�disclosure of one, then of another, . then of yet another fact would reveal to a
hostile agency enough of the picture to enable it to ascertain what success the
agency has had in its investigations .
116 . The advantage of the "nature of the document" test, on the other hand,
is that it is easier to apply and entails less risk of error . It asks simply, "What is
the subject matter of the document?", or "To what does the document relate?"
If the document relates to an exempt subject matter, then it is not to be
released . This test seems particularly suited to the more sensitive areas of
government policy, such as security and intelligence matters .
117 . If a "severability" or "segregability" clause is included in freedom of
information legislation, requiring a line-by-line scrutiny of classified documents
and the release of all non-sensitive information, we feel that it should not apply
to security and intelligence matters . It is not always easy, especially if a
"damage to interest" test is being applied, to determine whether requested
information falls within an exempt category . The decision becomes much more
difficult when it is a matter of editing words and phrases from a sensitive file in
order to release the "innocuous" parts . In the case of a file containing
information obtained from a confidential source, for example, how is one to
know which bits of information, individually or taken together, might provide
the missing piece of data for someone who is attempting to identify the
confidential source? Thus, in security and intelligence matters, a severability
provision would multiply the problems involved in keeping potentially damaging information from being released .
WE RECOMMEND THAT there be a specific exemption from disclosure
in freedom of information legislation of the whole of all ' security and
intelligence documents relating to or consisting of :
1 . security and intelligence operations
2. security intelligence informatio n
3 . information obtained from confidential sources
4. policy papers and intelligence analyse s
5 . manuals and directives of security and intelligence agencie s
6 . management, personnel and financial information of security and
intelligence agencies
7 . resources information
8 . information received in confidence from foreign governments and
security and intelligence agencies
9 . structures , of security and intelligence agencies
10 . intra-governmental structural relationship s
11 . inter-governmental structural relationships
[Recommendation 31 ]
/
118 . Our fourth point with regard to the drafting of a security and intelligence exemption is that the security and intelligence agency should not be
required, in the case of requests for investigative reports and intelligence
information, to disclose whether or not a record actually exists . We wish to
avoid the situation where an individual applies for a security record concerning
himself and, although he is denied his request, is in effect told that such a
record exists. In this way for example, a hostile agent, could learn whether or
48
�not a security or intelligence agency has a record of his activities . Equally
important, he could find out that there is no record on him in the agency's files .
The only real solution would appear to be to frame the exemption sô that the
refusal to inform the applicant as to the document's existence is answerable
merely by reference to the information contained in the request . This would
ensure that the denial relates to the request, and not to a document whose
existence should remain unknown .
WE RECOMMEND THAT the freedom of information legislation provide that in responding to a request for a document or documents which
fall into any of the exempt categories the government be empowered to
reply that the request for such document or documents falls within such
categories and the government refuses to disclose the existence or nonexistence of such a document or documents .
[Recommendation 32 1
119 . Our fifth and final comment with regard to the drafting of security and
intelligence exemptions is that, in addition to the special exemption which
would apply only to security and intelligence matters, there should be a
secondary "security of Canada" exemption . The phrase "security of Canada"
should be carefully defined and we will be making recommendations in that
regard in a later report . This general exemption would employ a "damage to
the security of Canada" test, and would apply to all classes of government
information . Thus if a document did not meet the subject-matter criteria of the
security and intelligence exemption (or any other exemption), but could, if
released, reasonably be expected to threaten the security of Canada, as
carefully defined, then the information should be withheld .
WE RECOMMEND THAT any documents not included in the previously
mentioned exemptions which could, if released, reasonably be expected to
threaten the security of Canada, be exempted from disclosure under
freedom of information legislation .
[Recommendation 33 1
49
��Part II :
PROTECTION OF ADMINISTRATION OF
CRIMINAL JUSTICE INFORMATIO N
FROM DISCLOSURE UNDER
FREEDOM OF INFORMATION LEGISLATION
120 . In the section of this report dealing with the leakage of govérnment
information we made a recommendation that it be an offence to disclose
certain government information disclosure of which could adversely affect the
administration of criminal justice . Clearly all such information should also be
exempted from disclosure under freedom of information legislation .
WE RECOMMEND THAT any information relating to the administration of criminal justice the disclosure of which would adversely affect
(a) the investigation of criminal offences ;
(b) the gathering of criminal intelligence on criminal organizations or
individuals;
(c) the security of prisons or reform institutions ; or,
(d) might otherwise be helpful in the commission of criminal offences
be exempted from disclosure under freedom of information legislation .
[Recommendation 34 ]
121 . In considering the mechanics which ought to apply to requests for
information with respect to the security and intelligence exemptions we pointed
out that the mere knowledge by an applicant of the existence or non-existence
.of a document or file could have serious consequences for the security of
Canada . Similarly, in dealing with two of the areas relating to the administration of criminal justice exemptions, viz ., (a) the investigation of criminal
offences, and (b) the gathering of criminal intelligence on criminal organizations or individuals, disclosure of the existence or non-existence of a file could
have a serious effect on the fight against crime . For example, knowledge by a
criminal that the police were investigating him in connection with the commission of a criminal offence or were gathering intelligence on him with respect to
criminal activities in general might well cause him to take actions designed to
thwart the legitimate investigations by the police . We therefore think that the
government, in regard to those two areas, should be allowed to neither confirm
nor deny the existence of a document or file .
WE RECOMMEND THAT the freedom of information legislation provide that, in responding to a request for a document or documents which
fall into the category of information relating to the administration of
criminal justice the release of which would adversely affec t
(a) the investigation of criminal offences, o r
51
�(b) the gathering of criminal intelligence on criminal organizations or
individuals
the government be empowered to reply that the request for such document
or documents falls within such categories and the government refuses to
disclose the existence or non-existence of such a document or documents .
[Recommendation 35 ]
52
�Part III :
A TIME LIMIT ON NON-DISCLOSURE OF
SECURITY AND INTELLIGENC E
INFORMATIO N
122 . An important qualification- which we would add to the suggestions
outlined above concerns the effluxion of time . With respect to most, but not all,
of the information in the categories for which we have recommended protection, after a certain period of time the necessity for protection would no longer
exist because of drastically changed circumstances . Based on the rate of change
in circumstances in the past and an educated guess as to the degree of change
over time in the future, we think that the protection should be . afforded to such
information for a period of thirty years . We do not advocate that at the end of
that thirty year period all such information be made public ; rather, we feel that
a "damage to interest" test should then be applied and if the release of the
information could reasonably be expected to damage the security of Canada,
reveal the identity of a living confidential source, or endanger life or property,
then it should continue to be protected from disclosure . If, contrary to our
recommendation, the "damage to interest" test were adopted in the first
instance, then there would be no need for a time limitation : either release of a
document, no matter how old, would damage the specified interest or it would
not .
WE RECOMMEND THAT any security and intelligence document
exempted from disclosure be released after a period of thirty years unless
after that time its release could reasonably be expected to damage the
security of Canada, reveal the identity of a confidential source, or endanger life or property .
[Recommendation 36 ]
53
��Part IV :
REVIEW OF GOVERNMENT DECISION S
123 . We envisage review of the government's refusal to release information .
The initial review would be by an administrative tribunal . That tribunal might
be an Information Commissioner . In some cases there should be an appeal
from the decision of the administrative tribunal to the Federal Court of
Canada . There are two distinct sets of circumstances which could arise . They
are :
(a) An applicant for information has received a response from the government that because the request relates to security and intelligence or to
the administration of criminal justice the government refuses to confirm or deny the existence of the requested document . We feel that all
such refusals should be referred automatically to the administrative
tribunal for review as to whether the document properly fell within the
category of documents for which the government was entitled to claim
protection and whether the government had appropriately refused to
confirm or deny the existence of the document . The decision of the
administrative tribunal in such cases should be binding on the
government .
(b) An applicant is denied access to a document on the grounds that it falls
within one of the protected categories, or, if outside the categories, its
disclosure would be damaging to the security of Canada . The applicant
in such cases should have a right to require a review by the administrative tribunal and both the applicant and the government should have a
right of appeal from a decision of the administrative tribunal to the
Federal Court of Canada .
We appreciate that with respect to the "nature of the document" test the scope
of thé review by the administrative tribunal and any appeal to the Federal
Court of Canada would be limited ; nevertheless, we feel that such a review of
the government's decision in these matters would be appropriate to ensure that
the document truly does "relate to, or consist or' one of the specified
categories . To the extent that the "damage to interest" test comes into play,
the review and any subsequent appeal would determine whether the government had properly applied the relevant test . We can see no reason as a matter
of principle why the government should have the final say over the release of
material for the sole reason that it relates to security and intelligence matters
or to the administration of criminal justice.
WE RECOMMEND THAT all decisions by the government to refuse
disclosure of a document based on security and intelligence grounds or
administration of criminal justice grounds be subject to review by an
administrative tribunal .
55
�WE FURTHER RECOMMEND THAT such a review be automatic in
those cases where the government has advised the requestor that it refuses
to confirm or deny the existence of the document requested, and in all
other cases the review be at the request of the person seeking the
document.
WE FURTHER RECOMMEND THAT in those cases where the existence of a document is admitted to the person seeking the document, that
person and the government each have a right of appeal from the administrative tribunal to the Federal Court of Canada .
[Recommendation 37]
56
�Part V :
DISCLOSURE OF SECURITY AN D
INTELLIGENCE INFORMATION IN THE
COURSE OF JUDICIAL PROCEEDING S
124. Another way in which public access to security and intelligence infôrmation becomes an issue is when, in the course of judicial proceedings, one of the
litigants seeks to introduce evidence consisting of information which is possessed by the federal government . What safeguards are necessary? The present
section 41(2) of the Federal Court Act applies to such a situation . It provides:
"41 . (2) When a Minister of the'Crown certifies to any court by affidavit
that the production or discovery of a document or its contents would be
injurious to international relations, national defence or security, or to
federal-provincial relations, or that it would disclose a confidence of the
Queen's Privy Council for Canada, discovery and production shall be
refused without any examination of the document by the court . "
Such conclusive exercise of a ministerial discretion is undesirable and unnecessary . We consider that the decision whether or not security and intelligence
information may be produced in open court is one which a judge is capable of
making, after he has heard arguments in camera and weighed the interests at
stake . We favour the procedural approach adopted in the Israeli Law of
Evidence ( Amendment) Law 5728-1968, which provides :
"(a) A person is not bound to give, and the court shall not admit, evidence
regarding which the Prime Minister or the Minister of Defence, by
certificate under his hand, has expressed the opinion that its giving is
likely to impair the security of the State, or regarding which the
Prime Minister or the Minister of Foreign Affairs, by certificate
under his hand, has expressed the opinion that its giving is likely to
impair the foreign relations of the State, unless a judge of the
Supreme Court, on the petition of a party who desires the disélosure
of the evidence, finds that the necessity to disclose it for the purpose
of doing justice outweighs the interest in its non-disclosure.
(b) Where a certificate as referred to in sub-section ( a) has been submitted to the court, the court may, on the application of a party who
desires the disclosure of the evidence, suspend the proceedings for a
period fixed by it, in order to enable the filing of a petition for
disclosure of the evidence, or, if it sees fit, until the decision upon such
a petition .
(c) A person is not bound to give, and the court shall not admit, evidence
regarding which a Minister, by certificate under his hand, has
expressed the opinion that its giving is likely to impair an .important
public interest, unless the court which deals with the matter, on th e
57
�petition of a party who desires the disclosure of the evidence, finds
that the necessity to disclose it for the purpose of doing justice
outweighs the interest in its non-disclosure .
(d) A petition for the disclosure of evidence under subsection (a) or (c)
shall be heard in camera . For the purpose of deciding upon the
petition, the judge of the Supreme Court or the court, as the case may
be, may demand that the evidence or its contents be brought to his
knowledge, and he or it may receive explanations from the Attorney
General or his representative, and from . a representative of the
. :
Ministry concerned, even in the absence of the other partiès .
(e) The Minister of Justice may make rules of court for the hearing of a
'petition under this section . "
In addition to what is provided in the Israeli Law, we feel the Judge should
have the discretion to allow any party to be present at the in camera hearing,
and to impose whatever conditions he deems appropriate concerning the
disclosure of the information in question . While this provision with respect to
the in camera proceeding is similar to that recommended by the Law Reform
Commission in its proposed Evidence Code (section 43), we believe that the
Israeli provision with the addition which we propose, is preferable in its,details .
125 . We think that the Federal Court of Canada would be the appropriate
court to decide 'questions of this kind that arise in judicial proceedings across
Canada, no matter what court they may arise in . The Law Reform Commission recommended that such matters should, at the request of either party or
upon the initiative of the trial court, be decided by a judge of the•Supreme
Court of Canada . We believe that the ultimate appellate court should not be
asked to sit on such procedural matters at first instance . The Federal Court of
Canada has established a standard of excellence and of independence, and its
judges, or those designated to act in these matters, could develop a valuable
expertise .
WE RECOMMEND THAT the provisions of section 41(2) of the Federal
Court Act not apply to security and intelligence documents or their
contents and that new legislation be enacted providing tha t
(a) when a Minister of the Crown claims a privilege for such information
on the grounds that its .disclosure would be injurious to the security of
Canada ; or
(b) any person hearing any judicial proceedings is .of the opinion that the
giving of any evidence would be injurious to the security of Canad a
the matter shall be referred to a judge of the Federal Court of Canada,
designated by the Chief Justice of that court, to determine whether the
giving of such evidence should be refused .
WE FURTHER RECOMMEND THAT upon
such reference to the
Federal Court of Canada the following procedure should apply :
(a) The person hearing the judicial proceedings shall, upon such a reference being made, suspend the judicial proceedings until the decision
on thé reference is rendered
Court of Canada shall determine whether the necessity t o
.(b)TheFdral
disclose the 'evidence for the purpose of doing justice outweighs the
interest in its non-disclosure :
58
�(c) The Federal Court of Canada shall hear the reference in camera . The
Court may require that the evidence or its contents be brought to its
knowledge . The Court may receive explanations from the Attorney
General of Canada or his representative, and, if a Minister of the
Crown has certified by affidavit, from the representative of that
Minister, and from any party to the judicial proceedings . The Court
may in its discretion allow any party to the judicial proceedings to
appear at the in camera hearing and may impose whatever conditions
it deems appropriate concerning disclosure of the information in
question .
[Recommendation 38 ]
59
��Part VI :
DISCLOSURE OF ADMINISTRATION OF
JUSTICE INFORMATION IN TH E
COURSE OF JUDICIAL PROCEEDING S
126 . The disclosure in the course of judicial proceedings of the kinds of
information with respect to the administration of justice dealt with by us in this
report is now governed by the provisions of section 41(1) of the Federal Court
Act . That section reads :
"41 . (1) Subject to the provisions of any other Act and to subsection, (2),
when a Minister of the Crown certifies to any court by affidavit that a
document belongs to a class or contains information which on grounds of a
public interest specified in the affidavit should be withheld from production
and discovery, the court may examine the document and order its production and discovery to the parties, subject to such restrictions or conditions
as it deems appropriate, if it concludes in the circumstances of the case that
the public interest in the proper administration of justice outweighs in
importance the public interest specified in the affidavit ."
We consider that the section provides adequate protection for all of the
competing interests and we therefore have no recommendations for any
changes .
61
��CONCLUSIO N
127. It is not our intention to express any general conclusions, as our views
have been expressed already and no single thought could be said to reflect our
recommendations on the wide variety of matters that this Report discusses .
128 . This, the first Report of the Commission, will be followed in due course
by other Reports concerning other matters . It is intended to postpone our
expression of appreciation of the work of those who have assisted us in the
preparation of this Report, until the publication of the final Report, at which
time the work of all persons who will have assisted us can be acknowledged .
63
��SUMMARY OF RECOMMENDATION S
1 . WE RECOMMEND THAT new espionage legislation incorporate in a
singlé enactment the offences relating to espionage now set out in section
3(1) of the Official Secrets Act and section 42(2)(b) of the Criminal
Code .
[page 11 ]
2. WE RECOMMEND THAT espionage offences apply only to conduct
which relates to the communication of information to a foreign power .
[page 13 ]
3 . WE RECOMMEND THAT new espionage legislation define the term
"foreign power" to include a foreign group that has not achieved
I
recognition as an independent state .
'
[page 13 )
4 . WE RECOMMEND THAT new espionage legislation cover the disclosure of, or an overt act with the intention to disclose, information
whether accessible to the public or not, either from government sources
or private sources if disclosure is, or is capable of being, prejudicial to the
security of Canada .
[page 15]
5 . WE RECOMMEND THAT new espionage legislation include the following basic provision with respect to the offence of espionage :
No person shall :
(a) obtain, collect, record or publish any information with the intent of
communicating such information to a foreign power, o r
(b) communicate information to a foreign power ,
if such person knows that the foreign power will or might use such
information for a purpose prejudicial to the security of Canada or acts
with reckless disregard of the consequences of his actions to the security
of Canada .
[page 16 ]
6 . WE RECOMMEND THAT the provisions of section 3(1) (a) of the
Official Secrets Act relating to a prohibited place be repealed and not be
included in new legislation .
[page 18 ]
7 . WE RECOMMEND THAT the provisions of section 8 of the Official
Secrets Act, the harbouring section, be retained but that the new
legislation should make it clear that the provisions would only apply in
cases in which the accused has knowledge that the person on his premises
has committed or is about to commit an espionage offénce .
[page 18 ]
65
�8 . WE RECOMMEND THAT the new legislation include the offence of
possession of instruments of espionage . Under this provision it would be
an offence to be found in possession without lawful excuse of instruments
of espionage, which would include false documents of identity .
[page 19]
9 . WE RECOMMEND THAT new legislation with respect to the disclosure of government information should make it an offence to disclose
without authorization government information relating to security and
intelligence .
[page 24]
10 . WE RECOMMEND THAT new legislation should empower the court
trying an offence of unauthorized disclosure of government information
relating to security and intelligence to review the appropriateness of the
security classification assigned to such government information .
[page 24]
11 . WE RECOMMEND THAT new legislation with respect to the unauthorized disclosure of government information should make it an offence
to disclose government information relating to the administration of
criminal justice the disclosure of which would adversely affect :
(a) the investigation of criminal offences ;
(b) the gathering of criminal intelligence on criminal organizations or
individuals ;
(c) the security of prisons or reform institutions ;
or might otherwise be helpful in the commission of criminal offences .
[page 24]
12 . WE RECOMMEND THAT it should be a defence to such a charge i f
the accused establishes that he believed, and had reasonable grounds for
believing, the disclosure of such information was for the public benefit .
[page 25 ]
13 . WE RECOMMEND THAT the offence of unauthorized disclosure of
government information relating to security and intelligence and the
administration of criminal justice provide that a person shall not be
convicted
(a) if he had reasonable grounds to believe and did believe that he was
authorized to disclose such information, or ,
(b) if he had such authorization, which authorization may be express
or implied .
[page 25]
14 . WE RECOMMEND THAT the communication of government information relating to security and intelligence or the administration of
criminal justice by a person who receives such information, even though
such information is unsolicited, be an offence .
[page 26]
15 . WE RECOMMEND THAT it be an offence to retain government
documents relating to security and intelligence or to the administration
of criminal justice notwithstanding that such documents have come into
the possession of a person unsolicited and that there has been no request
for the return of such documents .
[page 26 ]
66
�16 . WE RECOMMEND THAT the failure to take reasonable care of
government information relating to security and intelligence or to the
administration of criminal justice not be an offence unless such conduct
shows wanton or reckless disregard for the lives or property of other
persons .
[page 27 ]
17 . WE RECOMMEND THAT the consent of the Attorney General of
Canada be required for the prosecution of espionage offences, conspiracy
to commit espionage ôffences, or offences relating to the unauthorized
disclosure of that federal government information discussed in this
report . Similarly, the conduct of such prosecutions should be the responsibility of the Attorney General of Canada .
[page 29 ]
18 . WE RECOMMEND THAT with respect to section 14(2) of the Official
Secrets Act which permits in camera proceedings that :
(a) the provisions of section 14(2) be retained and made applicable to
all offences, either offences in new legislation or in the Criminal
Code, in which the Crown may be required to adduce evidence the
disclosure of which would be prejudicial to the security of Canada
or to the proper administration of criminal justice .
(b) the phrase "prejudicial to the interest of the state" read "prejudicial to the security of Canada or to the proper administration of
criminal justice . "
(c) the last clause of the section read "but except for the foregoing, the
trial proceedings, including the passing of sentence, shall take place
in public . "
(d) the legislation make provision for the holding of an in camera
pre-trial conference for the purpose of dealing with procedural
questions relating to the handling of evidence which might have to
be received in camera .
[page 31 ]
19 . WE RECOMMEND THAT offences dealing with espionage and the
unauthorized disclosure of information relating to security and intelligençe and the administration of criminal justice should be required to b e
tried by indictment and not by summary conviction .
[page 32 ]
20 . WE RECOMMEND THAT the Crown have no special right to "vet" a
jury in security cases over and above the rights now provided in the
Criminal Code and under provincial law .
[page 32 ]
21 . WE RECOMMEND THAT new legislation provide that jurors who
participate in proceedings in camera be subject to the offences relating to
the unauthorized disclosure of government information .
[page 33 ]
67
�22 . WE RECOMMEND THAT the maximum penalty for espionage be life
imprisonment, except in the case of the communication to a foreign
power of information accessible to the public in which case the maximum
penalty should be six years .
[page 33]
23 . WE RECOMMEND THAT the maximum penalty in a case of unauthorized disclosure of government information relating to security and
intelligence or the administration of criminal justice, be six years .
[page 33]
24 . WE RECOMMEND THAT the presumption in favour of the Crown in
section 3 of the Official Secrets Act not be incorporated in the new
legislation .
[page 35]
25 . WE RECOMMEND THAT the offence of doing an act preparatory to
the commission of an offence under the Official Secrets Act be removed
but that the other offences found in section 9 be retained in the new
legislation and made applicable to the offences of espionage and the
unauthorized disclosure of government information relating to security
and intelligence and the administration of criminal justice .
[page 36]
26 . WE RECOMMEND THAT the provisions of sections 13(a) and 13(b)
of the Official Secrets Act which make the Act applicable to offences
committed abroad be retained in the new legislation .
[page 36]
27 . WE RECOMMEND THAT the Official Secrets Act be repealed and
replaced with new legislation with respect to espionage, which should be
incorporated in a new statute or placed in one part of the Criminal Code
with all other national security offences .
[page 37]
28 . WE RECOMMEND THAT the legislative provisions with respect to the
unauthorized disclosure of information relating to security and intelligence and the administration of criminal justice be clearly separated
from the legislative provisions with respect to espionage .
[page 37]
29 . WE RECOMMEND THAT there be a specific exemption from disclosure in freedom of information legislation for certain security and
intelligence documents .
[page 47]
30 . WE RECOMMEND THAT the exemption for security and intelligence
documents extend to all departments and agencies of the government .
[page 47]
31 . WE RECOMMEND THAT there be a specific exemption from disclosure in freedom of information legislation of the whole of all security and
intelligence documents relating to or consisting of :
1 . security and intelligence operations
2 . security intelligence informatio n
3 . information obtained from confidential sources
4 . policy papers and intelligence analyse s
5 . manuals and directives of security and intelligence agencies
68
�6 . management, personnel and finançial information of security and
intelligence agencies sources informatio n
8 . information received in confidence from foreign governments an d
security and intelligence agencie s
9 . structures of security and intelligence agencies
10 . intra-governmental structural relationships
11 . inter-governmental structural relationships
[page 48 ]
32 . WE RECOMMEND THAT the freedom of information legislation
provide that in responding to a request for a document or documents
which fall into any of the exempt categories the government be empowered to reply that the request for such document or documents falls
within such categories and the government refuses to disclose the existence or non-existence of such a document or documents .
[page 49]
33 . WE RECOMMEND THAT any documents not included in the previously mentioned exemptions which could, if released, reasonably be
expectèd to threaten the security of Canada, be exempted from disclosure
under freedom of information legislation .
[page 49]
34 . WE RECOMMEND THAT any information relating to the administration of criminal justice the disclosure of which would adversely affect
(a) the investigation of criminal offences ;
(b) the gathering of criminal intelligence on criminal organizations or
individuals ;
(c) the security of prisons or reform institutions ; or ,
(d) might otherwise be helpful in the commission of criminal offencés
be exempted from disclosure under freedom of information legislation .
[page 51 ]
35 . WE RECOMMEND THAT the freedom of information legislation
provide that, in responding to a request for a document or documents
which fall into the category of information relating to the administration
of criminal justice which would adversely affect
(a) the investigation of criminal offences, o r
(b) the gathering of criminal intelligence on criminal organizations or
individual s
the government be empowered to reply that the request for such document or documents falls within such categories and the government
refuses to disclose the existence or non-existence of such a document or
documents .
[page 51]
36 . WE RECOMMEND THAT any security and intelligence documen t
exempted from disclosure be released after a period of thirty years unless
after that time its release could reasonably be expected to damage the
security of Canada, reveal the identity of a confidential source, or
endanger life or property .
[page 53 ]
69
�37 . WE RECOMMEND THAT all decisions by the government to refuse
disclosure of a document based on security and intelligence grounds or
administration of criminal justice grounds be subject to review by an
administrative tribunal .
WE FURTHER RECOMMEND THAT such a review be automatic in
those cases where the government has advised the requestor that it
refuses to confirm or deny the existence of that document requested, and
in all other cases, the review be at the request of the person seeking the
document .
WE FURTHER RECOMMEND THAT in those cases where the
existence of a document is admitted to the person seeking the document,
that person and the government each have a right of appeal from the
administrative tribunal to the Federal Court of Canada .
[page 55]
. WE RECOMMEND THAT the provisions of section 41(2) of the
38
Federal Court Act not apply to security and intelligence documents or
their contents and that new legislation be enacted providing tha t
(a) when a Minister of the Crown claims a privilege for such information on the grounds that its disclosure would be injurious to the
security of Canada ; or
(b) any person hearing any judicial proceedings is of the opinion that
the giving of any evidence would be injurious to the security of
Canad a
the matter shall be referred to a judge of the Federal Court of Canada,
designated by the Chief Justice of that court, to determine whether the
giving of such evidence should be refused .
WE FURTHER RECOMMEND THAT upon such reference to the
Federal Court of Canada the following procedure should apply :
(a) The person hearing the judicial proceedings shall, upon such a
reference being made, suspend the judicial proceedings until the
decision on the reference is rendered .
(b) The Federal Court of Canada shall determine whether the necessity to disclose the evidence for the purpose of doing justice outweighs the interest in its non-disclosure .
(c) The Federal Court of Canada shall hear the reference in camera .
The Court may require that the evidence or its contents be brought
to its knowledge . The Court may receive explanations from the
Attorney General of Canada or his representative, and, if a
Minister of the Crown has certified by affidavit, from the representative of that Minister, and from any party to the judicial
proceedings . The Court may in its discretion allow any party to
the judicial proceedings to appear at the in camera hearing and
may impose whatever conditions it deems appropriate concerning
disclosure of the information in question .
[page 58 ]
70
�Appendix I
P .C . 1977-191 1
CERTIFIED TO BE A TRUE COPY OF A MINUTE OF A
MEETING OF THE COMMITTEE OF THE PRIV Y
COUNCIL, APPROVED . BY HIS EXCELLENCY THE
GOVERNOR GENERAL ON THE 6TH OF JULY, 1977 .
WHEREAS it has been established that certain persons who were members of the R .C .M .P . at the time did, on or about October 7, 1972, take part
jointly with persons who were then members of la Sûreté du Québec and la
Police de Montréal in the entry of premises located at 3459 St . Hubert Street,
Montreal, in the search of those premises for property contained therein, and in,
the removal of documents from those premises; without lawful authority to d o
so ;
WHEREAS allegations have recently been made that certain persons who
were members of the R .C .M .P . at the time may have been involved on other
occasions in investigative actions or other activities that were not authorized or
provided for by law ;
WHEREAS, after having made inquiries into these allegations at the
instance of the Government, the Commissioner of the R .C .M .P . now advises
that there are indications that certain persons who were members of the
R .C.M .P . may indeed have been involved in investigative actions or other
activities that were not authorized or provided for by law, and that as a
consequence, the Commissioner believes that in the circumstances it would be
in the best interests of the R .C .M .P . that à Commission of Inquiry be set up to
look into the operations and policies of the Security Service on a national basis ;
WHEREAS public support of the R .C .M .P . in the discharge of its
responsibility to protect the security of Canada is dependent on trust in the
policies and procedures governing its activities ;
AND WHEREAS the maintenance of that trust requires that full inquiry
be made into the extent and prevalence of investigative practices or other
activities involving members of the Royal Canadian Mounted Police that are
not authorized or provided for by law .
THEREFORE, the Committee of the Privy Council, on the recommendation of the Prime Minister, advise that, pursuant to the Inquiries Act, a
Commission do issue under the Great Seal of Canada, appointin g
Mr . Justice David C . McDonald of Edmonton, Alberta
Mr . Donald S . Rickerd of Toronto, Ontari o
Mr . Guy Gilbert of Montreal, Quebe c
be Commissioners under Part I of the Inquiries Act :
71
�(a) to conduct such investigations as in the opinion of the Commissioners are necessary to determine the extent and prevalence of investigative practices or other activities involving members of the
R .C .M .P . that are not authorized or provided for by law and, in
this regard, to inquire into the relevant policies and procedures that
govern the activities of the R .C .M .P . in the discharge of its
responsibility to protect the security of Canada ;
(b) to report the facts relating to any investigative action or other
activity involving persons who were members of the R .C .M .P . that
was not authorized or provided for by law as may be established
before the Commission, and to advise as to any further action that
the Commissioners may deem necessary and desirable in the public
interest ; an d
(c) to advise and make such report as the Commissioners deem necessary and desirable in the interest of Canada, regarding the policies
and procedures governing the activities of the R .C .M .P . in the
discharge of its responsibility to protect the security of Canada, the
means to implement such policies and procedures, as well as the
adequacy of the laws of Canada as they apply to such policies and
procedures, having regard to the needs of the security of Canada .
The Committee further advise that the Commissioners :
1 . be authorized to adopt such procedures and methods as the Commissioners may from time to time deem expedient for the pToper
conduct of the inquiry ;
2 . be directed that the proceedings of the inquiry be held in camera in
all matters relating to national security and in all other matters
where the Commissioners deem it desirable in the public interest or
in the interest of the privacy of individuals involved in specific cases
which may be examined ;
3 . be directed, in making their report, to consider and take all steps
necessary to preserve
(a) the secrecy of sources of security information within Canada ;
an d
(b) the security of information provided to Canada in confidence
by other nations ;
4 . be authorized to sit at such time and at such places as they may
decide from time to time, to have complete access to personnel and
information available in the Royal Canadian Mounted Police and
to be provided with adequate working accommodation and clerical
assistance ;
5 . be authorized to engage the services of such staff and technical
advisers as they deem necessary or advisable and also the services
of counsel to aid them and assist in their inquiry at such rates of
remuneration and reimbursement as may be approved by the
Treasury Board ;
72
�6 . be directed to follow established security procedures with regard to
their staff and technical advisers and the handling of classified
information at all stages of the inquiry ;
7 . be authorized to exercise all the powers conferred upon them by
section 11 of the Inquiries Act ; an d
8 . be directed to report to the Governor in Council with all reasonable
dispatch and file with the Privy Council Office their papers and
records as soon as reasonably may be after the conclusion of the
inquiry .
The Committee further advise that, pursuant to section 37 of the Judges
Act, His Honour Mr . Justice McDonald be âuthorized to act as Commissioner
for the purposes of the said Commission and that Mr . Justice McDonald be the
Chairman of the Commission .
Certified to be a true copy
H . Chassé
Assistant Clerk of the Privy Counci l
73
�Appendix I I
PROSECUTIONS UNDER THE OFFICIAL SECRETS ACT "
The Canadian prosecutions for Breaches of the Official Secrets Act or for
conspiracy to breach the Act are :
1 . R . v . Rose (1947) 3 D .L .R . 618 (Quebec C .A .), convicted 6 years .
2 . R . v . Lunan (1947) 3 D .L .R . 710 (Ontario C .A .), convicted .
3 . R . v . Smith (1947) 3 D.L .R . 798 (Ontario C .A .), convicted .
4 . R . v . Mazerall (1946) O .R . 511 (High Court), 762 (C .A .), convicted .
5 . R . v . Willsher (c . 1946) unreported, convicted .
6 . R . v . Gerson (1948) 3 D .L .R . 280 (Ontario C .A .), conviction quashed on
appeal .
7 . R . v . Woikin (1946) 1 C .R . 224, convicted, 2 1/2 years .
8 . R. v . Boyer (1948) 7 C .R . 165 (Quebec C .A .) convicted .
9 . R. v . Carr (1949) unreported, convicted, 6 years .
10 . R. v . Adams (c . 1946) unreported, but see (1946) 86 C .C .C . 425 (on
application for change of venue), acquitted .
11 . R. v . Nightingale (c . 1946) unreported, but see (1946) 87 C .C .C . 143 (a
contempt of court conviction upheld on appeal), acquitted .
12 . R . v . Shuger (c . 1946) unreported, acquitted .
13 . R . v . Chapman (c . 1946) unreported, acquitted .
14 . R . v . Poland (c . 1946) unreported, acquitted .
15 . R . v . Halperin (c . 1946) unreported, acquitted .
16 . R . v . Benning (1947) 3 D .L .R . 908 (Ontario C .A .), conviction quashed
on appeal .
17 . R. v . Harris (1947) 4 D .L .R . 796 (Ontario C .A .) conviction reversed on
appeal .
18 . R . v. Biernacki (1961) unreported, but see (1962) 37 C .R . 226 (motion
to quash a preferred indictment), charge dismissed at preliminary
inquiry .
19 . R . v . Featherstone (1967) unreported, convicted, 2 1/2 years .
20 . R . v . Treu (1978) convicted, 2 years ; (reversed on appeal to the Quebec
Court of Appeal February 20, 1979 . )
Related cases include :
1 . R . v . Pochon ; R . v . French (1946) 87 C .C .C . 38 (Ontario High Court) .
2. R. v . Bronny (1940) 74 C .C .C . 154 (B .C .C .A .) (under s . 16 of Def. of
Can . Regs .) .
3 . R . v . Jones (1942) 77 C .C .C . 187 (N .S .C .A .) (under s . 16 of Def . of
Can . Regs .) .
4 . R . v . Samson (1977) 35 C .C .C . (2d) 258 (Quebec C .A .) .
••includes conspiracy to breach the Act brought under the Code.
74
�Appendix III
Excerpts from Bill No. 248 (1978-79 )
A BILL FOR AN ACT RELATING TO THE
AUSTRALIAN SECURITY
INTELLIGENCE'ORGANIZATIO N
4 . In this Act, unless the contrary intention appears "activities prejudicial to security" includes any activities concerning
which Australia has responsibilities to a foreign country as referred to in
paragraph ( b) of the definition of "seçurity" in this section ;
"domestic subversion" means activities of the kind to which subsection
5(1) applies ;
"security" means (a) the protection of, and of the people of, the Commonwealth and the
several States and Territories from (i) espionage;
(ii) sabotage ;
(iii) subversion ;
(iv) active measures of foreign intervention ; or
(v) terrorism ,
whether directed from or committed within, Australia or not ; and
(b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the sub-paragraphs
of paragraph (a) ;
"terrorism" includes (a) acts of violence for the purpose of achieving a political objective in
Australia or in a foreign country ( including acts of violence for the
purpose of influencing the policy or acts of a government in
Australia or in a foreign country) ;
(b) training, planning, preparations or other activities for the purposes
of violent subversion in a foreign country or for the purposes of the
commission in a foreign country of other acts of violence of a kind
referred to in paragraph (a) ;
(c) acts that are offences punishable under the Crimes ( Internationally
Protected Persons) Act 1976 ; or
(d) acts that are offences punishable under the Crimes (Hijacking of
Aircraft) Act 1972 or the Crimes ( Protection of Aircraft) Act
1973 .
5 . (1) For the purposes of this Act, the activities of persons, other than
activities of foreign origin or activities directed against a foreign government,
that are to be regarded as subversion are (a) activities that involve, will involve or lead to, or are intended or
likely ultimately to involve or lead to, the use of force or violence or
other unlawful acts ( whether by those persons or by others) for th e
75
�purpose of overthrowing or destroying the constitutional government of the Commonwealth or of a State or Territory ;
(b) activities directed to obstructing, hindering or interfering with the
performance by the Defence Force of its functions or the carrying
out of other activities by or for the Commonwealth for the purposes
of security or the defence of the Commonwealth ; or
(c) activities directed to promoting violence or hostility between different groups of persons in the Australian community so as to
endanger the peace, order or good government of the Commonwealth .
(2) For the purposes of this section, "activities of foreign origin" means
activities of, directed or subsidized by, or undertaken in active collaboration
with, a foreign power or foreign political organization, whether carried on'or to
be carried on in Australia or outside Australia .
(3) Nothing in this section affects the meaning of the expression "subversion" in relation to activities of foreign origin or activities directed against a
foreign government .
76
�Footnote s
1 . See Appendix I .
2 . The citations for these cases will be found in Appendix 11 which is a list of
prosecutions under the 1939 Act .
3 . (1974) A .C . 763, 790 .
77
�PRIVX COUNCIL LIBRARY
BIBLIOTHEQUE DU CONSEIL PRIV É
DUE DATE -
~
1
s/n „i~ N
,
~/
201-6503
Printed
In USA
�HV7641/ .A3/C3/no .1
McDonald, D . C . (David C .)
Security and information :
first report / Commission
ACOJ c . 1 aa P CO
(
�v
~ff 173 M. -2 Ll
�
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TABLE OF CONTENTS
Pag e
Part I GENERAL INTRODUCTION . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . . . . . . . . . . . . . . . . . . . . . I
Part II THE SECURITY SYSTEM : THE NATURE OF GOVERN. ....
MENTAL CONCERN AND INVOLVEMENT . . . . . . . . . . . . . . . . . ... . 37
Part III PROBLEMS IN THE SYSTEM - R .C .M .P. PRACTICES
AND ACTIVITIES "NOT AUTHORIZED OR PROVIDED
FOR BY LAW" - INSTITUTIONALIZED WRONGDOING 9 5
Part IV REASONS ADVANCED IN JUSTIFICATION OF
ACTIONS "NOT AUTHORIZED OR PROVIDED FOR B Y
. .... .
LA W" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. . . . ... ..359
Part V A PLAN FOR THE FUTURE : ROLE, FUNCTIONS AND
.
METHODS OF A SECURITY INTELLIGENCE AGENCY . . . 40 3
Part VI A PLAN FOR THE FUTURE : MANAGEMENT, PERSONNEL AND STRUCTURE OF A SECURITY INTELLI...
GENCE AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 66 5
.
Part VII A PLAN FOR THE FUTURE : SECURITY SCREENING . . . . . .. 777
Part V111 A PLAN FOR THE FUTURE : DIRECTION AND REVIE W
....
OF THE SECURITY INTELLIGENCE SYSTEM . . . . . . . . . . . . . . . ... 839
Part IX ADDITIONAL LEGAL AND POLICY PROBLEMS RELAT... ..
ING TO THE SECURITY OF CANADA . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .907. . .
Part X THE R .C .M .P. POLICING FUNCTION : PROPOSALS FOR
IMPROVING ITS LEGALITY AND PROPRIETY . . . . . . . .. .. . . . . . . . . 955
.... .
CONCLUSION TO THE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1055. . . . . .
ANNEX 1- ACCESS TO MEDICAL INFORMATION . . . . . .. .1057
.. ...
MINORITY REPORT OF THE CHAIRMAN . . . . . . . . . . . . . . . . . . . . .. .1061
.
MINORITY REPORT OF COMMISSIONER GILBERT . . . . . . . 1063
. ..... .
SUMMARY OF RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067 . .
... ...
BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. 1117. . . . . . . . . . . .
. ...
APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 114 5
xiii
�VOLUME I
.. ...
Part 1 : GENERAL INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . .
. .. .
STRUCTURE AND CONTENT OF THE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 3 . . . . . . . .
.
. ..
A . How the Second Report is organized . . . . . . . . . . . . . . . . . . . . . . . . . .. . .3 . . . . . . .
B . The Commission's treatment of matters that cannot b e
reported publicly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. .. .. . . .. .. .. .. .. .6. . . . . . . . . .
THE ESTABLISHMENT OF THE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. . . . . . . . . . . . . .
. ... .
TERMS OF REFERENCE . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13. . . .
.. ..
A . General Approach . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .13 . . . . . . .
. ... .
B . Specific interpretive rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1 7. . . . . . . . .
. ...
THE WORK OF THE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 23. . . . . . . . . . . . . . .
. . ....
A . Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 23 . . . . . . . . . . . . . . .
. ... .
B . Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. . . . . . . . . . . . . . . .
. . ...
C . Work and Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 23. . . . . . . . . . . . . . .
. . .
D . Law Suits . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . 2. 8 . . . . . . . . . . . . . .
. . . .. ..
BIOGRAPHICAL REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 3. 1. . . . . . . . . . .
Part II : THE SECURITY SYSTEM - THE NATURE OF GOVERNMENTAL CONCERN AND INVOLVEMENT . . . . . . . . . . . . . . . . . .3 7 . . . .
. . ..
.. ..
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 .7. . . . . . . . . . . . . . . .
Chapter 1 : SECURITY AND DEMOCRACY : INTERESTS REQUIRING PROTECTION AND THREATS TO THOSE INTER.. .
ESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 3. 9 . . . . . . . . .
. ...
A . The need for security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 39. . . . . . . . . . . . . .
. . .
B . Security and the requirements of liberal democracy . . . . . . . . . .. . 4.3
Chapter 2 : THE ORGANIZATIONAL RESPONSE BY GOVERNMENT 4 9
. ..
Introduction . . . . . . . . . . . . . . . .. .. .. . . .. . .. . . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 4.9. . . . . . . . . . . . .
A . The historical context and current structure of the Royal
.
Canadian Mounted Police . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . .. .. . .. .. .. .. .. .. . . . .4 9
B . The R .C .M .P . Security Service : historical evolution and cur. .....
rent organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. .. .. . . .. .. .. .. .. .. .. .. . . .. .. .. 54 . .
. ....
C . The R .C .M .P . Security Service : current role . . . . . . . . . . . . . . . . . .. . 73. . .
D . The R .C .M .P . "P" Directorate, Foreign Services Directorat e
. ....
and Emergency Response Teams : current roles . . . . . . . . . . . . . . . . . 79. .
. .....
E . The Department of the Solicitor General . . . . . . . . . . . . . . . . . . . . . .. . 80 . . .
F . The role of other departments in security and intelligence . . . .. 84
.
G . The role of the Cabinet and interdepartmental committees . . . 8 9
.
xiv
�Part III : PROBLEMS IN THE SYSTEM - R .C .M .P . PRACTICES
AND ACTIVITIES "NOT AUTHORIZED OR PROVIDED
FOR BY LAW" - INSTITUTIONALIZED WRONGDOING 9 5
.. ..
Introduction . . . . . . . . . . . . . . . . . . . . . . .. .. ....... . . . . . . . . . . .. .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.7. . . . . . . . . . . . .
Chapter l : IMPROPER ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101. . . . . . . . . . . . . . .
. ... ..
Chapter 2 : SURREPTITIOUS ENTRIES - SECURITY SERVICE AN D
C .I .B .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 . . . . . . . . . . . . . . . . . .
. .... ..
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . ..... .. . . . . . . . . . . . . . . . . . . . . .. . 103
.
A . Nature and purpose of the practice : Security Service an d
C .I .B .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103. . . . . . . . . . . . . . . . . . . . .
. .. ...
B . R .C .M .P . policies concerning surreptitious entries - Security Service and C .1 .B .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .109. . . . . . . . . . . .
. . ....
C . Extent and prevalence of the practice of surreptitious entry . . . 112
.
D . Legal and policy issues - Security Service and C .I .B . . . . . . . . . . . . .118
... .
E . Need and recommendations - brief summary . . . . . . . . . . . . . . . . . .. .14 2
Appendix - Security Service : some cases of surreptitious entry for the purpose of
intelligence probes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .145. . . . . . . . . . . . . . . .
.....
Chapter 3 : ELECTRONIC SURVEILLANCE - SECURITY SERVIC E
. ... ...
AND C .I .B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149. . . . . . . . . . . . .
A . Origins, nature and purpose of the practice . . . . . . . . . . . . . . . . . . . .. . . . . 149
. ..
. ... ..
B . R .C .M .P . policies concerning the practice . . . . . . . . . . . . . . . . . . . . . . .. .154 .
. .
C . Extent and prevalence - Security Service and C .LB . . . . . . . . . . . 161
... ...
D . Legal and policy issues . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 162 . . . . . . . .
. . ...
E . Need and recommendations - brief summary . . . . . . . . . . . . . . . . .. .19 9
Chapter 4 : MAIL CHECK OPERATIONS - SECURITY SERVICE
AND C .1 .B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 201. . . . . . . . . . . . . . . . . . .
... ..
A . Origin and nature of practice - Security Service and C .I .B . 201
B . R .C .M .P . policies and procedures - Security Service an d
C .I .B .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203 . . . . . . . . . . . . . . . . . . . .
. .... .
C . Extent and prevalence of the practices - Security Servic e
and C .1 .B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 210. . . . . . . . . . . . . . . . .
.. ....
D . Legal and policy issues - Security Service and C .I .B . . . . . . . . .. . 213
..
. ...
E . Need and recommendations - brief summary . . . . . . . . . . . . . . . . . .. .21 9
Chapter 5 : ACCESS TO AND USE OF CONFIDENTIAL INFORMATION HELD BY THE FEDERAL GOVERNMENT CRIMINAL INVESTIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221. . . . . . .
. . ....
. .. ...
A . Origin, nature and purposes of practices . . . . . . . . . . . . . . . . . . . . . . . . . . . 221. . .
. ..... .
B . Department of National Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 222 . . . . .
. . ....
C . Unemployment Insurance Commission . . . . . . . . . . . . . . . . . . . . . . . . . . .. .236. . .
D . Other federal government departments and agencies . . . . . . . . . ... 246
..
. ... .
E . Need and recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1
xv
�Chapter 6 : ACCESS TO AND USE OF CONFIDENTIAL INFORMATION HELD BY THE FEDERAL GOVERNMENT SECURITY SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 . . . . . . . . . . . .
. ... ...
A . Origin, nature, and purposes of practices . . . . . . . . . . . . . . . . . . . . . . . ... . 253 . .
.....
. ..
B . Department of National Revenue . . . . . . . . . . . .. . . .. . .. . . . . . . . . . . . . . . . . . . . .. .253
..... .
C . The Unemployment Insurance Commission . . . . . . . . . . . . . . . . . . . . ... 261 .
..
D . Other federal government departments and agencies . . . . . . . . . ... 264
.... .
E. Need and recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 26. 5 . . . . . . . .
Chapter 7 : COUNTERING - SECURITY SERVICE . . . . . . . . . . . . . . . . . . . . . . . ... . 267 . .
. ....
A . Nature, origin and purpose of disruptive countering measures 267
B . R .C .M .P . policies and practices . . . . . . . . . . . . . . . . . . . . . . . .. .. . .. .. .. . ... .. . . . . .. . 270
C . Extent and prevalence of countering measures . . . . . . . . . . . . . . . . . . . . 271
. .... .
. .... .
D . Legal and policy issues . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 3 . . . .
Chapter 8 : PHYSICAL SURVEILLANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 277 . . . . . . . .
.... ..
A . Origins, nature and purpose of the practice . . . . . . . . . . . . . . . . . . . . ... . 277.
. ....
B . Legal issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .279. . . . . . . .
... ..
.
C . Need and recommendations - brief summary . . . . . . . . . . . . . . . . . .. . 29 2
.. ..
Chapter 9 : UNDERCOVER OPERATIVES . . . . . . . . . . . . . .. ... . . . . . . . . . . . . . . . . . . . . . . . . ... . 29 5
Introduction . . . . . . . . . . . . . . . . ... .. .. . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ._. _.. .. .. .. .. .. .. .. . . . .. .. .. . ... 295. . . . .
.. ...
A . Origin, nature and purpose of the practice . . . . . . . . . . . . . . . . . . . . . .295. . . . .
. ... .
B. Legal and policy issues arising from the activities of undercover operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 301. . . . . . . . . . . . . . .
. .....
... .
C . Need and recommendations - brief summary . . . . . . . . . . . . . . . . . .. .32 8
Chapter 10 : INTERROGATION OF SUSPECTS - C .I .B . AND SECURITY SERVICE . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .329 . . . . . . . . . . . . . . . . .
...
A . Criminal investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329. . . . . . . . . . .
. . ....
B . Security Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 340. . . . . . . . . . . . . . .
. .....
... .
C . Needs and recommendations - brief summary . . . . . . . . . . . . . . . .. . 34 0
Chapter 11 :
ACTS BEYOND THE MANDATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 34 . 1 . . . . . .
. ...
. ....
Introduction . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 . 1 . . . . . . . . . . . . . . . .
A . Government directives on surveillance on university campuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. . . .. . . . . . 34. 1. . . . . . . . . . . .
. .. ..
. . .. .
B . Surveillance of legitimate political parties . . . . . . . . . . . . . . . . . . . . . . .. .34. 8.
Part IV : REASONS ADVANCED IN JUSTIFICATION OF
ACTIONS NOT AUTHORIZED OR PROVIDED FOR BY
LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 9 . . . . . . . . . . . . . . . . .
. .... .
. . ..
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 36 1
xvi
�Chapter l :
. ....
LEGAL DEFENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . .. .363
A . Superior orders - Mistake of fact and Mistake of Law Reliance on apparent authority - Necessity and Duress . . . . . ... 363
. .... .
B . Lack of evil intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374. . . . . . . . . . . . .
.. ...
C . Interpretation Act, section 26(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .376. . . . . .
D . Criminal Code, section 25(1) -"Protection of person s
acting under authority„ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .377 . . . . . . . . . .
. . ....
E.
. . ... .
Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . .. . 379.
. ...
F . Authorization by ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 39 .3. . . . . .
. .... .
Chapter 2 : EXTENUATING CIRCUMSTANCES . . . . . . . . . . . .. .. .. .. .. . . . . . . . . . . . . . . . 397
Part V : A PLAN FOR THE FUTURE : ROLE, FUNCTIONS AN D
METHODS OF A SECURITY INTELLIGENCE AGENCY . . .. 403
. . ....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 5 . . . . . . . . . . . . . . . . .
.. ....
Chapter I : FUNDAMENTAL PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 407 . . . . . .
Chapter 2 : A SECURITY INTELLIGENCE PLAN FOR THE FUTURE :
. .... .
A SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .413 . . . . . . .
A . Reasons for having a special federal agency for security
. ..
intelligence . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .41. . 3. . . . . . . . . . . . . .
B . Essential characteristics of a security intelligence system . . . . . ... 42 1
. .....
Chapter 3 : THE SCOPE OF SECURITY INTELLIGENCE . . . . . . . . . . . . . . . . . . . . 427
. ...
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. .. . . . . .. . . . .. .. . . . . . . . . . . . . . . . . . ... . 42 .7. . . . . .
. ....
A . A statutory definition of security threats . . . . . . . . . . . . . . . . . . . . . . . ... . 427. .
B . Distinguishing dissent from subversion : lessons from the past 44 5
Chapter 4 : INFORMATION COLLECTION METHODS . . . . . . . . . . . . . . . . . . . . ... 513
. .. . . . .
A . Basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. .. .. .. .. .... 513.
. ...
B . Controlling the level of investigation . . . . . . . . . . . . . . .. .. . . . .. . . . . . . . . . . . .514
. ... ...
C . Physical surveillance . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
. .....
D . Undercover operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .536 . . .
. . .....
E . Electronic surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 . . . . . . . .
... ..
F. Surreptitious entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .569. . . . . . . .
. .. ....
G . Examining mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 574. . . .
H . Access to confidential personal information held by govern... .
ment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... 583
.... .
1 . The warrant system and proposed legislation . . . . . . . . . . . . . . . . . . . ... .59 2
Chapter 5 : ANALYSIS, REPORTING, AND ADVISING FUNCTIONS . . 599
. ....
Introduction . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 59. 9 . . . .
. .... ..
A . Analysis . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599 . . . . . . . . . . . .
.. .. . . .
B . Reporting and advising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. ... 60.4
xvii
�Chapter 6 :
EXECUTIVE POWERS AND PREVENTIVE ACTIVITIES . . . 61 3
.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. . . . . . . . . . .. .. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 613 . . .
. .. ....
A . Police powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. . . . .. .. .. . . . . . .. .. . .. 614
B . Permissible and impermissible preventive activities . . . . . . . . . . . .. . . . 614
C . Interrogation of suspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62 2 . . . . . . . . . .
. ..... .
Chapter 7 : INTERNATIONAL DIMENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62. 5. . . . . .
. ....
Introduction . . . . . . . . . . . . ... .. .. . . . . . ... . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .625. . . . . . . . . . . . . . . .
.. ...
A . Foreign operations undertaken by the security intelligenc e
agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .626 . . . . . . . . . . . . . . . . . .
.....
B . Relationships with foreign agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 632. . . . .
. ....
C . Should Canada have a foreign intelligence service? . . . . . . . . . . . . . 64 1
. ..
Chapter 8 : RELATIONSHIPS WITH OTHER DEPARTMENTS, PROVINCIAL AND MUNICIPAL AUTHORITIES . . . . . . . . . . . . . . . . . .. . 647
. . ....
Introduction . . . . . . . . . . . . . . . . .. . . . . ... .. .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 647 . . . . . . . . . . . . . . . .
..... .
A . Relationships with other federal departments and agencies . . .. 647
B . Relationships with provincial and municipal authorities . . . . . . .. 65 2
.
VOLUME I I
Part VI : A PLAN FOR THE FUTURE : MANAGEMENT, PERSONNEL, AND STRUCTURE OF A SECURITY INTELLIGENCE AGENCY . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .66 5. . . . . . .
... ..
Introduction . . . . . . . . . . . . . . . . . . . .. .. .... . . . .. .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . . . .. .. .. .. ..66 7 . . . . . . . .
. .. .. . . .
Chapter 1 : THE HISTORICAL CONTEXT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .669
. ...
A . Post World War II to the Royal Commission on Security ,
1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .669 . . .
.. ....
B . The Royal Commission on Security, 1968, and its aftermath 671
C . The era following the Royal Commission on Security : 196980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. .. .. .. .. .. .. .. . . . . . .. . . . ... .679
..
D . Conclusions . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . .. .. .. . . ... ..688 . . . . . .
. .. . . . .
Chapter 2 : MANAGEMENT AND PERSONNEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .693 . . . .
. .....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. . . .. .. .. . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 693 . . . . . . . . .
... ...
A . The importance of internal management . . . . . . . . . . . . . . . . . . . . . . . ... . 694. .
.... .
B . The Director General and senior management . . . . . . . . . . . . . . . . . . . .698
. .. ...
C . Personnel policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . :. . . .. .... .. . . . .. . . . . .. .. .. .. . .705
. .
D . Approaches to leadership, organization, and decision-making 732
E . Legal advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . .. .. . . ... .73. 6
. ... .
xviii
�. .....
F . Internal auditing . . . . . . . . . . . . . . . . . . . . . .. .. .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739. . . .
G.
.. ..
Internal security . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. ... .. . . . . . . . . . . . . . . . . . . . . ... . 74.4.
Chapter 3 : STRUCTURE OF THE SECURITY INTELLIGENCE
AGENCY : ITS LOCATION WITHIN GOVERNMENT . . . . . . . .. .75 3
...
A . Our approach to the question . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . ... 753
B . The case for a security intelligence organization outside of
. .. ....
the R .C .M .P . . . . . . . . . . . . . . . . . . .. . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 754 . . . . . . . . .
.
C . Reasons advanced for maintaining the status quo . . . . . . . . . . . . . .. . .760
. .....
D . Implementation of structural change . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 774. . . .
.
Part VII : A PLAN FOR THE FUTURE : SECURITY SCREENING . . . . . . 777
. ....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. .. ... .. .. ... . . . . . . . . . . . . . .779
Chapter 1 : SCREENING OF PERSONNEL FOR PUBLIC SERVICE
. . .. . . .
EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781.
... ..
A . Historical background . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. . . . . . . . . . . . . . . . . . . . .. .781 . . .
... ..
B . Extent of the security clearance programme . . . . . . . . . . . . . . . . . . . ... . 787
.... ..
C . Security clearance criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 793. . . . . . . . .
. .... .
D . Security screening roles and responsibilities . . . . . . . . . . . . . . . . . . . . . . .797.
. .
E . Review and appeal procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 80 5
...
Chapter 2 : IMMIGRATION SECURITY SCREENING . . . . . . . . . . . . . . . . . . . . . .. . 813
. . ....
A . Historical background . . . . . . . . . . . . . .. ... .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .813 . . . . .
. ....
B . The extent of immigration security screening . . . . . . . . . . . . . . . . . . . . . . .819
. . ....
C . Immigration security criteria . . . . . . . . . . . .. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .. .822 .
D . Role of the security intelligence agency in immigratio n
.....
screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .824 . . . . . . . . . . . . . .
.... .
E. Immigration appeal procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .825
.. . . . .
Chapter 3 : CITIZENSHIP SECURITY SCREENING . . . . . . . . . . . . . . . . . . . . . .. . . .. . 82 9
. . ....
A . Historical background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .829 . . . . . . . . . . .
B . The role of a security intelligence agency in citizenship
. ... .
screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83. 1. . . . . . . . . . . . . . . . . .
... ...
C . Citizenship security criteria . . . . . . . . . . . . .. . . . . . . . .. . . .. .. . . . . . . . . . . . . . . . .. . 834
. ... . .
D . Appeal procedures . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83.7
Part VIII : A PLAN FOR THE FUTURE : DIRECTION AND REVIE W
.
OF THE SECURITY INTELLIGENCE SYSTEM . . . . . . . . . . . . . . . . . . 83 9
. . .. .. ..
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .... .84..1. . . . . . . . . . . . .
. .. ...
Chapter 1 : INTERNAL GOVERNMENTAL CONTROLS . . . . . . . . . . . . . . . . . . . . 845
A . Role of the Cabinet and Interdepartmental Committees . . . .. .. . 845
B . Role of the Privy Council Office and Interdepartmenta l
. ...
Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 .7. . . . . .
xix
�..... .
C . Ministerial direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 856. . . . . . . . . . .
. . ..
D . Other forms of government direction and review . . . . . . . . . . . . . . . .. .87 8
Chapter 2 : EXTERNAL CONTROLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88. 1 . . . . . . . . . . .
. . ...
...
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .88. 1. . . . . . . . . . . . . .
A . The Federal Court of Canada and the Security Appeals
Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 88 .2. . . . . . . . . . . . . . . . .
... .
B . The Advisory Council on Security
and
Intelligence
(A .C .S.I .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 88. 3 . . . . . . . . . . . . . . . .
... .
C . The role of Parliament . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 891. . . . . . . . . .
.....
D . Public knowledge and discussion of security matters . . . . . . . . . . . . . 90 5
. ..
Part IX : ADDITIONAL LEGAL AND POLICY PROBLEMS RELAT.
ING TO THE SECURITY OF CANADA . . . . . . . . . . . . . . .. . . .. . . . . . . . . . .. . 90 7
.. ...
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. . . . .. .. ... .. .. .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .909 . . . . . . . . . .
Chapter 1 : NATIONAL EMERGENCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 911 . . . . . . . . . . . .
. .... .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91. .1. . . . . . . . . . . . . . . .
.
. . ...
A . The legal framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
B . Legislative reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920. . . . . . . . . . . . .
. .. ....
C . Internment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. .. .. . . . . . . . . .. . . . . . . . . . . . . . . . . . 928
.
D . The role of a security intelligence agency in national emergencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 93 .4. . . . . . . . . . . . . . . .
....
Chapter 2 : THE OFFICIAL SECRETS ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .939 . . . . . . .
. . ....
A . Summary of First Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 939. . . . . . .
. ....
B . Special Powers of Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 945
.
C . Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94. 6 . . . . . . . . . . . . . . .
. ... .
Chapter 3 : FOREIGN INTERFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .94 7. . . . . . . . .
.. ...
Chapter 4 : THE LAW OF SEDITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . .. . . ... . .95 1
Part X : THE R .C .M .P . POLICING FUNCTION : PROPOSALS FOR
IMPROVING ITS LEGALITY, PROPRIETY AND CON.
TROL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . . . . . . . . . . . . . . 95 . 5 . . . .
. .. .. .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95. 7 . . . .
. ... .
. ....
Chapter 1 : CHANGE WITHIN THE R .C .M .P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .959 . . . . .
. ....
A . Basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .959. . . . . . . . . . . . . .
. ....
B . Management and personnel practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 96. 5. . . .
xx
�.... .
Chapter 2 : COMPLAINTS OF POLICE MISCONDUCT . . . . . . . . . . . . . . . . . . . . . 967. . . .
A . Existing procedures for handling public complaints agains t
the R .C . M . P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .968. . . . . . . . . . . . . . . . .
.. ..
B . Lodging of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 970. . . . . . . . . . . . . . . . .
. .. ...
... .
C . Investigating allegations of misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .977
. ....
D . Resolving allegations of misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 982. . . . . .
. ....
E . The Office of Inspector of Police Practices . . . . . . . . . . . . . . . . . . . . . .985. . . . .
F . The provincial role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 98 9 . . . . . . . . . . . . . . . . .
. .... .
Chapter 3 : OBTAINING LEGAL ADVICE AND DIRECTION . . . . . . . . . . . .. .995
.. ..
A . Role of the Legal Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 995. . . . . . . . . . . . . . .
.....
B . Glassco Commission's position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1000. . . . . . . . . . . .
. .. ...
.
C . Relationship of R .C .M .P . to provincial attorneys general . . . . . . . 100 2
Chapter 4 : MINISTERIAL RESPONSIBILITY FOR THE R .C .M .P . . . . . . . .. 1005
.
. ....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . .. . .. . .. . . . . . . . .. . 100 .5. . . . . . . . . . . . . .
A . Principles governing ministerial responsibility and accounta.. ...
bility for police activities . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . .. .. . . ... 1005. .
B . Minister's and Deputy Minister's roles in directing the
R .C .M .P . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 100 8 . . . . . . . . . .
.....
. ....
C . Relationship with provincial attorneys general . . . . . . . . . . . . . . . . .. .1014 . .
Chapter 5 : SOME METHODS OF CRIMINAL INVESTIGATION AND
. ... .
THEIR CONTROL . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 101 . 7 . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1017 . . . . . . . . . . . . . . . .
.....
A . A system for controlling criminal investigatory methods . . . . . . 1017
... .
B . Surreptitious entries . . . . . . . . . . . . . .. . . . .. .. .. . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. .1019. . . .
. ...
C . Electronic surveillance . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. .1019. . . . . . . . . .
D . Mail covers and mail opening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023. . . . . . .
....
. ... .
E . Access to confidential information . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1026 . . . . . . . . .
F. Physical surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1029 . . . . . . . . . . . . . . . . .
.....
.... .
G . Undercover operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1030. . . . . . . . . . . . . . . . .
H . Interrogation techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .103. 3 . . . . . . . . . . . . . . .
.. . .
. ...
CONCLUSION TO THE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1055. . . . . . . . . . . . . . .
Annex 1 : ACCESS TO MEDICAL INFORMATION . . . . . . . . . . . . . . . . . . . . . . .1057. . . . .
....
MINORITY REPORT OF THE CHAIRMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1061. . . . . . . . . . . . . . .
. .. ..
MINORITY REPORT OF COMMISSIONER GILBERT . . . . . . . . . . . . . . . . . . . . ... 1063 . . . . . . . .
... ..
.. ...
SUMMARY OF RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1067 . . . . . . . . . . . .
BI BLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 111. 7 . . . . . . . . . . . . . . .
. .. .
xxi
�APPENDICE S
. .....
A . Inquiries Act . . . . . . . . . . . . . .. ... .. . .. . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1 145 . . . .
. .. .
B . Order-in-Council (6 July, 1977) . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. .149. . . .
. ... .
C . Commission . . . . . . . . . . . . . . . . . . .. .. .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .1153 . . . . . . . . .
D . Opening statement of the Commission, December 6, 1977 . . . . . 1157
.
E . Reasons for Decision of the Commission, December 8, 1977 . . 1 169
F . Reasons for Decision of the Commission, October 1 3, 1978 . . .. 1175
G . Reasons for Decision of the Commission, July 11, 1979 . . . . . . . .. .1193
H . Reasons for Decision of the Commission, May 22, 1980 . . . . . ... 1195
1.
..
Practice Direction of the Commission, June 20, 1980 . . . . . . . . . ... 1205
..... .
J . Order-in-Council ( 22 March, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1209 . . . .
.. ....
K . Order-in-Council ( 2 June, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1211 . . . . . .
. .....
L . Commission Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. .1213 . . . . . . . . .
M . Public Advertisement re : Notice as to submissions by mem. .. .
bers of the public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . .. . . . . . .. . . . . . .. . . . 1215
N . Public Advertisment re : Motive as to termination date for
receipt of allegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121. .7. . . . . . . . . . . .
... .
0.
Witnesses who testified before the Commission . . . . . . . . . . . . . . . . . .. 1219
.... .
P . Counsel who have appeared before the Commission othe r
than Counsel for the Commission . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . .. . . . . . . .. 1225
Q . Places and dates of hearings to receive briefs and persons and
organizations that presented briefs at those hearings . . . . . . . . . . ... .122 7
. ... ...
R . Formal Briefings . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. .. . . . . . . . . . . . . . . . . . . . . . 1229 . .
.....
S . Meetings with Academics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1231. . . . . . . . . .
.... ..
T . Contracted studies and Consultants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1233 . . . .
.... ..
U . Organization chart of the R .C .M .P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1235 . . . .
.
V . Organization chart of the Security Service . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1237
W . Informal meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1239 . . . . . . . . . . . . .
.... ..
X . Judgment and reasons for Judgment of Mr . Justice Cat.... .
tanach . . . . . . . . . . . . . .. .. .. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1241. . . . . . . . . . . . . .
.
.... .
Y . Order of Mr . Justice Gibson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1251
Z . Reasons for Decision of the Commission, delivered on Febru... .
ary 23, 1979 . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. .. . . . .. .. . . . . . .. .. .. . . .. . . . . . . . . . . . .. .125 3
xxii
�Commission of Onquiry "
Concerning Certain Act+ies of the
Royal Canadian Mounted'Polic e
.,
Second Report Volume 1
Freedom and Security
under the La w
gust, 198 1
��FREEDOM AND SECURITY UNDER THE LA W
/
��A Gô
COMMISSION OF INQUIRY
CONCERNING CERTAIN ACTIVITIES OF TH E
ROYAL CANADIAN MOUNTED POLIC E
Second Report-Volume 1
FREEDOM AND SECURITY
UNDER THE LAW
August, 1981
�© Minister of Supply and Services Canada 1981
Available in Canada throug h
Authorized Bookstore Agents
and other bookstore s
or by mail fro m
Canadian Government Publishing Centre
Supply and Services Canada
Ottawa, Canada, K 1 A OS 9
Catalogue No . CP32-37/ 1981-2-I E Canada : $12 .00 (2 Volumes)
ISBN 0-660-10951-4 Other Countries : $14 .40 (2 Volumes)
ISBN 0-660-10950-6 (V . I and 2 )
Price subject to change without notice
�January 23, 198 1
TO HIS EXCELLENC Y
THE GOVERNOR IN COUNCI L
MAY IT PLEASE YOUR EXCELLENC Y
We, the Commissioners appointed by Order in Council P .C . 1977-1911
dated 6th July, 1977, to inquire into and report upon certain activities of the
Royal Canadian Mounted Police,
BEG TO SUBMIT TO YOUR EXCELLENCY
THIS SECOND REPORT ENTITLED:
"FREEDOM AND SECURITY UNDER THE LAW "
Mr . Justice D .C . McDonald (Chairman )
D .S . Rickerd, Q .C .
Guy Gilbert, Q .C.
��le 23 janvier 198 1
A SON EXCELLENC E
LE GOUVERNEUR EN CONSEI L
QU'IL PLAISE A VOTRE EXCELLENC E
Nous, les Commissaires nommés en vertu du décret du conseil C .P . 19771911 du 6 juillet 1977 pour faire enquête sur certaines activités de la
Gendarmerie royale du Canada et faire rapport ,
AVONS L'HONNEUR DE PRÉSENTER A VOTRE
EXCELLENCE CE DEUXIÈME RAPPORT INTITULÉ
"LA LIBERTÉ ET LA SÉCURITÉ DEVANT LA LOI "
M . le président D .C . McDonal d
D .S . Rickerd, c .r .
Guy Gilbert, c .r .
��FOREWOR D
We wish to express our gratitude to all the members of our staff, whose
names appear in Appendix "L" . It is impossible here to name everyone
specifically, but we feel impelled to mention certain members of our staff
whose assistance was of marked importance to the success of our work .
We were fortunate throughout the life of the inquiry to have the services
of our Secretary, Mr . H . R . Johnson, formerly of Edmonton and Victoria . His
background as a private lawyer and his extensive knowledge of the processes of
the federal government resulted in his being of help in a variety of ways above
and beyond his administrative responsibilities .
The two main components of our staff were "legal" and "research" . We
hesitate to express specific thanks to members of one team first, in apparent
precedence over the other . Only necessity makes us do so . The contribution of
each group to the result was of equal importance .
Of our legal staff, we single out, for special mention, those counsel who
devoted particularly long periods of time and assumed special responsibilities :
our Chief Counsel, Mr. J . F . Howard, Q .C ., of Toronto ; Me Ross Goodwin,
of Quebec City ; Mr . W . A . Kelly, Q .C ., of Toronto ; and Me Yvon Tarte, of
Ottawa .
Our excellent research staff was ably directed for more than two years by
Professor Peter Russell, of the University of Toronto, and his deputy, Mr . John
Graham, of Ottawa . We counted persistently on the readily available advice of
our special adviser, Professor J . Ll . J . Edwards, of the University of Toronto .
As most of our work . was necessarily in Ottawa, many members of our
legal and research teams spent long periods of time away from their home
cities . We wish to record our awareness that this physical burden extracted a
heavy toll in personal terms, for which monetary reward and their interest in
the subject-matter of our inquiry could not entirely compensate .
Several hundred allegations of misconduct on the part of members of the
R .C .M .P . were sent to us by individuals and organizations . When we began our
inquiry we knew that to investigate them we needed not only the involvement
of legal counsel but also that of highly qualified investigators independent of
the R .C .M .P . Thanks to the recognition by their superiors of the importance
which our work would have for policing in Canada generally, we secured the
services of four members of the Ontario Provincial Police, two members of the
security division of the Directorate General of Intelligence and Security of th e
ix
�Department of National Defence, and one member of the National Harbours
Board Police . These were all men of experience and maturity, who devoted
many months to their responsibilities on our behalf, conducting interviews in
every province of Canada . We wish to record our particular appreciation to
Commissioner H . H . Graham of the Ontario Provincial Police, to the Honourable John P . MacBeth, who was Solicitor General of Ontario when arrangements were made for the secondment of the four members of the Ontario
Provincial Police, to Mr . D . N. Cassidy, head of the National Harbours Board
Police, and to the Department of National Defence . We dare to express the
hope that our experience in this regard has demonstrated that one police force
can be investigated by members of another force without the materialization of
those fears that are sometimes expressed about such a phenomenon .
Our Registrar, Mr . W . J . Brennan, brought to us a wealth of experience
he had acquired with previous Commissions of Inquiry . His duties were not
only those of Registrar ; under his direction the administrative and clerical staff
have been loyal and diligent, and cheerful even in periods of heavy pressure .
Mr . Oscar Boisjoly and his associates provided us with excellent "court
reporting" services for our hearings, in both official languages . Each day's
testimony was typed, reproduced, bound and in our hands by the following
morning .
We wish to express our appreciation to Commissioner R . H . Simmonds,
Mr. M . R . Dare, Director General of the R .C .M .P . Security Service, and the
many members of the Royal Canadian Mounted Police and of departments and
agencies of the Government of Canada, and to the many counsel for witnesses,
whose courtesy, diligence and co-operation have helped to facilitate the
execution of our complex task .
The process of preparing our Reports in final publishable form was
rendered possible by our English-language editor, Mrs . Moyra Tooke, our team
of translators from the Department of the Secretary of State, and our
French-language editors, Messrs . Henriot Mayer and Marcel Lacourcière . Our
appreciation of the subtleties of both of our official languages has been
enhanced by our close work with these persons .
We have appreciated the co-operation of the provincial attorneys-general
and their deputies, and of those Members of Parliament who gave us valuable
advice .
Finally, we wish to express our gratitude to the numerous individuals and
organizations who submitted briefs to us . We wish to assure them that their
briefs were read carefully and that the ideas contained in them helped to shape
the recommendations which we ultimately settled upon .
Ottawa
August 5, 1981
x
�NOTE
All references to "Ex . - " are to exhibits filed at our hearings . Those exhibits
filed in camera are indicated by the letter "C" in the exhibit number .
Similarly, all references to "Vol . - , p . -" are to the indicated volume and
page of public testimony before the Commission, or of testimony originally
given in camera but later made public in the volume indicated . However, if the
Volume number has a "C" before it, that indicates that the testimony was
given in camera and has not been made public .
A complete set of the transcripts of the public hearings of the Commission may
be found at the following libraries :
Faculty of Law Metropolitan Toronto Library
University of Victoria 789 Yonge Stree t
Victoria, British Columbia Toronto, Ontario
Vancouver Public Library Law Librar y
750 Burrard Street University of Windsor
Vancouver, B .C . Windsor, Ontario
Library Bibliothèque du Barreau
Faculty of Law Palais de justice
University of Alberta 12, rue St-Louis
Edmonton, Alberta Québec, Québe c
Library Bibliothèque de la Ville de Montréal
University of Saskatchewan Montréal, Québe c
Saskatoon, Saskatchewa n
Davoe Library Dalhousie University Library
University of Manitoba Halifax, Nova Scotia
Winnipeg, Manitob a
National Librar y
395 Wellington Street
Ottawa, Ontari o
Library of Parliament
Ottawa, Ontario
xi
��TABLE OF CONTENTS
Pag e
Part I GENERAL INTRODUCTION . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . . . . . . . . . . . . . . . . . . . . . I
Part II THE SECURITY SYSTEM : THE NATURE OF GOVERN. ....
MENTAL CONCERN AND INVOLVEMENT . . . . . . . . . . . . . . . . . ... . 37
Part III PROBLEMS IN THE SYSTEM - R .C .M .P. PRACTICES
AND ACTIVITIES "NOT AUTHORIZED OR PROVIDED
FOR BY LAW" - INSTITUTIONALIZED WRONGDOING 9 5
Part IV REASONS ADVANCED IN JUSTIFICATION OF
ACTIONS "NOT AUTHORIZED OR PROVIDED FOR B Y
. .... .
LA W" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. . . . ... ..359
Part V A PLAN FOR THE FUTURE : ROLE, FUNCTIONS AND
.
METHODS OF A SECURITY INTELLIGENCE AGENCY . . . 40 3
Part VI A PLAN FOR THE FUTURE : MANAGEMENT, PERSONNEL AND STRUCTURE OF A SECURITY INTELLI...
GENCE AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 66 5
.
Part VII A PLAN FOR THE FUTURE : SECURITY SCREENING . . . . . .. 777
Part V111 A PLAN FOR THE FUTURE : DIRECTION AND REVIE W
....
OF THE SECURITY INTELLIGENCE SYSTEM . . . . . . . . . . . . . . . ... 839
Part IX ADDITIONAL LEGAL AND POLICY PROBLEMS RELAT... ..
ING TO THE SECURITY OF CANADA . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .907. . .
Part X THE R .C .M .P. POLICING FUNCTION : PROPOSALS FOR
IMPROVING ITS LEGALITY AND PROPRIETY . . . . . . . .. .. . . . . . . . . 955
.... .
CONCLUSION TO THE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1055. . . . . .
ANNEX 1- ACCESS TO MEDICAL INFORMATION . . . . . .. .1057
.. ...
MINORITY REPORT OF THE CHAIRMAN . . . . . . . . . . . . . . . . . . . . .. .1061
.
MINORITY REPORT OF COMMISSIONER GILBERT . . . . . . . 1063
. ..... .
SUMMARY OF RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067 . .
... ...
BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. 1117. . . . . . . . . . . .
. ...
APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 114 5
xiii
�VOLUME I
.. ...
Part 1 : GENERAL INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . .
. .. .
STRUCTURE AND CONTENT OF THE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 3 . . . . . . . .
.
. ..
A . How the Second Report is organized . . . . . . . . . . . . . . . . . . . . . . . . . .. . .3 . . . . . . .
B . The Commission's treatment of matters that cannot b e
reported publicly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. .. .. . . .. .. .. .. .. .6. . . . . . . . . .
THE ESTABLISHMENT OF THE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. . . . . . . . . . . . . .
. ... .
TERMS OF REFERENCE . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13. . . .
.. ..
A . General Approach . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .13 . . . . . . .
. ... .
B . Specific interpretive rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1 7. . . . . . . . .
. ...
THE WORK OF THE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 23. . . . . . . . . . . . . . .
. . ....
A . Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 23 . . . . . . . . . . . . . . .
. ... .
B . Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. . . . . . . . . . . . . . . .
. . ...
C . Work and Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 23. . . . . . . . . . . . . . .
. . .
D . Law Suits . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . 2. 8 . . . . . . . . . . . . . .
. . . .. ..
BIOGRAPHICAL REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 3. 1. . . . . . . . . . .
Part II : THE SECURITY SYSTEM - THE NATURE OF GOVERNMENTAL CONCERN AND INVOLVEMENT . . . . . . . . . . . . . . . . . .3 7 . . . .
. . ..
.. ..
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 .7. . . . . . . . . . . . . . . .
Chapter 1 : SECURITY AND DEMOCRACY : INTERESTS REQUIRING PROTECTION AND THREATS TO THOSE INTER.. .
ESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 3. 9 . . . . . . . . .
. ...
A . The need for security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 39. . . . . . . . . . . . . .
. . .
B . Security and the requirements of liberal democracy . . . . . . . . . .. . 4.3
Chapter 2 : THE ORGANIZATIONAL RESPONSE BY GOVERNMENT 4 9
. ..
Introduction . . . . . . . . . . . . . . . .. .. .. . . .. . .. . . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 4.9. . . . . . . . . . . . .
A . The historical context and current structure of the Royal
.
Canadian Mounted Police . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . .. .. . .. .. .. .. .. .. . . . .4 9
B . The R .C .M .P . Security Service : historical evolution and cur. .....
rent organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. .. .. . . .. .. .. .. .. .. .. .. . . .. .. .. 54 . .
. ....
C . The R .C .M .P . Security Service : current role . . . . . . . . . . . . . . . . . .. . 73. . .
D . The R .C .M .P . "P" Directorate, Foreign Services Directorat e
. ....
and Emergency Response Teams : current roles . . . . . . . . . . . . . . . . . 79. .
. .....
E . The Department of the Solicitor General . . . . . . . . . . . . . . . . . . . . . .. . 80 . . .
F . The role of other departments in security and intelligence . . . .. 84
.
G . The role of the Cabinet and interdepartmental committees . . . 8 9
.
xiv
�Part III : PROBLEMS IN THE SYSTEM - R .C .M .P . PRACTICES
AND ACTIVITIES "NOT AUTHORIZED OR PROVIDED
FOR BY LAW" - INSTITUTIONALIZED WRONGDOING 9 5
.. ..
Introduction . . . . . . . . . . . . . . . . . . . . . . .. .. ....... . . . . . . . . . . .. .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.7. . . . . . . . . . . . .
Chapter l : IMPROPER ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101. . . . . . . . . . . . . . .
. ... ..
Chapter 2 : SURREPTITIOUS ENTRIES - SECURITY SERVICE AN D
C .I .B .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 . . . . . . . . . . . . . . . . . .
. .... ..
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . ..... .. . . . . . . . . . . . . . . . . . . . . .. . 103
.
A . Nature and purpose of the practice : Security Service an d
C .I .B .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103. . . . . . . . . . . . . . . . . . . . .
. .. ...
B . R .C .M .P . policies concerning surreptitious entries - Security Service and C .1 .B .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .109. . . . . . . . . . . .
. . ....
C . Extent and prevalence of the practice of surreptitious entry . . . 112
.
D . Legal and policy issues - Security Service and C .I .B . . . . . . . . . . . . .118
... .
E . Need and recommendations - brief summary . . . . . . . . . . . . . . . . . .. .14 2
Appendix - Security Service : some cases of surreptitious entry for the purpose of
intelligence probes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .145. . . . . . . . . . . . . . . .
.....
Chapter 3 : ELECTRONIC SURVEILLANCE - SECURITY SERVIC E
. ... ...
AND C .I .B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149. . . . . . . . . . . . .
A . Origins, nature and purpose of the practice . . . . . . . . . . . . . . . . . . . .. . . . . 149
. ..
. ... ..
B . R .C .M .P . policies concerning the practice . . . . . . . . . . . . . . . . . . . . . . .. .154 .
. .
C . Extent and prevalence - Security Service and C .LB . . . . . . . . . . . 161
... ...
D . Legal and policy issues . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 162 . . . . . . . .
. . ...
E . Need and recommendations - brief summary . . . . . . . . . . . . . . . . .. .19 9
Chapter 4 : MAIL CHECK OPERATIONS - SECURITY SERVICE
AND C .1 .B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 201. . . . . . . . . . . . . . . . . . .
... ..
A . Origin and nature of practice - Security Service and C .I .B . 201
B . R .C .M .P . policies and procedures - Security Service an d
C .I .B .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203 . . . . . . . . . . . . . . . . . . . .
. .... .
C . Extent and prevalence of the practices - Security Servic e
and C .1 .B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 210. . . . . . . . . . . . . . . . .
.. ....
D . Legal and policy issues - Security Service and C .I .B . . . . . . . . .. . 213
..
. ...
E . Need and recommendations - brief summary . . . . . . . . . . . . . . . . . .. .21 9
Chapter 5 : ACCESS TO AND USE OF CONFIDENTIAL INFORMATION HELD BY THE FEDERAL GOVERNMENT CRIMINAL INVESTIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221. . . . . . .
. . ....
. .. ...
A . Origin, nature and purposes of practices . . . . . . . . . . . . . . . . . . . . . . . . . . . 221. . .
. ..... .
B . Department of National Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 222 . . . . .
. . ....
C . Unemployment Insurance Commission . . . . . . . . . . . . . . . . . . . . . . . . . . .. .236. . .
D . Other federal government departments and agencies . . . . . . . . . ... 246
..
. ... .
E . Need and recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1
xv
�Chapter 6 : ACCESS TO AND USE OF CONFIDENTIAL INFORMATION HELD BY THE FEDERAL GOVERNMENT SECURITY SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 . . . . . . . . . . . .
. ... ...
A . Origin, nature, and purposes of practices . . . . . . . . . . . . . . . . . . . . . . . ... . 253 . .
.....
. ..
B . Department of National Revenue . . . . . . . . . . . .. . . .. . .. . . . . . . . . . . . . . . . . . . . .. .253
..... .
C . The Unemployment Insurance Commission . . . . . . . . . . . . . . . . . . . . ... 261 .
..
D . Other federal government departments and agencies . . . . . . . . . ... 264
.... .
E. Need and recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 26. 5 . . . . . . . .
Chapter 7 : COUNTERING - SECURITY SERVICE . . . . . . . . . . . . . . . . . . . . . . . ... . 267 . .
. ....
A . Nature, origin and purpose of disruptive countering measures 267
B . R .C .M .P . policies and practices . . . . . . . . . . . . . . . . . . . . . . . .. .. . .. .. .. . ... .. . . . . .. . 270
C . Extent and prevalence of countering measures . . . . . . . . . . . . . . . . . . . . 271
. .... .
. .... .
D . Legal and policy issues . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 3 . . . .
Chapter 8 : PHYSICAL SURVEILLANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 277 . . . . . . . .
.... ..
A . Origins, nature and purpose of the practice . . . . . . . . . . . . . . . . . . . . ... . 277.
. ....
B . Legal issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .279. . . . . . . .
... ..
.
C . Need and recommendations - brief summary . . . . . . . . . . . . . . . . . .. . 29 2
.. ..
Chapter 9 : UNDERCOVER OPERATIVES . . . . . . . . . . . . . .. ... . . . . . . . . . . . . . . . . . . . . . . . . ... . 29 5
Introduction . . . . . . . . . . . . . . . . ... .. .. . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ._. _.. .. .. .. .. .. .. .. . . . .. .. .. . ... 295. . . . .
.. ...
A . Origin, nature and purpose of the practice . . . . . . . . . . . . . . . . . . . . . .295. . . . .
. ... .
B. Legal and policy issues arising from the activities of undercover operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 301. . . . . . . . . . . . . . .
. .....
... .
C . Need and recommendations - brief summary . . . . . . . . . . . . . . . . . .. .32 8
Chapter 10 : INTERROGATION OF SUSPECTS - C .I .B . AND SECURITY SERVICE . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .329 . . . . . . . . . . . . . . . . .
...
A . Criminal investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329. . . . . . . . . . .
. . ....
B . Security Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 340. . . . . . . . . . . . . . .
. .....
... .
C . Needs and recommendations - brief summary . . . . . . . . . . . . . . . .. . 34 0
Chapter 11 :
ACTS BEYOND THE MANDATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 34 . 1 . . . . . .
. ...
. ....
Introduction . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 . 1 . . . . . . . . . . . . . . . .
A . Government directives on surveillance on university campuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. . . .. . . . . . 34. 1. . . . . . . . . . . .
. .. ..
. . .. .
B . Surveillance of legitimate political parties . . . . . . . . . . . . . . . . . . . . . . .. .34. 8.
Part IV : REASONS ADVANCED IN JUSTIFICATION OF
ACTIONS NOT AUTHORIZED OR PROVIDED FOR BY
LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 9 . . . . . . . . . . . . . . . . .
. .... .
. . ..
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 36 1
xvi
�Chapter l :
. ....
LEGAL DEFENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . .. .363
A . Superior orders - Mistake of fact and Mistake of Law Reliance on apparent authority - Necessity and Duress . . . . . ... 363
. .... .
B . Lack of evil intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374. . . . . . . . . . . . .
.. ...
C . Interpretation Act, section 26(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .376. . . . . .
D . Criminal Code, section 25(1) -"Protection of person s
acting under authority„ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .377 . . . . . . . . . .
. . ....
E.
. . ... .
Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . .. . 379.
. ...
F . Authorization by ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 39 .3. . . . . .
. .... .
Chapter 2 : EXTENUATING CIRCUMSTANCES . . . . . . . . . . . .. .. .. .. .. . . . . . . . . . . . . . . . 397
Part V : A PLAN FOR THE FUTURE : ROLE, FUNCTIONS AN D
METHODS OF A SECURITY INTELLIGENCE AGENCY . . .. 403
. . ....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 5 . . . . . . . . . . . . . . . . .
.. ....
Chapter I : FUNDAMENTAL PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 407 . . . . . .
Chapter 2 : A SECURITY INTELLIGENCE PLAN FOR THE FUTURE :
. .... .
A SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .413 . . . . . . .
A . Reasons for having a special federal agency for security
. ..
intelligence . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .41. . 3. . . . . . . . . . . . . .
B . Essential characteristics of a security intelligence system . . . . . ... 42 1
. .....
Chapter 3 : THE SCOPE OF SECURITY INTELLIGENCE . . . . . . . . . . . . . . . . . . . . 427
. ...
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. .. . . . . .. . . . .. .. . . . . . . . . . . . . . . . . . ... . 42 .7. . . . . .
. ....
A . A statutory definition of security threats . . . . . . . . . . . . . . . . . . . . . . . ... . 427. .
B . Distinguishing dissent from subversion : lessons from the past 44 5
Chapter 4 : INFORMATION COLLECTION METHODS . . . . . . . . . . . . . . . . . . . . ... 513
. .. . . . .
A . Basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. .. .. .. .. .... 513.
. ...
B . Controlling the level of investigation . . . . . . . . . . . . . . .. .. . . . .. . . . . . . . . . . . .514
. ... ...
C . Physical surveillance . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
. .....
D . Undercover operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .536 . . .
. . .....
E . Electronic surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 . . . . . . . .
... ..
F. Surreptitious entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .569. . . . . . . .
. .. ....
G . Examining mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 574. . . .
H . Access to confidential personal information held by govern... .
ment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... 583
.... .
1 . The warrant system and proposed legislation . . . . . . . . . . . . . . . . . . . ... .59 2
Chapter 5 : ANALYSIS, REPORTING, AND ADVISING FUNCTIONS . . 599
. ....
Introduction . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 59. 9 . . . .
. .... ..
A . Analysis . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599 . . . . . . . . . . . .
.. .. . . .
B . Reporting and advising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. ... 60.4
xvii
�Chapter 6 :
EXECUTIVE POWERS AND PREVENTIVE ACTIVITIES . . . 61 3
.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. . . . . . . . . . .. .. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 613 . . .
. .. ....
A . Police powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. . . . .. .. .. . . . . . .. .. . .. 614
B . Permissible and impermissible preventive activities . . . . . . . . . . . .. . . . 614
C . Interrogation of suspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62 2 . . . . . . . . . .
. ..... .
Chapter 7 : INTERNATIONAL DIMENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62. 5. . . . . .
. ....
Introduction . . . . . . . . . . . . ... .. .. . . . . . ... . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .625. . . . . . . . . . . . . . . .
.. ...
A . Foreign operations undertaken by the security intelligenc e
agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .626 . . . . . . . . . . . . . . . . . .
.....
B . Relationships with foreign agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 632. . . . .
. ....
C . Should Canada have a foreign intelligence service? . . . . . . . . . . . . . 64 1
. ..
Chapter 8 : RELATIONSHIPS WITH OTHER DEPARTMENTS, PROVINCIAL AND MUNICIPAL AUTHORITIES . . . . . . . . . . . . . . . . . .. . 647
. . ....
Introduction . . . . . . . . . . . . . . . . .. . . . . ... .. .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 647 . . . . . . . . . . . . . . . .
..... .
A . Relationships with other federal departments and agencies . . .. 647
B . Relationships with provincial and municipal authorities . . . . . . .. 65 2
.
VOLUME I I
Part VI : A PLAN FOR THE FUTURE : MANAGEMENT, PERSONNEL, AND STRUCTURE OF A SECURITY INTELLIGENCE AGENCY . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .66 5. . . . . . .
... ..
Introduction . . . . . . . . . . . . . . . . . . . .. .. .... . . . .. .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . . . .. .. .. .. ..66 7 . . . . . . . .
. .. .. . . .
Chapter 1 : THE HISTORICAL CONTEXT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .669
. ...
A . Post World War II to the Royal Commission on Security ,
1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .669 . . .
.. ....
B . The Royal Commission on Security, 1968, and its aftermath 671
C . The era following the Royal Commission on Security : 196980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. .. .. .. .. .. .. .. . . . . . .. . . . ... .679
..
D . Conclusions . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . .. .. .. . . ... ..688 . . . . . .
. .. . . . .
Chapter 2 : MANAGEMENT AND PERSONNEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .693 . . . .
. .....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. . . .. .. .. . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 693 . . . . . . . . .
... ...
A . The importance of internal management . . . . . . . . . . . . . . . . . . . . . . . ... . 694. .
.... .
B . The Director General and senior management . . . . . . . . . . . . . . . . . . . .698
. .. ...
C . Personnel policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . :. . . .. .... .. . . . .. . . . . .. .. .. .. . .705
. .
D . Approaches to leadership, organization, and decision-making 732
E . Legal advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . .. .. . . ... .73. 6
. ... .
xviii
�. .....
F . Internal auditing . . . . . . . . . . . . . . . . . . . . . .. .. .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739. . . .
G.
.. ..
Internal security . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. ... .. . . . . . . . . . . . . . . . . . . . . ... . 74.4.
Chapter 3 : STRUCTURE OF THE SECURITY INTELLIGENCE
AGENCY : ITS LOCATION WITHIN GOVERNMENT . . . . . . . .. .75 3
...
A . Our approach to the question . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . ... 753
B . The case for a security intelligence organization outside of
. .. ....
the R .C .M .P . . . . . . . . . . . . . . . . . . .. . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 754 . . . . . . . . .
.
C . Reasons advanced for maintaining the status quo . . . . . . . . . . . . . .. . .760
. .....
D . Implementation of structural change . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 774. . . .
.
Part VII : A PLAN FOR THE FUTURE : SECURITY SCREENING . . . . . . 777
. ....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. .. ... .. .. ... . . . . . . . . . . . . . .779
Chapter 1 : SCREENING OF PERSONNEL FOR PUBLIC SERVICE
. . .. . . .
EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781.
... ..
A . Historical background . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. . . . . . . . . . . . . . . . . . . . .. .781 . . .
... ..
B . Extent of the security clearance programme . . . . . . . . . . . . . . . . . . . ... . 787
.... ..
C . Security clearance criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 793. . . . . . . . .
. .... .
D . Security screening roles and responsibilities . . . . . . . . . . . . . . . . . . . . . . .797.
. .
E . Review and appeal procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 80 5
...
Chapter 2 : IMMIGRATION SECURITY SCREENING . . . . . . . . . . . . . . . . . . . . . .. . 813
. . ....
A . Historical background . . . . . . . . . . . . . .. ... .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .813 . . . . .
. ....
B . The extent of immigration security screening . . . . . . . . . . . . . . . . . . . . . . .819
. . ....
C . Immigration security criteria . . . . . . . . . . . .. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .. .822 .
D . Role of the security intelligence agency in immigratio n
.....
screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .824 . . . . . . . . . . . . . .
.... .
E. Immigration appeal procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .825
.. . . . .
Chapter 3 : CITIZENSHIP SECURITY SCREENING . . . . . . . . . . . . . . . . . . . . . .. . . .. . 82 9
. . ....
A . Historical background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .829 . . . . . . . . . . .
B . The role of a security intelligence agency in citizenship
. ... .
screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83. 1. . . . . . . . . . . . . . . . . .
... ...
C . Citizenship security criteria . . . . . . . . . . . . .. . . . . . . . .. . . .. .. . . . . . . . . . . . . . . . .. . 834
. ... . .
D . Appeal procedures . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83.7
Part VIII : A PLAN FOR THE FUTURE : DIRECTION AND REVIE W
.
OF THE SECURITY INTELLIGENCE SYSTEM . . . . . . . . . . . . . . . . . . 83 9
. . .. .. ..
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .... .84..1. . . . . . . . . . . . .
. .. ...
Chapter 1 : INTERNAL GOVERNMENTAL CONTROLS . . . . . . . . . . . . . . . . . . . . 845
A . Role of the Cabinet and Interdepartmental Committees . . . .. .. . 845
B . Role of the Privy Council Office and Interdepartmenta l
. ...
Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 .7. . . . . .
xix
�..... .
C . Ministerial direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 856. . . . . . . . . . .
. . ..
D . Other forms of government direction and review . . . . . . . . . . . . . . . .. .87 8
Chapter 2 : EXTERNAL CONTROLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88. 1 . . . . . . . . . . .
. . ...
...
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .88. 1. . . . . . . . . . . . . .
A . The Federal Court of Canada and the Security Appeals
Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 88 .2. . . . . . . . . . . . . . . . .
... .
B . The Advisory Council on Security
and
Intelligence
(A .C .S.I .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 88. 3 . . . . . . . . . . . . . . . .
... .
C . The role of Parliament . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 891. . . . . . . . . .
.....
D . Public knowledge and discussion of security matters . . . . . . . . . . . . . 90 5
. ..
Part IX : ADDITIONAL LEGAL AND POLICY PROBLEMS RELAT.
ING TO THE SECURITY OF CANADA . . . . . . . . . . . . . . .. . . .. . . . . . . . . . .. . 90 7
.. ...
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. . . . .. .. ... .. .. .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .909 . . . . . . . . . .
Chapter 1 : NATIONAL EMERGENCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 911 . . . . . . . . . . . .
. .... .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91. .1. . . . . . . . . . . . . . . .
.
. . ...
A . The legal framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
B . Legislative reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920. . . . . . . . . . . . .
. .. ....
C . Internment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. .. .. . . . . . . . . .. . . . . . . . . . . . . . . . . . 928
.
D . The role of a security intelligence agency in national emergencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 93 .4. . . . . . . . . . . . . . . .
....
Chapter 2 : THE OFFICIAL SECRETS ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .939 . . . . . . .
. . ....
A . Summary of First Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 939. . . . . . .
. ....
B . Special Powers of Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 945
.
C . Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94. 6 . . . . . . . . . . . . . . .
. ... .
Chapter 3 : FOREIGN INTERFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .94 7. . . . . . . . .
.. ...
Chapter 4 : THE LAW OF SEDITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . .. . . ... . .95 1
Part X : THE R .C .M .P . POLICING FUNCTION : PROPOSALS FOR
IMPROVING ITS LEGALITY, PROPRIETY AND CON.
TROL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . . . . . . . . . . . . . . 95 . 5 . . . .
. .. .. .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95. 7 . . . .
. ... .
. ....
Chapter 1 : CHANGE WITHIN THE R .C .M .P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .959 . . . . .
. ....
A . Basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .959. . . . . . . . . . . . . .
. ....
B . Management and personnel practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 96. 5. . . .
xx
�.... .
Chapter 2 : COMPLAINTS OF POLICE MISCONDUCT . . . . . . . . . . . . . . . . . . . . . 967. . . .
A . Existing procedures for handling public complaints agains t
the R .C . M . P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .968. . . . . . . . . . . . . . . . .
.. ..
B . Lodging of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 970. . . . . . . . . . . . . . . . .
. .. ...
... .
C . Investigating allegations of misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .977
. ....
D . Resolving allegations of misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 982. . . . . .
. ....
E . The Office of Inspector of Police Practices . . . . . . . . . . . . . . . . . . . . . .985. . . . .
F . The provincial role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 98 9 . . . . . . . . . . . . . . . . .
. .... .
Chapter 3 : OBTAINING LEGAL ADVICE AND DIRECTION . . . . . . . . . . . .. .995
.. ..
A . Role of the Legal Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 995. . . . . . . . . . . . . . .
.....
B . Glassco Commission's position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1000. . . . . . . . . . . .
. .. ...
.
C . Relationship of R .C .M .P . to provincial attorneys general . . . . . . . 100 2
Chapter 4 : MINISTERIAL RESPONSIBILITY FOR THE R .C .M .P . . . . . . . .. 1005
.
. ....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . .. . .. . .. . . . . . . . .. . 100 .5. . . . . . . . . . . . . .
A . Principles governing ministerial responsibility and accounta.. ...
bility for police activities . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . .. .. . . ... 1005. .
B . Minister's and Deputy Minister's roles in directing the
R .C .M .P . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 100 8 . . . . . . . . . .
.....
. ....
C . Relationship with provincial attorneys general . . . . . . . . . . . . . . . . .. .1014 . .
Chapter 5 : SOME METHODS OF CRIMINAL INVESTIGATION AND
. ... .
THEIR CONTROL . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 101 . 7 . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1017 . . . . . . . . . . . . . . . .
.....
A . A system for controlling criminal investigatory methods . . . . . . 1017
... .
B . Surreptitious entries . . . . . . . . . . . . . .. . . . .. .. .. . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. .1019. . . .
. ...
C . Electronic surveillance . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. .1019. . . . . . . . . .
D . Mail covers and mail opening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023. . . . . . .
....
. ... .
E . Access to confidential information . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1026 . . . . . . . . .
F. Physical surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1029 . . . . . . . . . . . . . . . . .
.....
.... .
G . Undercover operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1030. . . . . . . . . . . . . . . . .
H . Interrogation techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .103. 3 . . . . . . . . . . . . . . .
.. . .
. ...
CONCLUSION TO THE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1055. . . . . . . . . . . . . . .
Annex 1 : ACCESS TO MEDICAL INFORMATION . . . . . . . . . . . . . . . . . . . . . . .1057. . . . .
....
MINORITY REPORT OF THE CHAIRMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1061. . . . . . . . . . . . . . .
. .. ..
MINORITY REPORT OF COMMISSIONER GILBERT . . . . . . . . . . . . . . . . . . . . ... 1063 . . . . . . . .
... ..
.. ...
SUMMARY OF RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1067 . . . . . . . . . . . .
BI BLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 111. 7 . . . . . . . . . . . . . . .
. .. .
xxi
�APPENDICE S
. .....
A . Inquiries Act . . . . . . . . . . . . . .. ... .. . .. . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1 145 . . . .
. .. .
B . Order-in-Council (6 July, 1977) . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. .149. . . .
. ... .
C . Commission . . . . . . . . . . . . . . . . . . .. .. .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .1153 . . . . . . . . .
D . Opening statement of the Commission, December 6, 1977 . . . . . 1157
.
E . Reasons for Decision of the Commission, December 8, 1977 . . 1 169
F . Reasons for Decision of the Commission, October 1 3, 1978 . . .. 1175
G . Reasons for Decision of the Commission, July 11, 1979 . . . . . . . .. .1193
H . Reasons for Decision of the Commission, May 22, 1980 . . . . . ... 1195
1.
..
Practice Direction of the Commission, June 20, 1980 . . . . . . . . . ... 1205
..... .
J . Order-in-Council ( 22 March, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1209 . . . .
.. ....
K . Order-in-Council ( 2 June, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1211 . . . . . .
. .....
L . Commission Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. .1213 . . . . . . . . .
M . Public Advertisement re : Notice as to submissions by mem. .. .
bers of the public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . .. . . . . . .. . . . . . .. . . . 1215
N . Public Advertisment re : Motive as to termination date for
receipt of allegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121. .7. . . . . . . . . . . .
... .
0.
Witnesses who testified before the Commission . . . . . . . . . . . . . . . . . .. 1219
.... .
P . Counsel who have appeared before the Commission othe r
than Counsel for the Commission . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . .. . . . . . . .. 1225
Q . Places and dates of hearings to receive briefs and persons and
organizations that presented briefs at those hearings . . . . . . . . . . ... .122 7
. ... ...
R . Formal Briefings . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. .. . . . . . . . . . . . . . . . . . . . . . 1229 . .
.....
S . Meetings with Academics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1231. . . . . . . . . .
.... ..
T . Contracted studies and Consultants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1233 . . . .
.... ..
U . Organization chart of the R .C .M .P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1235 . . . .
.
V . Organization chart of the Security Service . . . . . . . . . . . . . . . . . . . . . . . . . . ... 1237
W . Informal meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1239 . . . . . . . . . . . . .
.... ..
X . Judgment and reasons for Judgment of Mr . Justice Cat.... .
tanach . . . . . . . . . . . . . .. .. .. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1241. . . . . . . . . . . . . .
.
.... .
Y . Order of Mr . Justice Gibson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1251
Z . Reasons for Decision of the Commission, delivered on Febru... .
ary 23, 1979 . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. .. . . . .. .. . . . . . .. .. .. . . .. . . . . . . . . . . . .. .125 3
xxii
�PART I
GENERAL INTRODUCTIO N
Structure and Content of the Report 3
The Establishment of the Commission 7
Terms of Reference
The Work of the
13
Commission
23
Biographical Reference 31
i
��GENERAL INTRODUCTION
STRUCTURE AND CONTENT OF THE REPOR T
1 . Our full Report actually encompasses several separate reports, which we
number in the order of their submission . Thus the First Report, entitled
"Security and Information", was submitted on November 26, 1979 . It dealt
with sections 3 and 4, and certain related sections, of the Official Secrets Act .,
It also dealt with access to government information concerning security and the
administration of justice, and the release of that information, whether under
"freedom of information" legislation or otherwise . In that First Report we
deliberately left for future consideration other aspects of the Official Secrets
Act, such as search and seizure and the interception and seizure of
communications .2 We also did not tackle in that Report the very significant
task of fully defining the phrase "the security of Canada",' nor did we attempt
a resolution of the problem of the delineation "between the legitimate `lobbying' activities of a foreign government and the work of an agent of influence . "4
We also indicated that we would be reporting later on the overseeing and
control of the government's security activities .s All of these subjects are dealt
with in this our Second Report .
A . HOW THE SECOND REPORT IS ORGANIZE D
2 . In this Second Report we deal with most of the central issues requiring
analysis and recommendations, and we have again divided the Report into
several parts .
3 . Part I is an attempt to put our work into context, through an examination
of the organization of our Report, events leading to the creation of the
Commission, an analysis of the terms of reference, a description of the way in
which we proceeded in order to fulfill our mandate, and finally, a list of the
names and positions of those who figure in our Report to allow our references
to them to be placed in context .
4. Part II begins with a general analysis of the need for security - and it is
here that we give our view of how the phrase "the security of Canada" should
be interpreted - and continues with a detailed statement of the democratic
norms which a security system ought to protect and must not violate in the
' R .S .C . 1970, ch .O-3 .
'The Commission of Inquiry Concerning Certain Activities of the Royal Canadian
Mounted Police, First Report, Security and Information, Ottawa, Department of
Supply and Services, 1979, Foreword, Page x .
Ibid., paragraphs 40 and 119 .
Ibid., paragraph 47 .
Ibid ., paragraph 100 .
3
�process . The organizational response of the government to this need is
reviewed, including the relevant legislation, the current structure of the
R .C .M .P ., and the historical evolution and current organization of the Security
Service . The current roles in the Canadian security system played by the
Security Service itself, the R .C .M .P ., other federal departments and agencies,
the Cabinet and the interdepartmental committees are also considered .
5 . Having thus examined the present system, we turn, in Part III, to a study
of activities engaged in by members of the R .C .M .P . which might be described
as institutionalized wrongdoings . These are examples of conduct carried on
within the R .C .M .P . as a matter of practice with either direct or tacit approval
by the managers of the Force . In Part III we look at general practices which we
consider to be "not authorized or provided for by law" rather than particular
acts which will be the subject of a separate Report . The practices which will be
analyzed are : improper acts of a deceitful character, surreptitious entries,
electronic surveillance, mail checks, access to and use of confidential information, countering, physical surveillance, violation of the law by undercover
operatives, interrogation of suspects and acts beyond the Security Service
mandate . We shall state briefly our recommendations as to whether and how
certain of those practices - those which involve investigative techniques ought to be made legal . A more detailed discussion of such recommendations
will be set out in Part V and Part X .
6 . In Part IV we consider the reasons advanced by the participants in the
various activities to justify their conduct . We examine the legal and policy
defences put forward by them with respect to any charges of misconduct which
might be levelled against them, including their proposition that the pursuit of
national security objectives provides, in itself, a justification for what would
otherwise be acts "not authorized or provided for by law" .
7 . . Parts V, VI, VII and VIII together, under a common heading, "A Plan for
the Future", form a sort of `manual' for a security intelligence agency . Part V,
after describing the need for such an agency at the federal level, recommends
the specific threats to national security with which the agency ought to be
concerned, the methods it should use in collecting intelligence related to those
threats, and the manner in which it ought to analyze and report that intelligence . We also discuss and make recommendations about : the powers and
authority which the agency ought to have in responding to the threats ; the
circumstances in which it ought to be allowed to function outside Canada ; and
the relationships it ought to have with foreign agencies, other federal departments and agencies and provincial and municipal authorities . We also consider
briefly, but make no recommendations about, the necessity or desirability of
creating a Foreign Intelligence Service . After completing this study of the
roles, functions and methods of the agency, we come, in Part VI, to deal with
management and personnel policies it should adopt internally, and how the
agency should be structured to fulfill its mandate most effectively and to avoid
the problems which have arisen in the past . This analysis includes the question
of where the agency ought to be located in the government structure . The
recommendations in this regard are preceded by a review and critique of
previous studies of the Security Service and its predecessors within the Force .
4
�S . One of the major uses of security intelligence has been in the security
screening process, especially in the areas of Public Service employment,
immigration, and citizenship . In Part VII we make recommendations for a
more limited, but more appropriate, role for the security intelligence agency in
this field, and we make proposals for the disposition of the deleted parts of that
role .
9 . While Part VI outlines various control systems within the agency, Part
VIII proposes a series of control systems which are external to the agency and
thus beyond its direction . These include a modified role for Cabinet, a slightly
revised interdepartmental committee system and changes in the system of
analyzing and disseminating intelligence reports, whether produced by the
security intelligence agency or by other departments and agencies . In Part VIII
also, we make recommendations fôr significant changes in the exercise of
ministerial direction over the agency and in the relationship of the agency to
the responsible Minister and his deputy . The extent of control exercised by
other government agencies is also examined . We then consider existing controls
outside the government, including the Federal Court of Canada and Parliament, and examine the need for an independent review body for security
matters, and for a revised role for Parliament .
10 . The `manual' found in Parts V, VI, VII and VIII responds partially to our
mandate to advise and report regarding "policies and procedures" and "the
adequacy of the laws of Canada as they apply to such policies and procedures" .
However, we present in Part IX further proposals with respect to changing
inadequate laws . We recommend major revisions of the War Measures Act, as
well as a proposed role for the security intelligence agency in situations of
crisis . We also summarize the recommended changes to the Official Secrets
Act contained in our First Report, and make proposals for further changes .
Further, we take up another matter left in abeyance in the First Report : the
extent to which activities of agents of foreign powers ought to be proscribed .
Part IX concludes with an analysis of the need to legislate a clear definition of
the meaning of `sedition' .
11 . Our terms of reference, in addition to directing us with respect to policies,
procedures and laws in the security field, direct us generally "to advise as to
any further action that [we] may deem necessary and desirable in the public
interest" with respect to "activities not authorized or provided for by law" .
This latter direction is not confined to security matters . Part X contains our
advice as to such "further action" . It begins with advice on changes that ought
to be made in the policies of the Force to instill and maintain in its members a
respect . for the law . We look at the current system within the Force for
investigating and eradicating unlawful or improper activities by members, and
propose a new system which includes external review . We also examine the way
in which the R .C .M .P . obtains its legal advice . As with the Security Service
earlier, we study ministerial direction and control of the R .C .M .P . and propose
changed relationships between the Commissioner and the Minister and Deputy
Minister . Part X is completed by a series of recommendations . relating to
methods of criminal investigation and their control . Some of them - for
example, surreptitious entries, electronic surveillance, mail checks, access to
5
�confidential information, physical surveillance, activities of undercover operatives and interrogation of suspects - will have been partially dealt with in Part
III . Part X also covers fully the admissibility of evidence obtained by illegal or
improper means, and entrapment .
12. We have not, in this Second Report, included our summary of the facts
and applicable law relating to the various specific incidents about which we
received evidence, nor have we dealt with the knowledge, approval and
response of R .C .M .P. supervisors, senior officials and Ministers with respect to
the investigative practices described in Part III . These will be covered in a
separate Report . We also have not dealt in this Report with the many
complaints received from the public alleging misconduct by members of the
Force . The results of our investigations of those allegations will also be
reported on separately .
B . THE COMMISSION'S TREATMENT OF MATTERS
THAT
CANNOT BE REPORTED PUBLICLY
13 . In this Report we have identified all information obtained from sections
of classified documents . In our opinion a number of these sections no longer
need to be classified and could be released to the public .* On the other hand,
there is considerable evidence gathered by the Commission itself which ought
not to be released, on one or more of the grounds stated in the Order-in-Council setting up the Commission . In that Order-in-Council we were directed to
hold our proceedings " . . .in camera in all matters relating to national security
and in all other matters where [we] deem it desirable in the public interest or
in the interest of the privacy of individuals involved in specific cases . . ." .
Certain matters, such as reports dealing with individuals whose conduct may
have been a breach of the law, may need to be kept confidential only for the
time required for decisions to be made regarding prosecution . Other matters
will have to be kept secret until their release would no longer adversely affect
national security, unnecessarily infringe on the privacy of individuals, or
otherwise prejudice the public interest .
* Since presentation of this Report, all classified documents, or portions of them, quoted
herein not previously declassified, have been declassified .
6
�THE ESTABLISHMENT OF THE COMMISSION " `
14. We shall now outline briefly the events which led to the establishment of
the Commission . In March 1976, Robert Samson, a former constable of the
Royal Canadian Mounted Police and a member of the Security Service,
testified at his own trial in Montreal on a charge arising from the bombing of a
private residence in 1974 . That occurrence had resulted in his discharge from
the Force . At his trial he testified that he had done much worse things . When
asked what he meant, he referred to the Agence de Presse Libre du Québec
(A .P .L .Q .), "a break-in with . .. certain members of the Q .P .P . and the
R .C .M .P. .. to take documents which were files of the most militant members
[of the A .P .L .Q .] as well as other pertinent documents . The Agence de Presse
Libre always had a fairly big list of Quebec leftists"6 . (The evidence before us
clearly indicates that members of the Montreal City Police were also involved
in the operation .) The publication of this testimony in the press resulted in
considerable public interest, and concern at the higher levels of government,
especially on the part of Solicitor General Warren Allmand and Prime
Minister Trudeau . The R .C .M .P . reported on the A .P .L .Q . incident to Mr .
Allmand and to the Prime Minister . Thé'setting up of a commission of inquiry
was considered but was decided against because assurances were given to the
Solicitor General and the Prime Minister by Commissioner Nadon and Mr.
Michael Dare, Director General of the Security Service, that the A .P .L .Q. matter
was an isolated incident . The facts of the incident were reported immediately to
the Quebec Department of Justice by the federal government .
15 . During the months following March 1976, the Quebec Department of
Justice investigated the A .P .L .Q . matter . This resulted in charges being laid
against three police officers, one from each of the Royal Canadian Mounted
Police, the Quebec Police Force and the Montreal Urban Community Police .
16 . Early in 1977 further assurances were given to the new Solicitor General,
the Honourable Francis Fox, by Commissioner Nadon and a senior officer that
the A .P .L .Q . matter was an isolated incident .
17. The next development arose out of the persistent attempts of two former
members of the Royal Canadian Mounted Police to have their involuntary
discharges from the Force reviewed by the Solicitor General . They were
ex-Staff Sergeant Donald McCleery and ex-Sergeant Gilles Brunet, who had
been discharged in 1973 . They also lived in Montreal and had been members of
the Security Service in Montreal . They took strong issue with their having been
discharged, commenced litigation against the R .C .M .P ., and sought to have
their dismissal reviewed by the Solicitor General . Late in May 1977, they
decided to try to see Mr . Fox . Mr . Fox arranged for them to see Deput y
6 As reported in the Montreal Star, April 1, 1976 .
7
�Solicitor General Roger Tassé, and Assistant Deputy Attorney General LouisPhilippe Landry on June 6 . The meeting was largely devoted to discussion of
the circumstances of their discharge, but they made some allegations, of a
general nature, that members of the Force had committed offences . That same
day Mr . Tassé reported the conversation to Mr . Fox at one of Mr . Fox's
regular weekly meetings with Commissioner Nadon, Mr . Dare, and other senior
officers of the Force . Commissioner Nadon, at the meeting, said that the allegations would be investigated . According to Mr. Nadon, he told Mr. Fox and Mr .
Tassé at that meeting that the information reported to the meeting by Mr .
Tassé was exactly the same information that he, Nadon, had received on June
1, 1977, and that he had the allegations under investigation . It is the recollection of both Mr . Fox and Mr . Tassé, and Commissioner Simmonds, who was
also present at the meeting, that there was no mention at the meeting by Mr .
Nadon, or anyone else, about the R .C .M .P . already being in possession of
allegations similar to, or in any way related to, those reported to the meeting
by Mr . Tassé .
18 . On May 26, 1977, the R .C .M .P . officer who had been charged arising out
of the A .P .L .Q . matter entered a plea of guilty, as did the other accused . On
June 16 he was sentenced, and received an absolute discharge . Mr . Fox then
felt free to make a statement in the House of Commons, the contents of which
he had been preparing for more than two weeks . In his statement he said :
The former Solicitor General undertook in the days immediately following
March 16, 1976, to discuss the matter with the Prime Minister who was
told for the first time of the R .C .M .P . participation in the unlawful entry .
The government seriously considered the creation of a royal commission of
inquiry at that time . The government received, however, repeated and
unequivocal assurances from the R .C .M .P . that the A .P .L .Q . incident was
exceptional and isolated and that the directives of the R .C .M .P . to its
members clearly require that all of their actions take place within the law .'
He also said (translation as given in Hansard) :
In a democratic society, Mr . Speaker, it is essential that those on whom,
like the R .C .M .P . and the Security Service, falls the task of enforcing the
law and protecting our basic liberties, can count upon the complete support
of the people . This support, in return, must be based on the faith that those
protecting these rights do themselves feel bound and indeed are bound by
our laws in fulfilling their duties . 8
19 . Mr . Tassé had already, on June 9, written to Messrs . McCleery and
Brunet asking them to give fuller particulars of the allegations they had made .
This resulted in arrangements being made for a meeting, which was held in
Montreal on June 23, between Messrs . McCleery and Brunet on the one hand,
and Mr . Landry and Mr . Maurice Handfield of the Department of Justice on
the other . Again, most of the meeting was taken up with the immediate
problems of Messrs . McCleery and Brunet, but the meeting also resulted in
their elaboration of the same allegations they had previously made, together
with some additional ones . A number of these, if true, involved the commissio n
House of Commons, Debates, June 17, 1977, p . 6793 .
Ibid ., p. 6795 .
8
�of offences by members of the R .C .M .P. ; some of them indicated that practices
which were or might be unlawful were being conducted by the R .C .M .P ., while
others referred to specific incidents . In a memorandum dated June 24 to Mr .
Tassé, Mr . Landry described the information given to him . A copy of this
memorandum was delivered to Commissioner Nadon on June 27 .
20 . This resulted in immediate high-level discussions in the R .C .M .P . OnJune
27, four senior members of the Security Service, having read Mr . Landry's
memorandum, wrote a memorandum to the Director General, Mr . Dare, who
spoke to Commissioner Nadon, Mr. Fox and Mr . Tassé . According to one of the
senior officers of the Security Service, Superintendent Barr, they were concerned
about allegations that were being made and that some of the members of the
R .C .M .P . involved in some of the "problems "
would not, from where we sat, be able to receive a fair hearing, if the
process was allowed to unfold on a piecemeal basis, because of the nature of
some of their duties and some responsibilities, if some of these matters, for
example, wound up in Criminal Court . It would possibly be unfair, the
process would not necessarily be fair to them and the entire story would not
get out .
They were also concerned that :
there was a great need to bring about some significant reform in the
country and that perhaps this was the time and the opportunity to do that .
What Superintendent Barr had in mind when he said that was presumably
reflected by the operative sentence in the memorandum :
We wish here to reiterate and emphasize most strongly the need for a
co-ordinated and total review of former Security Service operational
techniques .
The reasons given in the memorandum were :
- concern that if criminal charges resulted from the investigation then
under way in the Montreal area the publicity would cause major
damage to the credibility of the Security Service ;
- the public view of the Security Service would be worsened by responses
on behalf of the Security Service, in Parliament, the media or in
criminal court, to continuing sporadic attacks on the Service's investigâtive techniques by persons "who have knowledge, or think they have
knowledge, of unorthodox practices" ;
- the "disastrous" effect on the morale and effectiveness which would
flow from the singling out of individual serving members "for discipline,
public criticism, or even criminal charges" when "very often it was the
most talented and energetic investigators who were involved", and
others would not be subject to such proceedings even though they were
involved in similar activities ;
- the desirability of having an impartial tribunal that would see the
Security Service in a more favourable light than would the general
public if cases arose one by one, sometimes in criminal proceedings ;
- the need to have the activities of the Security Service examined "in the
context of the time with the inherent pressures, different public attitudes and inadequate legislation" under which the activities occurred ;
9
�- that "in the calmer atmosphere of a Commission of Inquiry, it could be
amply demonstrated that criminal intent or thoughts of personal gain
were totally absent in members who undertook such activities" ;
- that "a Federal Inquiry may well have the effect of limiting the current
Quebec judicial enquiry into the A .P .L .Q . affair" and that "there are
indications that the Quebec Government's intentions may well exceed
the simple desire to see that justice is done and the public informed" ;
- that if the R .C .M .P . took the initiative "we could perhaps have some
influence in drafting terms of reference which could limit the enquiry to
the Security Service" and so "avoid the prospect of the entire Force
being subjected to the tortuous procedure and consumption of time that
such investigations could impose" .
21 . The memorandum concluded by asserting that an inquiry woul d
give us the time and the opportunity to present a broad detailed explanation
of our operating procedures, properly set in a historical context and
illustrating an inadequate working mandat e
and tha t
these conditions forced many totally loyal and dedicated members to resort
to methods which were at least unorthodox and often bordering on illegality
to carry out the duties required of them by the Canadian people . It is only
by having the opportunity to present this picture in its entirety that we can
hope in any way to define these actions .
22. Superintendent Barr explained to us that in expressing the hope that the
inquiry could be limited to the Security Service, he was not aware that the
same problems existed on the criminal investigation side of the Force (Vol .
198, p . 29189) . Very shortly thereafter Commissioner Nadon asked the
Solicitor General to have a commission of inquiry appointed under the Inquiries Act . The result was our appointment on July 6 . In the House of
Commons, Mr . Fox, announcing the appointment, said :
Since making my statement in the House concerning the A .P .L .Q .
incident, allegations have been made that members of the R .C .M .P ., and
more particularly members of the security service, have, on other occasions,
been involved in unlawful actions in the discharge of their duties . The
A .P .L .Q . incident, according to those who made the allegations, was not of
an isolated and exceptional character .
These allegations received our immediate attention . At my request, the
deputy Solicitor General of Canada and the assistant Attorney General,
criminal law, personally met with some of the individuals who made these
allegations . In addition, I asked the Commissioner of the R .C .M .P . to
undertake the investigations which were warranted . He later informed me,
after having made preliminary inquiries, that some of these allegations
might well have some basis in fact . According to the Commissioner, it
would appear that some members of the R .C .M .P. in the discharge of their
responsibility to protect national security could well have used methods or
could have been involved in actions which were neither authorized nor
provided for by law . As a result, the Commissioner has modified his
position and has recommended that the government establish a commission
of inquiry into the operations and the policies of the R .C .M .P . security
service, on a national basis .
10
�In the circumstances, Mr . Speaker,-and considering these new developments, the government has decided to establish an inquiry commission
composed of three members who will be responsible for determining the
scope and frequency of inquiry practices and other activities which are not
permitted or provided for in the law, involving members of the R .C .M .P .,
and for examining the policies and procedures regulating R .C .M .P . activities in their task, which consists in protecting the country and ensuring its
security . '
The following passage was delivered in French . The translation is by Hansard :
. . beyond particular incidents which might be brôught before the commission, it is important to think about the lessons to be learned for the future .
That is why the government has asked the commission's advice in terms of
policies and procedures that govern or should govern R .C .M .P. activities i n
the accomplishment of their task, namely to see to the protection and the
security of the country, of necessary mechanisms for implementing these
policies and procedures, and finally of the amendments to the legislation
which could be necessary, in keeping with the security requirements of our
country .
Even if the commission is particularly requested to inquire into matters
related to the security service of the R .C .M .P ., the government has also
requested to have brought to its attention any incident involving illegal
action on the part of R .C .M .P . members, outside of security service
operations . Regular police operations are more immediately submitted to
the control and surveillance of the courts . Nevertheless, the government
prefers not to restrict the terms of reference of the commission to the
security service, so that eventually it could know about incidents involving
unlawful acts that could be drawn to the attention of the commission . Thus,
the government will be able to take the necessary steps at the appropriate
time .1 0
23 . Robert Simmonds became Commissioner of the R .C .M .P. on September
1, 1977, almost at the same time as this Commission was established . Before
that, since 1976, he had been the Deputy Commissioner responsible . for
administration, and his brief time in that position was his only prior experience
at Headquarters; all his earlier career, from the time he joined the R .C.M .P . in
1947, was spent in Alberta and B .C . Managing a police force the size of the
R .C.M .P . is a difficult task at the best of times . Commissioner Simmonds'
burden has been increased greatly during the past three and one-half years by
the activities of our Inquiry and those of the provincial Inquiries . His stance
vis-à-vis this Commission has been, throughout, one of total co-operation . We
are conscious of the fact that he has put `on hold' certain plans and proposals
that he had for change within the Force, pending receipt of our Report, and
also that he has felt constrained to suspend or terminate certain practices
merely because to continue them might have meant to continue unlawful
conduct . Our Inquiry and Report touch only occasionally upon Commissioner
Simmonds . He inherited the situation which led to our Inquiry and participated in neither the formulation nor the continuation of the policies which have
been its substance .
' Ibid., July 6, 1977, p . 7365 .
10 Ibid., pp . 7365-6 .
11
��THE TERMS OF REFERENC E
A. GENERAL APPROAC H
24. The legal framework within which our Commission has operated consists
of a specific `Commission' issued pursuant to an Order-in-Council, the relevant
provisions of the Inquiries Act together with judicial decisions interpreting it,
and the laws of procedure and evidence generally applied to commissions of
inquiry . Throughout our work, rarely has a week gone by in which we have not
addressed ourselves to the language of our `Commission' and sought to
interpret it as a guide to resolving an issue .
25 . The Commissioners appointed to any Inquiry must arrive at their own
interpretation of their mandate so as to determine its true intent . It is then
their task to direct the course of the Inquiry towards realizing that interpretation . They are not at liberty to inquire into matters beyond those specified by
their authority, nor to adopt procedures other than those set out in their terms
of reference, yet they must interpret their mandate broadly enough to avoid so
rigid a construction of its language that its intent would be frustrated . This
chapter is an attempt to convey the essence of our interpretation - as it has
evolved over the past three years - of the language of the Order-in-Council
that established our Commission .
26 . Basic to our interpretation, it will be seen, is our adherence to the core
element that has guided our procedural decisions - that a tribunal such as our
Commission of Inquiry is created to restore public trust in a public institution
which has fallen under suspicion . It was this belief that led us to conclude that
as a general rule only public hearings would engender public confidence in our
findings .
27 . The Comtitission for an Inquiry such as ours is issued by the Governor in
Council pursuant to the authority granted by Part I of the Inquiries Act
(reproduced as Appendix A) . The specific authority to issue our `Commission'
is contained in Order-in-Council P .C . 1977-1911, passed on July 6, 1977 and
tabled in the House of Commons that same day . The Commission under the
Great Seal is our governing instrument . Our terms of reference - what we are
to inquire into - are found in paragraphs (a), (b) and (c) . The remainder of
the text consists of procedural directions as to how the Inquiry is to be
conducted . Although the entirety of the Order-in-Council is reproduced in
Appendix B, and our `Commission' is reproduced in Appendix C, for ease of
reference we reproduce here the preamble and the terms of reference .
WHEREAS it has been established that certain persons who were
members of the R .C .M .P . at the time did, on or about October 7, 1972,
take part jointly with persons who were then members of la Sûreté du
Québec and la Police de Montréal in the entry of premises located at 345 9
13
�St . Hubert Street, MontreaÎ, in the search of those premises for property
contained therein, and in the removal of documents from those premises,
without lawful authority to do so ;
AND WHEREAS allegations have recently been made that certain
persons who were members of the R .C .M .P . at the time may have been
involved on other occasions in investigative actions or other activities that
were not authorized or provided for by law ;
AND WHEREAS, after having made inquiries into these allegations
at the instance of the Government, the Commissioner of the R .C .M .P . now
advises that there are indications that certain persons who were members of
the R .C .M .P . may indeed have been involved in investigative actions or
other activities that were not authorized or provided for by law, and that as
a consequence, the Commissioner believes that in the circumstances it
would be in the best interests of the R .C .M .P . that a Commission of Inquiry
be set up to look into the operations and policies of the Security Service on
a national basis ;
AND WHEREAS public support of the R .C .M .P . in the discharge of
its responsibility to protect the security of Canada is dependent on trust in
the policies and procedures governing its activities ;
AND WHEREAS the maintenance of that trust requires that full
inquiry be made into the extent and prevalence of investigative practices or
other activities involving members of the Royal Canadian Mounted Police
that are not authorized or provided for by law .
THEREFORE, the Committee of the Privy Council, on the recommendation of the Prime Minister, advise that, pursuant to the Inquiries Act,
a Commission do issue under the Great Seal of Canada, appointin g
Mr . Justice David C . McDonald
of Edmonton, Alberta
Mr . Donald S . Rickerd
of Toronto, Ontario
Mr. Guy Gilber t
of Montreal, Quebe c
to be Commissioners under Part I of the Inquiries Act :
(a) to conduct such investigations as in the opinion of the Commissioners
are necessary to determine the extent and prevalence of investigative
practices or other activities involving members of the R .C .M .P . that
are not authorized or provided for by law and, in this regard, to inquire
into the relevant policies and procedures that govern the activities of
the R .C.M.P . in the discharge of its responsibility to protect the
security of Canada ;
(b) to report the facts relating to any investigative action or other activity
involving persons who were members of the R .C .M .P . that was not
authorized or provided for by law as may be established before the
Commission, and to advise as to any further action that the Commissioners may deem necessary and desirable in the public interest ; an d
(c) to advise and make such report as the Commissioners deem necessary
and desirable in the interest of Canada, regarding the policies and
procedures governing the activities of the R .C .M .P . in the discharge of
its responsibility to protect the security of Canada, the means t o
14
�implement such policies and procedures, as well as the adequacy of the
laws of Canada as they apply to such policies and procedures, having
regard to the needs of the security of Canada .
The need for trus t
28. The most important word in the Commission governing this Inquiry is
"trust" . No police force protecting the peace can be effective unless it has the
trust of the people it seeks to protect ; no security intelligence agency can be
effective without the trust of citizens . Moreover, neither can be effective
without the trust of government .
29. Our mandate stresses the role of the R .C .M .P . in protecting the security
of Canada . It correctly notes that unless the R .C .M .P . has and deserves the
trust of Canadians, it cannot perform that task effectively . Without the full
co-operation of citizens, confident that the task is being performed competently
and lawfully and with due regard for the freedom of the individual, it will not
receive from government the material support which it needs, whether for its
work collecting security intelligence or its law enforcement duties .
Policy and procedures and the adequacy of law s
30 . Paragraph (c) of our terms of reference requires us to advise and report
regarding "the adequacy of the laws of Canada as they apply to" the "policies
and procedures governing the activities of the R .C .M .P. in the discharge of its
responsibility to protect the security of Canada" . The Concise Oxford Dictionary defines "adequate" as "proportionate (to the requirements)" . Therefore,
when considering the various investigative techniques and processes that the
law at present makes available to the R .C .M .P. Security Service, we have
asked ourselves in each instance whether the law is clearly stated, whether it
deals fully with the subject and whether it provides too little or too much
power, in relation to the need to protect the security of Canada .
31 . One of the concerns that "adequacy" invokes is essentially the need for
laws, policies and procedures that ensure that the Security Service is effective .
Therefore, we have examined what the functions of a security intelligence
organization should be, and what kinds of people and structure would be
required in order to carry out that work effectively . It is difficult not to
approach this aspect of our task as if it were separate from that part of our
terms of reference which requires us to investigate and report the facts of, and
the extent and prevalence of, activities involving members or past members of
the R .C .M .P . that were not authorized or provided for by law . Those words
apply to both the criminal investigation and security service work of the
R .C .M .P. As we bring many of the strands together in this Report, we have
attempted to surmount this difficulty, for the heart and soul of the concern
expressed in our mandate is the importance of ensuring that, in the future,
conditions will exist that will justify public trust in the R .C .M .P.
32 . In making our recommendations for the future, therefore, we have not
only constantly asked ourselves what powers are absolutely necessary to ensure
that the work of a security intelligence organization is effective . We have also ,
15
�to balance this, searched for methods, within and outside the organization,
which will enhance the likelihood that its personnel will respect the rule of .law,
the right of dissent, and the duty of accountability, but which will not strangle
the organization's legitimate efforts .
The historical period
33 . In inquiring into activities "not authorized or provided for by law" we
have not, as a general rule, tried to investigate practices preceding 1969 .
Keeping to the past decade has not always been possible since the history of
several of the practices we shall report on begins in earlier years . We, however,
felt that some realistic time limit had to be placed upon our review of the past .
1969 seemed appropriate as that year saw the publication of the Report of the
Royal Commission on Security, the appointment of a new Commissioner, the
appointment of the first civilian Director of Security and Intelligence, and (at
roughly that time) a perception by the R .C .M .P . of new international and
domestic terrorist threats as well as new domestic threats of subversion arising
from the separatist movement in Quebec and other movements across the
country . Another reason was that any inquiry into an earlier period was likely
to be frustrated by poor memories or the unavailability of witnesses . Finally, it
seemed to us that the past decade was roughly the relevant period to determine
the extent to which activities "not authorized or provided for by law" existed
which might damage present public trust and confidence in the R .C .M .P .
34. However, we did not consciously limit, by time, our inquiry into the
policies and procedures of the R .C .M .P . called for in paragraphs (a) and (c),
especially in our research among R .C .M .P . files . In our intensive analyses of
such topics as management and personnel policies in the R .C .M .P . (particularly as they have affected the Security Service), its relationship with'the Solicitor
General and the Prime Minister and other departments of government, the
committee system, and the relationship of the R .C .M .P . Security Service with
foreign agencies, our inquiry frequently took us back several decades . '
The rights of witnesse s
35. In conducting our inquiry, particularly at hearings at which evidence has
been received under oath, we have been conscious of the importance of
exercising with care the broad powers given to us, especially the power to
compel a witness to give evidence as to his own misconduct. In a court of law,
in a criminal trial, the accused in our system cannot be compelled to testify .
However, a Commission of Inquiry may subpoena the " same person, and may
compel him to answer incriminating questions, aÎthough, by virtue of the
Canada Evidence Act," his answers cannot be used against him in a subse=
quent prosecution if he has objected to answering and he is compelled by the
Commissioners to answer . A Commission of Inquiry has the same powers as a
court to compel attendance of persons as witnesses And the production of
documents, so long as the testimony and documents are relevant to the terms of
reference of the Inquiry . Yet, unlike proceedings in a court of law, where a n
" R .S .C.1970,ch .E-10,sec .5 .
16
�indictment or summons defines the charge, an Inquiry has no need to justify
the subpoena of a person or of documents by a particularized written definition
of the issues . Where suspicion of wrongdoing is among the reasons for the
Inquiry, witnesses can be exposed to public comment without the protection
that, in the case of a prosecution, would be afforded by the law of contempt of
court . These powers given to Commissioners are extraordinary powers, which
Parliament has decided should be available for use when the executive considers thàt no other means of investigation of facts appears to be effective .
36 . - In preparing our First Report and this Report on laws, policies and
procedures, and subsequent Reports on the activities of individuals, we have
approached the issues of fact not as angels of vengeance but as dispassionate
inquirers after the truth . Our task has been, not to destroy an institution or
inflict wounds on its members or on public servants or persons elected to public
office, but to suggest the means by which trust in an institution may be
restored on the basis of truth about the past and justice for its members .
B . SPECIFIC INTERPRETATIVE RULING S
37. We turn now from reflections on the essence of the Order-in-Council as
interpreted by us, to a summary of some of the specific interpretative rulings
which we have made publicly, together with supplementary remarks . This
summary refers mainly to decisions that affected the scope of the inquiry
rather than decisions as to procedure .
". . .Not authorized or provided for by Law . . . "
38 . In our opening statement on December 6, 1977 (Appendix D), we stated
that the words "not authorized or provided for by law" directed us to inquire
into and report on acts which were offences under the Criminal Code or under
other federal or provincial statutes, or were wrong in the eyes of the law of tort
in the common law provinces or of the law of delict in Quebec . We stated also
that in interpreting those words we did not intend to ignore the moral and
ethical implications of police investigative procedures.
39 . Also in our opening statement we pointed out that those words required
us to examine the legislative and constitutional basis for the existence of the
R .C .M .P . generally, and for the existence of the Security Service of the
R .C .M .P . in particular .
40. In reasons for decision pronounced on May 22, 1980 (Appendix H), we
added that those words also require us to examine whether a particular act ' or
practice, even if not an offence or civil wrong, was nevertheless beyond the
statutory authority of the R .C .M .P ., or was itself not authorized by normal
procedures within the R .C .M .P .
41 . In our opening statement we stated that in our report of a particular
allegation we would give our view as to whether the conduct established by the
evidence constituted an action or activity "not authorized or provided for by
law" . We confirmed that position in the reasons for decision dated May 22,
1980, but noted that our functions were not those of a court of law and that w e
17
�could not render a judgment of acquittal or conviction . We stated that the duty
imposed upon us to "report" facts that disclose an activity which was "not
authorized or provided for by law" could not be performed unless we undertook
an analysis as to whether the facts, as disclosed by the evidence before us,
constituted an offence or a civil wrong or in some other way conduct "not
authorized or provided for by law" . At the same time, we recognized that, in
situations where there is evidence as to the acts of specific individuals in
specific cases, a dilemma arises as to how we can "report" publicly, including a
commentary on the legal status of the acts as it appears on the evidence before
us, without causing unfairness or the appearance of unfairness to any such
individual if he is then tried on a criminal or other charge after all the publicity
that the report may be given . In our separate Report on activities in which
there is such evidence of specific cases we shall face this dilemma . It does not
require further comment here . However, we might say that in a Practice
Directive dated June 20, 1980 (Appendix I), we attempted to reduce the scope
of the dilemma by directing that legal submissions concerning such cases where
there is evidence about individuals (as compared with cases where there is
merely evidence about general practices) be given to us in private .
.
". . The relevant policies and procedures. . "
.
42 . In our opening statement we interpreted the words of part of paragraph
(a) ("to inquire into the relevant policies and procedures that govern the
activities of the R .C .M .P. in the discharge of its responsibility to protect the
security of Canada") and the entirety of paragraph (c) of our terms of
reference as requiring us to determine what have been and are the controls
exercised by federal or provincial Ministers over the R .C .M .P . Security
Service, and what methods and channels have been used by the R .C .M .P .
Security Service to report and account to federal and provincial Ministers .
". .The security of Canada . . . "
.
43 . In our opening statement we interpreted paragraph (c) of our terms of
reference as requiring us to consider what the needs of the security of Canada
are, how those needs should be protected effectively in terms of investigative
work, and how that protection can be achieved in a democracy which cherishes
liberty.
". . .Activities of the R .C.M .P . . . "
.
44 . In reasons for decision delivered on October 13, 1978 (Appendix F)
concerning the Commission's procedure in regard to certain classes of `government documents', we noted that the preamble in the Order-in-Council referred
to the neèd for a full inquiry into "the extent and prevalence of investigative
practices or other activities involving members of the Royal Canadian Mounted Police that are not authorized or provided for by law" so as to maintain
public trust "in the policies and procedures governing its activities" without
which there cannot be full public support of the R .C .M .P . "in the discharge of
its responsibility to protect the security of Canada" . We inferred from this
language that our inquiry into "policies and procedures" governing the activities of the R .C .M .P . was not limited to the policies and procedures governin g
18
�the Security Service, for there can be public support for the work of the
Security Service (so long as it is within the R .C .M .P .) only if there is public
trust in the policies and procedures governing all activities of the R .C .M .P . We
should note here that we have not in fact inquired into all the policies and
procedures governing the R .C .M .P . However, when a policy of the R .C .M .P.
has given rise to concern, the fact that it does not relate directly to the Security
Service has not been regarded as a reason for refusing to examine it .
The involvement ojMinisters
45. In the reasons of October 13, 1978, we concluded that our duty to report
on the facts "relating to any investigative action or other activity" involving
"members of the R .C .M .P . that was not authorized or provided for by law"
might result in our reporting "whether members of the R .C .M .P . who, in our
opinion, have, or might be held in a court to have, committed a wrongful act,
were doing so upon the direction or with the consent or at least without the
disapproval of a Minister of the Crown, for that might be a fact which any
Attorney General might consider relevant to the process of his deciding
whether or not to prosecute the members of the R .C .M .P.". We added that our
Report would be incomplete as to relevant facts, and unfair to any members of
the R .C .M .P . against whom in our Report we might make a "charge of
misconduct" (to use the language of section 13 of the Inquiries Act) and who
might otherwise feel that facts tending to exonerate them had not been brought
to light, unless we inquired into and reported on the extent to which such
members had express or tacit authority from Ministers to perform wrongful
acts . We now add that the considerable time we have taken to examine the
issues of approval or knowledge or toleration, express or implied, by government officials of wrongful acts by members of the R .C .M .P . has led us
inevitably into the receipt of much testimony and the examination of many
documents which relate to the relationship between government officials and
the R .C .M .P. This testimony and these documents have been invaluable to us
in giving us a comprehension of that relationship as a formulation for our
recommendations under paragraph (c) . As we, in this Report, summarize this
evidence as a preliminary to making recommendations as to the future
relationship between the government and the R .C .M .P . or between the government and the security intelligence agency, it will be difficult to avoid using
language which may appear to some readers as an expression of opinion about
the quality of the conduct of a Minister or his competence . Because of this, we
think that it is important that we say something about our interpretation of our
terms of reference as they may relate to the review of political judgment or the
quality of decisions made by Ministers of the Crown .
46. We have had no hesitation in considering ourselves entitled to inquire
into, and report on, any implication on the part of such persons in specific acts
"not authorized or provided for by law" in which members of the R .C.M .P. are
involved, or any implication on the part of such persons in wrongdoing
generally by members of the R .C .M .P. This would include complicity or
knowledgeable acceptance before the event, and also knowledge after the event .
Moreover, we have inquired into, and will report on, the extent to which suc h
19
�persons knew of the existence of any policies or practices'of the R .C .M .P ., the
implementation of which would result in acts not authorized or provided for by
law .
47 . When the facts pass from the domain of issues of complicity in, or
encouragement or tolerance or knowledge of, wrongdoing, to that of the quality
of the conduct of a Minister or public servant in a general sense, we consider
that we should be very cautious . While, in so far as the R .C .M .P .'s duties in
connection with the protection of the security of Canada are concerned,
paragraph (c) permits us to inquire broadly into laws, policies and procedures
that affect the exercise of those duties, we draw a distinction between (i)
inquiring into past and present laws, policies and procedures and reporting
upon them as matters of fact, and (ii) passing judgment on the correctness of
the decisions, or sometimes the lack of decision, that have led to the existence
or absence of a law or a policy or a procedure . We have tried to avoid the latter
as much as possible, for we do not consider that we are empowered to pass
judgment on the quality of a Minister's "management" . Yet we emphasize that
our caution does not apply so as to cause us to refrain from comment if a
Minister has been involved in illegality - whether by active participation
before or after the event, knowledge of illegal activity combined with a failure
to stop it or deal with it in some other proper way, or wilful blindness .
48 . One of us is a judge, but what Dean G .E . Le Dain (now Mr . Justice Le
Dain), chairman of the Commission Into the Non-Medical Use of Drugs, has
written of judges is true also of Commissioners of Inquiry who are not judges :
. . . their experience is limited when it comes to passing judgment on
political conduct . For one thing, a judge has no particular qualifications for
the task, and secondly, the proper forum for the trial of such an issue is
Parliament, and ultimately appeal to the electorate .1 2
As he points out, there have been instances in Canada when the terms of
reference of a Commission of Inquiry appointed under Part I of the Inquiries
Act have been broad enough that the Commission has had a duty not only to
report facts but in effect to pass judgment on a Minister . However, the lesson
we draw from his invaluable review of those instances is that it is only when the
terms of reference clearly impose a duty to make comments or express opinions
on the quality of the acts of Ministers or public servants (apart from wrongdoing) that a Commission of Inquiry should do so . As far as a judge who is a
Commissioner is concerned, only adoption of such a view can minimize the
danger where, in Dean LeDain's words, "serious political issues" are involved
and "the life of the government itself may even be at stake" . The confidence
that is generally reposed by the public in the independence of the judiciary may
be compromised if a Commissioner who is a judge does not avoid comment on
such matters unless comment is required by his terms of reference .13 On the
other hand, it would be unrealistic to expect that a clear line can be drawn
12 Gerald E . Le Dain (now the Honourable Mr . Justice Le Dain), "The Role of the
Public Inquiry in our Constitutional System", in J .S . Ziegel (ed .), Law and Social
Change, Toronto, Osgoode Hall Law School, York University, 1973, p . 86 .
"Ibid., p . 91 .
20
�between finding the facts about ministerial conduct or that of public servants
and expressing an opinion or judgment about those facts . Despite efforts to
clarify the distinction, findings of fact may sound like the expression of
judgment about those facts . Moreover, the very use of judges in any inquiry
which has any political implications inevitably produces what Professor John
Willis, commenting on .Dean LeDain's remarks, has called "an uneasy see-saw
between the two irresistible desires" - one being "a desire to keep the judges'
hands-off policy and the judges themselves out of politics", the other "a desire
to give to the citizen the only decision-maker that he, whether rightly or
wrongly, regards as truly independent and truly impartial, viz ., a judge" .1 4
The rights of individuals
49 . In a statement made at a hearing on July 11, 1979 (Appendix G), we
referred to a number of the policy and legal issues concerning which we
intended to make recommendations pursuant to paragraph (c) . As to these
issues we observed that in considering them we were concerned with "both the
consonance of Security Service activities with democratic values, and the
effectiveness of the Security Service" . Order-in-Council P.C . 1966-2148, which
appointed the members of the Royal Commission on Security, expressly
directed those Commissioners to have "regard to the necessity of maintaining
(a) the security of Canada as a nation ; and (b) the rights and responsibilities of
individual persons", when they adviséd "what security methods and procedures
are most effective" . The point of our remark was to provide reassurance that,
even though our Order-in-Council does not refer to the rights of individuals, we
intended from the outset to place them on the scales as we weighed the policy
and legal recommendations we might make. We have endeavoured, in this
Report, to honour that commitment .
Our access to document s
50: A great deal of testimony received by us, particularly since October 1978,
has been testimony,of past and present Ministers of the Crown and public
servants . In preparation for their testimony, and for that of past Commissioners of the R .C .M .P. and the previous Director General of the Security Service,
and of the present Commissioner and Director General, we have obtained
many documents that have been in the possession of departments of the
government or that originated with them but were found by us in the possession
of the R .C .M .P . There has been no difficulty in obtaining most such docu-ments, except that, after the administration of the Right Honourable Joe Clark
-took'office on June 5, 1979, the process of obtaining documents originating
during the period when the Right Horiourable Pierre Elliott Trudeau was
Prime Minister, was complicated by the need to comply with Order-in-Council
P.C . 1979-1616, dated June 2, 1979 (Appendix K) . Even before that, hôwever,
there were two important developments in regard to government documents .
One was our statement of October 13, 1978, in which we said that the decision
as to whether documents might not be produced in public on the grounds o f
14 Professor Willis was commenting on Dean Le Dain's paper. His comments are found
in the same volume, at p . 100.
21
�national security was for us to make and not the Solicitor General, and that,
similarly, the power to decide whether documents such as Cabinet Ministers'
memoranda to Cabinet and letters between Ministers should be disclosed
publicly rested with ourselves rather than the Privy Council . In reaching the
latter decision, we itemized a number of considerations which we might
properly take into account in deciding particular cases . We expressed optimism
that in particular cases in the future the Commissioners and counsel for all
parties (including the government) would be able to arrive at a mutually
satisfactory result . We are happy to say that so far, one way or another, that
has been possible . The second development that we should note was that, in
order to facilitate our inquiry into possible implication of Ministers in acts not
authorized or provided for by law, the government adopted Order-in-Council
P .C . 1979-887, dated March 22, 1979 (Appendix J) . It provided a detailed
procedure to govern our access to a particular class of government documents,
namely, the minutes of any Cabinet or Cabinet Committee meeting . It allowed
us access to the minutes of any such meeting "held prior to the establishment
of the Commission which relate to the terms of reference of the Commission . . . and which on reasonable and probable grounds' [we] believe provide
evidence establishing the commission of any act involving members of the
R .C .M .P . or persons who were members of the R .C .M .P . that was not
authorized or provided for by law, or evidence implicating a Minister in such
act" . We took advantage of this provision and shall report on the result in a
subsequent Report .
22
�THE WORK OF THE COMMISSIO N
A . ORGANIZATIO N
51 . As pointed out earlier in this part of our Report, the terms of reference of
this Commission are unusual in that they require not only the examination of
specific acts, but also a general review and reporting on policies, procedures
and laws . To fulfill this dual role it has been necessary to create two sections in
the Commission, one engaged in legal matters ranging from investigations to
hearings to legal arguments, and the other doing research into policy issues
with and without legal ramifications . Clearly there had to be close cooperation
between the two groups, but their functions were distinct in many regards . To
keep duplication to a minimum, common administrative services were developed . As preparation of this Report progressed, the work of the two sections
gradually merged to ensure a comprehensive whole .
B . PERSONNEL
52 . Our initial concern was to recruit a Secretary, Chief Counsel, and
Director of Research . Because of the magnitude of the task assigned, both at
the outset and as it unfolded almost daily during the weeks following our
appointment, it took some time to recruit persons with the qualifications
necessary for those positions . In consultation with them we recruited the rest of
the staff as the need arose . Because of the nature of the issues, we sought to
obtain legal and research personnel who were previously unassociated with the
Government of Canada or the R .C .M .P . We needed a team of trained
investigators because of the numerous allegations made with respect to the
activities of the R .C .M .P . and our mandate to investigate them . These investigators had to be independent and objective, to gain the confidence of the
public, and also competent and fair, to win the confidence of the R .C .M .P . To
that end, from within the federal government we obtained two investigators
from the Department of National Defence, one from the National Harbours
Board Police, and four officers of the Ontario Provincial Police .
53. Appendix L to this report is a list of the personnel who have worked for
the Commission for varying periods of time .
C . WORK AND ACTIVITIE S
54. The work and activities of the Commission can conveniently be broken
down into several categories : investigations, hearings, formal briefings, informal meetings, visits to other countries, and research .
23
�Investigations
55. In October 1977, we advertised in most of the daily newspapers and a
number of the ethnic newspapers across Canada, inviting the public to submit
to us any allegations they wished to make regarding conduct which fell within
parts (a) and (b) of our terms of reference, and also any opinions they wished
to express with respect to part (c) of those terms of reference (Appendix M) . In
October 1979, we advised the public, through advertisements in the daily
newspapers, that no allegations would be investigated by us if received subsequent to November 19, 1979 (Appendix N) . Over the course of our work we
have received from individuals and organizations 292 allegations which prima
facie fell within our mandate and 124 written submissions with respect to
policies, procedures and laws . In addition, a number of allegations were
brought to our attention indirectly through the news media . All allegations
have been investigated, or are still in the process of being investigated, by us . A
full examination of what we have done in this regard will be contained in a
subsequent Report .
Hearings
56 . The hearings have been of two kinds, those to receive evidence and those
to receive presentations of briefs . The evidentiary hearings were both in public
and in camera . Since October 18, 1977, the date of our first hearing, we have
held 169 public hearings and 144 in camera hearings at which we have
examined 149 witnesses (Appendix O) and have received 805 exhibits . A great
deal of the in camera testimony was later made public . The evidentiary
hearings have dealt with a number of major topics, which for brevity are
described as follows :
- Operation Bricole - the A .P .L .Q . Inciden t
- Operation Ham - the removal and copying of Parti Québecois tapes
- Surreptitious Entries (generally )
- Certain cases of attempted recruitment of Human Sources
- Mail Checks
- Burning of a Bar n
- Removal of Dynamit e
- Access to information in the possession of the Department of National
Revenue, the Unemployment Insurance Commission and other government departments
- Operation Checkmate - countermeasures and disruptive tactic s
- Miscellaneous topics relating to the accountability of the R .C .M .P . to
Government
- The Relationship between the Security Service and its Human Sources
Evidence was received on those topics first as to the activities which took place
at the field level and then with respect to the knowledge and responsibility of
senior officials and Ministers . We heard evidence of the extent to which those
senior officials and Ministers had knowledge of either specific acts or general
practices which it was our responsibility to investigate .
24
�57 . It was our view from the outset that as much as possible of the evidence
relating to "acts not authorized or provided for by law" should be made public .
This was subject, of course, to the restrictions imposed upon us by our mandate
as to matters related to "national security", "public interest" or "the interest of
the privacy of individuals" . Most of the evidence was heard in public . Evidence
that was heard initially in camera was reviewed by us and, after receiving
representations from all interested parties, was expurgated by us as was
considered necessary in the light of the restrictions mentioned, and released
publicly . Evidence was received publicly on 142 days, each one represented by
a volume of transcript . In addition, 52 volumes of transcript originâlly heard in
camera have been edited and released in 45 volumes . During the course of the
hearings we have been called upon to render a number of decisions with respect
to both procedural and substantive questions . Copies of the reasons for a
number of the major decisions are also annexed (Appendices E, F, G, H, I, and
Z) . Most of the witnesses who appeared before us have been represented by
counsel . In Appendix P, we have set out the various counsel who have so
appeared and the clients whom they represented .
58. The hearings to receive public briefs were held in Vancouver (twice),
Regina, Toronto, Montreal, Fredericton and Ottawa (five times) . The places
and dates of such hearings and the names of the persons appearing at them are
found in Appendix Q . We had also scheduled such hearings for Victoria,
Calgary, Edmonton, Winnipeg, Halifax, Charlottetown and St . John's, and
additional hearings in Toronto and Montreal . In spite of considerable advertising in the printed media, the response from the public was less than we had
expected and we therefore consolidated the hearings regionally in the cities
previously noted . When a hearing in any centre was cancelled the Commission
paid the travelling expenses to another centre of all persons wishing to present
submissions .
Formal briefings
59. The purpose of these briefings was to help us to inform ourselves as to
both facts and opinions on matters which could not in any way be characterized as "misconduct" on the part of any person . The briefings were to assist us
in carrying out our responsibilities under part (c) of the terms of reference .
Before commencing hearings and setting up our research programme, we met
with officials of a number of departments which have some security role in the
government . In this way we could familiarize ourselves with the extent of the
federal government involvement in security and the relationships those departments with security roles have with the Security Service of the R .C .M .P . Since
those initial briefings, we have had, during the course of the work of the
Commission, numerous others from the R .C .M .P. and government departments covering, in great detail, all aspects of the role played by the R .C .M .P .
and those departments in security matters . A list of the topics on which we
have had briefings is found in Appendix R .
Informal meetings
60 . To supplement the information that we obtained at the hearings and the
formal briefings, we met informally with a number of groups and individuals to
25
�obtain their opinions on various topics relating to the policies, procedures and
laws which ought to apply to security matters .
61 . We began this process of informal consultation by bringing together
groups of academics on two separate occasions : November 25 and 26, 1977, in
Toronto, and February 24 and 25, 1978, in Montreal . The Toronto meeting
was conducted in English and the Montreal meeting in French . Those attending are listed in Appendix S . We wished to obtain from these academics and
scholars guidance as to the direction which our research programme ought to
take, and some general ideas as to how we ought to implement that programme . The meetings accomplished both of those purposes as well as providing us with some useful contacts for carrying out the programme .
62. In January 1979, in Regina, we held a seminar to which we invited
representatives of those sectors of society whose lives might be more directly
affected by the activities of the Security Service or who for some other reason
had a particular interest in the subject .
63 . In addition to a number of visits which we made to R .C .M .P . Headquarters in Ottawa for specific purposes, one or more of us toured Security Service
offices in Montreal, Toronto, Ottawa, Vancouver and Edmonton where we
spent some time discussing with members at all levels their job functions and
probl'ems they might be experiencing . This gave us a sense of the organization
that we would not otherwise have had . We attempted to get some feeling for
the role played by the recruit training programme at Regina in shaping future
regular members and more particularly members assigned to the Security
Service. To that end we visited the Regina depot observing classes in progress
and discussing with the teaching staff the curriculum, the recruits' lifestyle
during training and what the training is designed to accomplish .
64 . In a further attempt to identify problems that might be facing the Force,
and particularly the Security Service, in the different regions, we met with
divisional Commanding Officers and Heads of the Security Service in British
Columbia, Saskatchewan, Southwestern Ontario, Ontario, Quebec and New
Brunswick . We also attended a Commanding Officers' Conference in Ottawa
where we had a round table discussion with the Commanding Officers and
senior officers from Headquarters .
Foreign study and visits
65 . It became apparent to us early in our mandate that the nature of the
problems we had been asked to examine was not unique to Canada . We also
became aware that a number of reviews such as that which we had been
commissioned to undertake had been carried out in other countries with similar
backgrounds to our own . To obtain a clear picture of the current situations in
the U .S .A ., the United Kingdom, Australia and New Zealand, we asked
leading academics in the security field in each of those countries to provide us
with a comprehensive report based on publicly available material . The authors
of those studies are included in Appendix T. Having obtained those composite
studies and after talking to a number of officials at the most senior levels in the
Canadian government security community, we realized that there are very fe w
26
�people with a broad perception of the problems, or who have given any serious
and informed consideration to their resolution . To assist us in our task we
therefore visited those four countries (U .S .A ., United Kingdom, New Zealand
and Australia) where we had discussions with past and present politicians and
senior officials who have played a major role in police and security matters . It
was a condition of the consent of each of those countries to these discussions
that our visits bé kept confidential . We have therefore not included here a list
of the persons with whom we met . Details of the meetings are to be found in
our Commission records . We would not, however, be breaching any confidence
by disclosing that we met with Mr . Justice R .M . Hope of Australia and ' Sir
Guy Powles of New Zealand, both in Canada and in their respective homelands . Each of those gentlemen has conducted an examination similar to ours
for his own country .
66. In addition we instructed our Director of Research and Secretary to visit
the Netherlands and the Federal Republic of Germany, and the Director of
Research and one of our counsel to visit France, to determine whether there
were any aspects of policing and security in those countries which were
sufficiently similar to our own that we could benefit from a visit to them . The
reports which we received after those visits disclosed some very helpful
information but we determined that a visit by us would not be of sufficient
further benefit having regard to the necessary rationing of our time. In
reaching this decision we took into account that of those countries we did visit,
the United Kingdom, New Zealand, and Australia have constitutional systems
most similar to our own, and the United States, while it has a different
Constitution, has undertaken serious examination of its intelligence community
in recent years .
Research studies
67 . Our research and legal staffs have done extensive background studies for
us covering many facets of our work . However, during the course of the
Commission some matters have requirèd such a major study or such a special
expertise that they had to be carried out by researchers outside the Commission . Including the four studies by foreign academics previously mentioned, 21
such research papers have been written for us . Also, in certain areas of
research we felt that we needed assistance from experts . We therefore retained
consultants to help us . The titles of the papers and the authors and the names
of the consultants and the areas of consultation are set out in Appendix T .
Three of the major studies have been published by thé Government of Canada
at our request and are available to the public through the usual distribution
channels for government publications . Those studies are :
1 . Parliament and National Security, by Prof . C .E .S . Franks of Queen's
University .
2 . Ministerial Responsibility for National Security, by Prof. J .LI . J .
Edwards of the University of Toronto .
3 . National Security : The Legal Dimensions, by Prof. M .L . Friedland of
the University of Toronto .
27
�We sought the publication of those studies in the hope of obtaining public
response to the views taken by the authors . We hoped in that way to obtain
some fresh insights into the problems . We also hoped that such additions to the
sparse background material relating particularly to Canada might assist in any
future consideration of the problems and might also generate future studies .
Meetings with Ministers, Members of Parliament and Senior Officials
68. As we began to clarify the problems facing us and to formulate tentative
solutions, we considered it advisable to discuss the problems with those people
in government who might have further information or opinions, or who might
be required to play a role in implementing our recommendations . Consequently, we undertook a series of meetings with past and present Ministers of the
Crown, Members of Parliament, and senior officials at both the federal and
provincial level . Thus, we met privately with the following past and present
Solicitors General :
Hon .
Hon .
Hon .
Hon .
Hon .
Hon .
Jean-Pierre Goyer
W .W . Allmand
Francis Fo x
Jean-Jacques Blais
Allan Lawrence
Robert Kaplan ,
the following past and present party leaders :
Rt . Hon . J.G . Diefenbake r
Rt . Hon . J . Clark
Hon . R .L . Stanfield
Mr . T .C . Douglas
Mr . E . Broadbent ,
and the following past and present Members of Parliament :
Hon . Mark MacGuiga n
Hon . Win . Jarvis
Hon . Elmer MacKay
Mr. G .W . Baldwin
Mr. G . W . Fairweather,
The past and present senior officials of both the government of Canada and
some provincial governments with whom we have met privately are set out in
Appendix W . Of course, in addition to those persons mentioned above with
whom we met personally, our researchers have had numerous interviews with
government officials at all levels to obtain information and assistance in
preparing reports for us .
D . LAW SUITS
69. Two separate law suits have been brought against us in the Federal Court
of Canada . The first was launched by Paul D . Copeland on his own behalf and
on behalf of all members of the Law Union of Ontario . It was an application
28
�for a writ of prohibition having the effect of preventing us from continuing our
inquiry . The application was dismissed on August 4, 1978 . The judgment and
reasons for decision of Mr . Justice Cattanach, are found in Appendix .X . The
second suit was brought .against us by Ross Dowson and John Riddell . This
application was for a writ of certiorari with mandamus in aid to quash our
decision refusing Messrs . Dowson and Riddell the right to examine witnesses
before us and requiring us to grant the applicants such right . That application
was dismissed by Mr . Justice Gibson on June 2, 1980 . A copy of the Order of
dismissal is found in Appendix Y .
29
��BIOGRAPHICAL REFERENC E
Ministers, senior officials
and senior R .C .M .P .
officers who figure in this Report
In alphabetical order :
ALLMAND, The Hon . Warren W . : Solicitor General, November 27, 1972, to
September 14, 1976 .
BARRETTE, J .E .M . : Assistant Commissioner of R .C .M .P . (ret .) . Assistant
Director of R .C .M .P . Security and Intelligence, August 29, 1967, to
August 8, 1969 ; Director of R .C .M .P . Security and Intelligence, August
9, 1969, to December 31, 1969 .
BISSONNETTE, P .A . : Deputy Solicitor General, November 28, 1977, to
present .
BLAIS, The Hon . Jean-Jacques : Solicitor General, February 2, 1978, to June
4, 1978 .
BOURNE, Robert (Robin) Colonel (ret .) : Head, SPARG (Security Planning
and Research Group now known as Police and Security Branch), June 1,
1971, to June 1, 1979 . In July 1972, he was also made Assistant Deputy
Solicitor General .
CLARK, The Rt. Hon . Joe : Prime Minister and Chairman of the Cabinet
Committee on Security and Intelligence, June 5, 1979, to March 4, 1980 .
COTE, Ernest A . : Deputy Solicitor General, December 14, 1968, to July 31,
1972 .
DARE, Michael R . Lt . General (ret .) : Director General, R .C .M .P . Security
Service, May 1, 1973, to present .
DRAPER, Howard C . : Assistant Director of R .C .M .P . Security and Intelligence, September 8, 1969, to August 17, 1971 ; Assistant Deputy Director General (Operations), R .C .M .P . Security Service, August 17, 1971,
to September 1, 1972 ; Deputy Director General (Operations), R .C .M .P .
Security Service, September 1, 1972, to July 31, 1975 .
FOX, The Hon . Francis : Solicitor General, September 14, 1976, to January
28, 1978 .
GIROUX, J .E .J .B . : Assistant Commissioner of the R .C .M .P . ; Deputy Director
General (Operations), R .C .M .P . Security Service, January 3, 1978, to
present .
GOYER, The Hon . Jean-Pierre : Solicitor General, December 22, 1970, to
November 27, 1972 .
31
�HIGGITT, W . Leonard : Assistant Director of R .C .M .P . Security and Intelligence, October 19, 1964, to July 31, 1967 ; Director of R .C .M .P . Security
and Intelligence, August 1, 1967, to September 7, 1969 ; Commissioner of
the R .C .M .P ., October 1, 1969, to December 31, 1973 . KAPLAN, The Hon . Robert P . : Solicitor General, March 4, 1980, to present .
KELLY, William H . : Deputy Commissioner of the R.C .M .P . (ret .). Director
of R .C .M .P . Security and Intelligence, October 19, 1964, to August 10,
1967 .
LAWRENCE, The Hon . Allan F . :. Solicitor General, June 4, 1979, to March
4, 1980 .
LINDSAY, M.F.A . : • Commissioner of the R .C .M .P ., August -15, 1967, to
September 30, 1969 .
MASSE, Marcel :, Clerk of the Privy Council and Secretary to, the Cabinet,
June 1979 to March 1980 ; Chairman of the Interdepartmental Committee on Security and Intelligence, June 1979 to March 1980 .
MacDONALD, T .D . : Deputy Solicitor General, October 1, 1966, to December
13, 1968 .
McCLELLAN, George B . : Commissioner of the R .C .M .P ., November 1, 1963,
to August 14, 1967 .
McILRAITH, The Hon . George J . : Solicitor General, July 6, 1968, to
December 22, 197.0 .
NADON, Maurice: Commissioner of the R .C .M.P ., January 1, 1974, to
August 31, 1977 .
PEARSON, The Rt . Hon . Lester B . : Prime Minister and Chairman of the
Cabinet Committee on Security and Intelligence, April 22, 1963, to April
20, 1968 .
.
PENNELL, The Hon . Lawrence: Solicitor General, July 7, 1965, to April 20,
1968 .
PITFIELD, P . Michael : . Clerk of the Privy Council and Secretary to the
Cabinet, January 1972 to June 1979, and March . 1980 to present ;
Chairman of the- Interdepartmental Committee on ,Security and Intelligence, December 1977 ; to June 1979 and March 1980, to present .
ROBERTSON, R .G . : Clerk of the Privy Council and Secretary to the Cabinet,
and Chairman of the Security Panel, July 1963, to January 1972 ;
Chairman of the Interdepartmental Committee on Security and Intelligence, January 1972, to December 1977 .
SEXSMITH, Murray : Assistant Commissioner; Deputy Director General
(Operations), R .C .M .P . Security Service, July 16, 1975, to January 28,
1978 .
SIMMONDS, Robert H . : Commissioner of the R .C .M .P ., September 1, 1977 ,
to present :
STARNES, John : Director General, R .C .M .P . Security Service, January 1,
1970, to Apri130, 1973 .
. • -
32
�TASSE, Roger : Deputy Solicitor General, August 1, 1972, to November 27,
1977 ; Deputy Minister of Justice, November 27, 1977, to present .
TRUDEAU, The Rt . Hon . Pierre E . : Prime Minister and Chairman of the
Cabinet Committee on Security and Intelligence, April 20, 1968, to June
5, 1979 and March 4, 1980, to present .
TURNER, The Hon . John N . : Solicitor General, April 20, 1968, to July 6,
1968 .
By position :
Prime Ministers
April 22, 1963, to April 20, 1968 . The Rt . Hon . Lester B . Pearson .
April 20, 1968, to June 5, 1979 . The Rt . Hon . Pierre E . Trudeau .
June 5, 1979, to March 4, 1980 . The Rt . Hon . Joe Clark .
March 4, 1980, to present . The Rt . Hon . Pierre E . Trudeau .
Chairmen - Cabinet Committee on
Security and Intelligence
April 22, 1963, to April 20, 1968 .
April 20, 1968, to June 5, 1979 .
June 5, 1979, to March 4, 1980 .
March 4, 1980, to present .
The Rt . Hon . Lester B . Pearson .
Rt . Hon . Pierre E . Trudeau .
The Rt . Hon . Joe Clark .
The Rt . Hon . Pierre E. Trudeau .
Solicitors General
July 7, 1965, to April 20, 1968 .
April 20, 1968, to July 6, 1968 .
July 6, 1968, to December 22, 1970.
December 22, 1970, to November 27, 1972 .
November 27, 1972, to September 14, 1976 .
September 14, 1976, to January 28, 1978 .
February 2, 1978, to June 4, 1978 .
June 4, 1979, to March 4, 1980 .
March 4, 1980, to present .
The Hon . Lawrence Pennell .
The Hon . John N . Turner .
The Hon . George J . .Mcllraith .
The Hon . Jean-Pierre Goyer .
The Hon . Warren W . Allmand .
The Hon . Francis Fox .
The Hon . Jean-Jacques Blais .
The Hôn . Allan F . Lawrence .
The Hon . Robert P. Kaplan .
Chairman - Security Panel
(existed only until 1972 )
July 1963, to January 1972 .
Mr . R .G . Robertson .
Chairmen - Interdepartmental Committee
on Security and Intelligence (formed 1971)
January 1972, to December 1977 .
December 1977, to June 1979 .
June 1979, to March 1980 .
March 1980, to present .
Mr . R .G . Robertson .
Mr . P .M . Pitfield .
Mr . Marcel Massé .
Mr . P .M . Pitfield .
33
�Deputy Solicitors Genera l
Mr . T.D . MacDonald .
December 14, 1968, to July 31, 1972 . Mr . Ernest A . Côté .
August 1, 1972, to November 27, 1977 . Mr . Roger Tassé .
October 1, 1966, to December 13, 1968 .
November 28, 1977, to present .
Mr . P .A . Bissonnette .
Heads - Security Planning and Research Group
(now known as Police and Security Branch ,
Department of the Solicitor General )
June 1, 1971, to June 1, 1979 .
Colonel (ret .) Robert (Robin)
June 1, 1979, to present .
Bourne .
Mr . Michael Shoemaker.
Commissioners of the R .C.M.P.
November 1, 1963, to August 14, 1967 . Mr . George B. McClellan .
August 15, 1967, to September 30, 1969 . Mr . M .F.A . Lindsay .
October 1, 1969, to December 31, 1973 . Mr . W . Leonard Higgitt.
January 1, 1974, to August 31, 1977 . Mr . Maurice Nadon .
September 1, 1977, to present .
Mr . Robert H . Simmonds.
Directors of R .C.M .P. Security and Intelligence
(1964-69 )
October 19, 1964, to August 10, 1967 . Mr . William H . Kelly.
August 1, 1967, to September 7, 1969 . Mr . W . Leonard Higgitt .
August 9, 1969, to December 31, 1969 . Mr . J .E .M . Barrette.
Directors General of the R .C.M.P. Security Service
(1970 to present )
January 1, 1970, to April 30, 1973 . Mr . John Starnes .
Mr . Michael R . Dare .
May 1, 1973, to present .
Assistant Directors of R.C.M.P. Security and Intelligence
(1964-71 )
October 19, 1964, to July 31, 1967 . Mr . W . Leonard Higgitt .
August 29, 1967, to August 8, 1969 . Mr . J .E .M . Barrette .
September 8, 1969, to August 17, 1971 . Mr . Howard C . Draper .
Assistant Deputy Directors General (Operations)
of R .C.M.P. Security and Intelligence
(1971-72 )
August 17, 1971, to September 1, 1972 .
34
Mr. Howard C . Draper .
�Deputy Directors General (Operations)
ojR .C.M.P. Security Service
(1972-
)
September 1, 1972, to July 31, 1975 . Mr . Howard C. Draper.
July 16, 1975, to January 28, 1978 . Mr . Murray S . Sexsmith .
January 3, 1978, to present .
Mr . J .E .J .B . Giroux .
35
��PART I I
THE SECURITY SYSTEM : THE NATURE OF
GOVERNMENTAL CONCERN AN D
INVOLVEMEN T
CHAPTER 1 : Security and Democracy : Interests Requiring Protection and
Threats to Those Interests
CHAPTER 2 : The Organizational Response by Governmen t
INTRODUCTION
1 . In this part of our Report we provide an account of the basic elements of
Canada's security system, its underlying purpose and principles, and the
structures which have been put in place to provide security and intelligence .
The focus here is on the Security Service of the R .C .M .P. In Part III, which
deals with what might be called a breakdown in the system, we report on
R.C .M .P. practices and activities "not authorized or provided for by law" on
both the criminal investigation side of the Force and on the Security Service
side . This is, of course, in conformity with the Commission's terms of reference
which instruct it to report on the extent and prevalence of such activities and
practices on both sides of the R .C .M .P . but require a comprehensive review of
policies, procedures and laws only with respect to the security responsibilities of
the Force.
37
��CHAPTER 1
SECURITY AND DEMOCRACY : INTERESTS
REQUIRIN G
PROTECTION AND THREATS TO THOSE
INTERESTS
A . THE NEED FOR SECURIT Y
2 . Paragraph ( c) of our terms of reference calls upon us to report and make
recommendations on the policies, procedures and laws governing the activities
of the R .C .M .P . in the discharge of its responsibility to protect "the security of
Canada" . The terms of reference do not explain what is meant by the phrase
"the security of Canada", and yet some explanation is surely required . In
recent years in our own country and other Western democracies, we have
experienced the dangers of using such a term too loosely . All manner of
questionable activities encroaching on civil liberties may be perpetrated on the
citizens and residents of a country in the name of national security . In response
to this experience there has been a tendency in some quarters to reject the
concept of `national security' entirely and to rely instead on concepts that are
more readily understood, such as `national defence' and `law enforcement' . But
we question whether these alternative phrases adequately cover the security
activities that, in our view, need to be carried out in all states, including
Canada .
3. The Royal Commission on Security which reported in 1968 on the
operation of Canadian security methods and procedures gave its understanding
of the meaning of the "security of Canada" . In its view, it was the indisputable
duty of the stat e
. .. to protect its secrets from espionage, its information from unauthorized
disclosure, its institutions from subversion and its policies from clandestine
influence .' '
In our First Report on Security and Information, without attempting to be
exhaustive, we stated that, in our opinion, there were two concepts involved in
the "security of Canada" :
The first is the need to preserve the territory of our country from attack .
The second concept is the need to preserve and maintain the democratic
' Report of the Royal Commission on Security, Ottawa, 1969, paragraph 28 .
39
�processes of government . Any attempt to subvert those processes by violent
means is a threat to the security of Canada . =
Fundamental to both these definitions are two basic needs : first, the need to
protect Canadians and their governments against attempts by foreign powers to
use coercive or clandestine means to advance their own interests in Canada,
and second, the need to protect the essential elements of Canadian democracy
against attempts to destroy or subvert them . These, we believe, are fundamental security requirements which must be met in Canada if our country is to be
truly self-governing .
4 . The threats to Canada's security against which protection is needed today
and in the foreseeable future fall into three basic categories : activities of
foreign intelligence agencies, political terrorism, and subversion of democratic
institutions . We will be expanding on these three threats throughout this
Report and will make only a few germane comments about them here .
5 . First, there are the clandestine activities of agents of foreign powers in
Canada . These have not lessened, although Canada has not been at war for
many years and a relaxation of international tensions has been associated with
what is perhaps somewhat optimistically referred to as East-West détente . On
the contrary, in recent years, the number of foreign intelligence agencies has
increased, as have the attempts to use these agencies against Canada, both to
obtain intelligence and to influence Canadian policies .
6 . A second type of threat to Canadian security arises from politically
motivated acts of violence and threats of violence aimed at forcing governments
to act in a certain way . Today, the popular word for activities of this kind is
`terrorism' . The internationalization of terrorist activities since the late 1960s
has significantly increased the severity of this threat to the security of Canada .
(It is interesting to note that the `terrorist' threat to security was not even
mentioned in the Report of the Royal Commission on Security, which reported
in 1968 .) It would be rash to predict a disappearance of the `terrorist' threat in
the future : political fanaticism is not on the wane, and modern technology
increases the power of a few to threaten the many . Protection against terrorism
is likely to be a security requirement for many years to come .
7. The third category of threat to Canada's security today and in the future
concerns activities of those whose objectives are to subvert or destroy the
democratic system of government in Canada . Fortunately, since the Second
World War subversive organizations on the extreme left and the extreme right
of the political spectrum have not posed a serious threat to the democratic
process in Canada . There remain, however, a few small groups, some with
considerable foreign support, which are committed to the destruction of
democracy in Canada . A democratic state such as Canada has a duty to
protect itself against those who work actively to overthrow the foundations of
our parliamentary democracy : namely, free elections with universal adul t
z Security and Information, First Report of the Commission of Inquiry Concerning
Certain Activities of the Royal Canadian Mounted Police, Ottawa, 1979, paragraph
38 .
40
�suffrage, free public discussion about public affairs, freedom of the press,
freedom of assembly for the purpose of organizing and marshalling public
opinion about political matters, and the application of the rule of law .
8. One way in which Canada's internal security is protected is through the
enforcement of the criminal law . Law enforcement agencies at the federal,
provincial and municipal levels have an important role to play in apprehending
those who conspire or attempt to carry out, or who have carried out, an act of
espionage, terrorism or subversion against the democratic system . But the
security of Canada would be badly served if this were the only form of
protection . Advance intelligence is needed to prevent espionage networks or
terrorist support systems being established in Canada . Government departments need reliable information on which to judge whether persons being
considered for positions involving access to secret information are security
risks . Immigration and Citizenship officials similarly require reliable information as to whether persons applying for entry to Canada or for Canadian
citizenship are participants in activities endangering the security of Canada .
Those responsible at the federal and provincial levels for securing strategic
installations, such as nuclear power stations or defence production centres,
from sabotage or espionage need advice on the nature of possible attacks and
on appropriate protective measures . Similarly, the security of international
events in Canada, such as the Olympic Games, the Habitat Conference and the
Commonwealth Games, and of visiting international dignitaries and our own
political and governmental leaders, requires timely advance assessments of the
source and techniques of possible terrorist attacks .
9 . In a word, a democratic state needs security intelligence to protect itself
against attack on its democratic values and procedures . -That is why all of
Canada's democratic allies have developed organizations, either within or
alongside their police forces, which specialize in security intelligence work,
collecting and reporting intelligence about threats to internal security to
appropriate government departments and law enforcement agencies . A security
system thus requires the capacity to obtain and report timely intelligence to
those executive agencies responsible for taking lawful protective measures
against threats to security .
10 . But in our mind there is more than just an internal need for a security
intelligence agency . Canada's international alliances require that it be able to
assure its allies, with whom it participates in common defence arrangements,
that it has a sound system of internal security . Allied countries will not entrust
Canadian officials and political leaders with secret information unless Canada
has in place effective structures and procedures for detecting and preventing
foreign espionage. Similarly, Canada is a signatory to a number of international agreements providing for cooperation in combatting terrorism .3 These
agreements provide Canada with international support in the event of a
terrorist attack on Canadians at home or abroad, and they entail a correspond' L .C . Green, "Terrorism - The Canadian Perspective", in International Terrorism :
National, Regional and Global Perspectives, ed . by Y . Alexander, New York,
Praeger, 1976 .
41
�ing responsibility for Canada to assist other countries subjected to terrorist
attacks .
11 . The security of Canada, as we understand it, is a concern of both levels of
government in Canada . Canada is a federal state: it is essential that the
democratic character of government, both fedéral and provincial, be secured
from clandestine foreign interference and attempts at violent subversion .
12 . The British North America Act4 does not explicitly assign legislative
jurisdiction over security to either level of government . The federal Parliament's power to make laws for the peace, order and good government of
Canada in relation to all matters not exclusively assigned to the provinces,
undoubtedly provides constitutional support for a large federal role in security,
especially in emergency situations . In the Alberta Press Act case in 1938, Chief
Justice Duff of the Supreme Court of Canada held tha t
. . . the powers requisite for the protection of the constitution . itself arise by
necessary implication from the British North America Act as a whole . ..and
since the subject matter in relation to which the power is exercised is .not
exclusively a provincial mattér, it is necessarily vested in Parliament . '
Mr. Justice Fauteux of the Supreme Court, in the case of Switzman v . Elbling
in 1957, stated that
. . . questions which are of the order of the security of the state cannot be
considered a matter of a purely local or private character within the
province . 6
Further constitutional support for the federal government's role in safeguarding the security of Canada may be found in its exclusive jurisdiction over
Defence and over Criminal Law and Criminal Procedure .Under the latter
power the federal Parliament has identified the criminal offences which relate
to security, for example, treason, seditious libel, seditious conspiracy, uttering
seditious words, sabotage, and espionage .
13 . However, the provinces too have security concerns and responsibilities .
The provinces are concerned with securing provincial and municipal institutions against subversive attack . In exercising their responsibility for the
appointment of provincial officials, provincial governments need information
about persons who constitute security risks . The provinces' responsibility for
the administration of justice gives them a primary role in taking police and
prosecutorial measures against persons, such as terrorists, when their activities
against Canadian security have escalated to the point of becoming criminal
offences .
14. Whatever the constitutional niceties, it is clear that from a practical point
of view both levels of government have important roles to play in meeting
Canada's security requirements . Most of the activities threatening Canada's
security have national and international dimensions . The federal government
should have the primary responsibility for collecting intelligence about these
'(1867) 30 & 31 Vic., ch .3 (U .K .) . Reproduced in R .S .C . 1970, Appendices .
I Reference re : Alberta Statutes [1938] S .C .R . 100, at pp . 133-134 .
6 Switzman v . Elbling and Attorney General for Quebec [ 1957] S .C .R. 285, at p. 324 .
42
�threats and for coordinating measures to protect Canadians and international
visitors from them . Provincial and municipal authorities have a primary
responsibility for the enforcement of law and maintaining peace at the local
level . In security matters these respective responsibilities will frequently intersect . In relation to terrorism, for example, federal ajencies should endeavour to
obtain intelligence about the identity, movement and techniques of persons in
Canada who are associated with international terrorist groups or who receive
support for terrorist activities from foreign countries . This intelligence should
be shared with provincial and municipal authorities to assist them in taking
measures to protect foreign visitors and Canadian V .I .P .s within their jurisdictions, and to assist local police in apprehending persons participating in acts of
political violence.
15 . The effective provision of security in a federal state requires close
cooperation among all levels of government . For this reason, we believe it
would be a mistake to assume that the security requirements and functions we
have identified above can be swept into a sphere of exclusive federal jurisdiction simply by attaching the label `national security' to them . Safeguarding
Canada from attempts by foreign-directed or purely domestic groups to subvert
Canadian democracy will be jeopardized if `national security' becomes a
subject of federal-provincial rivalry . Later in this Report, when we turn to our
proposals for a Security Plan for the Future, we shall make some recommendations about ways and means of improving federal-provincial cooperation with
regard to the security of Canada .
B . SECURITY AND THE REQUIREMENTS OF LIBERAL
DEMOCRACY
16. Liberal democracies face a unique challenge in maintaining the security
of the state . Put very simply, that challenge is to secure democracy against
both its internal and external enemies, without destroying democracy in the
process . Authoritarian and totalitarian states do not have to face this challenge .
In such countries there is no need to ensure that security agencies, whose
techniques inevitably involve a great deal of secrecy, be accountable to an
elected legislature . Nor is there a requirement in such states that all of their
security measures be authorized or provided for by law and that none of their
officials be above the law . Only liberal democratic states are expected to make
sure that the investigation of subversive activity does not interfere with the
freedoms of political dissent and association which are essential ingredients of
a free society .
17. Canada must meet both the requirements of security and the requirements of democracy : we must never forget that the fundamental purpose of the
former is to secure the latter . Those who seek to subvert Canada's democratic
institutions would realize an ironic victory if Canadians were to permit their
governors to violate the requisites of democracy in the course of protecting
them from its opponents .
18. Providing effective security within a liberal democracy has in recent years
come to be acknowledged as a major problem of public policy in most Wester n
43
�democracies . That challenge, which is at the centre of our work, has been the
underlying purpose of inquiries into the activities of security and intelligence
agencies in Australia, New Zealand, the United Kingdom and the United
States . In Australia, Mr . Justice Hope was appointed in 1974 as a single
Commissioner to carry out a comprehensive study of Australia's security
system . His reports, submitted in 1977, led to the enactment in 1979 of a new
charter for the Australian Security Intelligence Organization . In 1976, Sir Guy
Powles, the Chief Ombudsman of New Zealand, completed a study of the
practices, procedures and organization of that country's security intelligence
agency . In the United Kingdom there has been a series of special studies and
reports on security problems going back to the 1955 Privy Councillors' Report
on Security, and including the Radcliffe Report in 1962 on Security Procedures in the Public Service and Lord Denning's Report on the Profumo affair
in 1963 . In March 1980, the Secretary of State for the Home Department (the
Home Secretary) submitted a report to Parliament on the interception of
communications in relation to security and criminal investigations . In the
United States, a Commission chaired by Vice-President Rockefeller reported in
1975 on C .I .A . activities within the United States . A year later, a Select
Committee of the United States Senate, chaired by Senator Church, completed
a six-volume report on the intelligence activities of the United States . The
Church Report provided the foundation for the drafting of proposed comprehensive legislative charters for intelligence agencies in that country . The
opening page of the Rockefeller Report sets out the following statement (which
quotes, in part, President Ford's announcement of the establishment of the
Commission) of the challenge which confronts all democracies with regard to
their security arrangements :
While it is vital that security requirements be met . . . it is equally important
that intelligence activities be conducted without impairing our democratic
institutions and fundamental freedoms . '
19 . In taking the position that the requirements of security in Canada must
be reconciled with the requirements of democracy, let us be clear that we
regard responsible government, the rule of law, and the right to dissent as
among the essential requirements of our system of democracy .
20. By responsible government we mean that there must be effective procedures for ensuring that those who carry out security investigations and other
security measures are accountable to Ministers of the Crown, who in turn are
responsible to Parliament . Security activities of necessity involve a great deal of
secrecy because they are normally being carried out to detect and prevent
secret activities . Security operations, to be effective, cannot be an open book to
the whole world, but it does not follow that they cannot be an open book to
responsible Ministers . The Honourable Robert Stanfield, then Leader of the
Opposition, put this point very well in 1969 when he said in the House of
Commons :
' Report to the President by the Commission on C .I .A . Activities within the United
States, p . 3 .
44
�What would be cause for grave concern would be any thought that much of
the operation is beyond the ken of the ministry or the Prime Minister ; that
there are not ministers, elective and responsible members of government, to
whom the entire security operation is an open book, who have continuing
access to everything that is going on in that area, and who give proper,
responsible, political, civilian direction to the operation on a continuing
basis. e
We would add that not only must responsible Ministers have knowledge of and
give direction to security operations, but there must-also be means for ensuring
that representatives of the opposition parties in Parliament are adequately
informed of these activities .
21 . Second, the rule of law must be observed in all security operations .
Several meanings have been given to this phrase . The meaning which we have
in mind is that expressed by the English writer, A .V . Dicey, when he wrote tha t
. . . here every man, whatever be his rank or condition, is subject to the
ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals. . . With us every official, from the Prime Minister down to a
constable or a collector of taxes, is under the same responsibility for every
act done without legal justification as any other citizen . 9
In our context this means that policemen and members of a security service, as
well as the government officials and ministers who authorize their activities,
are not above the law . Members of the security organization must not be
permitted to break the law in the name of national security . If those responsible for security believe that the law does not give them enough power to
protect security effectively, they must try to persuade the law-makers, Parliament and the provincial legislatures, to change the law . They must not take the
law into their own hands . This is a requirement of a liberal society . It is,
therefore, unacceptable to adopt the view, which we have found expressed
within the R .C .M .P ., that when the interests of national security are in conflict
with the freedom of the individual, the balance to be struck is not for a court of
law but for the executive . In very recent years within the R .C .M .P . there has
been a view that this conclusion is supported by a 1977 English case, R . v.
Secretary of State for the Home Department, ex parte Hosenball :1 0
But this is no ordinary case . It is a case in which national security is
involved, and our history shows that, when the state itself is endangered,
our cherished freedoms may have to take second place .
However, it is misleading to quote this statement out of context . The case
concerned an alien whom the Home Secretary ordered to be deported in the
interests of national security because he had information that the alien had
obtained information for publication harmful to 'the security of the nation,
including information prejudicial to the safety of servants of the Crown . The
alien claimed that he was entitled to see the report which was made about hi m
8 House of Commons, Debates, June 26, 1969, p . 10639 .
9 A .V . Dicey, Introduction to the Study of the Law of the Constitution, Tenth edition,
London, Macmillan, 1959, p. 193 .
10 [1977] 3 All E .R . 452 at 457 .
45
�by a non-statutory advisory Committee which reported to the Home Secretary
before the deportation order was made . He contended that natural justice so
entitled him . It was in answer to that contention that the above statement was
made by Lord Denning, who then continued :
Even natural justice itself may suffer a set-back . .. In the first world war, in R.
v . Halliday," Lord Finlay L .C. said : `The danger of espionage and of damage
by secret agents . . had to be guarded against .'. .. But times of peace hold their
.
dangers too . Spies, subverters and saboteurs may be mingling amongst us,
putting on a most innocent exterior . . .
If they are British subjects, we must deal with them here . If they are
foreigners, they can be deported . The rules of natural justice have to be
modified in regard to foreigners here who prove themselves unwelcome and
ought to be deported .
It is thus quite inappropriate to quote what Lord Denning said outside the
context of whether the principles of natural justice apply to the exercise of a
power to deport, as if it were authority for altering the norms that bind
members of the R .C .M .P . when national security is involved .
22 . Third, the right of democratic dissent requires that the advocacy of
unpopular ideas not be confused with attempts to subvert democracy . A
democracy is not liberal unless it permits those of its citizens who seek very
basic social, economic or even constitutional change within the democratic
system to expound their viewpoint in public and seek adherents to their cause .
If citizens who exercise this freedom have their activities noted in secret
security dossiers to be used against them by the state, the enjoyment of such
freedom is imperilled . The political freedom essential to our democratic system
requires that security measures properly distinguish between democratic dissent and true subversion .
23 . Those who are responsible for carrying out Canada's security measures
must constantly bear in mind that the right to dissent is a constitutional
requirement in Canada . This requirement was aptly expressed by Mr . Justice
Rand of the Supreme Court of Canada when he stated that under our
Constitution
. . . government is by parliamentary institutions, including popular assemblies elected by the people at large in both provinces and the Dominion :
government resting ultimately on public opinion reached by discussion and
the interplay of ideas .1 2
In a similar vein, Mr . Justice Abbott of the Supreme Court of Canada held
that
The right of free expression of opinion and of criticism, upon matters of
public policy and public administration, and the right to discuss and debate
such matters, whether they be social, economic or political, are essential to
the working of a parliamentary democracy such as ours .1 3
" [1917] A .C . 260 at 270 .
1 2 Saumur v . Quebec and Attorney General for Quebec [1953] 2 S .C .R . 299, at p . 330 .
13 Switzman v . Elbling and Attorney General for Quebec [ 1957] S .C .R . 285, at p. 326 .
46
�The investigation of security threats by the state must respect this constitutional right to dissent . The exercise of that right must not become an invitation to
be spied upon by state security agencies .
24 . Canada must have effective security . Security measures have the basic
objective of securing our democratic system . The means used to achieve
security must meet the requirements of democracy . Effective security within a
democratic framework - that is the fundamental precept which has guided
our diagnosis of past failures and wrongdoings in Canada's security system, as
,well as our prescription for reform of the system .
47
��CHAPTER 2
THE ORGANIZATIONAL RESPONSE BY
GOVERNMENT
Introduction
1 . In the preceding chapter we have set out our understanding of the interests
requiring protection by Canada's internal security arrangements . We now
describe the institutions through which the Government of Canada has
responded to the need for security . We begin with a brief account of the
R .C .M .P .'s development as a national police force and then turn to a more
detailed account of the historical evolution of the R .C .M .P . Security Service,
its current organization and mandate . This is followed by a description of the
security and intelligence responsibilities of other branches of the R .C .M .P . and
of other departments and agencies of the federal government, and an account
of the Cabinet and interdepartmental committee system which co-ordinates
and directs the security and intelligence activities of the federal government .
2 . This chapter, we must emphasize, is basically descriptive : the analysis and
evaluation of events and practices will come later . Here our primary purpose is
to provide a factual account of the institutional setting in which the R .C .M .P .'s
discharge of its responsibilities for the security of Canada has taken place .
A . THE HISTORICAL CONTEXT AND CURRENT
STRUCTUR E
OF THE ROYAL CANADIAN MOUNTED POLIC E
1 . The Royal Canadian Mounted Police is a famous and respected national
institution . From its beginnings in 1873 and during its earliest days on the
western prairies it kept the peace with small numbers of personnel, using
careful diplomacy rather than the "triggerhappy" approach with which, rightly
or wrongly, law and order are perceived to have been brought to the American
frontier . The Force's military structure and practices produced what was seen
by the public to be a disciplined corps of dedicated men reputed to be
incorruptible and fair . Whether dealing with Indians, settlers, or the highly
volatile situation in the Yukon gold rush they had a reputation for administering the law with an even hand and malice to none .
2. The Force was indeed a small organization . Until the end of the First
World War, its responsibility was limited to Saskatchewan, Alberta and the
Territories : the other provinces were se rv ed by provincial police forces . O n
49
�February 1, 1920, by Act of Parliament, the Royal North-West Mounted
Police absorbed the much smaller Dominion Police, a civilian group that
protected federal buildings in Ottawa and hired civilian detectives, and was
renamed the Royal Canadian Mounted Police . The Force established small
complements in the other provinces although it was far from clear to what
extent it would enforce federal laws that by and large had until then been
enforced by provincial and municipal authorities . During the period from 1920
to 1950, with the exception of Ontario and Quebec, provinces abandoned their
own provincial forces and began the practice, continued today, of contracting
with the R.C .M .P . to carry out police duties . After August 15, 1950, when it
absorbed the British Columbia Provincial Police, the Force was established as
we know it today : an agency of the federal government with a strong presence
in the `contract provinces', the Territories and even in the two provinces,
Ontario and Quebec, where it does not have any contractual duties .
3. In all the provinces it is the responsibility of the R .C .M .P . to enforce
federal legislation apart from the Criminal Code . In the Territories it also
enforces the Criminal Code . The federal government has also assigned the
responsibility of protecting the security of Canada to the R .C .M .P . Those two
roles have resulted in the R .C .M .P .'s having a significant number of members
in each province whose duties are not related to enforcement of the Criminal
Code . In addition to those federal policing and security roles, the Force has
entered into contracts with provincial and municipal governments to act as the
police force for particular regions, enforcing the Criminal Code and provincial
and municipal laws . Such contracts exist in all provinces except Ontario and
Quebec . In performing their duties under such contracts the R .C .M .P . have a
responsibility toward the attorneys general of the various provinces, although
the precise nature of that responsibility has not been clearly defined . As of
November 1980, total R .C .M .P . strength was made up as follows : 12,864
regular members ; 1,527 special constables ; 2,089 civilian members ; and, 3,757
public servants, making a total of 20,237 . Of this total, over 40%, it would
appear, are involved in contract policing .
4. In its origin, the Force was military in personnel, structure and orientation .
Until after the First World War its members regarded themselves as a military
force with the additional powers of peace officers . The Force sent cavalry units
to the Boer War, to the western front in 1918 and to Siberia in 1919 . While the
members were in style a military force, they were intended from the outset to
be policemen and (if only because violence by large groups of people seldom
erupted in the Canadian west) there were only rare occasions other than for
ceremonial purposes when the "horsemen" acted as a military formation .
Indeed, after automobiles replaced horses, the cavalry or `mounted' element
became entirely ceremonial .
5 . Members acted similarly to members of other police forces in the country,
learning the tradecraft and ethics that were developed in London by the
professional police force established by Sir Robert Peel in 1829 . They learned
to interpret the Criminal Code and other federal statutes, and, following the
First World War, such increasingly pervasive provincial legislation as the
highway traffic acts and statutes first prohibiting and then regulating the sal e
50
�and consumption of alcoholic beverages . Until long after the Second World
War they were usually the prosecutors in the magistrates' courts in respect of
cases investigated by them, for it was not until recent years that in most of the
contract provinces the provincial departments of the attorneys general expanded their complement so that lawyers in the departments acted as prosecutors in
those courts .
6 . In addition to its law enforcement functions the R .C .M .P . accepted the
role that other police forces have assumed since Peel's day, which, as stated by
the British Royal Commission on the Police, 1962, is as follows :
. . they have by long tradition a duty to befriend anyone who needs their
.
help, and they may at any time be called upon to cope with minor or major
emergencies . '
7. In the contract provinces much of the work of the Force in the past has
been law enforcement in smaller communities . Large cities in those provinces
are policed by municipal forces except in the recently swollen municipalities
adjoining the city of Vancouver . They investigated crimes against person and
property as well as driving offences and violations of hunting regulations .
However, the Force increasingly addressed its attention to the national planning and systematic cooperation with provincial and municipal forces involved
in developing programmes to combat the growing international and domestic
traffic in narcotics and other drugs, other so-called `organized crime' including
illegal gambling, and `white-collar crimes' of stock fraud, bankruptcy fraud
and even theft of computer-stored information .
8 . Moreover, during recent decades, advances in forensic technology, such as
new methods of handwriting analysis, serology and ballistics, have demanded
increasing investment in personnel and equipment . The need continues for
specialized research and development of sophisticated radio communication
within the Force and of electronic means of intercepting the communications of
suspects .
9. Thus, in addition to `traditional' police methods, the Force has in recent
years been faced with the need to ensure that it has the capacity, in terms of
personnel and equipment, to mount investigations employing technology the
equal of that employed by police forces in other advanced countries . This need,
together with the need to have a security service capable of meeting changing
threats, produced an immensely complex problem of evolution for a Force with
personnel mostly trained to enforce the law in traditional ways . Many of the
problems associated with this evolution are beyond the scope of our terms of
reference .
10. Although much of our work has referred to the Security Service, as
demanded by paragraph (c) of our mandate, this concentration would be out of
focus were we not constantly aware of the historical background and present
complexities of the R .C .M .P . as a whole .
' Cmnd . 1728 at p . 22 .
51
�11 . Moreover, as we shall point out, some of our observations about the
Security Service may well be true of the Force as a whole, and should be taken
into account by the Government of Canada and those charged with the futuré
administration of the Force if it is to continue to deserve its reputation as an
excellent law enforcement agency .
12 . We now wish to summarize the current organizational structure of the
Force in order to place in context the more detailed examination of the history
,and .organization of the Security Service which follows in Section B of this
chapter .
13 . ' The Commissioner of the R .C .M .P . is appointed by the Governor in
Council pursuant to Section 5 of the Royal Canadian -Mounted . Police Act :2
That Section provides as follows:
5 . The Governor in Council may appoint an officer to be known as the
Commissioner of the Royal Canadian Mounted Police who, under the
direction of the Minister, has the control and management of the Force and
all matters connected therewith .
Section 6 of that Act authorizes the Governor in Council to appoint and
promote the officers of the Force, the maximum number of such officers to be
prescribed 'by the Treasury Board . By virtue of section 13 of the Act such
4ficers hold office during the pleasure of the Governor in Council . It is the
Commissioner's responsibility to appoint all members other than officers
(section 7 of the Act), the number again being prescribed by the Treasury
"Board .
14 . Members of the Force are either regular members or `civilian' members .'
Civilian members may perform only certain duties .° Included in the category of
`regular' members is a group known as `special constables' who are also limited
in the duties which they may perform .s In addition to officers and members,
the Force has civilian staff "appointed or employed under the Public Service
Employment Act" pursuant to section 11 of the' Royal Canadian Mounted
Police Act . They are employèd by the Commissioner .
15. Section 21 of the Royal Canadian Mounted Police Act delegates authority to the Governor in Council and the Commissioner with respect to the
organizatiôn of the-Force . It reads as follows :
21 . (1) The Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of
the Force and generally for carrying the purposes and provisions of this Ac t
into effect . '
(2) Subject to this Act and the regulations made under subsection'
(1), the Commissioner may make rules, to be known as standing orders, for
the organization, training, discipline, efficiency, administration and good
government of the Force .
2 1970 R .S .C ., ch .R-9 .
' C .R .C ., ch .1391, s .2 .
' Ibid., s .51(3) .
3 Ibid., s .51(2) .
52
�The Governor in Council has prescribed by regulation .3 of the Royal Canadian
Mounted Police Regulations6 that the Force shall be divided into divisions and
by regulation 7 that ``the organization of the Headquarters of the Force shall
be as the Commissioner directs" . '
16 . Those, then, are the legal bases for the structure of the Force from which
the following organizational picture emerges .
17 . At Headquarters, responsibility below the Commissioner is first divided
into four areas, each headed by a Deputy Commissioner or, in the case of the
Secûrity Service, the Director General who has Deputy Commissioner statùs .
The four areas are : Administration, Criminal Operations, Canadian Police
Services and the Security Service .
.
18 . Both Canadian Police Services and the Security Service are centralized in
that all of their operations across the country are controlled directly from
Headquarters and the people working in those Services do not report through
Divisional Commanding Officers. The rest of the Force's operational components report through the Divisional Commanding Officers, of whom there are
13, each responsible for a geographic division of the Force .
19. Those geographic divisions have essentially the same boundaries as the
provinces and the Territories, with the exception of Ontario, which has two
such divisions . There are two other divisions not based on geography : the
R.C .M .P. Academy,`Depot' Division in Regina, and the Training Division in
Ottawa . There are, therefore, 15 divisions in all, and the Commanding Officer
of each of them reports directly to the Commissioner . The Deputy Commissioner of Criminal Operations and the Deputy Commissioner of Administration speak on behalf of the Commissioner on specific cases to give direction to
the Divisional Commanding Officers (Vol . 6, p. 681) .
20. The Commissioner also has seven other components reporting directly .to
him : the Foreign Services Directorate, the Çhief . Financial Officer, the internâl
Communications Officer, the . Public Relations Branch, the Audit Branch, the
Planning and Evaluation Branch and his own Executive Officer . An organizational chart of the R .C .M .P . appears in Appendix "U" .
21 . In the outline of the organization of the Security Service which follows,
details of the centralization of the Security Service will be made clear . At this
point we simplÿ wish to note that, although an Area Commander of the
Security Service, such as, for example, the Saskatchewan Area Commander,
reports directly to Security Service Headquarters in Ôttawâ, he must also keep
the Divisional Commanding Officer (in this case "F" Division) informed of
any Security Service activities within that Division which might affect the
Commanding Officer's ability to carry out his responsibilities .
6 Ibid.
' Ibid.
53
�B. THE R .C.M.P. SECURITY SERVICE : HISTORICAL
EVOLUTION AND CURRENT ORGANIZATIO N
22 . The primary function of the R .C .M .P .'s Security Service is to collect,
analyze and report intelligence8 about threats to the security of Canada . A
brief account of the historical évolution of the Security Service is instructive : it
shows that there has never been a clear and comprehensive public policy on the
purpose, methods and structures of security intelligence in Canada . We think
that this basic fact may have a good deal to do with the events that have
prompted the establishment of our Commission .
The origins of security intelligence
23 . Canada's first security intelligence organization was established by Sir
John A . Macdonald before Confederation . In 1864 a group of men dressed as
Confederate soldiers9 crossed over the border into Vermont and raided the
town of St . Albans . Canadian and British neutrality in the American Civil War
was jeopardized . To prevent other such incidents, Macdonald, who was then
the Premier and Attorney General West for the United Province of Canada,
organized the Western Frontier Constabulary, a small contingent of detectives
under the supe rv ision of Gilbert McMicken, a stipendiary magistrate . The
main purpose of this force was to collect and report information on "the
existence of any plot, conspiracy or organization whereby peace would be
endangered, the Queen's Majesty insulted, or her proclamation of neutrality
infringed" .10 McMicken's investigators soon had their first threat to contend
with : Fenians were drilling and collecting arms in the United States in order to
invade the British North American colonies .
24 . In 1868, when the Dominion Police Force was established, McMicken
became a Dominion Police Commissioner. The primary public role of the
Dominion Police was the protection of public buildings in Ottawa, and for this
purpose it maintained a small force of about 12 men . However, McMicken
continued to supervise a network of undercover agents operating on both sides
of the Canada-U .S . border to provide intelligence reports about Fenian activities . When Charles Joseph Coursol, a Montreal Sessions Court Judge, also
became a Dominion Police Commissioner, he too supervised a small frontier
detective force . As a modern historian testifies, "Macdonald usually knew
more about the plans of the Fenians than the Fenians did themselves" . "
B The word 'intelligence' in the vocabulary of intelligence agencies refers to information which has been assessed and analyzed for its validity and significance by the
intelligence agency . Thus intelligence is distinguished from raw information . We will
follow this usage throughout our Report .
' The manner of dress is so described in documents in R .C .M .P. files . To the opposite
effect Professor Donald Creighton states that the men were Confederate soldiers but
were not in uniform : John A . Macdonald, The Young Politician, Toronto, Macmillan, 1952, p. 385 .
10 Macdonald Papers, Vol . 234, pp . 100852-4 .
" Donald Creighton, John A . Macdonald, The Young Politician, Toronto, Macmillan,
1952, p . 439 .
54
�25 . The collection of information and the reporting of intelligence about
Fenian threats from 1864 to 1871 was the first security intelligence activity of
the Canadian government, but it had many features which were to characterize
later activities in this field . For one thing, the methods of investigation were
highly secretive . The primary method of collecting information was to infiltrate
undercover agents into Fenian organizations . They often spent years within the
organization, in some cases working their way into influential positions .
26. Again, the Macdonald papers indicate that the interception of mail and
telegrams was another source of information, as was following persons surreptitiously to observe their contacts . The intelligence reports based on information
received were sent directly to Ministers, often to the Prime Minister . The
Prime Minister, in turn, gave directions to McMicken and Coursol as to the
kind of intelligence the government required . Usually the reports were used by
the government as a means of assessing the seriousness of the Fenian threat
rather than for criminal prosecutions . Intelligence on individual Fenians was
used as a basis for screening persons entering Canada or applying for government positions . On occasion reports prompted McMicken to meet with Fenians
and their arch opponents, the Orange Lodge, to dissuade them from behaviour
which might lead to riotous confrontations .
27. There was no explicit statutory authorization for these secret surveillance
activities nor any official statement of government policy with respect to them .
Between 1866 and 1873 apparently $133,000 was spent from a Secret Service
Fund . These expenditures were not subject to any audit . Allegations of
mismanagement of these funds were debated in the House of Commons in
1877 in response to the report of the Select Standing Committee on Public
Accounts. That Committee brought forward the first resolution calling for a
confidential committee of the House, which would include Opposition members, to review `Secret Service' matters .1 2
28. One dimension of these early Secret Service activities which was not to be
an enduring feature of Canada's security intelligence programmes was the
collection of information by undercover Canadian agents outside Canada .
Many of McMicken's undercover agents operated in the United States .
The 1870s to World War I
29 . From the -early 1870s until the First World War, security intelligence
activities at the federal level were much more intermittent . Agents supervised
by Commissioners of the Dominion Police continued to play the prime role in
collecting information about politically motivated violence in Canada . There
were sporadic investigations of Fenian organizations and `anarchist' episodes
(including the dynamiting of the Welland Canal in 1900), but there was no
sustained intelligence collection programme . The greatest threat to Canadian
security during this period was the North-West Rebellion of 1885 . The
North-West Mounted Police did not employ undercover agents to collec t
1z Journals of the House of Commons, Vol . Xl, 1877 Session, Appendix (No . 2) . Third
Report of the Select Committee on Public Accounts Relating to the Expenditure of
Certain Secret Service Funds, p . 10 .
55
�security information . Their reports to the government on the insurrection and
the need for reinforcements were based on information obtained through their
regular police work in the territory .
30. The visit in 1901 of Their Royal Highnesses, the Duke (later King
George V) and Duchess of Cornwall, was the first occasion for certain security
operations which were to become frequent in the future : V .I .P . protection and
countering actions . Percy Sherwood, the Commissioner of the Dominion Police
at the time, personally accompanied the royal party on the tour, directed the
collection of information by the police about suspected anarchists, and, on one
occasion ordered a member of an anarchist group to be detained for the
duration of the royal visit .
31 . The first time the North-West Mounted Police took on a major responsibility for the collection of sècurity intelligence came in connection with their
policing of the Yukon Territory during the gold rush at the turn of the century .
Under the direction of Clifford Sifton, Minister of the Interior, and of
N .W .M .P . Comptroller Fred White, the N .W .M .P . was asked to investigate
rumours of American plots to annex the Yukon territory . Undercover agents,
with assistance from the Pinkerton Detective Agency in the United States,
conducted surveillance of suspected plotters both in the United States and
Canada, and infiltrated American .miners' organizations such as the Order of
the Midnight Sun . Intelligence reports based on these operations were an
important factor in enabling the Canadian government to gauge the seriousness
of the threat and take appropriate precautionary measures .
World War I and its aftermat h
32 . Canada's participation in World War I created the need to investigate
and take preventive measures against espionage and sabotage . The manpower
resources available to the Government of Canada for this purpose were quite
meagre and decentralized . The chief role was played by the small Dominion
Police Force which, even after some strengthening during the war, in 1919
reached a total strength of only 140 men . The Dominion Police carried out
some investigative work themselves through secret agents, most of whom were
hired from American detective agencies, but relied extensively on information
collected by police forces across Canada and by officials of the Departments of
Customs and Immigration . The situation in British Columbia gives some
indication of the decentralized nature of security intelligence activities in
Canada during World War I . In that province a former Immigration Agent
was appointed a Commissioner of Police for British Columbia under the
Dominion Police Act, and was responsible for investigating enemy aliens and
suspected pro-German sympathizers . Information collected by his secret agents
was reported not only to Dominion Police headquarters in Ottawa but also to
the Chief Censor in Ottawa and to British authorities .
33 . During the First World War the Royal North-West Mounted Police"
had the major responsibility for collecting security intelligence in the Prairi e
13 The North-West Mounted Police became the Royal North-West Mounted Police in
1904.
56
�Provinces . Their work in this area stemmed mainly from regulations under the
War Measures Act providing for the registration and internment of suspected
enemy aliens . Through nearly 200 detachments, they investigated allegations
concerning pro-German sympathies and activities of immigrants from Europe .
The R.N .W .M .P . did not have a security service division nor had it encouraged
the development of plain clothes work for criminal investigations . Consequently, it relied on private detective agencies and secret* agents paid with Dominion
Police Force funds for undercover counter-espionage investigations . These
security agents infiltrated social institutions in immigrant communities, often
in response to reports of suspected conspiracies received from citizens . During
1915 alone, the Mounted Police and their agents made 2,309 individual
investigations resulting in the internment of 396 persons . After Saskatchewan
and Alberta took over responsibility for provincial policing in 1917, the
R .N .W .M .P . closed most of its detachments in these provinces and concentrated on preventing German agents from crossing the border into Canada .
34 . Throughout the war, Commissioner Perry directed Canadian security
investigations in the United States from R .N .W .M .P . Headquarters in Regina .
The American authorities were not always notified . At this time there
appeared to be no jurisdictional limits for `friendly foreign agencies' . Just as
Canada conducted security operations in the United States, the British ran
agents in Canada without informing the Canadian government . At times this
led to embarrassment . In 1917, for instance, the British Navy intercepted the
Bolshevik leader Leon Trotsky off the coast of Nova Scotia on his way home to
Russia after the abdication of the Czar, and, without consulting Ottawa, had
him interned in that province. The Canadian authorities were unhappy about
the Admiralty's action, and were relieved when Trotsky was allowed to
continue his journey some three weeks later .' ^
35. In the period of social dislocation, economic instability, and political
upheaval which followed World War I, federal security intelligence agencies
focussed on what was perceived to be a new threat to Canada's internal
security : radical labour agitation - especially in Western Canada . At this time
security intelligence work at the federal level was far from unified . By the fall
of 1918 the federal government was receiving reports from four security
agencies . Security intelligence was collected in Saskatchewan and Alberta by
the Mounted Police, whose Commissioner reported to the President of the
Privy Council, and in the other provinces by the Dominion Police, whose
Commissioners were responsible to the Minister of Justice . In addition, the
Chief Censor's Office and a Directorate of Public Safety, established in the
Justice Department, supplied the government with assessments of the internal
security threat . The Cabinet feared that the post-war labour agitation was
nurtured by revolutionary international forces and directed the security agencies to investigate these international connections . Both the Dominion Police
and the R .N .W .M .P . carried out extensive undercover investigations into the
labour movement . Although intelligence reports from R .N .W .M .P . Headquarters do not appear to have corroborated the politicians' fears of internationall y
" William Rodney, "Broken Journey : Trotsky's Canada", 1917 . Queen's Quarterly,
Winter, 1967 .
57
�inspired revolutionary plots, Ministers continued to assess the situation differently, partly on the basis of assessments of the internal security threat received
from British sources .15 In his memoirs Sir Robert Borden described the
Winnipeg General Strike of 1919 as "a definite attempt to overthrow the
existing organization of the government and to supercede it by crude, fantastic
methods founded upon the absurd conceptions of what has been accomplished
in Russia" .1 6
The development of security intelligence as an R .C.M.P. responsibility:
1920-46
36. The Dominion Police Force was absorbed into the Mounted Police under
legislation which came into effect on February 1, 1920 . The Royal Canadian
Mounted Police was now a national police force with federal law enforcement
responsibilities . One of the principal purposes of this change was to unify and
strengthen the federal security intelligence capability .
37. Although the R .C .M .P . was now the sole federal agency responsible for
the collection of security intelligence there were neither statutory nor ministerial guidelines for carrying out this intelligence role . In the parliamentary debate
on the R .C .M .P . Act no mention was made of the Force's security intelligence
role . In the decades between the wars, government direction was provided
informally through frequent meetings between the Minister of Justice (who
was responsible for the R .C .M .P .) and the Commissioner of the R .C .M .P ., and
through the response of Ministers to weekly and monthly intelligence reports
from the R .C .M .P . Until 1933 a senior civilian employee of the Force, who was
often referred to as Director of Intelligence, was chiefly responsible for liaison
with government departments on security intelligence matters .
38. From 1920 until the establishment of the R .C .M .P.'s Special Branch in
1946, security service activities were the responsibility of the Criminal Investigation Branch (C .I .B .) of the R .C .M .P . Until the mid-1930s there was little to
differentiate security investigations from other investigative work of the C .I .B .
At Headquarters, the Director of Criminal Intelligence was responsible for
security and intelligence investigations . In the field, C .I .B . detectives investigated alleged subversives as well as criminal cases . A secret agent who had
penetrated a subversive group reported to C .I .B . detectives, or, if the agent was
a member of the Force, to the Director of Criminal Intelligence at Headquarters . In 1936 a distinct `Intelligence Section' in the C .I .B . was established at
Headquarters .
39. On the eve of World War II, although some specialization of security
intelligence activities had begun to develop both at Headquarters and in the
field, the number of R .C .M .P . members involved in these activities was
extremely small . The Headquarters group involved in security intelligenc e
'S S .W . Horrall, "The Royal North-West Mounted Police and Labour Unrest in
Western Canada, 1919", Canadian Historical Review, Vol . 61, LXI, No . 2, June
1980 .
16 Robert Laird Borden: His Memoirs, Toronto, Macmillan of Canada, 1938, Vol . II, p.
972.
58
�work consisted of only six persons, some of whom were part-time . The senior
intelligence officer, Inspector C .E. Rivett-Carnac, for example, was also the
editor of the R .C.M.P. Quarterly .
40 . World War II significantly increased the security intelligence responsibilities of the R .C .M .P . and led to a rapid expansion of the Intelligence
Section . At its peak in 1943 the strength of the Intelligence Section at
Headquarters had grown to three officers and 95 others . Similarly the field
Divisional Headquarters developed units specializing in security work, especially the analysis of information obtained from internees . The largest of these
units were in Toronto (20), Montreal (19) and Vancouver (9) . By the end of
the war the scale of specialized security intelligence work within the R .C .M .P .
had contracted considerably .
41 . In the years between the wars R .C .M .P . security intelligence activities
were almost entirely centred on counter-subversion . The main targets were
Communist groups and Communist-led labour organizations . Successive governments wished to be kept informed about the possibility of revolutionary
plans and international sources of support of such organizations . To obtain this
information the R .C .M .P . frequently had its own members infiltrate the
organizations . In a number of cases, these R .C .M .P . members remained
undercover for years as active members of Communist organizations . However,
section 98 of the Criminal Code, which was enacted in response to fear
engendered by the 1919 Winnipeg General Strike, made membership in such
organizations a criminal offence .
42 . In the 1930s, as a result of co-operation between the federal and Ontario
governments, the Ontario government decided to prosecute six leading members of the Communist Party for offences under section 98 . An R .C .M .P.
undercover agent gave evidence at the trial and in so doing disclosed the nature
and extent of R .C .M .P . penetration of the Communist movement in Canada .
The six leaders were found guilty of offences relating to their membership in
the Party but were acquitted of the more serious charge of acting in a seditious
manner to overthiow the state . The trial stimulated opposition to section 98 of
the Criminal Code, and, following a change of government in 1935, section 98
was repealed . Following these events, some curtailment of undercover activity
occurred .
43 . One consequence of this focus on Communist political groups and labour
organizations was that the R .C .M .P .'s involvement in security intelligence
activities became 'a subject of political controversy, and frequent criticisms
were voiced in the House of Commons about suspected R .C .M .P . surveillance
of left-wing political activity . No official explanation of these activities was
provided by Ministers ; indeed, it was not until 1934 that a Minister of Justice
reluctantly acknowledged in Parliament that there was a`secret service' within
the R .C .M .P .
44 . The rise to power of Hitler and Mussolini was followed by the formation
of Fascist and Nazi political organizations in Canada . In the latter part of the
1930s, these organizations became a major target of R .C .M .P. surveillance .
Information obtained about membership in such organizations was of grea t
59
�importance in identifying suspected saboteurs immediately after war was
declared in September 1939 . Besides using informants and undercover agents,
the R .C .M .P . intelligence section used `wire supervision' (the interception of
telephone calls) for the first time in the late 1930s as a means of gathering
information about suspected subversive organizations . There was no statute
making such a technique a crime at that time .
45 . When the R .C .M .P. became responsible for the collection of security
intelligence in 1920, it adopted the policy of restricting the covert operations of
R .C .M .P . intelligence personnel to Canada's territorial limits . There is no
evidence that this policy was the result of a conscious decision by the Canadian
government . Nonetheless, it reversed the practice which Canada had followed
in the past, and it is now government policy . It meant, in effect, that Canada,
unlike her major allies, did not develop a capacity for using secret means to
collect in foreign countries information pertinent to Canada's security or
national interests . It also meant that the only way of obtaining foreign
information relevant to Canada's internal security and not available through
open sources was from `friendly' foreign agencies . Consequently, during the
inter-war years the R .C .M .P . took steps to develop a liaison relationship with
British and American intelligence agencies . As World War II approached,
arrangements for sharing intelligence with the F .B .I . and the British secret
agencies were strengthened .
46. During World War II the national security functions of the R .C .M .P .
were considerably expanded . As in the 1914-1918 war, the largest intelligence
function was in relation to the registration and internment of enemy aliens. The
Commissioner of the R .C .M .P . was appointed Registrar General of Enemy
Aliens and 16,000 Germans were registered by March 1940 . When Italy
entered the war in June 1940, R .C .M .P. files permitted the rapid identification, arrest and detention of Italian immigrants suspected to be dangerous to
the security of Canada . Fear of undercover enemy agents led to continual
reports by suspicious citizens, and each case was investigated by a member of
the Intelligence Section . By March 1941, all Canadian residents of Japanese
citizenship who had not become Canadian citizens by 1922 were registered .
R .C .M .P . intelligence reports indicated that only a small number of these
persons were security threats . However, after the outbreak of war with Japan,
in response to strongly expressed public apprehension, the government, using
powers available to it under the War Measures Act, relocated all Japanese
Canadians from the West Coast to inland areas and detained them there, and
confiscated their property .
47. Another security intelligence function assigned to the R .C .M .P . during
the war was to advise about industrial and military sites within Canada which
might be vulnerable to sabotage . A special subsection of the Intelligence
Section was established for this purpose .
48 . The R .C .M .P .'s counter-espionage activities during the war were not
extensive, perhaps because the large internment programme may have deprived
enemy agents of Canadian contacts . In the early years of the war, before the
Soviet Union became an ally, the prime target of counter-subversion activities
60
�was suspected Communist attempts to disrupt the war effort . Surveillance was
also maintained on the anti-conscriptionist movement in Quebec and .on the
Jehovah's Witnesses . The latter group, like the Communists, had been declared
an illegal organization under the Defence of Canada Regulations .
The expansion of security intelligence activities after World War I I
49 . In 1945 the revelations of the Soviet cypher clerk, Igor Gouzenko, created
a turning point in the development of Canada's security intelligence activities .
Gouzenko revealed that the Soviet Union had organized an extensive espionage
network in Canada . This network operated largely through the `recruitment' of
civil servants and scientists into Communist front groups and Communist Party
cells . Members of the network, through their positions in government departments and research agencies, had obtained and passed over to their Soviet
`handlers' information of vital importance to the defence of Canada and her
.allies . These disclosures alerted the Canadian government, as well as . the
British and American governments, to the urgent need to strengthen their
defences against Soviet espionage and clandestine Communist involvement in
political life.
50. In 1946, in direct response to the Gouzenko spy revelations, the Canadian
government introduced a programme of security screening in the federal Public
Service to ensure as far as possible that persons with access to secret information were trustworthy . Such a screening programme was one of the main
recommendations of the Royal Commission on Espionage which had investigated the Gouzenko disclosures . The Commissioners were Mr . Justice Robert
Taschereau and Mr . Justice R .L . Kellock of the Supreme Court of Canada .
Under the screening programme the R .C .M .P . was designated as the agency
responsible for investigating the personal lives and political associations of
persons requiring security screening . Government departments would decide
whether to grant or deny clearance largely on the basis of R .C .M .P . reports .
51 . The security screening work of the R .C .M .P . has been authorized- by a
series of Cabinet Directives . These Directives have established criteria for
identifying the kinds of political activity which, in the government's view,
represent threats to the security of Canada . Originally these criteria specified
membership in or association with Communist or Fascist organizations as the
basis for denying a security clearance . But over the years these criteria have
been widened to embrace more generic categories of political activity . Cabinet
Directive 35, which since 1963 has governed the security screening of government employees, sets out the criteria of `disloyalty' and `features of character'
which it is considered might severely affect a person's `reliability' . Greed, debt,
illicit sexual behaviour, drunkenness, drug addiction and mental imbalance are
listed as examples of `unreliability' . In 1972 the Security Advisory Committee
authorized the R .C .M .P . to include in its security screening reports information on a candidate's "separatist sympathies, associations and activities" . This
formaliied an R .C .M .P . practice which had arisen out of an arrangement
made between the R .C .M .P . and the Privy Council Office seven years earlier .
52 . In Part V and Part VII of this Report we will examine in detail the policy
issues associated with these criteria . Here we wish to note the impact thes e
61
�criteria have had on the surveillance and investigative work of the security side
of the R .C .M .P. The Security Service systematically collects and stores
information on individuals and groups who fall within these criteria . This
provides the basic data for `subversive indices' checked by the security screening branch for every person who is screened . Beginning in 1946, the systematic
collection of information about Canadians who fall within the security screening criteria has been a major function of the security intelligence division of the
R .C .M .P . Yet, until 1975, the Cabinet Directive on security screening for the
federal Public Service was the only written instruction from the Cabinet
concerning the kinds of security intelligence to be collected by the R.C .M .P .
53. Three other security screening programmes came to rely heavily on the
R .C .M .P . for security intelligence . These were for citizenship, certificates of
identity (i .e . travel documents for non-citizens) and immigration . Of these
three, the immigration screening programme had the greatest impact on the
R .C .M .P . The Immigration Act of 1952 established "prohibited classes" of
persons who were to be refused admission to Canada on security grounds .
Some modifications in these criteria were made when the new Immigration
Act" was passed in 1976 . Section 19(1) of the new Act set the criteria for
excluding persons from entry to Canada on security grounds . The R .C .M .P .
established a visa control section to assess the extent to which each of the
thousands of post-war refugees wishing to emigrate to Canada might fall
within the prohibited categories of the Immigration Act . The establishment of
this section led for the first time to the posting abroad of R .C .M .P . members to
serve as visa control officers .
54 . Another government security programme in the post-war years, which
added to the security intelligence mandate of the R .C .M .P ., was aimed at
preparing lists of persons to be interned in the event of an emergency . This
programme was originally based on the Defence of Canada regulations passed
pursuant to the War Measures Act during World War ÎI . These regulations
were revised in 1959-61 and replaced by the draft Internal Security Regulations . The draft regulations are designed to be used if a proclamation is issued
invoking the War Measures Act . They provide that the Minister of Justice may
order an individual or group of individuals to be interned and the Governor in
Council may declare a group to be an illegal organization . The R .C .M .P .'s role
in the preparation for internment has been to provide information on individuals and groups to an Advisory Committee on Internment which was appointed
by the Department of Justice . The Committee, on the basis of established
criteria, decided which names to put on the internment list . In the atmosphere
of the Cold War, the focus was on the Communist Party and Communist front
organizations . This programme was given a high priority by the R .C .M .P . until
the mid-1960s .
55. The increased security intelligence functions assigned to the R .C .M .P .
after World War II led to a more specialized organizational structure within
the R .C .M .P . In 1946, the Intelligence Section, which at Headquarters had
been part of the Criminal Intelligence Branch, was organized into a Specia l
" Immigration Act, 1976, S.C . 1976-77, Vol . 1, ch .52 .
62
�Branch . Four years later the Officer in Charge of the Special Branch,
Superintendent McClellan, began to report directly to the Commissioner of the
R .C .M .P . rather than to the Director of the Criminal Investigation Branch . In
1956, the Special Branch was elevated to the Directorate level and became
knôwn as the Directorate of Security and Intelligence or "I" Directorate .
Assistant Commissioner Harvison (who, like Superintendent McClellan, would
later become a Commissioner of the R .C .M .P .) was the first officer in charge
of this Directorate . This structure remained intact until 1970 . In .that year, the
new head of "I" Directorate, John Starnes, was appointed Director General,
with a rank equivalent to that of Deputy Commissioner, and the name of "I"
Directorate was changed to the Security Service, underlining the difference
between security intelligence work and regular police work.
56. The number of persons involved in the R .C .M .P.'s security intelligence
work increased rapidly in the years following World War II . From the small
group at Headquarters, which constituted the Intelligence Section at the end of
World War II, Special Branch had grown considerably by 1951 . By 1960, "I"
Directorate's membership had tripled and had doubled again by the time Mr .
Starnes took over as Director General a decade later . In a little over 20 years,
the R .C .M .P.'s manpower specializing in security intelligence activities had
increased more than fifty-fold .
57 . Not all of those in the R .C .M .P .'s Special Branch and its successors, "I"
Directorate and the Security Service, have been regular members of the
R .C .M .P. Since 1951 there have been four different categories of personnel
which reflect the make-up of the Force as a whole :
- Regular Members of the R .C .M .P.
- Special Constables of the R .C .M .P .
- Public Servant s
- Civilian Members of the R .C .M .P .
The largest component of the Security Service is made up of regular members
of the R .C .M .P. who have joined the Force as young men (there have been
only two women), have gone through the basic training at Regina, and at
different points in their career have moved over from regular police work to the
part of the Force which does security intelligence work. Since 1951 regular
members of the R .C .M .P . have constituted at least 44 per cent of the personnel
on the security side . Special constables have been recruited into the Security
Service to perform specialized investigative work and are not on the career
path of a regular R .C .M .P . member . The public servants carry out support
staff functions such as clerical and stenographic work and are drawn from the
staffing pool of the Public Service .
58. The fourth category of security intelligence personnel - the civilian
member - is of particular importance for it is the effective melding of this
component into the security intelligence team that has created a severe
organizational challenge . The R .C .M .P. began to recruit civilian members into
the Special Branch as Reader Analysts in the early 1950s . Their primary role
was to analyze information from the field and to write intelligence reports fo r
63
�Ministers and government departments . The intellectual and literary skills of
these civilian members could be of crucial importance for the quality of
intelligence reports, but as outsiders their career prospects in security intelligence work were dim . This was soon identified as a serious organizational
problem . In 1957, Deputy Commissioner Brunet, writing to the Commissioner
about general conditions in "I" Directorate, made this comment :
The situation as regards Reviewer Analysts is a problem and a source of
worry at times . As you know, they are all civilians and, there not being
much future for them, with a few exceptions we have not been able to keep
these people very long and they are hard to replace . We never know which
one may go next .
Later on in this Report we shall analyze this problem in detail and consider the
various attempts to deal with it . But in this historical overview we wish only to
note that this major problem in the organization of Canada's security intelligence capability, a problem which still exists today, first surfaced nearly 25
years ago .
59. While the security screening programmes provided the basis for routine
security intelligence collection and reporting by the R .C .M .P ., there was also a
steady expansion after World War II and until the early 1970s, of R .C .M .P .
investigative and preventive activities with respect to both foreign intelligence
agencies in Canada and various forms of domestic `subversion' . There was no
explicit administrative or statutory authorization for this expansion . We have
previously noted that the original R.C .M .P. Act of 1920 made no explicit
reference to the security intelligence responsibilities of the Force and nothing
has been added to the R .C .M .P . Act since then . The only specific reference to
security intelligence activities is to be found in section 24 of the R .C .M .P .
Regulations,18 which lists the following amongst the duties of the Force :
(e) to maintain and operate such security and intelligence services as may
be required by the Minister.
Subsequent parts of this Report will describe a number of the operations
carried out in, recent years by the Security Service and . will analyze the legal
and policy issues arising from them . The following is simply an outline of .the
main features of security operations as they developed since World War II .
60. Following the Gouzenko revelations, the R .C .M .P .'s counter=intelligence
operations (efforts to detect and prevent activities of foreign intelligence agents
in Cânada) increased in scale And sophistication . By the end of World War Ii
all of the major powers and a number of lesser countries had developed very
substantial secret services to gather intelligence and promote their national
interests in foreign countries . The relaxation of international tensions in the
détente period did not lead to an abatement in the `secret war' . Although
Canada did not develop an espionage capacity of its own, there was no
indication that Canada was regarded as `off limits' by the foreign intelligence
agencies of other countries . A major security intelligence role of the R .C .M .P .
has been the responsibility for keeping track of these foreign intelligence
activities in Canada and of taking certain preventive actions against them .
18 C .R .C :, ch .1391 .
64
�61 . The vocabulary of counter-intelligence distinguishes `legal' from `illegal'
operations . There is no consistency within the intelligence community as to
precise definition of what is a`legal' agent and what is an `illegal' agent . One
distinguishing factor is that the `legal' agent is one who operates under
diplomatic cover out of his mission, while an `illegal' is an agent who operates
independently under deep cover, often with false identity documents, and
sometimes communicates directly with the intelligence headquarters of the
country which he serves . R .C .M .P . counter-intelligence investigations have
been concerned with detecting the àctivities of both kinds of agents . This has
involved the surveillance of diplomats suspected of carrying out secret intelligence functions in Canada as well as the investigation of persons suspected of
being long-term, deep cover foreign agents .
62 . Foreign intelligence agents, whether `legal' or `illegal', are usually highly
trained in evading detection . The `tradecraft' of espionage which developéd
during World War II was continually refined in the post-war yéars, thereby
creating pressure on counter-intelligence agencies to keep pace . The countérintelligence branch of the R .C .M .P. made considerable efforts to increase its
technical competence in detecting and countering foreign intelligence agencies .
Among other things, this led to -an increased use of technical- means of
intercepting oral and written communications, technical visual surveillance and
the use of mobile physical surveillance teams . Efforts to detect `illegals' also led
to the use of confidential personal information to check individual identities . In
Part III of this Report we shall be reporting on the legal implications of these
techniques ; in Part V we shall put forward our recommendations on the laws,
policies and procedures which should govern the use of these techniques .
63. Counter-intelligence operations have been concerned not only with . collecting information about foreign intelligence activities but also with preventing such activities . In a number of cases, R .C .M .P . investigations led to
prosecutions of individuals for espionage offences under the Official Secrets
Act or decisions of the Government of Canada to declare foreign diplomats
personae non gratae and expel them from Canada . Since World War II there
have been 20 cases involving persons charged with espionage offences iinder the
Official Secrets Act (see paragraphs 9 to 19 of our First Report for a
discussion of these cases) and 42 diplomats have been declared personae non
gratae . But considerably more frequent are less formal preventive actions such
as warning Canadians who are in danger of being compromised or recruited by
foreign intelligence agents . The rarest but most valued preventive activity is the
`turning' of a member of a foreign intelligence agency into a`double agent' of
the counter-intelligence agency . Like counter-intelligence agencies in all countries, the R .C .M .P . counter-intelligence service has expended much energy on
preventing the development of double agents in its own ranks and developing
double agents within `hostile' intelligence agencies .
64 . In the immediate post-war years, the Soviet Union's intelligence activities
in Canada were the major `target' of the R.C .M .P.'s counter-intelligence woirk .
More recently, while the Soviet Union has remained a target, considerable
investigative resources have also been directed towards the agents of a numbe r
65
�of other countries as well as a number of organizations and certain countries
associated with international terrorism .
65 . `Foreign intelligence' activity investigated by the R .C .M .P . has often had
little to do with espionage as that term is normally understood . Much of it has
taken the form of what in the jargon of counter-intelligence is known as "active
measures of foreign intervention" . Such measures include, for example, efforts
to induce members of an immigrant community in Canada to support the
government of their native land and efforts to induce a Member of Parliament
or a senior official of the Canadian government to support the interests of a
foreign government in Canadian policy-making . Foreign intelligence programmes of this kind in Canada are apt to embrace activities which are well
within the ambit of acceptable diplomatic activity or lobbying as well as
activities which involve stealth and blackmail and clearly go beyond conduct
compatible with the values of Canadian society and its system of government .
In Part V of this Report we shall discuss the principles which should apply to
counter-intelligence investigations against active measures of foreign interference. In this brief historical survey we wish only to report that in the last two
decades active measures of foreign interference have been of increasing concern to the security intelligence arm of the R .C .M .P . and that no clear policies
or procedures have been developed by the government for identifying which
kinds of foreign intelligence activities are legitimate targets of investigation
and which are not .
66 . The surveillance and investigation of domestic subversion by the
R .C .M .P . also increased greatly in the post-war years . Earlier, in the years
between the two World Wars these counter-subversion investigations focussed
on Communist organizations and suspected Communist front organizations .
The Gouzenko spy trials and the political atmosphere of the Cold War
encouraged concentration in these areas . However, in the 1960s, R .C .M .P .
counter-subversion activity began to extend far beyond Communist groups .
67 . One of the major new concerns was terrorism . In one sense terrorism was
not new - in the 19th century and early 20th century, Canada had contended
with groups such as the Fenians and "anarchists" who used violence for
purposes . of political propaganda or to force concessions from government .
What was new in the 1960s was the scale, the intensity and the publicity
associated with terrorism . The terrorist groups which have emerged in the last
two decades have had much more money and much more help from foreign
governments than was ever the case in the past . They have also taken
advantage of the freedom of movement and relative permissiveness of liberal
democracies such as Canada . In particular they have relied on the mass media
to derive the maximum political impact from an act of violence . As one
historian of terrorism has put it, they have learne d
that the terrorist act by itself is next to nothing, whereas publicity is all . "
68 . A major responsibility of the R .C .M .P.'s "I" Directorate and its successor, the Security Service, in the 1960s and 1970s has been the investigation o f
" Walter Laqueur, Terrorism, London, Weidenfeld and Nicholson, 1977, p . 223 .
66
�domestic terrorist organizations, especially those like the Front de Libération
du Québec (F.L .Q .) in Quebec . The 1970 October Crisis increased the priority
given to the need for good intelligence about terrorist threats in Quebec . Prime
Minister Trudeau subsequently told the House of Commons that afte r
. . the events of October 1970, when there had been terrorism, murder and
.
kidnapping, we directed the R .C .M .P . - and I believe this was the will of
the House - to pay a little more attention to internal subversion caused by
ideological sources in Canada and not only concentrate on externally
sponsored types of subversion .
It then became obvious that one of the groups they were going to look at
was one composed of those who were trying to break this country, separate
it, and who had been using force in order to do it . There was a great deal of
indignation on the part of members opposite, and indeed many people
across the country, because at the time of the October, 1970, events the .
police had to throw a very wide net indeed and arrest many people who
were apparently guilty of nothing because the police were misinformed .
They did not have inside information on the terrorists, those who had
kidnapped Mr . Cross and Mr . Laporte . So obviously we told them - we
did not have to tell them because they would have done it by themselves to concentrate a little more on this threat . So I suppose that as a result of
that they began infiltrating the F .L .Q . and they began trying to get more
information on those who would destroy the country by force, whether they
be in Quebec or in other parts of the country .2 0
A number of the events examined and reported upon by our Commission are
related to the efforts of the R .C .M .P . Security Service to obtain intelligence
about terrorist organizations in Quebec .
69. Intelligence concerning the activities of foreign terrorists also became a
major priority of the Security Service in the 1970s . The tragic terrorist assault
on the Munich Olympics in 1972 and the awarding of the 1976 Olympics to
Montreal highlighted the importance to Canada's security of prompt and
accurate intelligence about foreign terrorist organizations . Largely through the
Security Service, Canada has been both a consumer and a producer of
international intelligence about terrorism . Canada's obligation to contribute to
the international pool of intelligence about terrorist groups was strengthened in
1974 when Canada signed the United Nations' Convention on the Prevention
and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents .2 1
70. The terrorist component of R .C .M .P . counter-subversion investigations
has been the least controversial element in the expansion of counter-subversion
activities . Much more contentious has been the investigation of `radical' or
`extremist' groups, many of which do not participate in political violence .
Student radicalism of the mid- and late-1960s and the so-called `New Left'
became areas of concern to the R .C .M .P ., as did native and black `extremism' .
Exponents of Quebec independence using democratic means to promote thei r
20 House of Commons, Debates, November 2, 1977, p. 564 .
21 Resolution adopted by the General Assembly A/RES/3166 (XXVIII), February 5,
1974 .
67
�political objectives, a number of trade unions, and Canadian supporters of the
an"ti-Viet Nam war movement, among others, became targets of security
intelligence surveillance by the R .C .M .P .
71 . , In Part V of this Report we shall analyze in some detail past policies with
respect to the targetting of domestic subversion and advance our own recommendations as to how domestic subversion should be defined as a legitimate
area of surveillance . Here we wish only to record the general growth of
domestic subversion investigation by the R .C .M .P . in the 1960s and '70s and
the fact that at that time there was no clear basis in law or government policy
for determining the proper scope of counter-subversion investigation by the
R .C .M .P . Aside from the criteria of `disloyalty' set out in the Cabinet Directive
governing security clearance, there were no government guidelines as to where
legitimate dissent ended and subversion began .
72 . 'Outside the terrorist field, counter-subversion investigation resulted in
few criminal prosecutions . Some of the information collected was used as a
basis for advising police forces of the participation of members of `subversive'
organizations in political demonstrations and picketing . Intelligence about
`subversive' organizations was also used to advise those responsible for protecting vital points and V .I .P .s, and for providing security for major international
events in Canada such as the Habitat Conference and the Olympic and
Commonwealth Games . Information was also passed on to federal government
departments for a variety of purposes . Often information about members of
`subversive' organizations was reported as provided for under the legislation
and directives governing security screening programmes . On other occasions
reports were designed to advise departments as to the presence or absence of
`subversives' in activities of concern to the departments . One example of such a
report .was an R .C .M .P . brief on the "Extra Parliamentary Opposition" which
was sent to the Solicitor General on May 12, 1971, the policy implications of
which we shall examine in subsequent chapters .
73. As with counter-intelligence activities, the R .C .M .P .'s counter-subversion
operations were not confined to collecting and reporting information . A wide
range of `countering' measures were employed to disrupt or break up groups
considered to be subversive . We have inquired into the nature of these
measures and have heard a great deal of evidence about their use especially in
the 1970s . In Part III we shall report on those countering techniques which
were not authorized or provided for by law and in Part V we shall analyze the
full range of countering techniques and present our recommendations with
regard to their use .
74. Throughout the period of expanded counter-sûbversion activity, the Security Service relied mainly upon the collection of information from covert rather
than overt sources . The primary information on which its intelligence reports
have typically been built has been garnered from investigations using clandestine investigative techniques . Many of these techniques were originally developed for counter-intelligence work against secret foreign agents . In the 1960s
and 1970s they were increasingly used against Canadian citizens and organizations suspected of subversive activities . Our Report will indicate later th e
68
�extent to. which electronic surveillance, mail opening, searches-without warrant
and the use of confidential personal information have been . used in - the
counter-subversion and in the counter-intelligence spheres . `Human sources'
tended to be used to a greater extent in counter-subversion activities than in
counter-intelligence operations . Paid informants *and undercover members of
the Security Service have been frequently used as a means of ôbtaining
information about the membership, plans and activities of domestic political
groups suspected of being involved in subversive activities .
75. 'While in the years between the end of World War II and the appointment
of the Royal Commission on Security in 1966 the security intelligence activities
of the R .C .M .P .- were increasing rapidly, both in volume and in the use of
intrusive investigative techniques, there was relatively little change in governmental arrangements for directing or reviewing this activity . Parliament still
played no active . role in either approving or reviewing security intelligence
activities . On the executive side, the Prime Minister continued to have the
ultimate responsibility for matters relating to national security, and . the
Minister of Justice continued to be the Minister responsible for the R.C :M .P.,
but there were no .established procedures whereby either was kept informed on
a regular or systematic basis of the scope of R .C .M .P . security intelligence
activities or the methods employed in these investigations .
76 . In the early 1960s, as security issues became increasingly controversial, it
was the Prime Minister who most often took the chief responsibility for
responding to Opposition questions in the House of Commons and stating
government policy . On October 25, 1963, Prime Minister Lester B . Pearson,
responding to public concerns about security investigations, announced in the
House of Commons changes in security clearance procedures . These -procedural changes were designed to provide some safeguards to governmënt
employees by requiring that doubt about their securitÿ"status be disclosed to
them and that a panel of senior officials review cases in which -departments
were proposing to deny a security clearance . Later, in November . 1963, in
response to concerns voiced by the Canadian Association of University Teachers, Prime Minister Pearson issued the following policy statement with respect
to R .C .M .P ., surveillance of university campuses :
There is at present no general R .C .M .P. surveillance of university campuses . The R .C .M .P . does, in the discharge of its security responsibilities,
go to the universities as required for information on people seeking employment in the public service or where there are definite indications, that,
individuals may be involved in espionage or subversive activities .zz
It is worth noting that this was the only occasion during this period when the
'government publicly disclosed policy in relation io the R .C .M .P.'s gâthering of
security intelligence .
22 "R .C .M .P . Activities on University Campuses", C.A .U.T. Bulletin, Vol . 13, No . 2,
• October 1964 .
.
69
�The Royal Commission on Security and its implementatio n
77. On March 7, 1966, Prime Minister Pearson announced the establishment
of the Royal Commission on Security, popularly referred to as the Mackenzie
Commission after its Chairman, Mr . Maxwell Mackenzie . Mr . Yves Pratte
and the Honourable M .J . Coldwell were Mr . Mackenzie's fellow Commissioners . Although the decision to establish the Commission had been triggered by
public controversy surrounding the case of Mr . George Victor Spencer, a postal
employee dismissed for security reasons, the Conimission's terms of reference
.
went far beyond this case and directed it " . . to make a full and confidential
inquiry into and report upon the operations of Canadian security methods and
procedures" .
78 . Mr . Pearson linked the Commission's mandate to the establishment of the
Department of the Solicitor General . Under the Government Organization
Act, 1966 ; the Solicitor General of Canada took over the duties and functions
previously exercised-by the Minister of Justice with respect to penitentiaries,
parole and the R .C .M .P . The Prime Minister emphasized the importance of
the security work amongst the responsibilities of the newly created Depart.
ment . He told the House of Commons that " . . a high priority function of the
new Department will be to examine in detail the problems of espionage and
subversive activities, and to determine how best to deal with them" . It was, he
said, "in order to assist the Solicitor General in his particular and new
responsibility . . ." that the government had decided to establish the
Commission .2 3
79 . The Royal Commission on Security submitted its Report to the government in October 1968, and the government published an abridged version in
June 1969 . We have had the opportunity of comparing the abridged and
unabridged versions and would note that very little was deleted from the
published Report . Most of the Commission's recommendations dealt with ways
and means of improving government security procedures in such matters as
security screening, departmental security and industrial security . We shall be
referring to many of these recommendations in Part VII of this Report .
80. The Royal Commission also recommended three important structural
changes in Canada's security system . First, it called for the establishment of a
Security Secretariat in the Privy Council Office to formulate and supervise the
implementation of security policy and procedures . Second, and most importantly for the R .C .M .P . Security Service, it recommended the establishment of
a civilian agency outside the R .C .M .P . " . . to perform the functions of a
.
Security Service in Canada" .24 And third, the Commission called for the
establishment of a Security Review Board to hear appeals in security screening
cases affecting the Public Service, immigration and citizenship . The Board
would also receive periodic reports from the Head of the Security Service and
"have authority to draw to the direct attention of the Prime Minister any
matters it considers appropriate ."2 5
23 House of Commons, Debates, March 7, 1966, pp . 2296-97 .
24 Report of the Royal Commission on Security, paragraph 297 .
25 Ibid ., paragraph 66 .
70
�81 . The Commission did not contemplate any significant change in the new
Security Service's mandate from that of the R .C .M .P . Security Service . Its
primary role would continue to be the collection, evaluation, and reporting of
information or intelligence "concerning espionage and subversion" .26 The
Royal Commission also recommended that future legislation should provide for
the interception of telephone conversations, electronic surveillance and the
examination of mail for security purposes .2 7
82 . The government did not accept the Royal Commission's recommendation
to establish a civilian Security Service separate from the R .C .M .P . Instead, it
opted for something of a compromise . In tabling the Commission's report in
the House of Commons in June 1969, Prime Minister Trudeau announced that
the Security Service would remain under the Commissioner of the R .C .M .P.
but it would become "increasingly separate in structure and civilian in nature" .
Under new and more flexible policies relating to recruiting, training and career
planning, it would be possible, according to the Prime Minister, fo r
.
. . an increasing number of university graduates from all parts of Canada
to. join the [Security Service] in a civilian capacity and to aspire to positions
at the top of that organization .ze
In Part VI of this Report, we provide a detailed account of the extent to which
Prime Minister Trudeau's policy was implemented . Here we will record only
the highlights .
83 . So far as `civilianization' is concerned, the most dramatic development
was the appointment of persons who were not R .C .M .P . members as Directors
General of the Security Service : first, Mr . John Starnes from the Department
of External Affairs who served from January 1, 1970 to April 30, 1973, and
then Lieutenant-General Michael Dare from the Department of National
Defence, who has served from May 1, 1973 until the present . But aside from
these appointments there was little progress towards the Prime Minister's
objective . Between 1969 and 1979 the civilian member component increased
from 9 .9 to 17 .2 per cent of the Security Service's strength, but nearly all of
the increase has been at the lower ranks or in the service and administrative
branches . By the end of the decade not a single civilïan was in an officerequivalent position in an operational or planning branch . However, programmes to assist R .C .M .P. members in returning to university have substantially raised the formal education levels of Security Service members since
1969 .
84 . As for autonomy, there was little change until 1976 when the Security
Service was given "National Division" status within the R .C .M .P . This meant
that more administrative responsibilities were delegated to the Director General of the Security Service and, operationally, Security Service field units would
report to Security Service Headquarters in Ottawa rather than to the heads of
the R .C .M .P .'s geographic divisions . Under Commissioner Simmonds, wh o
26 Ibid ., paragraph 63 .
27 Ibid ., paragraph 306 .
26 House of Commons, Debates, June 20, 1969, p . 10637 .
71
�became Commissioner in 1977, the change has been somewhat in the opposite
direction . Largely in response to the evénts that led to the appointment of this
Commission, Commissioner Simmonds has taken steps to bring the supervision
of Security Service practices and policies more closely under his control .
Current organization and strength of the Security Servic e
85 . To complete this account of the evolution of the R .C .M .P . Security
Service we shall provide a brief account of its internal organizational structure,
the size of the Service and the distribution of members amongst its various
functions and services .
86 . The head of the Security Service is the Director General . The Director
General reports to the Commissioner of the R .C .M .P . who, under the direction
of the Minister (the Solicitor General), "has the control and management of
the force and all matters connected herewith" .29 The Director General has a
rank equivalent to a Deputy Commissioner, the second highest rank in the
R .C .M .P . There are now four persons at this rank at Headquarters : besides the
Director General, there are Deputy Commissioners for Criminal Operations,
Administration and Canadian Police Services . Since 1977 an executive committee, constituted by these four and chaired by the Commissioner, advises the
Commissioner on policy matters relating to all aspects of R .C .M .P. activity,
including the Security Service .
87 . Within the Security Service, immediately under the Director General, are
three Deputy Directors General, one for Administration, one for Services and
one for Operations . The Deputy Director General for Administration directs
the financial and personnel administration of the Service, its training programmes and its office of internal security . Under the Deputy .Director General
for Services are branches which provide technical services directly to the
operational branches . These branches include the Security Service's records
section and automated information retrieval facility and branches responsible
for physical surveillance and all aspects of electronic surveillance . The operational branches of the Security Service report to the Deputy Director General
for Operations (D .D .G . Ops .) .
88. Intelligence collection and countering responsibilities are assigned to
three operational branches reporting to the Deputy Director General of
Operations . Two of these branches concentrate on counter-intelligence activities against foreign intelligence agencies . The third of these operational
branches is concerned with domestic subversion and is roughly equivalent in
size to the two counter-intelligence branches combined . . The only major
fluctuation in these arrangements during the 1970s was the rise and fall of "G"
Operations branch between 1971 and 1976 . This branch focussed on `subversive activities' related to separatism in Quebec . Its activities resulted in
incidents which gave rise to this Commission and which will be fully reported
upon later in our Report . "G" Operations was phased out in 1976 . In addition
to these .investigative operational branches, there are three other branche s
1' R .S .C . 1970, ch .R-9, s .5 .
72
�which have operational roles : one is devoted to carrying out the R .C .M .P .'s
security screening functions, a second specializes in the development and
administration of `human sources', and the third performs an intelligence
co-ordination function .
89. There are two additional organization units directly under the Director
General . The Security Service has a small audit group which we describe in
some detail in Part VI of this Report . The Director General also has a
secretariat which provides staff support services to him in a number of areas:
co-ordinating Security Service contributions to the interdepartmental committee system exclusive of any intelligence co-ordination function ; operating the
yearly planning cycle ; conducting policy studies ; and initiating research . An
organizational chart of the Security Service is annexed as Appendix "V" .
90 . The total establishment of the Security Service (including public service
employees) actually declined as a percentage of the R .C .M .P .'s total establishment . Slightly less than half of the Security Service's staff is located at
R .C .M .P . Headquarters in Ottawa . Field units are located in a number of the
geographic divisions of the R .C .M .P . As was explained earlier, since the
Security Service was given National Divisional Status in 1976, these field
personnel report through Security Service Area Commanders to Security
Service Headquarters in Ottawa .
91 . Expenditures by the Security Service do not represent the full costs
incurred, as the Security Service receives a number of services and forms of
support (for example, accommodation in R .C .M .P . buildings, R .C .M .P .
administration and pension payments) which are not billed to it directly .
C . THE R .C .M .P . SECURITY SERVICE : CURRENT
ROL E
The Cabinet Directive of 197 5
92 . In the 1970s there was increasing concern on the part of the Security
Service and the Solicitor General over the lack of a clear government mandate
for the surveillance and preventive activities of the Security Service . The scope
of these activities had, as we explained earlier, widened considerably in the
1960s and early 1970s . The only explicit government guidelines on security
threats - the Cabinet Directives, regulations and legislation relating to
security screening and internment in preparation for war - had been drawn up
in the Cold War period . At that time threats to Canada's internal security were
identified basically in traditional ideological terms as espionage conducted by
Communist régimes, Communist groups on the far left of the ideological
spectrum, and to a lesser extent, groups on the far right . But the perception of
threats to security and the concept of subversion were gradually extended to
encompass a wide spectrum of groups associated with radical dissent, political,
social and constitutional change and the use of demonstrations and confrontations for political purposes . Security Service surveillance of these groups was
not directed by any explicit government policy or guidelines . Nor was there
explicit authorization for a number of the investigative and countering activities developed over the years by the R .C .M .P . in its security work .
73
�93. The absence of clear authorization for R .C .M .P . security activities was
partially alleviated on July 1, 1974, when section 16 of the Official Secrets Act
came into force . This legislation30 empowered the Solicitor General of Canada
to issue a warrant authorizing the interception or seizure of communications
for security purposes . The relevant parts of section 16 are as follows :
2 . The Solicitor General of Canada may issue a warrant authorizing the
interception or seizure of any communication if he is satisfied by evidence
on oath that such interception or seizure is necessary for the prevention or
detection of subversive activity directed against Canada or detrimental to
the security of Canada or is necessary for the purpose of gathering foreign
intelligence information essential to the security of Canada .
3 . For the purposes of subsection (2), "subversive activity" means :
(a) espionage or sabotage ;
(b) foreign intelligence activities directed toward gathering intelligence
information relating to Canada ;
(c) activities directed toward accomplishing governmental change within
Canada or elsewhere by force or violence or any criminal means ;
(d) activities by a foreign power directed toward actual or potential attack
or other hostile acts against Canada ; or
(e) activities of a foreign terrorist group directed toward the commission of
terrorist acts in or against Canada .
This section went some way towards implementing the Royal Commission on
Security's recommendation for legislation authorizing the Security Service's
use of certain investigative techniques . But it fell well short of providing a clear
and comprehensive authorization for Security Service operations .
94. In his testimony before us the Honourable Warren Allmand explained
that soon after he became Solicitor General in 1973 he came to the conclusion
that the R .C .M .P. Security Service "needed a clearer and more understandable
mandate", a mandate, as he put it, "that was up with the times" (Vol . 114, pp .
17536, 17543) . Mr. Allmand has testified that he was seeking more than
clarity . He also felt that there should be some reduction in the scope of
Security Service surveillance . He told the Commission that :
Well, what existed before was unclear, but in my mind the guidelines would
make clear that certain targets which had been targets in the past should
.
not be targets in the future . . There was sometimes a tendency to consider
a left wing activist group as subversive even though they did not believe in
carrying out their work contrary to the law or in a violent way, and i felt
that was wrong, even though we may disagree with the purpose of thos e
groups .
(Vol . 116, pp. 17917-18 . )
95 . Mr. Dare, the Director General of the Security Service, told the Commission that the Security Service was at that time, independently of the Solicitor
General, coming to the view that a new government `mandate' was needed .
Indeed in Mr . Dare's view, "the whole of the initiative to seek a mandate came
so Protection of Privacy Act, S .C . 1973-74, ch .50 .
74
�from within the Security Service" . He explained that the impetus for this
initiative came from the "allegations of impropriety" associated with the
Watergate affair in the United States . The need for a new mandate was
confirmed at a meeting of senior field officers of the Security Service in the fall
of 1974 which was addressed by Mr . Gordon Robertson, the Secretary to the
Cabinet . According to Mr. Dare, Mr . Robertson told the Security Service
officers that "it is quite obvious that your people are in need of clear direction"
(Vol . 125, pp . 19463-65) .
96. A memorandum proposing a new mandate was prepared within the
Security Service, reviewed by the Solicitor General and his senior advisers and
submitted by the Solicitor General to the Cabinet for final approval in March
1975 . On March 27, 1975, the Cabinet approved the following guidelines for
Security Service activities :
The Role, Tasks and Methods of the R .C.M .P .
Security Service
The R .C .M .P . Security Service be authorized to maintain internal security
by discerning, monitoring, investigating, deterring, preventing and countering individuals and groups in Canada when there are reasonable and
probable grounds to believe that they may be engaged in or may be
planning to'engage in :
(i) espionage or sabotage;
(ii) foreign intelligence activities directed toward gathering intelligence
information relating to Canada ;
(iii) activities directed toward accomplishing governmental change
within Canada or elsewhere by force or violence or any criminal
means ;
(iv) activities by a foreign power directed toward actual or potential
attack or other hostile acts against Canada ;
(v) activities of a foreign or domestic group directed toward the
commission of terrorist acts in or against Canada ; or
(vi) the use or the encouragement of the use of force, violence or any
criminal means, or the creation or exploitation of civil disorder, for
the purpose of accomplishing any of the activities referred to above ;
(b) the R .C .M .P. Security Service be required to report on its activities on
an annual basis to the Cabinet Committee on Security and
Intelligence ;
(c) the Solicitor General prepare for consideration by the Prime Minister a
public statement concerning the role of the R .C.M:P. Security Service .
We will have much to say about this Security Service mandate in subsequent
chapters and, indeed, in Part V we will be advancing our own proposals for
what we consider to be, in form and in substance, a more appropriate
authorization for security intelligence activities . In this historical overview we
wish only to note the most significant features of this mandate .
97 . At the outset it is important to note the legal status of the Cabinet
decision with respect to the Role, Tasks and Methods of the R .C .M .P. Securit y
75
�Service . This decision took the form of a Cabinet Directive . Such a directive
does not become part of the laws of Canada . When we speak of the laws of
Canada, in either the federal or provincial context, we mean statutes, subordinate legislation in the form of statutory instruments and the decisions of the
courts in interpreting statutory provisions or in applying the common law .
Cabinet Directives and Records of Cabinet decisions do not have the status of
law in the sense described above . This means, among other things, that such a
directive cannot be invoked as authority to do what is otherwise contrary to
law . The fact that the March 1975 Cabinet Directive did not constitute a law
was clearly appreciated by the head of the R .C .M .P . Security Service, Director
General Dare. On May 22, 1975, Mr . Dare wrote to all of the senior officers of
the Security Service explaining the purpose and meaning of the Cabinet
Directive . In that letter he wrote :
While at first glance the ingredients of our guidelines appear to be strict
legal precepts, they are not .
98 . The phrasing of the 1975 Cabinet Directive closely resembles a statement
made by Prime Minister Trudeau in the House of Commons on July 11, 1973,
concerning the criteria used to determine whether a group or an individual
constitutes a security risk :
With respect to other individuals, groups or members of groups the
following criteria are applied : those engaged in or planning to engage in
espionage ; sabotage ; foreign intelligence activity directed towards gathering
intelligence information about Canada ; activities directed towards creating
civil disorder or accomplishing governmental change within Canada or
elsewhere by force or violence or any criminal actions ; or activities directed
towards actual or potential attack or other hostile acts against Canada . "
It should also be noted that the list of authorized Security Service targets in
the 1975 Cabinet Directive was built upon the definition of `subversive activity'
in section 16(3) of the Official Secrets Act . The phrase "governmental change"
in the third paragraph of the mandate was rendered somewhat more ambiguous by the fact that the French version of the Directive also referred to "un
changement gouvernemental" whereas the counterpart to this paragraph in
section 16(3) of the Official Secrets Act used the words "un changement de
gouvernement" . This change would appear to broaden Security Service surveillance to cover activities involving the use of force, violence, or criminal means
to change a government policy as well as to change a government . Terrorist
activities of domestic groups were added to terrorist activities of foreign
groups . Paragraph (vi) referred to a new category of activity not included in
the Official Secrets Act list .
99 . The addition of the sixth paragraph was quite significant . So far as the
Security Service is concerned, it was clearly intended to add a good deal as the
Security Service had pressed for an additional clause of this kind precisely on
the grounds that it felt unduly constrained if all of its activities had to be
confined to the limits imposed on the use of electronic surveillance by section
16 of the Official Secrets Act . Also, the Memorandum to Cabinet accompan31 House of Commons, Debates, July 11, 1973, p . 5499 .
76
�ying the March 27 guidelines explained that the addition of the sixth clause
meant that there need be no change in the existing range of Security Service
activities . This would appear to have been the Director General's understanding of the Directive . In his letter of May 22, 1975, to senior officers of the
Security Service, the Director General, Mr . Dare, emphasized that the guidelines were intentionally broad and were hot intended to alter fundamentally the
Security Service's currentactivities . The Security Service, he wrote :
. . will continue to monitor traditional areas of interest - such as Commu.
nists, Trotskyists, Marxists, separatists, bloc revolutionaries, native extremists, right-wing extremists and revolutionaries from other countries resident
in Canada .
100. The 1975 Cabinet Directive did not specify the methods of investigation
or of countering which would be employed by the Security Service . It simply
indicated that the Security Service could carry out a number of activities namely, discerning, monitoring, investigating, deterring, preventing and countering - in relation to a list of activities . Mr . Dare's letter of May 22
interpreting the Cabinet Directive emphasized that :
Members of the Security Service must act within the limits of the
guidelines and within the limits of the law . (The italics were his)
101 . The 1975 Cabinet Directive was not publicly disclosed at the time it was
agreed to . On October 28, 1977, Mr . Francis Fox, then Solicitor General,
paraphrased the main terms of the Directive in the House of Commons ; and it
was publicly disclosed in its entirety for the first time, by us, on July 31, 1978 .
Other components of the Security Servic e
102. The 1975 Cabinet Directive did not purport to be an exclusive and
comprehensive statement of the Security Service's role . As we have related in
section B of this chapter, in the years following World War 11 the R .C .M .P .
was designated the investigative agency for security screening programmes in
relation to Public Service employment, immigration, citizenship and certificates of identity . The correspondence, memoranda and Cabinet Directives
establishing these programmes continue to be sources of authority .for Security
Service activities .
103 . Here we will state only that under one or the other of these security
screening programmes the Security Service might be asked to collect and
report intelligence about a subject which does not fit within the list of activities
in the 1975 Cabinet Directive . One example of this with respect to security
screening of the Public Service is that beginning in 1965, as a result of views
expressed at a meeting of a committee of senior government officials the
previous year, . the R .C .M .P . included in its reports information about the
separatist associations of candidates for security clearances . Some confusion
arose after March 1975 as to whether the Security Service should continue to
provide this information . The Cabinet appeared to settle this point by deciding
on May 27, 1976 that :
information that a candidate for appointment to a sensitive position in the
public service, or a person already in such a position, is a separatist or a
77
�supporter of the Parti Québecois, is relevant to national security and is to be
brought to the attention of the appropriate authorities if it is available ;
However, the Cabinet did not clarify how information about separatists who
were not engaging in activities listed in the 1975 Cabinet Directive should
become "available" to the Security Service . The policy problems inherent in
this situation will be reported upon in more detail in Part V of this Report .
104. Another government programme which has formed part of the
R .C .M .P.'s security intelligence mandate concerns the preparation in advance
of lists of persons to be interned under the War Measures Act in the event of a
proclamation under the Act . As we indicated above, this programme was
actively maintained at the peak of the Cold War and the R .C .M .P .'s contribution to it constituted one of the Force's major responsibilities in the field of
security intelligence . In recent years it has been relatively dormant . We shall
examine this programme in detail in Part IX of this Report and make our
recommendations with regard to it .
105 . In addition to formal programmes of intelligence collection discussed in
the preceding paragraphs, there are many other contexts in which the
R .C .M .P . Security Service is asked or expected to provide intelligence to
governments and police forces for the protection of security . For instance, the
Security Service is expected to provide those who are responsible for protecting
international dignitaries visiting Canada with assessments of possible threats to
the safety of such persons . The Security Service plays a similar role with
respect to Canadian V .I .P .s, international events in Canada, and airport
security . In all of these, and other contexts, the Security Service's role is not to
provide the actual protection but the intelligence upon which those responsible
for the protection can base their security measures . Similarly, in responding to
security crises brought about by terrorist actions or other forms of political
violence the Security Service's role is to provide intelligence to federal and
provincial authorities responsible for dealing with the crises .
106 . The Government of Canada has developed plans for responding to
emergencies . The Civil Emergency Planning Order,32 passed on June 8, 1965,
requires that the Minister of Justice (now, presumably, the Solicitor General) :
(2) Through the Royal Canadian Mounted Police ,
(a) exercise responsibility for
(i) the internal security of Canada in all matters of subversion and
espionage,
(ii) the protection of specified Vital Points ;
(iii) Port and Travel Security Control ;
(iv) the administration and operation of civilian internment camps, and
(v) the providing of assistance to other services and departments in the
identification of persons unable to identify themselves ;
(b) exercise responsibility in accordance with the police jurisdiction of the
R .C .M . Police and in co-operation with other police forces, for th e
Jz P .C . 1041 .
78
�internal security of Canada in all matters of sabotage and police
assistance in the enforcement of federal statutes and emergency legislation ; an d
(c) assist provincial and municipal governments and their police forces, as
requested, in all matters pertaining to the co-ordination of emergency
police planning and operations .
107 . Similarly the Government War Book assigns a number of functions to
the R .C .M .P . in the event of war . While these emergency and wartime plans do
not specifically refer to the Security Service or its predecessors, it is reasonable
to infer that it would be this Service of the R .C .M.P . which would be expected
to provide the security intelligence required by the R .C .M .P . to carry out the
duties assigned to it in emergency and wartime situations .
D. THE R .C.M.P. "P" DIRECTORATE, FOREIGN
SERVICES
DIRECTORATE AND EMERGENCY RESPONSE TEAMS :
CURRENT ROLE S
108. During the 1970s three changes were made in the internal organization
of the R .C .M .P. which relate to the Force's security responsibilities . The first
was the establishment in 1973 of the Protective Policing Directorate ("P"
Directorate) which grouped together in a single directorate those branches and
sections of the Force involved in providing protective services for government
property, personnel and information . The formation of "P" Directorate
stemmed in part from the Royal Commission on Security's recommendations
that all agencies concerned with protection against electronic eavesdroppin g
. . . should be combined in one part of the protective security branch of the
Security Service . "
109 . "P" Directorate is not part of the Security Service . Its Director reports
to the Deputy Commissioner, Criminal Operations . Most of the component
parts of "P" Directorate had previously been part of the Criminal Investigation
Branch . Counter-technical intrusion responsibilities constituted the only function previously performed by the Security Service . Other responsibilities
assigned to "P" Directorate include airport policing, security engineering,
V .I .P . protection, advice to government departments on physical security, and
administration of the Canadian Human Rights Act as it applies to the
R .C .M .P .
110. The emphasis in "P" Directorate is on the provision of protective
services rather than investigation . Where intelligence about groups or individuals who may threaten security is required by those providing the protective
service (for example, in protecting airports or visiting dignitaries), it would
normally be supplied by the R .C .M .P . Security Service .
" Report of the Royal Commission on Security, paragraph 229 .
79
�111 . The second change occurred in 1979 with the establishment of a Foreign
Services Directorate to co-ordinate all R .C .M .P . foreign liaison activity . The
Foreign Services Directorate brought together the Security Service and Criminal Investigation Directorate components of the R .C .M .P .'s Foreign Liaison
Services under a single commanding officer who reports to the Commissioner
of the R .C .M .P . through a committee of senior officers whose membership
includes the Director General of the Security Service . This change affects the
R .C .M .P . liaison officers who are stationed abroad at 28 Canadian missions
and who, among other duties, are responsible for the security vetting of all
persons applying to emigrate to Canada as permanent residents . These liaison
officers, whether involved in police liaison, security liaison, or screening for
visas are now members of the Foreign Services Directorate .
112 . Creation of the R.C .M .P.'s Emergency Response Teams was the third
change. They constitute one other component of the Force which has a role in
emergency situations threatening the security of Canada . As their name
implies, the function of these units is not to gather intelligence about threats to
security but to respond to an emergency once it occurs . A number of municipal
police forces have developed similar units . The R .C .M .P . Emergency. Response
Teams are now established at both the divisional and detachment level at
various locations across Canada . These teams may be called upon in emergency
situations such as an embassy takeover, a V .I .P . hostage-taking, an airline
hijacking or a prison riot . Through courses at . the Canadian Police College, the
R .C .M .P also provides educational assistance to the special crisis teams of
other police forces .
E . THE DEPARTMENT OF THE SOLICITOR GENERAL
113 . The Government Organization Act of 1966 created the Department of
the Solicitor General and transferred to it the powers, duties and functions
previously exercised by the Minister of Justice and Attorney General for
Canada with respect to :
(a) reformatories, prisons and penitentiaries ;
(b) parole and remission ; and ,
(c) the Royal Canadian Mounted Police .3 4
One reason for establishing this new Department was the need to give more
ministerial attention to security issues . This reason was emphasized by Prime
Minister Pearson in explaining the government's intention to introduce - the
legislation establishing the Department of the Solicitor General :
We hope to introduce legislation shortly which will establish, among other
things, the department of the Solicitor General under a minister who will
have responsibility for the R .C .M .P . and for security matters . This will be a
responsibility to which he will be able to give considerable time, because
this increasingly important aspect of the work of the present Department of
Justice will then become the responsibility of a separate minister . The ne w
'" R .S .C . 1970, ch .S-12, s.4 .
80
�minister will be able to give much closer attention to these difficult
problems than has been possible in the past . A high priority function of the
new department will be to examine in detail the problems of espionage and
subversive activities, and to determine how best to deal with them .35
114. The newly created department of the Solicitor General was organized on
what has been 'referred to as "The Swedish Ministry" concept . The Deputy
Solicitor General and a small departmental secretariat were to play a limited
research and policy role . They were not to manage the three agencies, . the
Canadian Penitentiary Service, the National Parole Board and the R .C .M .P .,
which constitute the operational components of the Department . The Order-inCouncil36 which transferred responsibility for the three agencies to the Solicitor
General designated the Commissioner of the R .C .M .P., the Commissioner. of
Penitentiaries and the Chairman of the National Parole Board as deputy heads
of these agencies for the purposes of the Civil Service Act . The heads of these
agencies, including the Commissioner of the R .C .M .P ., report directly to the
Solicitor General, and not to the Deputy Solicitor General .
115 . The legal framework of the Department of the Solicitor General created
doubts and controversy as to the powers and role of the Deputy Solicitor
General in relation to all three of the agencies under the Solicitor General, and
especially in relation to the R .C .M .P . In subsequent chapters of this Report we
will examine this issue in more detail and make recommendations on its
resolution . But here we should note that this legal controversy about the
position of the Deputy Solicitor General was one of the factors which contributed to a situation in which the Solicitor General had very little access to
informed advice about policy issues arising from R .C .M .P. activities, other
than from the Commissioner of the R .C .M .P . and other members of the Force .
Another factor which contributed to this situation was a tradition of, iddependence from government direction which had characterized government-police
-relations prior to 1966 . This tradition was fortified by a loosely defined legal
doctrine according to which the police as peace officers are answerable only to
the law, and police operations should not be interfered with by politicians . We
shall examine later the validity of this doctrine as it applies to Canada . The
expectations and attitudes engendered by this doctrine affected the quality of
ministerial involvement in R.C .M .P . policies with respect to both criminal
investigation and security intelligence activities . A point of fundamental importance, of which we became acutely aware as we conducted our inquiry, was the
absence of a clear and shared understanding by Ministers, government officials
and R .C .M .P . members of the policy issues relating to police and security
operations about which responsible Ministers ought to be informed and on
which they should be able to give direction .
116. Since 1966, the only significant change which has taken place in the
organization of the Solicitor General's Department so far as security matters
are concerned is the establishment of the Security Planning and Research
Group (SPARG) within the Department in 1971 . The original purpose o f
15 House of Commons, Debates, March 7, 1966, p . 2296 .
36 P.C . 1965-2286 .
81
�SPARG was to assist the Solicitor General in assessing the significance of
security intelligence reports received from the R .C.M .P. The Solicitor General
at the time, the Honourable Jean-Pierre Goyer, likened its role to that of
Crown Attorneys who assess the significance of police reports of criminal
activity . He told the House of Commons that the functions of this group were
as follows :
1 . To study the nature, origin and causes of subversive and revolutionary
action, its objectives and techniques as well as the measures necessary to
protect Canadians from internal threats .
2 . To compile and analyze information collected on subversive and revolutionary groups and their activities, to estimate the nature and scope of
internal threats to Canadians and to plan for measures to counter these
threats .
3 . To advise me on these matters .37
Prior to Mr . Goyer's announcement there was much speculation in Parliament
and in the media that what was being created was a parallel and civilian
security service . Mr . Robin Bourne, the Assistant Deputy Solicitor General
who headed the Group from its inception until 1979, testified before us as
follows :
It certainly was the perception in the public mind and in the mind of some
members of Parliament, that the Government . .. was setting up a civilian
security service . . .
(Vol . 140, p . 21503 . )
He went on : "I gitess we were not very clever at explaining ourselves" (Vol .
140, pp . 21503-4) . SPARG was not a civilian security service . The intention of
the government in establishing the Group was as explained by Mr . Goyer in
outlining its terms of reference . It was to provide the Solicitor General with
information 'on internal threats to the security of Canada and to plan for
measures to counter those threats. It was hoped to carry out this long-term
research by recruiting personnel with strength in a variety of disciplines so that
different perspectives could be brought to bear on the assessment of security
threats reported by the R .C .M .P . Security Service .
117 . There is no doubt that this Planning and Research Group did stay out of
operational matters . It did not become an intelligence collection agency, and an
allegation to the contrary made in the House of Commons as recently as
October 1977 has been firmly rebutted by Mr . Bourne in his testimony :
Q. Now, I am asking you those questions - I want to make it clear that I
am not going to ask you questions as to whether SPARG conducted any
research or did any analysis in regard to the movements with which any
of them may be connected . My only question is related to the placing of
agents and the using of people to conduct any form of monitoring or
surveillance or investigation ?
A . No, sir .
(Vol . 142, pp. 21811-12 .)
" House of Commons, Debates, September 21, 1971, p . 8026 .
82
�Mr . Goyer testified to the same effect when he said :
The Security Planning and Research Group was to advise the Minister.
Therefore, it had no operational role . It had no role in investigations. It was
not involved in gathering any information other than what was available to
the general public . . .
(Vol . 120, p. 18848, translation . )
We are satisfied by this testimony and our own examination of R .C .M .P . files
that SPARG did not become an intelligence collection agency . Indeed, Mr.
Starnes, who was Director General of the Security Service when SPARG was
created, was consulted about its creation and was an enthusiastic supporter . He
testified :
Q. There was debate at the time of SPARG coming into existence, about
the fact that this might be a civilian security service . What is your
appreciation of that comment ?
A . Uninformed .
Q. Did you feel at any time that this could have become a civilian security
service ?
A . Impossible .
(Vol . 124, p . 19437 . )
He also told u s
. . . that it would have been manifestly impossible for a group of twenty to
thirty persons of the kind that had been assembled, with different backgrounds and different disciplines, to carry out an operational role . They,
like me, . . . would not have known one end of a microphone from the other,
and it is manifestly absurd, and I say that there was a lot of uninformed
public debate at the time about it, which was largely of a partisan political
flavour, I suspect .
(Vol . 124, p . 19438 . )
The frequent allegations made about SPARG, to the effect that it had an
operational role, as well as a more general public suspicion of the Group's
activities, prompted us to examine R .C .M .P. files on SPARG and its successors . Clearly, the Force had a major interest in knowing if another Security
Service was being created . Our examination of R .C .M .P . documents revealed
that the Group had no operational duties of any sort and was in no way a
`parallel' civilian Security Service . Its functions were as described by Mr .
Goyer to the House of Commons in September 1971 . One of those functions,
SPARG's role as an assessor of R .C .M .P . security intelligence reports, did not
materialize to the degree originally envisioned . In part, this was because it
experienced difficulty in obtaining appropriate material from the R .C.M .P . As
Mr. Bourne explained to us :
One of the reasons that SPARG really decided . . . to drop our initial
intention to do long-term research, was that we just could not get our hands
on the information that we needed to do that job .
(Vol . 140, p. 21774 . )
83
�He explained that, " . . .I think it would have been wrong for analysts in an
outside organization to have direct access to operational files" (Vol . 140, p .
21501) . In recent years the Group's major contribution to assessing the
significance of R .C .M .P . reports and distributing assessments to government
departments has been made through an interdepartmental committee, the
Security Advisory Committee, for which the Group (or Branch as it is now
called) in the Solicitor General's Department provides the Chairman and
support staff. We shall examine this arrangement further in section G below .
118. In December 1972, the role of the Group was expanded to include
certain responsibilities for crime prevention and law enforcement matters . This
change was reflected in the Group's name which became Police and Security
Planning and Analysis Group . The Group was to review and analyze criminal
activities, trends and developments and formulate proposals for legislative
policy concerning criminal investigations and police procedures . In 1974 the
Group's title was changed again, this time,to Police and Security Planning
Branch (P .S .P .B .) . By this time it had also taken on the primary responsibility
for research and development in relation to the government's capacity to
respond to civil emergencies and natural disasters . The rise of terrorism as a
global phenomenon, together with the need for a co-ordinated government
response to natural disasters and accidents, gave increasing importance to this
role .
119. The Branch, now called the Police and Security Branch (P .S .B .), is
responsible for analyzing and proposing measures in response to :
- threats to the internal security of Canada from organizations, groups
and individuals either in Canada or elsewhere ;
- policy formulation for the protection of personnel, property and equipment in the federal government, including the security of government
information;
- the role of the federal government in law enforcement in Canada ; and
- contingency planning for Ministry crisis handling in emergency
situations .
The Branch has three divisions which cover the functions just outlined :
Security Information Analysis and Contingency Planning ; Police and Law
Enforcement ; and Security Policy .
120 . In 1973 the Cabinet established a`lead Ministry' system under which
Ministers were assigned the responsibility for co-ordinating the government's
response to different types of emergency . For internal security crises, including
situations ranging all the way from isolated terrorist attacks to large scale
insurrection, the Solicitor General is designated as the lead Minister . In the
event of such an emergency, a Crisis Centre in the Solicitor General's Police
and Security Branch comes into operation .
F . THE ROLE OF OTHER DEPARTMENTS IN
SECURITY AND INTELLIGENC E
121 . While the R .C .M .P . Security Se rvice has the primary responsibility for
security intelligence, there are other departments of the federal governmen t
84
�which have responsibilities in relation to security and intelligence . An examination of the security and intelligence activities of these other federal departments is not within our terms of reference . Nonetheless, we think a brief
ôutline will fit the role of the R.C .M.P . Security Service into the total context
of the federal government's security and intelligence arrangements .
122 . All of the . departments and agencies of the federal government have
Security Officérs . These Departmental Secùrity Officers are responsible for
the physical security of departmental premises ; property and communications .
They also have responsibilities with respect to personnel security . Decisions as
to whether a person should be granted a security clearance are made by the
Deputy Minister of each Department on the basis of information given to the
Department by an individual applicant and information supplied by the
R .C .M .P. Security Service . Departmental Security Officers co-ordinate this
security clearance process within each department .
123. . A number of departments have special security and intelligence functions in addition to the physical and personnel securitÿ' functions which are
carried out by all departments and agencies of the federal government . We
shall briefly describe these more specialized security and intelligence activities
below . The organizations in the federal government which perform these
activities, together with the R .C .M .P ., form what is sometimes referred to as
the "security and intelligence community" . We now turn to a consideration of
those organizations . They are : the Department of External Affairs, the Department of National Defence, the Communications Security Establishment, the
Department of Supply and Services and the Canada Employment and Immigration Commmission .
The Department of External Affairs
124 . The security and intelligence responsibility of the Department of External Affairs is carried out by three components of that Department : (a) the
Security Division and ( b) the Intelligence Analysis Division ( which together
make up the Bureau of Intelligence Analysis and Security), and (c) the Bureau
of Economic Intelligence . A Deputy Under-Secretary of State ( Security and
Intelligence) directs the work of these three units .
125. The Security Division of the Department of External Affairs has
responsibilities which are closely related to the R .C .M .P . Security Service . Its
responsibilities with respect to personnel and physical security, especially in
Canadian missions abroad, have a very important bearing upon Canada's
counter-espionage capacity . Foreign intelligence agencies have attempted to
penetrate the Canadian government by compromising its personnel posted
abroad and gaining access to communications emanating from Canadian
missions.
126. The National Security section of the Security Division has the most
extensive' links with the R .C .M .P . Security Service . One of its functions
concerns the activities of foreign diplomats in Canada who are suspected of
engaging in unacceptable intelligence activities . Such cases sometimes lead- to
decisions by the Canadian Government to declare a diplomat persona no n
85
�grata and to expel him from Canada . In these situations, the case against a
diplomat is based primarily on information gathered by the R .C .M .P . Security
Service and reviewed jointly by that agency and the National Security section .
Close co-operation is needed to ensure that the diplomatic consequences of
expulsion are balanced against the threat to Canada's security if the suspected
diplomat remains in Canada . The National Security section also has responsibilities with respect to the granting of visas to foreign diplomats . The decision
to grant or deny a diplomatic visa will have an important effect on the extent to
which foreign intelligence officers in the guise of diplomats are admitted to
Canada . The National Security section works closely with the R .C .M .P .
Security Service in reviewing these applications . The Security Service is asked
to provide information as to an applicant's previous involvement in intelligence
activities during previous postings .
127 . The Intelligence Analysis Division's principal function is to maintain a
compendium of information on various geographic areas of the world based on
information from the regional desks of the Department and from allied
countries . The information received concerns political, economic and social
trends and has been collected overtly, that is from open sources . Some of the
information may relate to political developments abroad which affect the
internal security of Canada . This Division does not prepare assessments of
intelligence reports . Some of the information it assembles is distributed to
interested government departments and agencies (including the R .C .M .P .) and
to the Intelligence Advisory Committee . That committee (whose function will
be described in section G below) combines reports received from various
departments and agencies of the federal government, makes assessments of
these reports and distributes these assessments to interested departments and
agencies .
128 . The Bureau of Economic Intelligence in External Affairs is responsible
for the collation, storage and reporting of economic intelligence. It carries out
basic assessments relevant to the intelligence priorities of `economic' departments and agencies such as Finânce, Industry, Trade and Commerce, Energy,
Mines and Resources, and the Bank of Canada . These priorities are established
by an Economic Intelligence subcommittee of the Intelligence Advisory
Committee .
129. There is one further intelligence activity in the Department of External
Affairs related to security . That is the work of the Co-ordinator for Emergency
Preparedness who reports to the Director General of the Bureau of Intelligence
Analysis and Security of the Department . This officer is responsible for
preparing plans to deal with terrorist attacks on Canadian missions or Canadian citizens abroad . This responsibility stems from the fact that under the
Government's emergency measures organization, the Department of External
Affairs is the `lead ministry' (i .e . the Department responsible for co-ordinating
the government response) in the event of such emergencies occurring outside
Canada . To fulfill his responsibilities the Co-ordinator uses information from
open sources and overseas missions as well as intelligence reports from the
R .C .M .P. Security Service .
86
�The Department of National Defenc e
130. While this department has an obvious responsibility for the security of
Canada in terms of the protection of Canadian sovereignty and contributing to
the maintenance of world peace, it also has a number of functions which relate
to the internal security of Canada and to intelligence . The security and
intelligence components of the Department report to the Director General of
Security and Intelligence .
131 . In the area of security clearances, under the provisions of Cabinet
Directive 35, the Department of National Defence conducts its own security
clearance programme . While it uses its own Special Investigation Unit to
conduct inquiries on the personal reliability of applicants for positions in the
Canadian Armed Forces, it relies heavily on the R .C .M .P . for information
about the criminal record of applicants or their participation in `subversive'
activities . In the area of technical security, the Department of National
Defence, with the R .C .M .P . and the Department of External Affairs, maintains teams for the inspection of premises to detect eavesdropping devices or
unacceptable audio emissions both within their own departments and agencies,
and elsewhere in government . The Department of National Defence also has
contact with the Departments of Supply and Services, External Affairs, and
Industry, Trade and Commerce in such areas as the control of visits to and
from National Defence establishments and firms employed on classified contracts, the release of classified information, the export of military equipment to
foreign countries, and patent applications on military equipment .
132 . With regard to intelligence, the Department of National Defence
requires domestic security intelligence to fulfill its role in maintaining internal
security . The phrase "internal security" as used by the Department refers to
the role of the Canadian Armed Forces in support of the civil authority and
can be distinguished from the fundamental raison d'être of the Canadian
Armed Forces in the defence of Canada from foreign military aggression .
Examples of internal security operations include : operations in aid of the civil
power under section 235 of the National Defence Act38 when a civil disorder or
disturbance reaches a magnitude where the attorney general of a province may
request the Chief of the Defence Staff to provide troops ; armed assistance to
another federal department, such as the provision of troops to a federal
penitentiary in response to a request from the Solicitor General ; and security
precautions at Department of National Defence installations directly or indirectly threatened by a civil disturbance in their vicinity .
133 . All units of the Canadian Armed Forces are required to investigate
minor security infractions or incidents . Actual or suspected security incidents,
particularly where espionage, subversion, sabotage or arson is a possibility, are
investigated by the Department's Special Investigation Unit and, if there is
evidence to suggest that any of these acts have been committed, the R .C .M .P .
is informed . The Special Investigation Unit also maintains a Police and
Security Liaison Programme under which it combines information obtaine d
3 1 R .S .C . 1970, ch .N-4 .
87
�from the R .C .M .P . and other police forces with information from open sources
to provide intelligence on possible threats to military installations or personnel .
The Special Investigations Unit does not have a mandate to collect intelligence
about such threats by covert means.
The Communications Security Establishment (C.S.E. )
134 . This organization is a separately organized establishment under the
general management and direction of the Minister of National Defence . The
Chief of C.S .E . reports to the Minister through the Deputy Minister and the
Chief of the Defence Staff . One function of the Communications Security
Establishment is to manage and direct a communications security programme .
.Policy control of this programme comes through the Interdepartmental Committee on Security and Intelligence under the general direction of the Cabinet
Committee on Security and Intelligence . (A description of these committees is
set out in section G below .) The object of the communications security
programme is to deny to foreign powers any valuable national information
which they might acquire by exploiting Canadian governmental communications . Work in this area includes providing cryptographic advice on the security
of coded communications .
The Department of Supply and Services
135. This Department's responsibilities with respect to physical and personnel
security are especially important in the field of industrial security . The
Department's programme of industrial security is concerned with the protection of classified and sensitive information in the hands of Canadian companies
undertaking work on behalf of the Canadian or other governments . The
programme is intended to meet the Canadian government's national and
international industrial security commitments . This programme includes responsibility for the security clearance of personnel under Cabinet Directive 35 .
In carrying out its responsibilities for industrial security, the Department
depends on reports of security threats from the R .C .M .P . Security Service . The
Industrial Security Division is sub-divided into a number of functional areas :
information security ; personnel security clearance ; electronic data processing
(E .D .P .) security ; training ; and field and industrial security officers . The
Protective Security Division is concerned with hardware security and closed
circuit television (C .C.T .V .) systems in new buildings, and with surveys of
regional supply centres and printing units . The Department also has an
Emergency Supply Planning Division which is concerned with the . establishment of a war supplies agency in the event of war, the development of
emergency supply plans to support national emergencies, the management of
the government-sponsored stockpile of supplies, and with the development of an
industrial preparedness programme .
Canada Employment and Immigration Commissio n
136 . Within the Enforcement Branch of this department is the Intelligence
Division . This Division is concerned chie fl y with analyzing and reporting on the
long-term trends in illegal immigration and in collecting and analyzing information on immigrants active in organized crime . The Division receives infor-
88
�mation from Canadian and American police and security forces through
formal and informal channels and, in co-operation with the R .C .M .P., assesses
it as a prelude to expulsion or to changing the immigrant's status .
137 . Within the Foreign Branch, the Security Review Division looks at
applicants for entry to Canada from the security point of view . The review
involves liaison between local police and security forces and the R .C .M .P .
Security Service here. This process is applied in the case of information on
some categories of visitors, on suspected or known terrorists who may be
coming to Canada, suspected or known intelligence officers and `subversive' or
`front' organizations of which immigrants may be members .
G . THE ROLE OF THE CABINE T
AND INTERDEPARTMENTAL COMMITTEE S
Background
138 . Since the end of the Second World War, interdepartmental committees
composed of senior civil servants have been the main centres for developing and
monitoring policy in relation to security and intelligence . With regard to
security policy, the most active body was the Security Panel . This committee
was made up of senior officials and formed under the auspices of the Privy
Council Office in 1946 . It was chaired by the Secretary to the Cabinet .
Initially its membership consisted of the Directors of Intelligence of the three
military services, the Director General of the Defence Research Board, and
representatives from the Department of External Affairs and the R .C .M .P .
Later on, the membership of the Committee was expanded to reflect the
broader concerns of the security community : the Department of Manpower and
Immigration, Supply and Services, the Solicitor General (from 1966), and the
Public Service Commission . In this later period, military representation was
provided by the Deputy Minister of National Defence and the Chief of the
Defence Staff. After 1953, all representatives on the Security Panel were of
deputy minister rank, or its equivalent . The Commissioner represented the
R .C.M .P . In 1953, in addition to the Security Panel, there was formed a
Security Sub-Panel made up of officials from the same departments as were
represented on the senior committee, but who were of lower rank . This body
was chaired by an official in the Privy Council Office . The Security Sub-Panel
carried out much of the preparatory work in formulating policy proposals for
the Security Panel .
139. The main function of the Security Panel was to formulate security policy
for the approval of Cabinet . The security issues with which it was primarily
concerned related to physical and personnel security in government departments . For example, the Security Panel developed the security screening
policies which were incorporated in Cabinet Directives after 1946 . It also
assumed some responsibility for the interpretation and application of government security policies . The 1963 Cabinet Directive on Security Clearance gave
the Security Panel a formal part in the security screening process by requiring
that the Secretariat of the Panel review all cases in which a department wa s
89
�proposing to deny an employee a security clearance . Aside from security
screening policies, the Security Panel had relatively little direct impact on the
security intelligence collection activities of the R.C .M .P. One important exception was in relation to the collection of intelligence about Quebec separatism .
In the summer of 1967, the Security Panel encouraged the R .C .M .P . to make a
much greater effort to keep the government informed about the separatist
movement in Quebec - its democratic and constitutional manifestations as
well as its terrorist maniféstations, and its connection with foreign interference
activities .
140. On the intelligence side of security and intelligence affairs, the Joint
Intelligence Committee, that had been established in 1942, continued after the
war, until 1972 when it became the Intelligence Advisory Committee . Its
function was to collate current intelligence gathered, to a large extent, from
allied countries so as to alert relevant departments and agencies of government
to international developments . Given the essentially international character of
the intelligence procured through this Committee, it had little to do with the
domestic intelligence gathering activities of the R .C .M .P. In 1960, an additional body, the Intelligence Policy Committee, was formed with membership of
the deputy ministers from National Defence, Finance and Communications
(after 1967), the Chairman of the Defence Research Board, the Commissioner
of the R .C .M .P . and the Secretary to the Cabinet . It was chaired by the
Under-Secretary of State for External Affairs . The Committee exercised
general policy direction of the Canadian intelligence programme .
141 . Until 1963 the Intelligence Policy Committee reported to the Defence
Committee of the Cabinet, while Security Panel proposals went directly to the
full Cabinet . In 1963, a Cabinet Committee on Security and Intelligence was
formed to consider policy proposals brought forward by the Security Panel and
the Intelligence Policy Committee . This Cabinet Committee has always been
chaired by the Prime Minister . One of the Committee's first acts was approval
of the revised security screening policy in the form of Cabinet Directive 35 . It
met only once more before the end of 1965 but was active between 1968 and
the end of 1970 when it was concerned, first with the report of the Royal
Commission of Security and, later, with the October crisis of 1970 .
142. Until 1975, the Cabinet Committee on Security and Intelligence did not
concern itsélf with defining the scope of Security Service surveillance . The only
aspect of security intelligence targetting on which it appears to have given
direction to the R .C .M .P . was with regard to Quebec separatism . In this field it
urged the intensification of effort in the same direction as that advocated by
the Security Panel and, at a meeting on December 19, 1969, agreed that the
R .C .M .P. should be asked to provide a detailed report on the state of
separatism in Quebec in terms of organizational relationships, numbers
involved, strategies, tactics and foreign influence . No distinction was made
between separatist groups employing legal means of advocacy and organization
and those suspected of using illegal means .
143 . The Royal Coinmission on Security recommended, inter alia, that a
"formalized" Security Secretariat be established in the Privy Council Office t o
90
�formulate security policy and procedures and "with effective authority" to
supervise their implementation . The Secretariat was to be concerned with
programmes concerning physical and personnel security, and, significantly, it
was to
. . . provide the link between the investigative and operational security
service and government departments, and between this service and the
public .39
In implementing this recommendation the government encountered some difficulty in* determining the appropriate division of responsibilities between the
Security Secretariat in the Privy Council Office and the Solicitor General who,
it will be recalled, had been given a major responsibility for security policy in
1966 . This question was not clearly resolved . A large security secretariat with
responsibility for all major aspects of security policy was not created . A . small
secretariat, consisting of an Assistant Secretary to the Cabinet and one
assistant, continued to deal with the security policy activity generated by the
interdepartmental committee system . At the same time the capacity of theSecretariat of the Solicitor General's Department to assist with security policy
matters was, as we have seen, strengthened by the establishment in 1971 of the
Security Planning and Analysis Research Group.
The reorganization of the committee system
144. A major change in the interdepartmental committee system occurred in
1972 when the Security Panel and the Intelligence Policy Committee were
combined to form the Interdepartmental Cominittee on Security and Intelligence ( I .C .S .I .) . The reason for merging these committees was recognition of
the close relationship between external intelligence and domestic security,
especially in an era of international terrorism and increasing activity by foreign
intelligence agencies . Like its predecessors, this Committee's membership was
at the deputy minister level . Both the Deputy Solicitor General and the
Commissioner of the R .C .M .P . were members . This committee, under the
general direction of the Cabinet Committee on Security and Intelligence, was
to keep under review Canadian security and intelligence organization and
activities . However, procedures were not established for regularly reviewing the
activities of the R .C .M .P . Security Service . At first I .C .S .I . was chaired by Mr .
Gordon Robertson, who was then Secretary to the Cabinet and later Secretary
to the Cabinet for Federal/Provincial Relations . Successive Secretaries to the
Cabinet have assumed the chairmanship .
145. Under I .C .S.I . two new committees were created - the Security
Advisory Committee (S .A .C .) and the Intelligence Advisory Committee
(I .A .C .) . Of these the Security Advisory Committee has had the closest links
with the R .C .M .P . Security Service . S .A .C . became in effect a principal bridge
between the Security Service and government . The Chairman of S .A .C . until
1979 was Mr . Bourne in his capacity as Assistant Deputy Minister for Police
and Security matters in the Department of the Solicitor General . His successor
as Assistant Deputy Minister, Mr . Michael Shoemaker, also assumed th e
" Report of the Royal Commission on Security, 1969, paragraph 46 .
91
�chairmanship . The Director General of the Security Service is the Vice-Chairman . Its membership includes the heads of the intelligence and the security
branches of other government departments, namely External Affairs, National
Defence, Supply and Services, Employment and Immigration, and the Assistant Secretary to the Cabinet for Security and Intelligence. The support staff
for S .A .C . has come principally from the Police and Security Branch in the
Solicitor General's Department .
146. S .A .C . has had two principal functions . First, it has been responsible for
reviewing the adequacy of policies concerning personnel and physical security
in government departments and bringing forward proposals for new policies .
The responsibility concerns what might be referred to as the `nuts and bolts'
issues of government security policy . A network of sub-committees and working groups operates under the aegis of S .A .C . to deal with specialized aspects
of security such as communications and computer security, the protection of
nuclear materials and crisis management . S.A .C .'s second responsibility is
related to security intelligence : it is to produce assessments of the internal
security situation in Canada for the I .C .S .I . and the Cabinet Committee on
Security and Intelligence . These assessments are based primarily on information reported by the R .C .M .P . Security Service . For a number of years such
threat assessments were produced on a quarterly basis, but since 1976 these
have been replaced by short weekly security intelligence reports on current
domestic security developments . These reports are written by an interdepartmental drafting group attached to S .A .C ., relying almost exclusively on
Security Service information . Aside from security clearance reports, which are
sent directly from the Security Service to government departments, S .A .C .'s
weekly security intelligence reports provide the main opportunity for Ministers
(other than the Solicitor General) to see security intelligence products emanating from the R .C .M .P .
147 . The Intelligence Advisory Committee's sphere of responsibility is in the
area of external intelligence . (One of the linguistic quirks of the intelligence
community in both Canada and abroad is that at the level of government
co-ordination and direction, `intelligence' usually refers to intelligence about
foreign rather than domestic matters (see footnote 8)) . In contrast to S .A .C .,
I .A .C .'s role is primarily the collation and dissemination of external intelligence and the preparation of periodic intelligence assessments . It is chaired by
the Deputy Under-Secretary of State (Security and Intelligence), for External
Affairs . Its membership includes the Director General of the Security Service
and the heads of branches of other departments with responsibilities in the field
of external intelligence . One of I .A .C .'s sub-committees is responsible for
identifying intelligence requirements and priorities, but this identification of
intelligence priorities has had very little impact on the activities of the
R .C .M .P . Security Service . I .A .C . has a small support staff, consisting of three
seconded officers and a committee secretary, in the Privy Council Office .
Through interdepartmental drafting groups and with the help of the seconded
staff, I .A .C . produces special and general assessments of particular subjects as
well as a weekly collation of external intelligence . The R .C .M .P . Security
Service contributes to both kinds of product, but given the domestic focus of its
work, its contributions have not been a major component of I .A .C . reports .
92
�148 . The Cabinet Committee on Security and Intelligence continued through
the 1970s to preside at the apex of the interdepartmental committee system . Its
most important contribution to the direction of the R .C .M .P . Security Service
was its approval in March 1975 of a new mandate for the Security Service .
That decision called for an annual Report to the Cabinet Committee of the
Security Service's activities . (Before that, in the 1970s, there had been three
audio-visual presentations by the Security Service to the Committee providing
a very general overview of its work .) Since 1975 the Security Service has
submitted only two `annual' reports to the Cabinet Committee describing its
main achievements and difficulties .
93
��PART III
PROBLEMS IN THE SYSTEM :
R.C .M .P . PRACTICES AND ACTIVITIE S
"NOT AUTHORIZED OR
PROVIDED FOR BY LAW" .
INSTITUTIONALIZED WRONGDOIN G
INTRODUCTION
CHAPTER
1 : Improper Act s
CHAPTER
2 : Surreptitious Entries : Security Service and C .I .B .
CHAPTER
3 : Electronic Surveillance : Security Service and C .I .B.
CHAPTER 4 : Mail Check Operations : Security Service and C .I .B .
CHAPTER 5 : Access to and Use of Confidential Information - C .I .B .
CHAPTER
6 : Access to and Use of Confidential Information - Security
Servic e
CHAPTER
7 : Countering : Security Service
CHAPTER
8 : Physical Su rveillance
CHAPTER
9 : Undercover Operatives
CHAPTER 10 : Interrogation of Suspects
CHAPTER 11 : Acts Beyond the Mandat e
95
��INTRODUCTION
1 . In this and the next three parts we express a number of serious concerns
about the ability of the Security Service, both in recent years and in the future,
to perform adequately and effectively those functions which we think are
appropriate for Canada's security intelligence agency . Before we explain our
concerns, however, we think it fair to observe that the many dedicated men and
women in the Security Service are far from having failed on all fronts . Indeed,
putting it positively, they have had successes . Success is not measured easily in
security intelligence work : it is not always clean cut and only rarely known to
the public . The public learns of successes when for instance, a defector from
the intelligence service of a foreign country, such as Igor Gouzenko, brings
positive evidence of espionage, so that charges can be laid under the Official
Secrets Act and any foreign diplomats involved can be declared personae non
gratae . Such an expulsion of diplomats is often the public's signal of a success
of the Security Service . In 1978, thirteen members of the Soviet mission were
declared personae non gratae after they attempted to develop a member of the
R .C .M .P . Security Service as an agent . Between 1976 and 1980, four members
of Soviet military intelligence have been either declared personae non gratae,
or not had their visas renewed as a result of their efforts to develop agents in
Canada who had access to classified technical information . Another publicly
known `success' led to the expulsion of members of the Cuban mission in 1977 .
As a result of our inquiry the public has become aware of the detection and
apprehension in 1976 of a visitor to Canada who was a member of the Japanese
Red Army . The detection of the use of Mr . George Victor Spencer by the
Soviets became public in 1966 .' We have made public the essential details of
an operation in which agents of a foreign intelligence service were detected and
their activities frustrated (Vol . 315, pp . 301402-12) . The trial of Mr . Bower
Edward Featherstone in 1967 resulted in his conviction on a charge of
espionage . 2
2 . Those are among the successes of the Security Service that are publicly
known and officially acknowledged . From time to time other successes attributed to the Security Service by the media have been neither confirmed nor
denied .' Others have not been publicized for operational or diplomatic reasons .
Foreign diplomats whose activities as agents have been established are not
always asked to leave Canada ; sometimes their visas are allowed to expire, or
the Department of External Affairs advises their ambassador that their return
from home leave would not be welcomed . In such cases there is no official
publicity and frequently the matter is not discovered by the media .
' Report of the Commission of Inquiry into Complaints made by George Victor
Spencer . Ottawa, 1966 .
2 Referred to in our First Report, Security and Information, paras . 10 and 12 .
e .g ., Articles in the Toronto Sun, Augûst 24 and August 25, 1980, reporting claims by
a Canadian citizen who had immigrated from the U .S .S .R . that he had been an illega!
agent of the K .G .B . and had been detected by the Security Service .
97
�3. In some areas of counter-espionage and the detection of unacceptable
foreign interference in Canadian affairs the Security Service has been more
effective than in others because their personnel involved in those areas have
been less severely hampered by constant transfers .
4 . In some investigations of leaks of classified government documents the
Security Service have identified the source without being able to collect enough
evidence to obtain a conviction, and steps have been taken to prevent the
suspect from doing further damage . The Security Service's role in the security
screening programme, which we report on in Part VII, would appear to have at
least been partially successful in ensuring that classified information and
classified installations of the federal government are protected . The Security
Service, by the collection of intelligence, has contributed significantly to the
programme that involves "P" Directorate of the R .C .M .P ., local detachments
of the R .C .M .P . and other police forces in the protection of visiting foreign
dignitaries and Canadian public figures who are open to physical attack . We
must mention the work of the Security Service in planning and carrying out
security arrangements for the Olympic Games in Montreal in 1976, the
Habitat Conference in Vancouver in 1977, and the Commonwealth Games in
Edmonton in 1978, all of which had the potential for terrorist acts of the kind
seen at Munich in 1972 .
5 . This is an impressive list . It reflects the investigative skills of well-trained
policemen - skills which we think the Canadian security intelligence agency
should be able to continue to include in its arsenal . Nevertheless, in this Part,
we shall demonstrate the breakdown of the rule of law in the Security Service,
and in Part V show the deficiencies in the Security Service and in the
R .C .M .P . itself that reduce the effectiveness of the Security Service . We shall
also describe the failures in the R .C .M .P . to appreciate and accept the proper
relationship between the civilian authority (the government) and a police force
or security intelligence agency . There is of course no way in which all these
deficiencies can be established as having caused failures in particular cases of
counter-espionage operations, counter-subversion activities, security screening
or the protection of V .I .P.s . Often a failure is not easy to detect, or to prove
conclusively ; when it is, it is not always possible to pinpoint the organizational
deficiency (if there was one) that caused it .
6. The most we can do is point to the deficiencies and balance them against
the successes . Our conclusion will be that to ensure the level of effectiveness
which Canada is entitled to expect of a security service, respect for the law,
acceptance of civilian authority, and respect for the liberties of the individual,
significant changes are necessary in the present philosophy and structure of the
security intelligence agency, and of the methods by which it accounts to
government and Parliament and is controlled by government .
7 : In Part II we described the evolution of the system developed for responding to security threats . In this Part we turn to what might be described as a
breakdown in the system . Here we shall report on the history and development
of a number of investigative practices used by the R .C .M .P . in both criminal
investigations and the work of the Security Service . Where we speak of th e
98
�"C.I .B ." we refer to the Criminal Investigation Branch, now known officially
as "C" Directorate .
8 . As we examine these investigative practices we shall analyze whether their
use has constituted conduct "not authorized or provided for by law" whether the criminal law, some other federal or provincial statute that creates
an offence or contains a prohibition, or the civil law enforceable by actions in
the courts . for damages, declaratory judgments or injunctions . This analysis is
as comprehensive as we have been able to make it . We have considered not
only those issues that have attracted considerable public attention but many
that have gone relatively unnoticed . Given our commitment to the principle
that both our national police force and the security intelligence agency should
operate within the law, we have considered it our duty to analyze and make
recommendations about all legal issues that have come to our attention in
regard to investigation methods and other methods of carrying out duties .
Many of these are issues which the R .C.M .P . itself has asked us to consider ;
others have been raised by ourselves .
9 . This part of our Report will contain a reasonably detailed summary of the
history of each practice and the development of the policies concerning it . This
is an essential preliminary, first to the analysis of the legal issues that is found
in this Part, and second to our recommendations for legislative reform found in
Part V, Chapter 4 (as to the security intelligence agency) and in Part X,
Chapter 5 (as to criminal investigations by the R .C.M .P .) . They are also
important as background to matters that will be reported on in our Third
Report, which will, among other things, consider the extent to which senior
members of the R .C .M .P ., Cabinet ministers and public officials have been
aware of those practices that are contrary to law .
10 . Some of what is said in this Part as to the extent and prevalence of each
practice will also form the foundation for our observations as to the need for
each of the practices that has given rise to legal problems . Those observations
are found in Parts V and X as a preliminary to our recommendations for
legislative reform .
11 . In some of the chapters of this Part the analysis of the legal issues will be
thought lengthy by some readers . We make no apology . We believe that the
R .C .M .P ., the government and the public are entitled to have not only our
conclusions as to lawfulness but also the reasons for our conclusions . Moreover,
at times our conclusions are different from those that have been expressed by
agencies of government, and we think that if we are going to differ we should
say why .
12 . In addition to practices that were contrary to law, there were activities
that, while not contrary to law, were nevertheless "not authorized . .. by law" in
the sense that they cannot be said to have been within the authority given to
the R .C .M .P . by the R .C .M .P . Act or by regulations or ministerial directives
made under that Act . It is that category of activities which we examine first .
99
��CHAPTER 1
IMPROPER ACTS
13 . We propose to discuss here a topic which is of the utmost importance but
which is very difficult to examine at length without reference to specific
incidents . The specific incidents on which we base our general conclusions here
will be described in detail in a later Report . For reasons which we shall
mention shortly we consider that it would not be proper to set out those
incidents in this Report .
14. In Part I, we outlined the interpretation we have placed on our terms of
reference . We pointed out that we have not considered that, in examining
conduct of members of the R .C .M .P ., we were restricted to looking at activities
"not authorized or provided for by law" . We indicated in our opening
statement on December 6, 1977, that it was our intention to look at the moral
and ethical implications of the conduct of members of the Force .
15 . The general standards of conduct for the R .C .M .P . are explicitly laid^
down in section 25(o) of the R .C .M .P . Act which makes it a major service
offence if a membe r
(o) conducts himself in a scandalous, infamous, disgraceful, profane or
immoral manner .
During the course of our examination of the R .C .M .P . and its Security Service
a number of incidents have come to our attention which in our opinion
constitute improper conduct and which we consider form enough of a pattern
to be considered "institutionalized" . Because each of them discloses conduct on
the part of members which may constitute a major service offence under the
R .C .M .P . Act, we do not propose to discuss details of the incidents in this
Report . They will be dealt with in the Report which covers other incidents
involving specific members whose conduct may have been illegal .
16 . The common thread which we have detected' running through these
incidents is that of a willingness on the part of members of the R .C .M .P. to
deceive those outside the Force who have some sort of constitutional authority
or jurisdiction over them or their activities . We have come to this conclusion
reluctantly and regretfully because in our view it might well be the most
serious charge which we are levelling against the Force in our Report .
Nevertheless, we are convinced that the practice existed . We have received
evidence that federal Ministers of the Crown responsible for the R .C .M .P.
were misled by the R .C .M .P. and that on other occasions relevant or significant information was intentionally withheld fiom Ministers . There is evidence
that the same thing has occurred at the provincial level with respect to a
provincial minister . There is also evidence that there was a similar approach
adopted by the Force in dealing with senior public servants . The extent to
101
�which such matters are established and form part of a widespread attitude by
the Force that it need not be responsible to civilian authority will be looked at
in Part X.
17 . The purpose of this practice of deception does not appear to be to protect
any particular member or members who might have been involved in some
unlawful or improper conduct . Rather, it is based on one or the other of two
misguided notions . One such notion is that the Minister responsible for the
R .C .M .P . should not be fully informed of a questionable activity by the Force
so that, if asked, the Minister can deny any knowledge about it . To inform him
would, according to this notion, put him in an untenable position . Such a
strategy should not be confused with the notion of "plausible deniability", a
concept used in the United States to describe an "aversion to making written
records of presidential authorization of sensitive intelligence-related
operations .' The practice we . are referring to did not involve avoidance of
written evidence of high level approval but a decision not to inform Ministers
of operations and policies which it would be difficult for a Minister to justify if
questioned in the House of Commons . Each Solicitor General who appeared
before us stated emphatically that he did not accept, as a norm to be applied to
the accountability of the R .C .M .P . to the responsible Minister, the proposition
that the Minister should not be informed of unlawful or even questionable acts .
We agree wholeheartedly that withholding such information is unacceptable,
even though there may be circumstances where the result of candour is
extremely difficult and embarrassing for the Minister .
18 . The other notion which has given rise to the practice of deception is that
exposure to the Minister, and then perhaps publicly, of any questionable
activity on the part of its members would inflict damage to the good reputation
of the Force and that this concern is of greater weight than any need for
candour, truth and forthrightness . This notion arises in part from the fact that
the Force has become a national symbol, probably more so than any other
Canadian institution or object . Protecting the Force's reputation is also a
manifestation of a broader problem, which we will examine in Part VI, related
to the unquestioning loyalty to the Force engendered in its members . We there
point out that the R.C .M .P ., through its recruiting, training and management
practices, engulfs its members in an ethos akin to that found in a monastery or
religious order . Extreme loyalty, untempered by an awareness that, among
other things, the Force has a duty to be candid and forthright with the civilian
authority, has contributed to both the practice of deception and an unwillingness, on the part of members not a party to a deception but aware of it, to
disclose the deception to the Minister .
' Report of Department of Justice Concerning Its Investigation and Prosecutorial
Decisions with respect to Central Intelligence Agency Mail Opening Activities in the
United States, Department of Justice, Washington, Jan . 14, 1977, p . 11 .
102
�CHAPTER 2
SURREPTITIOUS ENTRIES SECURITY SERVICE AND C.I .B.
INTRODUCTION
1 . The practice by police forces of secretly entering premises, in the course of
an investigation, without the consent of a person entitled to give consent is a
serious intrusion into civil liberties, and deserves a detailed scrutiny . The need
for such a practice, the implications of the search and handling of private
property and possessions and the installation of devices for intercepting private
communications, and above all, the assumptions of police forces as to their
rights under the law, are the focus of discussion in this chapter . The practices
of the two arms of the R .C .M .P ., the C .I .B . and the Security Service, are
examined separately, since the purpose of and policies relating to surreptitious
entry by each of them are somewhat different . What is the same in both cases
is the overriding misapprehension of the R .C .M .P . about the lawfulness of this
practice, and for this reason we detail some of the areas of the law under which
policemen might be liable to be charged as a result of this investigative
practice .
A . NATURE AND PURPOSE OF THE PRACTICE :
SECURITY SERVICE AND C .I .B .
The nature of the practice
2. We use the phrase "surreptitious entries" to describe entries into premises
to which the public does not have access, without a search warrant or other
lawful authority, and without the consent of the person who has the right in
law to give or refuse it . Surreptitious entries are often made to survey premises
in preparation for the installation of an electronic listening device, and then for
the installation, monitoring, repairing and removal of the device, or to search
premises, examine what is found there, and copy or photograph objects or
documents . Sometimes objects or documents have been removed from the
premises to be photographed and returned as soon as possible . Sometimes
objects or documents thus removed have not been returned ; sometimes they
have been destroyed . In all these situations of surreptitious entry a common
element is that the R .C .M .P., whether in the work of criminal investigation or
of security, intend that the person whose premises are under investigation
should not become aware of the operation, either at the time or later .
103
�Consequently, the investigators are careful not to leave any evidence of their
having been present .
3 . Most of the formal policy developed by the R .C .M .P . concerning surreptitious entries and, accordingly, most of the evidence before us, relates to
technical installations intended to intercept communications from, to, or
among suspects, either by wiretaps or microphones . Many, but not all, of these
installations require surreptitious entry to premises occupied or about to be
occupied by the suspects . Sometimes entry is not needed, either because of the
nature of the target or the technique employed . On other occasions installations can be completed with the consent of the owner or occupier of premises,
either before or during a period of temporary occupancy by the suspect .
4. Some technical aspects of possible legal interest in the consideration of this
subject should be mentioned . The installation of microphones or wiretaps does
not, for obvious reasons, involve any substantial damage to the structure of a
building, but on some occasions temporary physical damage is caused, and then
is patched and disguised . In addition, while most installations supply their own
power from batteries, on occasion a minor amount of electric power may be
obtained from the supply on the premises, past the meter, as has been disclosed
publicly on occasion in the trials of criminal cases .
5 . It is certain that the development of the sophisticated skills necessary for
surreptitious introduction of technical devices has led to an increase in the use
of surreptitious entries over the past 20 years . However, the evidence is clear
that surreptitious entry by members of the R .C .M .P . to secure intelligence
concerning criminal activities, or activities of special interest to the Security
Service, preceded the development of the techniques for electronic surveillance.
The evidence before us indicates clearly that before the widespread use of
electronic surveillance both the C .I .B . and the Security Service employed such
entries to observe and photograph objects and documents . In addition to
obtaining information and photographs the C .I .B . on occasion has removed
items ; such as suspected drugs, for subsequent confirmation . On the Security
Service, side, the cases of Operation Bricole and Operation Ham provide
spécific examples of permanent and temporary removal of objects and documents . In some cases, for example to install a listening device in an automobile,
the personal property of a suspect - namely his car - may be removed
temporarily and returned without detection .
The purpose of the practice
(a) Security Servic e
6 . In July 1978, in public testimony, Assistant Commissioner Chisholm
testified as follows :
Surreptitious Entry is an investigative practice which the R .C .M .P. Security Service has and does utilize in investigations relating to subversion,
terrorism and activities of foreign intelligence agents in Canada . This
practice has been utilized on a selective basis in excess of 20 years .
(Vol . 69, p . 11093 . )
104
�7 . Then, by way of identifying the objectives of such entries, he quoted from
the Report of the Australian Royal Commission on Intelligence and Security,'
where Mr . Justice Hope spoke of search procedures as follows :
163 . There are some special circumstances, other, than those described in
sections 10 and 8 of the Crimes Act, particularly associated with espionage,
when it would be proper for A .S .I .O ., if it had the power, to search premises
for documents and records . The purpose of such a search would not be to
obtain evidence, but to obtain intelligence . Thus if a person has been seen
on numbers of occasions associating with a known member of an unfriendly
foreign intelligence service it may be quite proper for A .S .I .O . to search
premises occupied by that person to see whether there is any document or
record which would throw light on the nature of that relationship . If some
document or record is found it may establish that the offence of espionage
has already been committed, and may show what it is the foreign intelligence officer is seeking . Without going this far it may show that, although
the offence of espionage has not yet been committed, the foreign intelligence agent has established, or is in the course of establishing, a relationship with the other person which is likely to result in espionage .
8 . Part of Assistant Commissioner Chisholm's testimony as to the need for
search powers will now be quoted at length as it describes the purpose of the
practice :
ESPIONAGE: . .. Some foreign diplomatic missions provide official cover
and immunities for a number of staff personnel who are actually intelligence officers specifically assigned to engage in activities beyond the scope
of their official status as recognized by international convention or accord .
In addition, some of these foreign countries maintain a second and separate
intelligence network involving "deep cover operatives" who also perform
intelligence functions detrimental to the security of Canada . In espionage
parlance, the latter network is referred to as "Illegal" while the former is
designated "Legal" ; primarily because the network's personnel are legally
in the country under official accreditation rather than under false identity .
In both cases these hostile intelligence operatives are highly trained,
supported by impressive resources to pursue strategic objectives often
spanning decades . Both networks operate mainly to recruit and control
people with access to the desired intelligence . Some are also known to
possess the technical expertise and equipment necessary to systematically
monitor Canadian military and other sensitive communications . Intricate
clandestine methodology and the use of sophisticated espionage paraphernalia permits [sic] them to operate in relative security, yet their communications remain vulnerable to some degree inasmuch as the paraphernalia
they commonly employ, if discovered, is highly incriminating .
Most intelligence operations are strategic in nature and the positive identification of hostile intelligence officers by the Security Service frequently
represents only the beginning of our efforts . It is then necessary to identify
other agents acting on their behalf, targets to which they are assigned and
the potential damage 'that may be done to Canada . Accordingly, Surreptitious Entries, selectively conducted, have been and must continue to be a
' Australia, Fourth Report of the Royal Commission on Security and Intelligence
( The Hope Report), Canberra, 1978, paragraph 163 .
105
�valuable counter-espionage measure enabling the Security Service to quietly identify and exploit hostile intelligence vulnerabilities .
It is clearly the responsibility of the Security Service in its conduct of
counter-espionage operations to discern which foreign missions engage in
inappropriate intelligence activities in this country, and to inform the
Canadian government so that deterring and countering procedures can be
considered at the appropriate time . The mission as a whole does everything
to conceal the existence of intelligence operatives, frustrating attempts to
distinguish them from among other personnel in their diplomatic mission .
While Canadian missions abroad are often required to employ local staff,
many of whom are believed to be informants of the state security forces,
some foreign missions in Canada generally refuse to hire Canadians and
consequently eliminate a potentially valuable source .of information to the
Canadian Security Service .
In spite of such difficulties, ongoing analysis of the behaviour of mission
personnel in Canada, together with other information, contributes significantly to the identification of intelligence officers . This information is used
to establish operational priorities and to evaluate potential damage to
Canadian security interests . While much information on suspected and
known intelligence officers can be generated through other investigative
techniques, Surreptitious Entries may provide tangible confirmation of
intelligence involvement . Items such as sophisticated electronic devices,
antennae, note books, and address books, etc ., come readily to mind . As
well, they can yield data on the target's status, life style, personality,
intelligence interests and cover story inconsistencies, all of which contributes to the accurate evaluation of the intelligence officer .
The entry must be surreptitious by its very nature for, if our activities
become known to the intelligence officer, he would in all likelihood alter his
intelligence activities and possibly hand over the operation to a colleague
unknown to us. Of equal importance, knowledge of the entry would provide
the opposition with valuable intelligence as to our current counter-espionage capabilities and frustrate our attempts to gain intelligence about their
activities and safeguard Canadian interests .
The investigational complexities of detecting illegal networks are even
greater, primarily a result of the sophisticated clandestine procedures
employed . Any indication that his activities are under investigation will
immediately cause an illegal agent to cease operations and, if the danger of
exposure is high, flee Canada after destroying incriminating evidence . As
with the legal network, the identification of the illegal agent is merely the
first step in an operation designed to identify the complete illegal network
targets and evaluate the potential damage to Canadian security interests .
To function, the illegal agent must employ communications equipment and
other paraphernalia such as code books, one time pads, micro dot readers,
secret writing materials which are elaborately concealed when not in use .
Clearly, a Surreptitious Entry of a suspected illegal agent's premises may,
in some instances, be the only productive technique for confirming or
disproving his role . Therefore, it can be a vital tool to effectively prove the
existence of an illegal agent operation .
As an investigative tool in counter-espionage operations, Surreptitious
Entries are used prudently . Given the practice of intelligence officers bein g
106
�conscious of potential entry of their premises, there is considerable risk
which must be balanced against the potential gains . Nevertheless, after
most careful consideration, Surreptitious Entries may in some instances be
the only course of action which will provide a material contribution to an
important espionage investigation .
SUBVERSION : Subversive activity is normally conducted in a covert
manner and usually involves an underground apparatus or rigidly disciplined cells . The immediate problem of gathering intelligence in this
situation is evident and can be further complicated when a foreign power
fosters and exploits a subversive group as a sphere of influence within
Canada . All major Canadian centres have at various times had groups who
have advocated violence as the means to bring about governmental change
in Canada . In most instances, the life of various organizations is relatively
short-lived due largely to the lack of popular support . However, their
leaders often seek to support, manipulate or exploit other groups which
satisfy their own particular political philosophy and subversive objectives .
How is the Security Service, therefore, to penetrate this area of activity?
Surreptitious Entry is one such technique available to the Security Service
to gather intelligence to ascertain the plans of a subversive group and the
extent of foreign interference . It is entirely possible in a particular case that
a Surreptitious Entry may be the only reliable means to determine, without
the knowledge of the target, the depth of his or her activities in a subversive
organization .
TERRORISM : . . . Surreptitious Entry is considered to be a procedure
entirely consistent with a "Domestic Security Surveillance Program" leading towards the identification of those committed to terrorism and other
acts of political violence .
(Vol - 69, pp . 11095-11103 . )
9. Mr . Justice Hope recognized that "although collected as intelligence, some
material obtained in such a search may later be used as evidence" in a trial .
This is theoretically so in Canada as well, but the likelihood of its occurring is
slight, as in the normal case, prosecution is the last thing in the minds of the
Security Service investigators ; they âre likely to be more interested in avoiding
prosecution and thus enabling their continued surveillance of contacts made by
the targetted person .
10. Assistant Commissioner Chisholm stated tha t
As an investigative practice, Surreptitious Entries are only undertaken
when other avenues of investigation have failed or are unlikely to succeed in
the production of the intelligence required .
(Vol . 69, p . 11094 .)
Thus, for example, the contents of documents may be ascertained without
surreptitious entry if the Security Service has a paid or voluntary source who
has a lawful right to be on the premises . The source may have achieved a
position in the organization under scrutiny, and so have access to documents of
the kind that the Security Service is interested in .
(b) C.I.B.
11 . The C .I .B . considers surreptitious entry techniques to be an essential part
of the process of electronic interception . It is not necessary here to reiterate i n
107
�any detail the reasons for using telephone taps and listening devices in criminal
investigations . The points advanced before us to support the need for this
technique were made by the C .I .B. and others during the almost ten years of
public and Parliamentary discussion which preceded the enactment of the
Protection of Privacy Act, which introduced Part IV-1 of the Criminal Code
effective July 1, 1974 . The C .I .B . concluded that the provision in that
legislation for judicial authorization to intercept communications during the
investigation of many offences implied parliamentary acceptance of the need
for surreptitious entry to install listening devices, and monitoring, repairing
and removing them . It was also considered by the C .I .B . (at least until the
decision of the Manitoba Court of Appeal in R . v . Dassz) that a court order
authorizing the interception of oral communications within premises, even if it
contained no express term authorizing entry, implicitly gave the right to enter
the premises to install devices to implement the interception . The grounds for
this conclusion are examined more closely in section D of this chapter .
12 . In the case of some kinds of offence, notably in the drug, alcohol and
commercial crime area, some of the key persons involved are generally
described as sophisticated `white-collar' types or `organized crime' types . Either
the nature of the crime or the cunning of the persons involved will sometimes
make it unlikely that electronic surveillance will provide the desired information or evidence . Therefore it is not surprising that the justification of the use
of surreptitious entry for electronic surveillance before 1974 was also invoked
both before and after 1974 (indeed until our work was fairly well advanced) to
justify surreptitious entry unconnected with electronic surveillance . Surreptitious entry was considered to be justified when the purpose of the entry was to
secure information or to confirm that an offence was in the planning stage, or
was being or about to be committed, even though a search warrant could not be
obtained because there were not reasonable and probable grounds of belief, as
required by section 443 of the Criminal Code . In addition, on some occasions
where a search warrant might well have been obtained, surreptitious entry
without warrant was used because the police needed to ensure, before formal
entry and seizure under a search warrant, that the activity under surveillance
had reached a stage that the evidence found upon the search would be in such a
form as to support a successful prosecution . This type of entry has been
described by a C .I .B . witness as a method of conducting an "intelligence
probe" (Vol . 36, pp . 5779-80) . While such surreptitious entries for criminal
investigation purposes have now been prohibited within the C .I .B . pending the
Report of this Commission, the R .C .M .P. has submitted that they should be
authorized by law in circumstances similar to those in which interception of
private communications is authorized .
13 . There is also the situation in which there is not only an intelligence probe
but the removal of some article from the premises . Examples that are in the
public domain were given in the report-made by the Deputy Attorney General
of British Columbia in December 1978, to which reference will be made in
section C of this chapter . That report described four cases in which members o f
2 [1979] 4 W .W .R . 97 .
108
�the R .C .M .P . had entered premises without the knowledge of the occupant or
lawful authority and had taken an object away with them . They are :
(a) In an investigation of theft from the mails being transported by an
airline, a locker which was the property of an airline employee was
opened and a pair of pliers was removed . It was suspected that the
pliers had been used to create false crimp impressions for postal seals .
(b) While in a place where a listening device was being installed pursuant
to an authorization granted by a judge under section 178 of the Code,
the members made a search and found a letter in the Chinese
language, which they removed and retained . The letter was "to be used
in evidence" and therefore presumably had evidential value . However,
the accused pleaded guilty. Consequently, no evidence had to be
introduced .
(c) In a counterfeit investigation, an interception of a communication
pursuant to an authorization under section 178 revealed that counterfeit money was located in a warehouse . As a result an entry was made
into the warehouse . Two boxes were found, containing counterfeit
United States $20 banknotes with a face value of approximately
$1,300,000. They were taken away, some samples were retained, and
the balance of the banknotes were returned with secret ultra violet
pencil marks placed on some of the notes and on the boxes . The
R .C .M .P. commented to the Department of the Attorney General that,
while a search warrant might have been obtained, the investigator may
have been reluctant to obtain a search warrant because the investigation was still continuing and it was essential to prove knowledge and
control of the money on the part of the counterfeiter .
.
(d) A person was suspected of making obscene movies using juvenile and
adult females . It was suspected that he used an apartment for the
purpose. The premises were entered in order to substantiate that the
suspect was, in fact, engaged in the activity. Several negatives were
removed and prints made by the Identification Branch, and the
negatives were then returned to the premises in question the same
night . Once prints were made of the negatives, steps were then taken to
identify the unknown females, especially the juveniles, so that evidence
relating to the making or distribution of obscene material under section
159 of the Criminal Code could be gathered . While the foregoing steps
were being taken the subject left the area . Upon his return, approximately ten months later, the investigation was re-activated, a search
warrant was obtained and search was effected at premises where thé
obscene material was suspected to be located . The material had been
moved from the office darkroom . The suspect was charged with three
counts under the Juvenile Delinquents Act . He was convicted, sentenced to five months imprisonment, placed on probation for 18
months with psychiatric treatment ordered .
B . R .C .M .P . POLICIES CONCERNING SURREPTITIOUS
ENTRIES - SECURITY SERVICE AND C .I .B .
(a) Security Service
14. The Security Service has had detailed operational policies in writing for
the use of investigative techniques involving surreptitious entry since th e
109
�beginning of the use of technical aids . The following description is based on the
testimony of Assistant Commissioner Chisholm (Vol . 69, pp . 11103 et seq.) .
15. Until 1959 these techniques could be authorized by the officers in charge
of the Security and Intelligence units at the divisions without the need for prior
approval from Headquarters . In that year entries for intelligence probes (i .e . to
obtain intelligence about documents or objects) were suspended pending a
re-examination of the use of such techniques . In 1959, the suspension was lifted
and a policy was established which required that the Director of Security and
Intelligence (D .S .I .) should approve a surreptitious entry before it took place .
An exception was permitted for short-term microphone installations when
urgency precluded prior authorization . These operations could be authorized
by the officer in charge of a unit in the field .
16 . This policy applied until 1966 . At that time a moratorium was placed on
intelligence probes as such but not upon wiretaps or microphone installations .
The moratorium continued for three years until 1969, but even during this
period the policy indicated that individual proposals from the field would be
considered by the D .S .I . on their individual merit . It is interesting to note that
the moratorium coincided with the period during which the Royal Commission
on Security was studying the Security Service . That Commission did not refer
in its Report to surreptitious entries for the purpose of intelligence probes .
17. In 1969, the D .S .I . lifted the moratorium on surreptitious entries and
permitted proposals to "intercept documentary and physical intelligence" to be
considered on their individual merit .
18. Since 1971, a Headquarters policy direction has provided that all surreptitious entry techniques require the approval of Headquarters, except that the
policy allows for individual discretion in urgent situations to be exercised by
officers in charge of Security Service units in the field ; reports of all such
activities were to be forwarded to Headquarters as soon as possible after the
fact . Until June 1974, this policy also applied to surreptitious entry for the
installation of listening devices .
19 . Since July 1, 1974, the policy with respect to surreptitious entry procedures for the purpose of interception of communications has required compliance with section 16 of the Official Secrets Act . This is a subject that will be
considered separately under "Electronic Surveillance" in Chapter 3 of this
Part . It need not be discussed in detail here, for no special policies or
procedures have been developed that differentiate between the interception of
telephonic communications and the interception of other communications . In
particular, no express provision for entry into premises has been included in the
warrants issued by the Solicitor General under section 16 of the Official
Secrets Act .
(b) C .I.B .
20 . On the C .I .B . side, the development of policy on surreptitious entries
apparently was restricted to the use of such entries for installing a listenin g
110
�device on a telephone or installing a microphone elsewhere on the premises .
There does not appear to have been any development of policy concerning
intelligence probes .
21 . Although the use of `technical aids' - that is, listening devices - began
as early as 1936, the first comprehensive policy covering their use was issued to
all operationâl divisions in 1963 (Vol . 33, pp. 5393-5) . This required that
technical aids might be used to gain intelligence "to support continued
investigations for prosecution" if the intelligence was not available through
"usual sources" . The policy also recognized that in "abnormal circumstances"
technical aids could be used to obtain evidence vital to prosecution . (The
reluctance to use such aids was due to a desire to avoid public disclosure of the
technique so far as possible .) The policy distinguished between minor and
major installations . . Minor installations were "routine-type overnight or several-day microphone installations" which could be authorized by the Division
Commanding Officer or his designate . Major installations were those involving
extensive and complicated technical installations . All major installations had to
be submitted to Headquarters for authorization . In early 1964 this policy was
supplemented by a requirement that all minor installations were required to be
reported to Headquarters .
22. A fully revised policy was issued in 1967, dealing much more extensively
with security requirements and limitations upon the use of information
received . These additions were felt to be necessary because of increased
publicity given to the use of technical aids . The policy did not emphasize
pre-requisite conditions to the use of technical aids : it did add to the policy on
minor installations a provision that, while such installations could be made in
commercial premises, hotels and motels, they could only be extended to private
residences with the consent of the occupants . All other residential installations
were to be defined as major installations, regardless of the intended duration .
23 . In January 1973 a further revised policy on surreptitious entries was
implemented, containing criteria as set out in the Protection of Privacy Act
then before Parliament, namely that other investigative procedures had been
tried and failed, or that they were unlikely to succeed, or that the urgency of
the matter was such that it would be impractical to carry out the investigation
using only other investigative prôcedures . The distinction between minor and
major installations with respect to private residences was removed . Minor
installations were limited to 30 days and a new qualification with respect to the
difference between minor and major installations, based upon degree of
security risk, was introduced .
24. Since July 1, 1974, the provisions in Part IV .1 - that is, section 178 of
the Criminal Code - with respect to judicial authorization have dictated the
policy of the C .I .B . governing the use of technical installations .
25 . The evidence indicates that no formal or written policy with respect to
intelligence probes existed in the C .I .B . before the work of this Commission of
Inquiry began .
111
�C . EXTENT AND PREVALENCE OF THE
PRACTICE OF SURREPTITIOUS ENTR Y
(a) Security Service
26. The evidence before us shows that, according to the R .C .M .P ., there were
47 entries made from 1971 to February 1978, "to intercept documentary or
physical evidence" (Vol . 69, p . 11094) . The word `intercept' is intended to
cover cases in which entry was made to search for documents and objects and
to inspect and photograph them . We have examined these 47 cases, which
include such well-known examples as Operation Bricole (the A .P .L .Q . case)
and Operation Ham (the P :Q. tapes case), although in most of the cases our
examination of the files has been aimed at determining the objectives and the
general circumstances of the operations . In the 47 cases, there were in fact only
34 targets, but in the case of 13 of those targets two surreptitious entries were
made. Two of the entries included in the 47 were really not intelligence probes :
they were for the purpose of surveying the premises preparatory to installing a
listening device . In the field of counter-espionage and the detection of foreign
interference, premises and baggage were searched in 17 cases ; in six of those
the paraphernalia of a foreign intelligence agent, or documents relevant to
espionage activity, were found and examined . In counter-terrorist work, ten
cases involved searches of premises and baggage, one of which was a case of
"rummaging" while a listening device was being installed . One case involved a
search of a domestic organization believed to be subversive and suspected of
being financed by foreign sources . One case (Operation Ham) involved search
of premises in order to gain access to a computer tape belonging to a domestic
political party, the tape being temporarily removed in order that it could be
copied . One case involved a search of baggage in circumstances in which the
activity of the target was possibly outside the mandate of the Security Service .
In addition to the 47 cases summarized, we have examined the file relating to
one other search ; that of a person's residence more than ten years ago . The
purpose of that search was to determine whether money from foreign sources
was kept on the premises searched .
27 . In 1977 and 1978 there were only two completed- PUMA operations one each year (PUMA was the Security Service codeword for surreptitious
entries to inspect what could be found on premises) . In the previous six years
the number carried out averaged seven a year (Vol . C88, p . 12119) . Mr . Dare
testified that the reason there were so few PUMAS in 1977 and 1,978 was that
there was no operational need for them during that time (Vol . C88, p . 12122) .
However, after an adjournment in the hearing he asserted that there is an
operational need for PUMAS (Vol . C88, p . 12145) . He also said that after the
publicity generated by the charges which gave rise to and were made during
the course of this Commission of Inquiry, "we became terribly, terribly
careful" . He added "we have been literally squeezing the operational system"
and "we have been constraining ourselves" .
28 . The cases of which summaries were provided to us included a case which
occurred during the past decade, which was referred to in guarded terms in
Chief Superintendent Cobb's early testimony (Vol . 10, p . 1353) . It was a cas e
112
�outside Quebec, in which Chief Superintendent Cobb was in no way involved .
We have examined the circumstances . They involved entries into the same
premises on two occasions, in an attempt to locate and examine certain
paraphernalia of espionage . The entries occurred during the early months of
the operation of section 16 of the Official Secrets Act . The Solicitor General
had granted warrants under section 16 Jor the interception of telephone
conversations and the installation of a "bug" . It was purportedly in reliance on
these warrants that the entries were made . Documents were photographed and
an article was taken away and kept . The Solicitor General was not advised of
the entries, nor of the intention to search . The members of the Security Service
who planned and authorized the search did not intend in advance that anything
be removed from the premises .
29. In addition to entries for the purpose of examining documents and
objects, entries have been made to install listening devices (microphones) .
These include entries to determine the feasibility and mechanics of a possible
installation, entries to make an installation, entries to'check'a device, to effect
repairs, and to remove a device . Before July 1, 1974, there were many such
installations and, consequently, many such entries . Statistics placed by the
R .C .M .P . before the Standing Committee on Justice and Legal Affairs in June
1973, when that Committee was considering the Protection~ of Privacy Bill,
showed that in 1972 the Security Service had made 42 major microphone
installations (17 were said to be in counter-espionage, 25 in counter-subversion) and 42 minor installations (23 in counter-espionage, 19 in counter-subversion) . The statistics did not indicate whether these entries involved trespass .
30 . As for the installation of microphones during the period from 1971 to
February 1978, Assistant Commissioner Chisholm testified that there were 223
long-term listening devices and 357 short-term devices (Vol . 69, p . 11094) .
However, as has been stated earlier, entry is not always necessary for electronic
eavesdropping to take place . For that reason, and because there has been no
specific requirement to report entries made during the installation of a listening
device, the exact number of entries made during that period could not be
determined . However, he testified that a review of the files in which the 223
long-term devices were installed indicated that there had been 55 instances of
entry . There is no breakdown of those cases into those preceding and those
following the implementation of the Protection of Privacy Act . Nor is there any
indication as to whether some of those entries were not trespassing, in the sense
that consent of an owner, or of an occupant entitled to give consent, had been
obtained .
31 . Since July 1, 1974, the policy of the Security Service has been that no
microphone installations are to be made unless a warrant for interception of
"oral communications" has been 'granted by the Solicitor General under
section 16 of .the Official Secrets Act . In the year 1978 (for example) 128
warrants for the interception of oral communications were issued . (This figure
includes all those in effect during 1979, that were renewed in December 1978 .)
Many of these interceptions required trespassory entry to be made : none of the
warrants expressly authorized entry . Conseqdently, the authority for lawful
entry, if it existed, must have rested upon' the operation of section 26 of th e
113
�Interpretation Act or section 25 of the Criminal Code . This issue is discussed
at length in Chapter 3 of this part of our Report .
32. Finally, since July 1, 1974, there has been a tendency on the part of the
Security Service to regard section 16 of the Official Secrets Act as affording a
means of obtaining lawful authority for surreptitious entry for the purpose of
search, examination and photography on the premises . Clearly it would be
improper to apply to the Solicitor General for a warrant under section 16
where the real object of those who seek the warrant is not to intercept
communications but to make a search of the premises .
(b) C.I .B .
33. From 1963 onward, the installation of listening devices required the
approval of Headquarters . From that time records were kept at Headquarters
relating to 82 major installations . Not all of these required entries : some
required more than one . The records from 1963 to June 30, 1974, (when the
Protection of Privacy Act came into effect) showed that there were the
following major installations :
Installations Entries
"A" Division (Ottawa) 4 7
"C" Division (Quebec) 43 60
"D" Division (Manitoba) 3 5
"E" Division (British Columbia) 10 10
"F" Division (Saskatchewan) 1 5
"H" Division (Nova Scotia) 3 4
"K" Division (Alberta) 6
"O" Division (S .W . Ontario) 13
83
11
21
12 3
During the same period there was a record of 3,336 minor installations
involving 995 entries :
Installations
Entries
"A" Division 179 15
"B" Division (Newfoundland) 104 7
"C"
Division
396
61
"D"
Division
194
63
"E"
Division
469
132
"F" Division 364 93
"G" Division (Northwest Territories) 3 0
"H"
Division
207
20
"J" Division (New Brunswick) 101 12
"K" Division 490 169
"L" Division (Prince Edward Island) 43 3
786 42 0
"O" Division
3,336 99 5
114
�The form for reporting minor installations did not distinguish between those
made with and those made without the consent of the occupant or owner .
Many installations were made in hotel and motel rooms before the suspect
occupied the room and with the consent of the hotel manager, so that there was
no trespass . Others were made in commercial premises, cells, police cars and
interview rooms with the consent of the owner or occupant, so that again there
was no trespass .
34 . The Annual Reports of the Solicitor General of Canada made under
section 178 .22 of the Criminal Code have given statistics as to authorizations
granted by judges upon applications made by an agent of the Solicitor : General
of Canada (but not those made by an agent of a provincial attorney general who makes a separate annual report) . These statistics represent the activity of
the R .C .M .P . in criminal investigations . These Annual Reports show that the
following interceptions by microphone installations were authorized :
1974
(half-year)
51
1975
176
1976
238
1977
226
1978
227
1979
14 2
35 . It was more difficult to ascertain the extent and prevalence of intelligence
probes, that is, entries made for the purpose of a search but without the
authority of a search warrant or writ of assistance . In early 1978, Headquarters asked each division to provide such information so that the C .I .B . could
prepare to present evidence to us . Because case records were non-existent or
difficult to locate, Headquarters suggested that the divisions examine the work
orders of divisional Security Engineering Sections . The message from
R .C .M .P . Headquarters requested information as to the extent of "illegal"
surreptitious entry . This request was imprecise because it failed to define
"illegal" . The result was confusion in the reports from the divisions as to the
extent and prevalence of surreptitious entries for the purpose of intelligence
probes . (Ex . E-1, Tab 4B . )
36 . One Division ("E" Division - British Columbia) replied candidly that it
thought the practice was lawful, although there had been some entries which it
thought were "perhaps questionable" . It then listed hundreds of `questionable
entries', which are referred to below . As far as "E" Division was concerned,
intelligence probes were on a legal plane with entering to place listening
devices : in each case the entry would not be accompanied by damage or the
intent to commit any offence or the commission of any offence, and consequently (it was contended) would not be illegal . (Ex . E-1, Tab 4C . )
37. Apart from British Columbia, negative replies were received from all
divisions - not surprisingly, in view of the lack of definition of "illegal" in the
request . Consequently a further message was sent by Headquarters, specifically asking for information about any intelligence probes that had been carried
out . This resulted in four more divisions responding with information about a
115
�small number of intelligence probes . On April 18, 1978, Assistant Commissioner T .S . Venner testified as to the result (Vol . 36, p . 5811) :
"D" Division (Manitoba) 6
"E" Division (British Columbia) 40 2
"F" Division ( Saskatchewan)
I
9
"K" Division (Alberta)
Other divisions replied that there had been none .
38. "F" Division in Saskatchewan described an entry into an office in a
hangar at an airport to examine records. "H" Division in Nova Scotia
described an instance in August 1974 when, pursuant to an authorization
under section 178 of the Criminal Code, an entry had been made to install a
listening device and the opportunity was taken to photograph records and
correspondence in an open briefcase on the premises . (As the entry itself was
assumed to be authorized in law, Nova Scotia is not included in the list of
provinces that reported such entries .) "K" Division in Alberta reported that it
had identified two intelligence . probes into private residences to search for
evidence or intelligence to aid Criminal Code investigations, one into a parked
trailer to ascertain whether it contained stolen property, six into business
premises to determine whether stolen property was stored there, and one into
business premises to photograph company records and documents . "K" Division noted that in all cases there was no damage, no theft and no criminal
intent .
39. Clearly at least two results required further investigation : British
Columbia, which reported so many, and Southwestern Ontario (including
Toronto), which reported none . As for British Columbia, that province's
Department of the Attorney General conducted an investigation which showed
that the huge figure that had been provided to us was not an accurate response
to our search for information but the result of a different interpretation . The
report by the province's Deputy Attorney General, dated December 11, 1978,
shows that the 402 cases were based on work orders of the Security Engineering Section of that Division, but, of these, 212 cases did not involve an entry at
all and 149 were made pursuant to consent, warrant or authorizing order . That
left 41 to be examined, where there had been entry not authorized or provided
for by law :
5
1 . Cases prior to Privacy Act
2 . Cases where no evidence of articles or
32
documents remove d
3 . Cases where evidence of articles or
4
documents removed
41
Of these 41 cases, 12 were in drug investigations, 27 were in criminal
investigations and the nature of two was not known . Twelve involved entry into
homes or residences, 29 into other types of premises .
116
�40 . The Commission's check of the negative reply of "O" Division, (Southwestern Ontario, including Toronto), indicated that, while the reply was based
upon a canvass of all divisional units, it was apparent that no detailed records
of the Security Engineering Section were available as a starting point . Assistant Commissioner Venner, in correspondence with the Commission, stated as
follows :
In the early 1970s in "O" Division, unlike some other divisions, the use of
wiretaps was permitted and controlled at the line officer level, as I have
already testified . This investigative aid gave that division an added advantage in combatting organized crime particularly in the drug enforcement
field to the extent that in reality it was not necessary to resort to the
`intelligence probe' type of activity .
By reporting no 'intelligence probes', the division is not denying categorically that any were ever undertaken . The fact that we are dependent on human
memory, coupled with the knowledge that no ex-members were included in
the survey would make such a denial inappropriate . I am satisfied though,
that "O" Division conscientiously went about this search for information
and took advantage of every.. method they could devise to pull together a
complete picture .
I would only add that, as you know, I was stationed in "O" Division in three
capacities during the years 1973 to 1976, i .e . Division Intelligence Officer,
Officer Commanding Metro Toronto Subdivision, Officer i/c Drug
Enforcement, all operational roles involving close contact with the Sections
and personnel who would have been most active in these endeavours . I
assure you I can recall no incident which would render the "O" Division
response inaccurate .
41 . All divisions were faced with the fact that no records had been kept of
such entries ; any information provided has been volunteered from the memory
of members . In the case of divisions such as Ontario and Quebec, are we to
infer that, within the memories of members stationed there in early 1978, there
had been no instances of the use of search of premises except upon consent or
during an arrest or by virtue of a search warrant or a writ of assistance (under
the Narcotics and Excise Acts)? We find it hard to imagine that there were no
such instances in recent years, in Ontario and Quebec, of the type which were,
for example, disclosed by the divisions in British Columbia and Alberta .
However, while we may entertain such doubt, we can only speculate as to
whether the technique was frequently used in all the divisions across Canada .
Nevertheless, the probability that intelligence probes were more excessive
before our inquiry began than the figures disclosed to us would indicate, is
demonstrated by the following passage in a brief submitted to us by the
R .C .M .P . :
Two R .C .M .P . criminal investigative sections, Commercial Crime and
National Crime Intelligence, have resorted to intelligence probes . Their
targets were usually people involved in the stock exchange and organized
crime fields . Members employed on these duties, particularly supervisory
personnel, did not think that intelligence probes were unlawful . This is
evident in the knowledge that no document can be found to show that the
Force, up to July 1977, ever asked the Department of Justice to provide a
legal opinion on this issue.
(Ex . E-1, Tab 4 . )
117
�42. That the technique was probably tolerated at all levels of the R .C .M .P.,
or at least that a blind eye was turned to it, is suggested by the language chosen
by the R .C .M .P . in its statement (Ex . E-1, Tab 4) read as testimony by
Assistant Commissioner Venner in April 1978 :
The intelligence investigator and his supervisors have been aware that their
responsibility to pursue a course of action in the public interest was
paramount . . This must and has included uncovering intelligence to deter.
mine if serious criminal offences were/are being committed or were/are
about to be committed . The investigator faced a dilemma . Should he
overlook his responsibility and pursue the matter no further? Or should he,
in the "public interest" and without mens rea, surreptitiously enter the
premises controlled by the suspected criminal to determine for certain if he
is involved in crime ?
He then observed that :
No court, to our knowledge, has ever examined the legality of a surreptitious entry by a policeman merely to determine if a person was engaged in
crime . No clear legislation exists to prohibit or authorize this action .
(Vol . 36, pp . 5774, 5786-89 . )
This understanding of the law, from such an experienced officer, is undoubtedly representative of the opinion commonly held in the Force . His view of the
state of the criminal law may well be correct, as far as the practical result of a
prosecution of the policeman for breaking and entry is concerned . However, his
appreciation of the law was, as he himself recognized, limited to the effect of
the criminal law . The R .C .M .P .'s prepared statement, by its silence on the
effect of the law of trespass, must be considered as treating it as of no account .
It is also noteworthy that the prepared statement considered that, without clear
prohibitory legislation or Force policy, and because Force policy approved of
the use of surreptitious entry in order to install listening devices, an investigator could feel confident that "within limits" surreptitious entry was lawful and
that his actions were in the public interest if he acted "with reasonable grounds
in the performance of his duties" . Finally, we note that the R .C .M .P .'s
prepared statement referred to the "paramount" responsibility "to pursue a
course of action in the public interest" . To us this signifies clearly that the
C .I .B . considered that, even though the law might in some uncertain manner
constitute an impediment, it was not to stand in the way of a conscientious
investigation in the public interest . All these points add up,in our mind, to
substantial evidence of wide use of surreptitious entries with the tacit approval
of the management of the Force .
D. LEGAL AND POLICY ISSUES SECURITY SERVICE AND C .I.B.
Genera l
43 . Lord Denning said in a book written when he was a trial judge in 1949 :
Let us consider, then, the power to enter a man's house against his will : for
this is a power which has been greatly extended of late . It is a power whic h
118
�we must watch with care, because, next to our personal freedom ; we value
most the freedom of our homes . `An Englishman's house is his castle' we
say : and our feelings about it were well summed up by the great Ea rl of
?
Chatham when he said "The poorest man may in his cottage bid defiance to
all the forces of the Crown . It may be frail - its roof may shake - the
wind may blow through it - the storm may enter - the rain may enter but the King of England cannot enter - all his force dares not cross the
threshold of the ruined tenement" . These proud words take their legal
origin from Magna Carta, when King John promised that no free man
should be disseised of his free tenement except by the law of the land . The
freedom of an Englishman's house was there put on an equal footing with
his personal freedom . Just as the executive could not deprive a man of his
personal fréedom except when the law permitted, so also the executive
could not enter his house except in accordance with the law . 3
In a case in 1970 he said :
The common law does not permit peace officers, or anyone else, to ransack
another's house, or to search for papers or articles therein, or to search his
person, simply to see if he may havé committed some crime or other : If
police officers should do so, they would be guilty of a trespass .^
44 . In his book, Freedom, the Individual and the Law, Professor Harry
Street writes : 5
The law has long imposed serious restrictions on the claims .of the police to
search private premises . A series of cases in the 1760s followed the issuing
by the Government of the day of general warrants to search premises, i .e .
warrants in which either the person or the propérty is not specified . In the
great case of Entick v . Carrington, the Secretary of State issued a general
warrant to officers who broke into the housé of Entick, who was suspected
of editing a seditious publication, "The British Freeholder", and seized his
books and papers . The Lord Chief Justice of the day castigated the
Government's conduct severely and awarded Entick £300 damages for
trespass.
45. The actual decision in Entick v . Carrington dealt with the validity of
general warrants (warrants not specifically identifying the things to be seized)
and the need for lawful authority for a warrant if the seizure was not to
constitute a trespass . More important than the decision itself were these
ringing passages from the judgment of Lord Camden, the Chief Justice : 6
By the laws of England, every invasion of private property, be it ever so
minute, is a trespass . No man can set his foot upon my ground without my
licence, but he is liable to an action, though the damage be nothing ; which
is proved by every declaration in trespass, where the defendent is called
upon to answer for bruising the grass and even treading upon the soil . If h e
'Sir Alfred Denning, Freedom Under the Law, . London, Stevens and Sons Limited,
1949, p. 103 .
4Ghani v . Jones [1970] 1 Q.B . 693 at 706 ; [1969] 3 All E .R . 720 (English Court of
Appeal) .
5 Harry Street, Freedom, the Individual and the Law, 3rd edition, Harmondsworth,
Middlesex, Penguin Books, 1972, p . 23 .
6(1765), 19 Howell's State Trials 1001, at p . 1066.
119
�admits the fact, he is bound to shew by way of justification, that some
positive law has empowered or excused him . The justification is submitted
to the judges, who are to look into the books ; and if such a justification can
be maintained by the text of the statute law, or by the principles of common
law . If no such excuse can be found or produced, the silence of the books is
an authority against the defendant, and the plaintiff must have judgment .
According to this reasoning, it is now incumbent upon the defendants to
shew the law, by which this seizure is warranted . If that cannot be done, it
is a trespass .
Papers are the owner's goods and chattels : they are his dearest property ;
and are so far from enduring a seizure, that they will hardly bear an
inspection ; and though the eye cannot by the laws of England be guilty of a
trespass, yet where private papers are removed and carried away, the secret
nature of those goods will be an aggravation of the trespass, and demand
more considerable damages in that respect . Where is the written law that
gives any magistrate such a power? I can safely answer, there is none ; and
therefore it is too much for us without such authority to pronounce a
practice legal, which would be subversive of all the comforts of society .
Ever since, it has been accepted that persons invading property commit a
trespass unless they can found their actions upon some rule of positive law . Of
those arguments for the defence that were advanced and discarded in Entick v .
Carrington one is of particular interest to us - state necessity . This mas held
not to afford a justification . Lord Camden, C .J . said :
With respect to the argument of state necessity, or a distinction that has
been aimed at between state offences and others, the common law does not
understand that kind of reasoning, nor do our books take note of any such
distinctions .
. .
46. The only situation in which, until then, the common law had recognized a
power to search and seize under search warrant was in the case of stolen goods .
This concession had been allowed grudgingly by the judges . However, Parliament obviously considered that, while the root principle established in Entick v .
_.Carrington was not open to question, the need to search in order to obtain
evidence should be provided for in additional particular cases .' Consequently,
in the century or more that followed in England, a number of statutes were
enacted that provided for search upon warrant, usually issued by a magistrate,
in respect to a number of offences. In England this catalogue of such powers
has never been brought together in a single statutory provision . However, in
Canada, since 1886, the Criminal Code has contained just such a comprehensive statutory provision in what is now section 443 .8 It allows a justice to issue a
warrant for search and seizure if he is satisfied tha t
there is reasonable ground to believe that there is in a building, receptacle
or place ,
(a) anything upon or in respect of which any offence against this Act has
been or is suspected to have been committed ,
' Ibid ., p. 1073 .
Section 443 is comprehensive in regard to offences under the Criminal Code . There
are additional provisions for search found in other statutes, such as the provisions for
writs of assistance found in the Narcotics Control Act .
120
�(b) anything that there is reasonable ground to believe will afford evidence
with respect to the commission of an offence against this Act, o r
(c) anything that there is reasonable cause to believe is intended to be used
for the purpose of committing any offence against the person for which
a person may be arrested without warrant .
47 . It is important to remember that there is not always a trespass if there is
entry upon, the premises of a person without his consent and without a warrant
or writ of assistance . At common law a constable, and even a private citizen,
may forcibly enter a dwelling house to terminate an affray,9 or to prevent an
occupant from doing serious bodily injury to another person in the hquse . The
need to prevent personal injury is the justification for the trespass in such
cases .10 In addition the policeman has a power of forcible entry commensurate
with his powers of arrest, by virtue of the common law, which was explained in
Eccles v . Bourque by Mr . Justice Dickson of the Supreme Court of Canada as
follows: "
.
.. there are occasions when the interest of a private individual in the
security of his house must yield to the public interest, when the public at
large has an interest in the process to be executed . The criminal is not
immune from arrest in his own home nor in the home of one of his friends .
So it is that in Semayne's Case a limitation was put on the "castle" concept
and the Court resolved that :
In all cases when the King is party, the Sheriff (if the doors be not open)
may break the party's house, either to arrest him, or to do other execution
of the K .'s process, if otherwise he cannot enter . But before he breaks it, he
ought to signify the cause of his coming, and to make request to open
doors . ..
. ..Thus it will be seen that the broad basic principle of sanctity of the home
is subject to the exception that upon proper demand the officials of the
King may break down doors to arrest .
48. The common law has also recognized, to a limited degree, that powers to
search under a search warrant may be exceeded by a policeman without his
becoming exposed to civil liability for trespass . The most recent English case,
Ghani v . Jones,12 according to L .H . Leigh ,
.
.. suggests that a constable can seize from premises which he has entered
lawfully, property of evidential value in connection with the crime which he
is investigating . This power enables him to seize material of evidential value
against the person whom he is investigating or anyone associated with him
in the offence . "
R . - v . Walker (1854) Dears, C .C . 358 . Timothy v . Simpson (1835) 1 Cr . M .R . 758 ;
Robson v . Hallett [1967] 2 Q .B . 939, [1967] 2 All E .R . 407 ; R . v . Marsden (1925)
88 J .P. Jo . 369, Handcock v. Baker (1800) 2 Bos . P . 260; Bailey .v . Wilson [1968]
Crim . L .R . 617 .
10 L .H . Leigh, Police Powers in England and Wales, London, Butterworths, 1975, p.
172 .
[1975] 2 S .C .R. 739 at 742-3 .
2 [1970] I Q .B . 693 ; [1969] 3 All E .R . 720.
13 Leigh, Police Powers in England and Wales, London, Butterworths, 1975, p . 184 .
121
�Moreover, in Ghani v . Jones earlier cases1d were explained as deciding that
. . . a constable lawfully on premises is entitled to take any goods which he
finds in the occupier's possession or in his house and which he reasonably
believes to be material evidence in relation to the crime for which the
occupier is arrested or in respect of which the constable enters . If, while
searching, the constable comes upon other property which shows the
occupier to be implicated in some other crime, he may, if he acts reasonably, detain such property for a limited period .1 5
As Leigh says ,
The propositions are apparently very wide . They go well beyond the early
limitation that only goods described in a warrant or goods which were apt
to provide evidence of goods so described could be taken . Instead, they
assert a general right to take goods which the police reasonably suspect may
implicate the occupier in the crime charged, whether the search is pursuant
to a search warrant or incidental to an arrest . This amounts to a considerable extension of the right to search . These rules coupled with the chance
discovery rule, are substantial infringements of the rights of the individual .
But the rule as stated by the Court of Appeal may be wider still . For if the
occupier has on his premises the property of another, and is arrested and
the property found pursuant to a search shows that that other is implicated
in the occupier's crime, that other's property may also be seized .1 6
The precise extent to which these recent English cases will be applied in
Canada, and what their significance is, remains to be seen ." We have referred
to them here for two reasons : first, to avoid leaving any impression that upon
an entry being made pursuant to search warrant the courts have in all
circumstances frowned upon the seizure of goods other than those referred to in
the warrant ; second, to lay a foundation for a discussion later as to whether,
when members of the R .C .M .P . - either investigating a crime or on Security
Service duty - enter premises to install a listening device under section 178 of
the Criminal Code or section 16 of the Official Secrets Act, they are entitled to
search the premises .
49. Throughout this chapter the problem is basically to strike a balance
between two conflicting social goals . The dilemma was identified by Lord
Denning as being how to permit the power to search as one of "the safeguards
of freedom" without permitting abuse of such a power to lead "to the search of
any man's house and belongings on the slightest pretext - or on none" . "
50. However, while we accept that there is a need to strike such a balance, we
assert emphatically that it is wrong and unacceptable that any Canadian police
force should act on the assumption that its members need be concerned only t o
14 Chic Fashions (West Wales), Ltd ., v . Jones [1968] 2 Q .B . 299 ; [1968] 1 All E .R . 229
and Pringle v . Bremmer and Stirling [1969] 3 All E .R . 1700.
15 Leigh, Police Powers in England and Wales, London, Butterworths, 1975, p . 187 .
16 Ibid., p . 188 .
" The cases are analyzed thoroughly in Leigh, ibid .
Sir Alfred Denning, Freedom Under the Law, London, Stevens and Sons Limited,
1949, p . 6 .
122
�avoid criminal offences : . there are other illegalities . The policy of the R .C .M .P .
has reflected an attitude that entries without consent or warrant or some other
positive legal support are permissible because no criminal offence is thereby
committed, as if that disposed of the matter . Leaving aside the few provinces
that have Petty Trespass Acts, the police are faced with the "illegality" of the
law of trespass for which damages may be awarded (at least in the common
law provinces - i .e . all provinces except Quebec) . The law of trespass is not to
be brushed aside as of no account in deciding Force policy . A trespass is a
"wrong" . It is wrongful to adopt policies that countenance and encourage
trespass . If the law of trespass is an obstacle to the effective detection of crime,
the law should be changed by the appropriate legislative body . Pending change,
the law must be respected .
Possible charges arising out of surreptitious entry
51 . We shall now examine eleven different grounds on which it might be
argued that a surreptitious entry for one purpose or another constitutes an
offence under the Criminal Code or is for some other reason an act "not
authorized or provided for by law" . All of the following issues except (c), (i)
and (j) are issues arising in the criminal law . As will be seen, there are no easy
answers as to whether, in conducting a surreptitious entry and search, a
policeman commits a crime . We examine those questions in considerable detail,
because we consider that it is important that the arguments for and against
criminal liability be examined seriously by us . However, we have no hesitation
in saying that surreptitious entry will frequently constitute civil trespass, and as
we have said, that - at least in the common law provinces - is conduct "not
authorized or provided for by law" and therefore not to be permitted, as a
matter of policy, unless the law expressly permits it in the circumstances .
(a) Breaking and entering with intent to commit an indictable offence
52 . The relevant provisions of the Criminal Code are as follows :
306 . (1) Every one wh o
(a) breaks and enters a place with intent to commit an indictable offence
therein ,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place afte r
(i) committing an indictable offence therein, o r
(ii) entering the place with intent to commit an indictable offence
therein ,
is guilty of an indictable offence and is liabl e
(d) to imprisonment for life, if the offence is committed in relation to a
dwelling house, o r
(e) to imprisonment for fourteen years, if the offence is committed in
relation to a place other than a dwelling house .
(2) For the purposes of proceedings under this section, evidence that an
accused
123
�(a) broke and entered a place is, in the absence of any evidence to the
contrary, proof that he broke and entered with intent to commit an
indictable offence therein ; or
(b) broke out of a place is, in the absence of any evidence to the contrary,
proof that he broke out afte r
(i) committing an indictable offence therein, o r
(ii) entering with intent to commit an indictable offence therein .
(4) For the purposes of this section, "place" means
(a) a dwelling-house ;
(b) a building or structure or any part thereof, other than a
dwelling-house ;
(c) a railway vehicle, vessel, aircraft, or trailer . . .
307 . (1) Every one who without lawful excuse, the proof of which lies upon
him, enters or is in a dwelling-house with intent to commit an indictable
offence therein is guilty of an indictable offence and is liable to imprisonment for ten years .
(2) For the purposes of proceedings under this section, evidence that an
accused, without lawful excuse, entered or was in a dwelling-house is, in the
absence of any evidence to the contrary, proof that he entered or was in the
dwelling-house with intent to commit an indictable offence therein .
308 . For the purposes of sections 306 and 307 ,
(a) a person enters as soon as any part of his body or any part of an
instrument that he uses is within any thing that is being entered ; and
(b) a person shall be deemed to have broken and entered i f
(i) he obtained entrance by a threat or artifice or by collusion with a
person within, o r
(ii) he entered without lawful justification or excuse, the proof of which
lies upon him, by a permanent or temporary opening .
53 . There can be little doubt that almost all surreptitious entries involve
physical "breaking" within the meaning attributed to the sections . Merely
opening a closed door and going inside has been held to constitute breaking .
Even entrance through an open doorway of a partly constructed unoccupied
dwelling-house has been held to constitute constructive breaking under section
308(b)(ii) .1 9
54. Section 2 of the Criminal Code defines "dwelling-house" as including any
part of a building "kept or occupied as a temporary residence" . That would or
might include hotel rooms, depending on the circumstances : a long-term hotel
guest might be said to have his temporary residence there, but there is more
uncertainty about a short-term guest . Assuming the room to be a "temporary
residence", is there a "breaking and entry" of a "d well i ng- house" if the hotel
owner or his employee consents to the entry and provides a key? There appears
to be no authority in Canada dealing with the provision of a pass-key by thos e
19 See the cases discussed in Mewett and Manning, Criminal Law, Toronto, Butterworths, 1978, p . 510 .
124
�in charge of hotels or apartment buildings . Courts in the United States have
distinguished the status of a tenant who acquires a property interest from that
of a hotel guest . The hotel guest in those cases has been considered to be a
mere licensee, while the owner remains the occupier as he must look after the
hotel room and has access for that purpose . Yet" entry by pass-key has been
held to be `breaking' in both situations .20 Whether or not the courts in Canada
will find constructive breaking by pass-key under 308(b)(i) or in general lawris
speculative . The foregoing discussion applies to an occupied hotel room . What
about a hotel room that is not yet occupied by the suspect? When the entry is
made, with the consent of the owner or his employee, for example to install a
device before the suspect arrives, there would not appear to be any possible
application of the section .
55. The most substantial doubt as to the presence of all ingredients of the
offence arises from the requirement that there be an "intent to commit an
indictable offence" in section 306(1) and the provision "without lawful excuse"
in section 307 . Sections 306(2)(a) and 307(2) raise a presumption of intent "in
the absence of evidence .to the contrary" once there is evidence of breaking and
entry or that the accused is in a dwelling-house "without lawful excuse" . Three
preliminary points should be noted with respect to this presumption :
(a) Cases prior to 1969 are of little assistance since the sections then made
evidence of break and enter "prima facie evidence" of intent, instead of
providing that a presumption of intent exists .
(b) The presumption is rebutted if, in all the circumstances of the case, the
explanation of the accused could reasonably be true even if the trier of
fact is not convinced that it is .
(c) Once the presumption is rebutted by evidence to the contrary, the
normal burden of proof beyond a reasonable doubt is imposed upon the
prosecution .2 1
Thus if the intent .of a surreptitious entry is to obtain information there would
appear to be no offence under sections 306 and 307 unless an indictable offence
is actually committed following a breaking-in, or preceding a breaking-out .
The same conclusion would appear to apply to what occurred prior to July 1,
1974, if the intent was to wilfully intercept a private communication by means
of placing a listening device in premises . In one case where a private detective
took three assistants for an entry to take photographs, the court found an
intention to commit an indictable assault22 but, in the absence of some such
special circumstance, it would appear that the trespass would not result in a
conviction under sections 306 or 307 .
56 . Since the commencement of our work there has been a number of
statements in the media that members of the R .C .M .P. who have entered
20Smith
v . Director, Patuxent Institution (1973) 395 F . Supp . 813 (U .S . D .C .
Maryland) ; Jack v . United States (1967) 387 F. 2d 471 (U .S . Ct . of App ., 9th Circ .) ;
Buck v . Del City Apartments (1967) 431 P . 2d 360.
21 R . v . Marshall (1971) 1 C .C .C . (2d) 505 ; (B .C .C .A .) ; R . v . Rivera [1975] 2 W .W.R .
56 (B .C .C .A .) .
zz R. v . Massue [ 1966] 3 C .C .C . 9 (Que . C .A .) .
125
�premises without consent or a warrant to conduct an `intelligence probe' have
been guilty of breaking and entry ("B & E") . Such assertions are not
necessarily correct . If a member entered premises in order to search for drugs
or a counterfeit printing press when he did not have the grounds of belief to
enable him to swear the information necessary to obtain a search warrant and
he did not have a warrant, or if he entered premises to look for espionage
paraphernalia or to look at documents, or if, before July 1, 1974, he entered for
the purpose of installing a listening device, he would be convicted only if he
failed to testify as to his reason for entering . If he did not testify, so that the
only evidence before the court was that he broke and entered, the presumption
would normally lead to his conviction . However, if he testified, and if he were
believed (as would likely be the case), he would not be convicted, because he
did not enter with the intent to commit an indictable offence in the place . In
saying this we assume that he did not cause any damage ; usually he would not
do so as he would wish the suspect to be unaware of the search . The small
likelihood that a member of the R .C .M .P . would be convicted of breaking and
entry with intent to commit an indictable offence in the place entered is
illustrated by what was said by Mr . Justice J .K . Holmes in a recent address to
the jury in the Court of Queen's Bench of Alberta . In a trial in 1980, at
Calgary, the accused, Claude Wagner, was convicted of break, enter and theft,
and, on a separate count, of mischief. Those facts that are relevant for our
purpose are set forth in the judge's summing up . The accused, a private citizen,
had entered a dwelling-house occupied by two persons by pushing open an
unlocked but closed window, and removed some documents . A witness for the
prosecution testified that he and the accused planned to deceive a Calgary city
police detective . The accused denied this . The detective testified that the entry,
in the planning of which he had participated, was for the purpose of Wagner
searching for illegal drugs . The detective testified that he was surprised when
the accused later produced the documents which he took from inside the house .
Mr . Justice Holmes told the jury :
At this point I would like to comment on a matter which arises from Crown
counsel's opening address to you, before any evidence was called . He made
a comment to the effect that it was not a criminal offence for the police to
make an unauthorized entry of premises only for the purpose of searching a
place to assist the police to obtain information . Such a procedure would
certainly not constitute an offence under the Criminal Code of Canada
although it may not find approval by all members of our society . However,
it is not your function to determine whether you agree as a jury on this case
with the police tactics which were used and which were revealed in the
evidence . ( our emphasis added )
Therefore in these cases, even if, through more detailed investigation of the
individual cases than we have conducted, evidence admissible in court were
available to establish the breaking and entry, the attorney general of the
province would have to decide whether the likelihood of conviction justified a
prosecution in the light of what we have just pointed out . (In a subsequent
Report we shall discuss the factors that should be taken into account in
deciding whether to prosecute .)
126
�57. There is another point to be made about this offence . The- fact that the
law makes conviction of a policéman engaged in such duties most unlikely has
been misconstrued by some members of the R .C .M .P . They tend to construe
the reason for likely acquittal as being that the policeman lacks "criminal
intent" . In a sense that is true ; he lacks the intént to commit an indictable
offence in the place . But what they really mean is that they think the criminal
law would excuse him because he does not "intend" to commit any crime .
From this proposition they infer that if he does any other act which, if done by
an actual criminal to serve his own ends would be a crime, the policeman is not
guilty of the same crime because he does not intend to commit a crime . This is
a fallacy . It rests upon a distortion of the doctrine of mens rea, to which they
have been first introduced in their training in Regina . They confuse mens rea
(the general intent to do the act, which is an element of criminal liability) with
the intent to commit a crime ( i .e . to do the act for ignoble ends) . The law is
that if an accused does an act with noble purposes - whether he is a
policeman or an ordinary person - that is no defence, provided that he did
intend to do the act .
58 . This erroneous reasoning appears to be firmly rooted in the R .C .M .P. and
to have broad currency . It generates an attitude of mind that tolerates acts
committed for such noble purposes as "the public interest" or "the protection
of the security of the state", that if committed for other purposes the policemen
themselves would regard as offences . It is therefore a dangerous heresy that
must be overcome in the education and training of members of the Force and
not allowed to persist in their thinking or in that of the members of a security
intelligence agency .
(b) Wilful disobedience of a statut e
59. As a result of the entry onto the premises of the Agence de Presse Libre
du Québec on October 6 and 7, 1972, a member of the R .C .M .P . (Inspector
Donald Cobb), a senior member of the Sûreté du Québec and a senior member
of the Montreal Urban Police Force entered a guilty plea in May 1976, to a
charge which was laid against them under section 115 of the Criminal Code .
That section reads as follows :
115 . (1) Every one who, without lawful excuse, contravenes an Act of the
Parliament of Canada by wilfully doing anything that it forbids or by
wilfully omitting to do anything that it requires to be done is, unless some
penalty or punishment is expressly provided by law, guilty of an indictable
I
offence and is liable to imprisonment for two years .
60 . The section requires three elements to constitute an offence :
(a) a contravention of an Act of the Parliament of Canada which forbids
some act or requires an act to be done ;
(b) no penalty or punishment provided for the contravention of the statute
concerned ; and
(c) the accused's act or failure to act must have been wilful and without
lawful excuse .
127
�61 . The offence with which these officers were charged was that they had
contravened section 115 of the Code "by wilfully omitting to do something
which section 443 required to be done : obtaining a warrant under section 443
of the Criminal Code" . It is difficult to understand that charge . Section 443
does not prohibit the act of search and seizure without a warrant, or require an
application to be made for a warrant . It merely provides a comprehensive
procedure for applications for, and the issuing of, warrants for search and
seizure in the three situations referred to in the section . There is no prohibition
of an act or of an omission to do an act . In our opinion the provisions of section
115 do not constitute a basis for criminal liability for search and seizûre
without warrant . It may seem strange to the reader that we are saying that
Inspector Cobb and the others pleaded guilty to an offence which, in the
circumstances, did not exist, but that is indeed our opinion .
(c) Petty Trespass Acts
62 . The legislatures of all provinces except Saskatchewan, Nova Scotia and
Prince Edward Island have enacted legislation making a trespass in certain
circumstances a summary conviction offence . Being summary conviction
offences, prosecutions must be launched within six months (section 721,
Criminal Code) . The Petty Trespass Acts of British Columbia23 and New
Brunswick24 apply to such narrow factual situations as to be irrelevant to
criminal investigations and security intelligence work . Likewise, Quebec has a
statute25 that may appear to be broadly applicable to all "land" (terrains) but
its scope is probably restricted to the kind of land referred to in the title of the
statute : the Agricultural Abuses Act . The Petty Trespass Acts of Alberta '26
and Newfoundland27 apply only where a form of notice not to trespass has been
posted ; they therefore are irrelevant to the usual intelligence probe of a house
or apartment . We are left with Ontario and Manitoba . Until 1980, the Ontario
Petty Trespass legislation applied to any "enclosed" land and therefore did not
apply to an open parking lot or to "open" parking garages under buildings .
However, it applied to houses, apartments and offices, and therefore was of
importance to the ability of a police force or to the Security Service to perform
its tasks in cities such as Ottawa and Toronto . The new Trespass to Property
Act, 1980,28 likewise prohibits unauthorized entry onto premises "enclosed in a
manner that indicates the occupier's intention to keep persons off the premises . ." . Similarly, the Petty Trespass Act of Manitoba29 creates an offence
.
when any person "unlawfully enters into . .. any land or premises . .. being the
property of another and being wholly enclosed . . ." . A legal problem therefore
still faces the R .C .M .P . and other police forces, and any security intelligence
agency, when its members enter the kind of premises referred to above .
zJ R .S .B .C . 1960 ch .387 .
24 R .S .N .B . 1973 ch .T-2 .
25 R .S .Q . 1964 ch .130 ss . 2,3 .
26 R .S .A . 1970 ch .273 ss . 2,3 .
27 S . NfId . 1975-76 No . 59, s .2 .
28 S .O . 1980 ch .12 . Replaces R .S .O . 1970 ch .347 .
29 R .S .M . 1954 ch .197 s .2 .
128
�63. There are many cases dealing with the phrases "enclosed" land, "unlawfully enters" and "acting under a fair and reasonable supposition that he had a
right to do the act complained of" which appear in the legislation in some of
the provinces .30 Cases interpreting this latter phrase recognize a mistake of law
defence where the belief in the right advanced was a "fair and reasonable"
belief ." The six-month limitation period of section 721 of the Criminal Code
would be applicable, as these are summary conviction offences .
(d) Theft
64. In those instances in which surreptitious entry and search by a policeman
have been followed by removal of objects or documents from the premises the
policeman may be guilty of theft, even if he intends to return what was
removed so that the owner or occupant of the premises will not know that
anything has happened .
65. The relevant parts of section 283 are as follows :
283 . (1) Every one commits theft who fraudulently and without colour of
right takes, or fraudulently and without colour of right converts to his use
or to the use of another person, anything whether animate or inanimate,
with intent ,
(a) to deprive, temporarily or absolutely, the owner of it or a person who
has a special property or interest in it, of the thing or of his property or
interest in it ,
(d) to deal with it in such a manner that it cannot be restored in the
condition in which it was at the time it was taken or converted .
(2) A person commits theft when, with intent to steal anything, he
moves it or causes it to move or to be moved, or begins to cause it to become
movable .
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment .
(4) For the purposes of this Act the question whether anything that is
converted is taken for the purpose of conversion, or whether it is, at the time
it is converted, in the lawful possession of the person who converts it is not
material .
Other policemen who accompany an officer and help him to remove objects or
documents, or encourage him to do so may also be guilty . This occurs by virtue
of sections 21 and 22 of the Code, which make them parties to the offence .
66 . The phrase "fraudulently and without colour of right" in section 283
raises at once the question of the mental state of the accused, which is a
necessary element of the offence . "Fraudulently" has been held to mean that
the taking must be intentional and deliberate, without mistake and withou t
3 0 Alberta s .8, Manitoba s .2, Newfoundland s .6, Ontario s .4 (old Act) .
31 R . v . Davy (1900) 27 O .A .R . 508 ; R . v . Malcolm (1883) 2 OR . 511 ; R . v . Burko
[1969] I 0 . R . 598 ; R . v . Labelle [1965] 1 O .R . 321 (Ont . C .A .) .
129
�knowledge that the property taken is not the accused's .32 But two decisions in
the Ontario Court of Appeal suggest that conduct is not fraudulent merely
because it is unauthorized, unless it is dishonest and morally wrong . Thus an
honest belief in a moral claim might negate the requirement that a taking be
done fraudulently .33 May a defence of "colour of right" be allowed, even
though founded upon an honest belief in the right to act which turns out to be
based upon a mistake whether of law or fact? Mr . Justice Rand and Mr .
Justice Taschereau held in a Supreme Court of Canada case34 that in the
circumstances of the case (whether logs had been abandoned by a company)
since the alleged mistake was a mistake as to the general law, the accused's
belief in his "right" (to take the logs) was not admissible as a defence . (They
were only two members out of seven . The other members of the court did not
discuss the point . )
67 . However, a series of cases in the Ontario and British Columbia Courts of
Appeal have held that a "colour of right" defence can be supported by an
honestly held belief even if founded upon mistake of fact or mistake of law .3s
68 . It might be argued that the phrase "takes . .. anything whether animate
or inanimate" does not include information taken, for example, by photographing documents, and that there is no property right to the information .
However, the expanded definition of an "animate and inanimate" thing in
section 283(1)(a), which extends the meaning so that it is an offence to deprive
a person of his "special property or interest" in the thing, must raise doubt as
to the validity of such an argument . Therefore it may be possible to contend
that even the photographing of documents on the premises constitutes "taking"
a "thing"3 6
69 . Some years ago Parliament considered it to be inappropriate that young
people should be convicted of an offence as serious as theft when they took a
vehicle for a "joyride" but with no intent to keep the vehicle, so that a lesser
offence, punishable on summary conviction, was enacted . It is now section 295,
which makes it an offence to take a vehicle, without the owner's consent, with
the intent to drive it . Does this suggest that in other circumstances, such as
taking a document with the intent of copying it and then returning it, there is
not a theft but only something less then theft? It cannot be stated categorically
that it is theft to remove a document or a thing temporarily from the place
where it is kept by the owner, so that it may be examined or copied off the
premises and returned before the owner misses it . In a series of Canadian cases ,
3 2 R. v. Brais (1972) C .C .C . ( 2d) 301 (B .C .C .A .)-followed in R. V . Renz ( 1974) 14
C .C .C . (2d) 492 (B .C .C .A .) and by Mr . Justice Martland in Lafrance v . The Queen
(1973) 13 C .C .C . (2d) 289 (S .C .C .) .
"R . v . DeMarco (1973) 13 C .C .C . ( 2d) 369 (Ont . C .A .) ; R . v . Hemmerly (1976) 30
C .C .C . (2d) 141 .
3e R . v . Shymkowich (1954) 110 C .C .C. 97 .
3s R . v . Howson ( 1966) 3 C .C .C . (2d) 348 (Ont . C .A .) ; R. v . DeMarco (1973) 13
C .C .C . (2d) 369 (Ont . C .A .) ; R . v . Scallen (1974) 15 C .C .C . (2d) 441 (B .C .C.A .) .
3 6 Oxford v . Moss [ 1979] Crim . Law Rev . 119 (Div. Ct .) ; R . v . Scallen (1974) 15
C .C .C . (2d) 441 at 473 (B .C .C .A .) .
130
�the accused have been acquitted when the evidence did not establish that the
accused had the " . . .intent to deprive the owner of his property either
temporarily or permanently" .37 Another line of cases in which theft was held
not to have occurred, are the so called `prank' cases .38 One Canadian textbook
on criminal law states : "If it is intended to take the object temporarily and
restore it before the owner misses it or has any use for it, then he has not been
deprived of it and theft is not, at that stage, committed " . 39 We do not think
that the cases support the flat statement contained in that textbook . The most
that can be said is that intention is a key factor in the offence and that the
courts have held that there are certain types of cases where the necessary
intention is not present . In our view none of the types of lack of necessary
intention which have been recognized by the courts, to this date, are applicable
to the activities of the R .C .M .P . when the latter remove documents or things,
copy them and return them, all without the knowledge of the owner .
(e) Mischief
70 . There may be instances when surreptitious entry is effected by means
which involve damage to property, although that seems unlikely since the
intention of the investigator would normally be to leave no trace of the entry .
However, damage may occur if for some operational reason it is intended to let
the suspect know that there has been a search . The problem also arises in the
case of the installation of electronic listening devices, which almost inevitably
involves some damage to property even if the damage is subsequently concealed . If there is damage to property, the following provisions of the Criminal
Code may be applicable :
387 . (1) Every one commits mischief who wilfully
(a) destroys or damages property,
(b) renders property dangerous, useless, inoperative or ineffective ,
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or
operation of property, o r
(d) obstructs, interrupts or interferes with any person in the lawful use,
enjoyment or operation of property .
" Cooper v . The King (1949) 93 C .C .C . 286 (N .S . Sup. Ct . en banc) . In that case
another reason given for acquittal was that the aircraft in question was never moved
away from the owner's property .
78 R. v . Kerr (1965) 4 C .C .C .37 (Man . C .A .) held that the evidence created at least a
reasonable doubt as to whether the accused intended to steal an ashtray . Again, in R .
v . Wilkins (1965) 2 C .C .C . 189 where the accused was held not to have intended to
steal the parking meter enforcing officer's vehicle but only to perpetrate a joke and
not "to convert the property in it to his own use ." The intention only to play a trick
and not to steal was also the basis of acquittal where an election poster was taken and
placed on the property of the opponent of the candidate whose poster it was :
Handfield v . The Queen (1953) 17 C .R . 343 . On the other hand, the view that the
fact that it was intended only to carry out a prank is not a ground for acquittal was
adopted by the majority of the Quebec Court of Appeal in Bogner v . The Queen
(1976) 33 C .R .N .S . 348 .
" Mewett and. Manning, Criminal Law, p . 498 .
131
�(7) No person commits mischief within the meaning of' this section by
reason only that he attends at or near or approaches a dwelling-house or
place for the purpose only of obtaining or communicating information .
388 . (1) Every one who wilfully destroys or damages property is, where
actual danger to life is not involved, guilty of an offence punishable on
summary conviction if the alleged amount of destruction or damage does
not exceed fifty dollars .
Section 386 provides a definition of "wilfully" for the purposes of Part IX of
the Criminal Code as follows :
386 . (1) Every one who causes the occurrence of an event by doing an act
or by omitting to do an act that it is his duty to do, knowing that the act or
omission will probably cause the occurrence of the event and being reckless
whether the event occurs or not, shall be deemed, for the purposes of this
Part, wilfully to have caused the occurrence of the event .
(2) No person shall be convicted of an offence under sections 387 to
402 where he proves that he acted with legal justification or excuse and
with colour of right .
Since surreptitious entries are normally planned to avoid detection it would
appear doubtful that subsections (b), (c) or (d) of section 387(l) would
become operative . However, physical damage, no matter how nominal, is
usually caused by the installation of hidden microphones, and thus sections
387(1)(a) and 388(1) are prima facie applicable to those circumstances . Only
nominal physical damage is required for the offence to be complete, and the
two sections create separate offences .4 0
71 . In addition, it can be argued that merely handling chattel property found
in the premises amounts to a trespass upon the chattels and is thus an
interference with the lawful use or enjoyment of the property contrary to
section 387(1)(c) . If this is so, then the indictable offence of mischief has been
committed . This in turn would mean that if entry had been gained by a
"breaking", then an offence under section 306(1)(b) ("breaks and enters a
place and commits an indictable offence therein") is also committed, even
though it be established that the original break-in was not made "with intent to
commit an indictable offence" .
72. Subsection (7) of section 387 follows a subsection that exempts stoppage
of work 'situations from "mischief " and therefore subsection (7) might be
thought to have been intended to relate to labour-management disputes . The
broad language of the subsection might sustain an ingenious defence, for the
usual reason for surreptitious entry of a dwelling-house is clearly for the
purpose only of obtaining information .
73 . If the recent "colour of right" cases, referred to above in our discussion of
theft, are followed in defining the ambit of mistake of law or fact as affecting a
"colour of right" defence, reliance upon legal opinion (even mistaken ones) or
the existence of warrants or authorizing orders under section 178 could also
provide the beginnings of a defence . It should be noted, however, that sectio n
40 R . v . Ninos and Walker [1964] 1 C .C .C . 326 (N .S .S .C . In Banco) .
132
�386(2) requires that an accused prove both legal justification or excuse and
colour of right . With respect to the requirement of "legal justification or
excuse", see below where the cases with respect to "without lawful excuse" are
considered in detail . In addition, the criminal law, in certain contexts (e .g .
homicide) recognizes a difference between justification and excuse . Whether or
not it was intended by the draftsman, either justification or excuse will meet
the test of section 386(2) . It may well be that the tests applicable to "without
lawful justification" will not be the same as those for "without lawful excuse" .
74 . In respect of entries made since July 1, 1974, to install lawfully authorized listening devices the issue of legal justification or excuse requires consideration of the effect of section 25 of the Code and section 26(2) of the
Interpretation Act, which have been relied upon by the R .C .M .P . and its
advisers . In Chapter 3 of this Part, while discussing "Electronic Surveillance",
we shall examine the effect of those sections .and suggest that they are at least
doubtful sources of justification or excuse for such entries .
(f) Trespassing at nigh t
75 . In some circumstances surreptitious presence at night on the grounds of a
house, or in the hallways of an apartment building, preparatory to effecting a
surreptitious entry into the house or into an apartment, might give ' rise to an
offence under section 173 of the Criminal Code . It provides as follows :
173 . Every one who, without lawful excuse, the proof of which lies upon
him, loiters or prowls at night upon the property of another person near a
dwelling-house situated on that property is guilty of an offence punishable
on summary conviction .
"Dwelling-house" is defined as follows in section 2 :
"dwelling-house" means the whole or any part of a building or structure
that is kept or occupied as a permanent or temporary residence and includes
(a) a building within the curtilage of a dwelling-house .that is connected to
it by a doorway or by a covered and enclosed passageway, and
(b) a unit that is designed to be mobile and to be used as a permanent or
temporary residence and that is being used as such a residence .
"Loitering" means hanging around, and "prowling" means looking for trouble
or hunting for an opportunity to carry out an unlawful purpose . There are two
offences .^' If the element of loitering or prowling is present, the defence of
,lawful excuse cannot be supported on the basis of a right to investigate if
carried out by trespass which is itself unlawful .42 In order to obtain . a
conviction, the Crown need not prove that the accused had a specific intent .
Therefore an accused will be guilty even though he believed .he was acting
lawfully or even if he was incapable of forming any specific intent .43 Being a
°' R . v . Andsten (1960) 128 C .C .C . 311, 32 W .W .R . 329 (B .C .C .A .) ; R . v . McLean
(1970) I C .C .C . (2d) 277, 75 W .W .R . 157 ( Alta . Mag. Ct .) ; R . v . Edgar & Rea
(1962) 132 C .C .C . 396 (B .C .C .A .) .
42 R . v . Andsten (1960) 128 C .C .C . 311 (B .C .C .A .) .
°J R . v . Andsten, supra, at 318 ; R. v . Clark (1971) 17 C .R .N .S . 56 at 64 (Man . Mag .
CO .
133
�summary conviction offence, the six-month limitation period, provided for in
section 721 of the Criminal Code, would be applicable to "trespassing at
night" .
(g) Possession of house-breaking instrument s
76. If a policeman, intending to enter a place of residence or an office
surreptitiously and without a search warrant, is in possession of a lock-pick, he
may be committing the offence of being in possession of "an instrument
suitable for house-breaking" . If he is not himself in possession of such an
instrument but he brings with him a civilian lock expert who is, the policeman
may be a party to the offence . Section 309(1) provides as follows :
309 . (1) Every one who, without lawful excuse, the proof of which lies
upon him, has in his possession any instrument suitable for house-breaking,
vault-breaking or safe-breaking, under circumstances that give rise to a
reasonable inference that the instrument has been used or is or was
intended to be used for house-breaking, vault-breaking or safe-breaking, is
guilty of an indictable offence and is liable to imprisonment for fourteen
years .
The word "suitable" and the phrase "under circumstances that give rise to a
reasonable inference that the instrument has been used or is or was intended to
be used for . .. safe-breaking" were added in 1972 .4° The elements of the
offence require proof of suitability, and of circumstances giving rise to one of
the reasonable inferences described - namely actual use or present or past
intention to use . Once these three elements have been proved, the burden shifts
to the accused to establish a "lawful excuse" on a balance of probabilities .4 5
77. Subsection (2) of section 309, which makes it an offence to have a face
"masked or coloured or otherwise disguised", expressly provides that, for the
offence to exist, the accused must have had the "intent to commit an indictable
offence" . However, it is not clear whether such an intent is a necessary element
for the "reasonable inference" described in subsection (1) . It was held in one
case that the jury must be asked whether the circumstances gave rise to a
reasonable inference that the instrument had been used or was intended to be
used for house-breaking, but the court did not define "house-breaking" .46 If
house-breaking is the same as "break and enter" as that phrase is used in
section 306, there is a further element of intent to commit an indictable
offence . The word "house-breaking" has been in the Code for many years
without definition, but formerly the context was "instruments for
house-breaking" . The Code of 1927, however, distinguished between two
offences in section 464 . Under clause (a), possession, without lawful excuse, of
an instrument for house-breaking by night was an offence . Under clause (b),
possession of an instrument for house-breaking by day with intent to commit
an indictable offence was a separate offence . It is at least arguable that in the
1927 Code house-breaking referred only to break and enter with no element o f
44 S .C . 1972, ch . 13, s .25 .
45 R . v . Kozak and Moore (1975) 30 C .R .N .S . 7 (Ont . C .A .) .
46 R . v . Kozak and Moore, supra, per Martin J .A .
134
�intent, since, in the case of (b), it would be unreasonable to have regarded the
word "house-breaking" as meaning the commission of "breaking and entry
with intent to commit an indictable offence", for such a definition would have
rendered unnecessary the words contained in the express statement of the
offence (i .e . "with intent to commit an indictable offence") . If this reasoning is
correct, then in the present Code, it is probable that the word "house-breaking"
is to have the same meaning - i .e . the fact of breaking and entry without any
superimposed intent to commit an offence . Thus possession of such instruments
with a mere intent to trespass and no more may be an offence under section
309(1) even when there is no offence of `,`break and enter" under section 306 .
(h) "Without lawful excuse "
78 . The phrase "without lawful excuse" appears as an element of three
offences we have discussed : trespassing at night, being unlawfully in a dwelling-house, and possession of house-breaking instruments . There is no definition
for "without lawful excuse" or "lawful excuse" in the Criminal Code despite
the importance of the term in construing the scope and application of sections
173, 307 and 309 . We now consider some of the cases which may be of
assistance in understanding how the phrase, as used in various statutes, has
been interpreted by the courts .4 7
79. Canada : In Regina v . Andsten 48 lawful excuse for loitering (section 173 of
the Criminal Code) was held to mean an excuse which was lawful under the
"law of the land", (i .e. either by common law or statute law) . The fact that the
private investigators who were the accused in that case were investigating a
wife's conduct was held not to be a lawful excuse as it would not be an excuse
or justification in a trespass action . In Regina v . Gibson49 this same "excuse
which is lawful under `the law of the land' test" was applied in a charge of
entering a dwelling-house (section 307 of the Criminal Code) . The fact that the
accused, a private investigator, had committed the tort of trespass and possibly
the tort of invasion of privacy meant that he had no lawful excuse for his entry .
In La Reine v . Marché de Québec Inc . and Begin50 ignorance of the law
prohibiting the importation of American margarine or of the law prohibiting
making American margarine appear to have the character of Canadian
margarine constituted a lawful excuse for possession of the margarine on a
47 In addition to the Canadian and English cases that are discussed in the following
paragraphs, reference may be made to the considerable jurisprudence in Australia
and New Zealand, which includes Regina v . Phillips (1973) 1 N .S .W .L .R . 275,
Holmes v . Hatton (1978) 18 S .A .S .R . 412, Killen v. Police [1965] N .Z .L .R . 481, and
Carpenter v . Police [19691 N .Z.L .R . 1052 . See also the review of the cases by
Anthony Dickey, "Being on Premises 'Without Lawful Excuse' - A Study in
Judicial Interpretation", (1973) 47 Australian L.J. 382 .
48 (1960) 129 C .C .C . 311 (B .C .C .A .) .
49 [1976] 6 W .W .R . 484 (Sask . District Court) . The same view, that private investigators do not, by virtue of their duty to their client to investigate, have a lawful purpose,
has been adopted by the Australian cases involving private investigators .
so [1969] I Ex . C .R . 3 (Exchequer Court) .
135
�charge under the Customs Act . This case is generally considered to be an
anomaly, for ignorance of the law is not usually considered to be an excuse . In
the recent case of Regina v . Parrot", the Ontario Court of Appeal held that a
"mistaken belief as to one's legal obligation does not constitute a lawful
excuse" . These cases cannot be said to have resulted in a clear Canadian
doctrine as to the extent of "lawful excuse" .
80 . England: In England the Court of Appeal has held that a mistaken belief
that the law justifies the accused's act does not constitute "lawful excuse" .Sz
But there may be a lawful excuse if there is a common law duty to do an act
which in normal circumstances would be an offence . An example is carrying a
firearm with the intention of surrendering it to the authorities who had invited
terrorists to surrender their arms .s" Another is possession of fôrged bank notes
solely for the purpose of surrendering them to the police - such possession
being wholly consistent with the common law duty of a citizen to assist the
police in the capture and prosecution of a felon .54 There may also be a lawful
excuse if the accused had an honest and reasonable belief in a state of facts
5
which, if true, would have made his conduct lawful .5
81 . With the exception of La Reine v . Marché de Québec Inc . and Begin it
appears that Canadian courts and those of other Commonwealth countries
have held that ignorance or mistake of law does not constitute a lawful excuse
for an accused's actions . Leaving aside mistake of law, whether a member of
the R .C .M .P ., if charged, as a result of a surreptitious entry, with trespassing
at night, being unlawfully in a dwelling-house, or having possession of housebreaking instruments, would be found to be acting "without lawful excuse"
would depend on future interpretation of that phrase by the courts . If the strict
interpretâtion of the British Columbia Court of Appeal in Regina v . Andsten is
adopted (that any violation of the law of the land, whéther civil or criminal,
would prevent the accused from having a lawful excuse) it would be unlikely
that a member of the R .C .M .P . could establish lawful excuse on a charge
under section 173 (trespassing at night) or section 307 (being unlawfully in a
dwelling-house) . Applying this interpretation to section 309(1) (possession of
house-brèaking instruments) would be difficult as the mere act of possessing
such instruments would not normally involve a violation of the criminal or civil
law, apart from the very provisions of section 309(1) . If the narrower interpretation placed on the phrase in a number of Australian cases is adopted, a
member of the R .C .M .P . could argue successfully that he had a "lawful
excuse" if his conduct gave rise to a mere matter of civil compensation, and he
could be convicted only if his conduct were held to be such as to deserve the
application of the criminal law - a somewhat subjective question .
51 Regina v . Parrot (1979) 51 C .C .C . (2d) 539, leave to appeal to the Supreme Court of
Canada refused on January 29, 1980 .
52 Cambridgeshire and Isle of Ely County Council v . Rust [19721 2 Q .B . 426 (English
C .A .) ; Dickens v . Gill [1896] 2 Q .B . 310 .
s' Wong Pooh Yin v . Public Prosecutor [ 1955] A .C . 93 (P .C .) .
54 Regina v . Wuyts [1969] 2 Q .B . 474 (C .A .) .
ss Cambridgeshire etc. v . Rust, supra; Regina v . Harvey (1872), L .R . I C.C .R . 284 .
136
�(i) Trespass at common law
82 . Unless a police officer can show affirmative justification either under a
statutory authority, or at common law, entry upon private property will
amount to a trespass at common law .56 In Eccles v . Bourque57 the Supreme
Court of Canada recognized this principle while holding that there is a
common law right permitting a police officer to enter premises by force if he
has reasonable and probable grounds to believe that a person is on the premises
whom he has authority to arrest .
83. Since Canadian Courts have not, as yet, gone very far in recognizing a
tort protecting the individual's right of privacy as such, it is generally considered that, if no real damage is established, only nominal damages will be
recoverable .sg Yet it may not require much of an extension of the principles
enunciated by the courts in awarding exemplary or punitive damages, to
conceive that more than nominal damages could be awarded . The limitations
placed upon awards of exemplary or punitive damages in a leading English
case are that exemplary damages may be awarded only "where there has been
oppressive, arbitrary or unconstitutional action by servants of the
government" .59 The applicability in Canada of the limitations contained in the
English case has been doubted by Mr . Justice Spence in the Supreme Court of
Canada60 and the case has specifically not been followed in at least four
provinces .61 Therefore it is possible that in Canada there will be a broader
scope for exemplary damages .
84 . Indeed, some Canadian cases have awarded exemplary damages in circumstances where no action of a "servant of the government" has been
involved . In those cases the award has been made even when the defendant had
no motive of personal benefit but was found to have committed "a deliberate
trespass" or to have been "high handed" or to have shown "a contempt of the
plaintiff's rights" or a "cynical disregard of the plaintiff's rights" .62 If these
tests of awarding exemplary damages are the law in Canada, such awards
might well be made against members of the R .C .M .P . who have made a
surreptitious entry without lawful authority, particularly bearing in mind that
senior members of the Force have known over the years that such entrie s
sb Ghani v . Jones [1970] 1 Q .B . 693, per Lord Denning, M .R . at 706 ; Leigh, Police
Powers in England and Wales, London, Butterworths, 1975, at pp . 167, 171 and 173 .
57 [1975] 2 S .C .R . 739 .
sa See, e .g ., Burns, "The Law and Privacy : The Canadian Experience", (1976) 54 Can .
Bar Rev. 15 .
s' Rookes v. Barnard [ 1964] A .C . 1129 at 1226, per Lord Devlin .
60 In his dissenting judgment in McElroy v . Cowper-Smith and Woodman [1967]
S .C .R . 425 at 432 .
b1 Eagle Motors (1958) Ltd . v. Makaoff (1970) 17 D .L .R . (2d) 222 (B .C .C .A .) ; Fraser
v . Wilson (1969) 6 D .L .R . (3d) 531 (Man . Q .B .) ; U.N.B . v . Strax ( 1969) I N .B .R .
(2d) 112 (N .B .S .C .) ; Gouzenko v . Lefolii [1967] 2 0 . R . 262 (Ont . C .A .) .
6 1 McKinnon v
. F.W. Woolworth Co. (1968) 70 D .L .R. (2d) 280 (Alta . App . Div .) ;
Turnbull v . Calgary Power Ltd . [1975] 3 W .W .R . 354 (Alta . App. Div .) ; Cash &
Carry Cleaners v . Delmas (1973) 7 N .B .R . (2d) IOI ; Parkes v . Howard Johnson
Restaurants (1970) 74 W .W .R . 255 (B .C .S .C .) .
-137
�amounted to trespass . On the other hand, as far as activities since July 1, 1974,
are concerned, the possibility of such awards would exist only in the case of
intelligence probes and not where an authorization has been given by a judge
under section 178 .13 of the Code or a warrant by the Solicitor General under
section 16(2) of the Official Secrets Act, for in those cases the policeman
entering the premises to install a listening device would have a genuine belief in
his right to enter because the Department of Justice has given its opinion that
he has such a right ; and, even if (as we suggest in Chapter 3 of this Part) that
is a mistaken view, such a genuine belief, even though mistaken, will preclude
an award of exemplary damages .6 3
85 . The ancient doctrine of trespass ab initio, which provides that a person
who enters under authority but subsequently exceeds that authority may be
treated as a trespasser from the time of initial entry, may be of some interest,
particularly when initial entry is made pursuant to a judicial authorization
under section 178 of the Criminal Code or a warrant under section 16 of the
Official Secrets Act . It was clear from the evidence before us that members of
the R .C .M .P . entering pursuant to such authorizations and warrants sometimes take the opportunity to search, and on occasion to copy or photograph
material found - i .e . conduct an intelligence probe .
86 . While the doctrine of trespass ab initio developed as a method of
penalizing abuses of authority, its applicability has been doubted by commentators and courts in recent years, usually on the basis that it amounts to a
penalty against honest police efforts or technical errors .
87 . In addition the courts earlier developed the limitation that the doctrine is
not applicable unless the abuse directly relates to the original ground and
reason of entry . If this view is the law, then a partial abuse of authority does
not render unlawful everything done under the authority .64 Nevertheless some
commentators, and obiter dicta in some Canadian cases, point out that since
the rule was originally designed to provide a remedy against abuses of
authority which might lead to oppression, it might still be useful for this
purpose .6 5
(j) Trespass under the Quebec Civil Cod e
88 . The relevant articles of the Quebec Civil Code are :
406 . Ownership is the right of enjoying and of disposing of things in the
most absolute manner, provided that no use be made of them which is
prohibited by law or by regulation .
63 Cullerton v . Miller (1894) 26 0 . R . 36 (Ont . Q .B .D .) .
64 Fleming, The Law of Torts (5th ed ., 1977) p . 101 ; Salmond on Torts (16th ed .) 1973,
p. 48 ; Elias v . Pasmore [1934] 2 K .B . 164 ; Canadian Pacific Wine Co . v . Tuley
[1921] 2 A .C . 417 (P .C .) ; Chic Fashions v . Jones [1968] 2 Q.B . 299 .
65 Denning, Freedom under the Law, p . 109 ; Winfield & Jolowicz on Tort (10th) 1975,
p. 310; Klar, Studies in Canadian Tort Law, 1977, "Intentional Interference with
Land", pp . 303-4 ; Delta Holdings Ltd. v . Magrum (1976) 59 D .L .R . (3d) 126 ;
Townesview Properties Ltd . v . Sun Construction (1974) 56 D .L .R . (3d) 330 (Ont .) .
138
�1053 . Every person capable of discerning right from wrong is responsible
for the damage caused by his fault to another, whether by positive act,
imprudence, neglect or want of skill .
89 . Article 406 of the Civil Code describes in the most general terms the
rights inherent in the ownership of property in the Province of Quebec .
Trespass which may have been committed on such property, as a result of
surreptitious entry performed by the R .C .M .P ., may be considered a violation
of the rights described in this article . Yet the Quebec courts have recognized
trespass only in those circumstances where material damages have occurred as
a result of such trespass . In those instances, damages have been awarded by the
courts under article 1053 C .C . in order to compensate the owner of the
property . The courts have refused to award exemplary damage for trespass
and, as a result, where no material damage occurs, there can be no successful
action for trespass .66 It should be noted that any damage action for trespass
under article 1053 C .C . is governed by a two-year limitation period pursuant to
article 2261(2) C .C .
90. Some mention should also be made of the provisions of the Quebec
Charter of Human Rights and Freedoms .67 This legislation was enacted on
June 28, 1976, and appears to cover some of the areas left unaffected by the
Civil Code, including the right to sue for exemplary damages . Violations of this
charter are brought before the "Commission des Droits de la Personne" which
recommends the appropriate course of action before the courts . The manner in
which the courts will acknowledge and protect the rights and freedoms
protected by the Charter remains to be seen .
(k) Conspiracy to commit trespass
91 . Section 423(2) of the Criminal Code provides as follows :
423 . (2) Every one who conspires with any on e
(a) to effect an unlawful purpose, o r
(b) to effect a lawful purpose by unlawful means ,
is guilty of an indictable offence and is liable to imprisonment for two
years .
If two or more members of the R .C .M .P. conspire with each other to do an act
which is trespass at common law, or which is an offence under a provincial
Petty Trespass Act, does that constitute conspiracy "to effect an unlawful
purpose"? If the act planned is an offence under a provincial statute, the
offence of conspiracy is clearly established for the provincial offence is an
"unlawful purpose" .68 Yet, even in that case, it may be possible to argue tha t
°° Cadorette et Autres v . Mlle Paris [ 1951 ], B .R . 125 ; Nadeau, Traité Pratiques de la
Responsabilité Civile Délictuelle, p . 188 .
61 L .Q . 1977, ch .C-12 .
6 8 Wright, McDermott . Feeley v. The Queen [1963] S .C .R . 539, [1964] 2 C .C .C. 201,
43 D .L .R . (2d) 597 (S .C .C .) .
139
�when the provincial offence is "trivial", section 423(2) should not apply .69 In
the case of an act which is simply trespass at common law, it is doubtful
whether that is an "unlawful purpose" as that phrase is used in section 423(2) .
In Grawelicz v . R .70 it was held that "in section 423(2(a) unlawful purpose
means contrary to law, that is prohibited by federal or provincial legislation" .
Consequently in Canada it becomes unnecessary to consider whether conspiracy to commit common law trespass will be an offence only in limited
1
circumstances, as had been held to be the case in England : Kamara v . D.P.P.'
Presumably it is possible that those limitations might be applied in Canada to
restrict liability for conspiracy to violate a provincial Petty Trespass Act . The
limitations enunciated in Kamara v . D .P .P. were that conspiracy to trespass
will amount to criminal conspiracy only when (a) something more than
nominal damage is involved, or (b) where the public interest warrants criminal
sanctions . It was held that the latter condition existed only when (i) premises
were occupied to the exclusion of the rightful owner, and (ii) the action
involved invasion of the public domain, for example by the occupation of a
public building or (as in that case) the occupation of the embassy of a friendly
power .
Legal and policy issues in C.Î.B. work only
(a) Surreptitious entries in drug investigation
92 . Surreptitious entries to search a place other than a dwelling-house may be
made lawfully without a warrant only when the provisions of section 10(1) of
the Narcotic Control Act are satisfied - i .e . when the peace officer
reasonably believes there is a narcotic [in the place] by means or in respect
of which an offence under this Act has been committed .
An identical provision in respect of controlled drugs is found in section 37(1) of
the Food and Drug Act . These provisions do not enable unlimited warrantless
search of a dwelling-house . Even with regard to a place other than a dwellinghouse the policeman must "reasonably believe" there is a narcotic or controlled
drug there ; that is, he must have the belief, and it must be a reasonable one .
This condition will not exist when the police have at most a suspicion that there
is a narcotic or drug on the premises . Therefore a surreptitious entry and
search where there is only such a suspicion would be a trespass, and might be
an offence under the Criminal Code . (See the analysis of possible offences
contained above, in section D, devoted to legal issues in respect of both the
Security Service and the C .I .B . . )
69 R . v . Layton, ex p . Thodas [1970] 5 C .C .C . 260, 10 C .R .N .S . 290 (B .C .C .A .) per
Nemetz, J .A . dissenting ; M .R . Goode, Criminal Conspiracy in Canada, Toronto,
Carswell, 1975, pp . 87-95 ; R . v . Bendall (1977) 36 C .C .C . (2d) 113, R. v . Jean Talon
Fashion Center Inc. (1975) 56 D .L .R . (3d) 296 (Que . Q .B .) The latter case concerned
an offence under a municipal bylaw . Whether a conspiracy to commit such an offence
is now itself an offence is doubtful : see Gralewicz v . R ., discussed below at n . 65 .
70 (1981) 54 C .C .C . (2d) 289 (S .C .C .) .
"[1973] 3 W .L .R . 198 ; [1973] 2 All E .R . 1242 (H .L .) .
140
�93 . In addition, under both sections a peace officer, if he has the same
reasonable belief, may enter and search a dwelling-house, but only if he has a
writ of assistance . This is a general writ, issued pursuant to the Narcotic
Control Act and the Food and Drug Act to a particular peace officer by a
Federal Court judge, who must issue it when it is , applied for by the Attorney
General of Canada . ( There has been much criticism of these writs, but as they
are provided for by law we do not consider it to be within our terms of
reference to comment on whether Canadian law should continue to permit
them . Nor have we received any complaint that they have been used unlawfully
by the R .C .M .P .) A covert search is lawful if it is made upon the authority of a
peace ' officer who is in possession of such a writ and has a reasonable belief
that there is in the place a narcotic or controlled drug by means or in respect of
which an offence under the statute has been committed . Once again it must be
emphasized that even if he has a writ of assistance, he cannot lawfully enter
and search a dwelling-house unless he reasonably believes that a narcotic or a
controlled drug is present there .
94. Finally, both sections provide that a justice may issue a warrant authorizing a peace officer to enter and search a dwelling-house, but the justice must be
satisfied by information upon oath that there are reasonable grounds for
believing that there is a narcotic or controlled drug present there .
95 . The limitations on the powers of search found in these sections limit the
ability of the R .C .M .P . in many circumstances to determine whether drugs are
present . Consequently, as will be seen in section E of this Chapter, the
R .C .M .P . want to have increased powers of search .
(b) Surreptitious entries in investigations of "moonshining "
96 . The Excise Act, section 76(1), permits an officer, if he has a writ of
assistance, to enter any building or other place to "search for, seize and secure
any goods or other things liable to forfeiture under this Act". The word
"officer" is defined as including a member of the R .C .M .P . The subsection
reads in full as follows :
76 . (1) Under authority of a writ of assistance, any officer, or any person
employed for that purpose with the concurrence of the Governor in Council,
expressed either by special order or appointment, or by general regulations,
may enter in the night time, if accompanied by a peace officer, and in the
day time without being so accompanied, any building or other place, and
may search for, seize and secure any goods or things liable to forfeiture
under this Act, and in case of necessity, may break open any entrance or
other doors, walls, floors, windows or gates and any chests or other
packages for that purpose .
On the face of the statute, no suspicion or belief in the existence of any
particular set of facts need exist : there is no reference whatsoever to any such
need . Yet in its brief to us the R .C .M .P . say that there may be surreptitious
entry pursuant to section 76(1) only "when reasonable and probable grounds
are sufficient to indicate that an offence is being committed" . For this
proposition an opinion by the Legal Branch is cited (Ex . E-1, Tab 4A), but that
opinion does not relate to section 76(1) . It discusses the search sections of th e
141
�Narcotic Control Act and the Food and Drugs Act, which do certainly require
reasonable belief that a drug is present . Therefore the opinion does not support
the view expressed in the brief . In our opinion section 76(1) does not contain
any limitation, express or implied, as to a search being permissible only when
there is a certain level of suspicion or belief in the existence of a state of facts .
Consequently it is difficult to understand that any obstacle stands in the way of
covert entry by an officer who possesses a writ of assistance .
(c) Surreptitious entries in white-collar crime investigation s
97 . The R .C .M .P . assert that in some cases surreptitious entry can be a
valuable investigative technique in detecting "white-collar" crime . The example given was a case in which a covert search of a hotel room was made in the
hope of gaining intelligence as to the intentions of a group of known "whitecollar criminals" who were using the room but had left it temporarily . By
chance, the search uncovered valuable stolen securities in the room . As a result,
the R .C .M .P . called in the local police who later checked the suspects when
they were leaving the hotel, and found the stolen securities . Convictions
resulted . A search warrant could not have been obtained on mere suspicion .
However, as far as the ability of the police to enter the hotel room is concerned,
it is not clear that this case illustrates any limitation imposed upon the police
by the law in the circumstances, for the policemen did not intend to commit an
indictable offence and did not do so (hence there was no break and enter) . Civil
trespass did not occur because the law does not regard an ordinary short-term
hotel guest as an "occupier" of his hotel room in the sense that he has a
property interest sufficient to found an action for trespass . If the hotel manager
gave permission for the entry, there was likely no trespass . In saying this we are
speaking only of the entry into the room ; any rummaging among personal
effects may, have constituted trespass to chattels (see Chapter 8 of this part) .
E. NEED AND RECOMMENDATIONS - BRIEF
SUMMAR Y
Security Service
98 . We have already quoted extensively the explanation given publicly of the
ways in which the Security Service finds that surreptitious entry for the
purpose of intelligence probes is valuable in the investigation and detection of
espionage, subversion and terrorism . Almost all the 47 cases that have been
disclosed to us, mostly in summaries, and that were referred to in section C of
this Chapter, involved targetted individuals who were suspected of espionage or
foreign interference, or of links with terrorist groups . (Abridgments of many of
these summaries are given as an Appendix to this Chapter .) Almost all these
cases, and the one additional case which we mentioned, had an international
element . There is no evidence that the Security Service has relied significantly
upon surreptitious entry as a technique of investigation in cases where the
suspected activity is believed to be purely domestic and where there is no
suspicion of serious acts in terms that would justify application of the label
"terrorist" .
142
�99. For reasons which we shall give in detail in Part V, Chapter 4, we
consider that the need exists for the availability to the security intelligence
agency, subject to external controls, of a limited lawful power of covert search
where the investigation relates to suspected espionage, sabotage, foreign interference, or acts of political violence and terrorism which if carried out would
cause grave injury to a person or serious damage to property . We do not come
to this conclusion lightly, for we believe that any power to enter a man's house
without his consent should be extended only with care .
C.I .B .
100. The R .C .M .P . has asserted, in a brief to us, that .
There is a definite, and often an essential, requirement to resort to this
investigative technique when the manufacture of illicit drugs and alcohol
comes under the scrutiny of resourceful investigators . Eventually a time
comes when members employed on lengthy, difficult investigations, many of
high security risk, are faced with the problem of having to know for sur e
- if an illicit drug laboratory or still is secreted in a place ;
- if the laboratory or still is producing or, is in the development stage ;
- if a cache of drugs or alcohol is in a place;
- if quantities of illicit drugs or spirits are being removed from a cache
bit-by-bit for trafficking purposes .
The Force considers that it is particularly difficult, without the power to search
in circumstances when a search warrant could not be obtained, to detect the
existence of clandestine drug laboratories . The difficulties lie in locating the
hidden laboratory and identifying the persons involved . These persons are said
to be frequently well financed, intelligent and particularly skillful in creating
security measures to guard against discovery by police . It is contended that
such persons are often acquainted with the law so that they know that they are
relatively safe from prosecution until the last stage of manufacture, for until
then they have not created a substance the manufacture or possession of which
is prohibited under the schedules to the Narcotic Control Act and Food and
Drugs Act that identify prohibited substances . In other words, they know that
arrest and seizure are possible only at and after the moment the process results
in the production of a prohibited substance . Frequently, we were told, they will
move the clandestine laboratory to a new location for the final 'stage of
production . At the least sign of interest by the police, the conspirators will close
down the laboratory . Consequently the R .C .M .P . feel that only surreptitious
entry, and the taking of samples and photographs during such entry, can
enable investigators to determine whether and when the moment has arrived
when arrest and seizure would produce evidence that would lead to a conviction
and, with luck, will enable investigators to catch the major participants at the
scene . The R .C .M .P . state : "In almost every case, seizure of a clandestine
laboratory and arrests of persons involved are possible only by a program of
surreptitious entry and examination ." The R .C .M .P . assert also that surreptitious entry is essential in some investigations of trafficking in such narcotics as
heroin and cocaine . They say that it enables the discovery of caches, the
photography and marking of drugs for later identification, and determining
143
�whether portions are being removed for distribution . Moreover, they say, this
investigative technique permits the police to detect the identity of persons,
often previously unknown, who are participants in the scheme .
101 . The R .C .M .P . assert also that surreptitious entry is a valuable tool
generally in the fight against "white-collar" crime . This has not been substantiated before us . True, in regard to "white collar" crime as in regard to many
other kinds of crime, particularly crimes against property interests, the police
forces would find it useful to be able to search undetected in offices and homes
to try to find some evidence of the commission of a crime . However, we
consider that any broad power to search private premises, even upon warrant
duly issued, upon mere suspicion that there might be evidence there of the
commission of an offence or the intended commission of an offence, would be
contrary to the established traditions of criminal law enforcement procedure in
Canada . If what was being sought were the power to search upon warrant
granted upon suspicion, and the search was to be made known to the occupant
at the time of the search or soon thereafter, at least the power to enter and
inspect would have many counterparts in federal and provincial regulatory
laws . However, what is sought by the R .C .M .P . is a power to search covertly .
Such a power, we think, should be granted by statute only after a thorough
review of all police powers of search and seizure, a review which should study
this proposal in the context of the entire ambit of such powers . We therefore
decline to make any recommendation in regard to this proposal .
144
�APPENDIX
SECURITY SERVICE : SOME CASES
OF SURREPTITIOUS ENTR Y
FOR THE PURPOSE OF INTELLIGENCE
PROBE S
Counter- espionage
(a) Search of premises for paraphernalia and documents
(i) Paraphernalia or documents foun d
1 . A dwelling of a suspected illegal agent of a foreign intelligence service was
searched for evidence of illegal activities . Some equipment suitable for intelligence purposes was found, and the investigation was continued by other means .
Ultimately the suspect left Canada .
2 . The Security Service searched the dwelling of a suspected intelligence
officer of a foreign country to look for evidence of specific operations . Some
equipment suitable for intelligence purposes was found . The individual was
later identified as an agent of the foreign intelligence service .
3 . Several entries were conducted into the residence of a Canadian suspected
of being an intelligence agent for a foreign country . Important evidence of
espionage was discovered .
4 . More than one entry was made into the residence of a Canadian considered by the Security Service to be a foreign intelligence officer . Certain
documents, considered to be of significance, were discovered and photographed .
(ii) Paraphernalia or documents not foun d
5 . The Security Service searched the residence of a suspected illegal agent of
a foreign intelligence service . The search failed to reveal any espionage
paraphernalia . This contributed to an ultimate conclusion that the individual
was not and had never been an agent of any intelligence service .
6 . The Security Service searched the residence of a foreign mission employee
who, the Service believed, was running Canadian agents . While no espionage
paraphernalia was found, other useful information was obtained .
7. A search of the residence of a known foreign intelligence officer revealed
no technical paraphernalia but did produce other useful information .
145
�8 . A Canadian was suspected by the Security Service of engaging in intelligence activities on behalf of a foreign power . His residence was searched, but
no information of value was obtained . Other means of investigation led to
refusal of re-entry to Canada of the employee of a foreign mission .
9 . A search of a Canadian's residence produced partial substantiation of
other evidence that dispelled suspicions that he had been recruited by a foreign
intelligence agency .
10. On the basis of information received, business premises were searched in
order to determine whether certain items were there being held for a person
suspected of being a foreign agent . The search revealed no such information,
but, during the search, photographs were taken of documents pertaining to the
organization whose premises were searched .
(iii) To observe the lifestyle of an intelligence office r
11 . A search of a residence produced what the Security Service considered to
be information that increased their insight into certain aspects of a foreign
country's intelligence service community .
(iv) To conduct a survey preparatory to installing listening devic e
12 . Residential premises of a foreign mission employee, who was a suspected
foreign intelligence officer, were entered to determine whether it would be
possible to install a listening device and to locate certain things which would be
of use in further investigation . After further investigation the mission employee
was declared persona non grata and left Canada .
13 . The residence of a Canadian, suspected of having been recruited by a
foreign intelligence service, was searched in order to conduct a physical survey
preparatory to introducing a listening device . While on the premises then and
on a later occasion, Security Service personnel found no evidence to connect
him with any intelligence operation . Further investigation satisfied the Security
Service that he had no such connection .
Foreign interference
(i) Search of premise s
14 . A search of a residence produced no evidence that the occupant was, as
suspected, a foreign intelligence agent . However, some information was found
that was considered to be of use to Security Service work generally .
15. A search of a residence enabled letters to be photographed between the
occupant, who was suspected of having been recruited by a foreign intelligence
agency, and other persons .
(ii) Search of baggage
16 . A suspected foreign intelligence agent's luggage was searched and a
document of interest was photographed .
146
�Possible terrorist group
(i) Search of premises
17 . Office premises of a Canadian group, with objectives similar to those of a
foreign violence-prone group, were searched, but the quality of information
obtained was not significant .
18 . Security Service personnel entered the office of a violence-prone group in
which there was reason to suspect the presence of weapons . The purpose of the
search was to look for weapons and for other information of interest . As a
result of what was found, local police obtained a search warrant and some
weapons were seized .
19. The Security Service searched the office of a group thought to pose a
threat to security, in order to obtain details of the operation of the group and of
its membership . Such information was obtained .
20 . A search of an office enabled the Security Service to assess the capability
of an organization in relation to international terrorism .
21 . A Canadian resident's premises were searched to determine the extent of
his ties with a foreign terrorist organization . No information of intelligence
value was obtained .
22 . Searches of a Canadian's residence produced useful information as to his
relationship with terrorist groups in Canada and abroad, and plans for steps to
follow assumption of power by the Canadian group .
23 . A search of the office of an organization failed to produce the information which was sought, as to its finances .
24 . A search of a residence produced no information of intelligence significance as to a person suspected of being linked to a foreign terrorist group .
(ii) Search of baggag e
25 . Security Service personnel searched luggage in transit, of a person
suspected of carrying handguns, and found weapons .
26 . A foreigner was believed to be shipping arms from Canada to his country .
A search of luggage being sent by him out of Canada produced nothing of
intelligence interest .
27 . A foreign agency believed that one of its nationals in Canada had
documents of interest, and asked that his luggage be searched . When carried
out by the Security Service, some items of interest were found . It will be
observed that in this case the activities of the Security Service were not directly
related to any security interests of Canada .
147
�CHAPTER 3
ELECTRONIC SURVEILLANCE SECURITY SERVICE AND C .I.B .
A . ORIGINS, NATURE AND PURPOSE OF THE
PRACTIC E
1 . The interception of telephonic messages has been technically possible since
the early years of this century . In the United States, the constitutionality of the
practice was argued before the Supreme Court in 1928' an indication of the
rapidity with which law enforcement agencies recognized the potential worth of
this technique . It has been used as an investigative technique by the R .C .M .P .
since the 1930s . At the time counter-subversive functions were not performed
by a branch separate from those in charge of criminal investigation, and there
was nothing in the nature of counter-espionage being undertaken . Nevertheless, it was in what we would now regard as Security . Service work that
telephone tapping was begun in the latter part of that decade. In the years
following the Second World War both telephone tapping and eavesdropping by
means of microphones became more common among Canadian police forces .
Telephones could be tapped by the installation of equipment along the telephone lines or at the telephone company's exchange . Later, telephone conversations could be listened to by means of induction devices installed in the
telephone receiver ; these were essentially the same for functional purposes as
microphone "bugs" transmitting by radios which, with technical advances,
could be installed more readily than the earlier microphones that transmitted
by wire .
2 . All these forms of eavesdropping devices were found to be valuable
investigative techniques, both in the detection and investigation of crime and in
the work of the Security Service . The increasing use of the technique by police
forces received relatively little public attention in Canada . For the R .C .M .P . at
least, telephone tapping was regarded as risky because it might involve
violations of various statutes, and, to the extent that it was used at all, it was
therefore regarded as an investigative aid to be employed in support of other
techniques so that it would not have to be disclosed in court . Eavesdropping by
microphone, so far as we can tell, was probably used more in Security Servic e
' (1928) 277 U .S .438 .
149
�functions (where the principal object is not the collection of evidence for the
purpose of prosecution) than in criminal investigation, and in any event
disclosure of its use in particular cases of criminal investigation would not have
been regarded as a good idea because to do so would have alerted criminals and
other adversaries to the techniques of installation and, in the particular case,
might have exposed co-operating persons such as hotel employees and informers within criminal or subversive groups to the possibility of retaliation .
Criminal investigation
3 . The value of telephone tapping in criminal investigation was testified to
before us by Assistant Commissioner T .S . Venner, who, in 1973 became officer
in charge of criminal intelligence for "O" Division (Southwestern Ontario) :
.
.. when I came to "O" Division it was immediately apparent that, number
one, it was virtually impossible to do effective criminal investigation in the
City of Toronto, or in that general area, without telephone tapping on the
criminal side. The difficulties that were presented by refraining from this
activity were such that we were just almost out of business .
(Vol . 33, p. 5440 . )
The Annual Reports submitted by the Solicitor General of Canada reveal that
in a sighificant number of criminal proceedings, evidence has been gathered
from private communications intercepted pursuant to a judicial authorization
issued under section 178 .13(1) of the Criminal Code,'and that a number of
convictions have resulted . In numerous other cases information obtained from
interceptions was used in the investigations though it was not offered in
evidence .
"Used" but
Cited as not i n
Evidence evidence
1974 (half-year)
101
155
Conviction s
83
1975
395
879
246
1976
284
787
148
1977
198
546
134
1978
172
550
105
1979
101
155
83
This information is based on R .C .M .P . investigations, principally of offences
under the Narcotic Control Act and the Food and Drugs Act, and conspiracy
under the Criminal Code (most of which would no doubt be narcotic and drug
cases) .
150
�4 . The Annual Report for 1979, in its "General Assessment", disclosed the
following statistics as to the first five years of the operatibn of the Protection of
Privacy Act :2
1974 1975 1976 ._ 1977 1978 1979
Authorizations
grante d
1400)
562
613
615
712
764
Number of persons
344 1561 1499 1213 1381 1177(2)
arreste d
Number of 2380) 11250) 9450)
6800)
655(3) 225(3)
conviction s
Authorization/Arrest 2 .5(4) 3 .6(4) 2 .5(4) 2 .0(4) 1 .9(4)
(6)
rati o
Arrest/Conviction 69 .2(5) 72 .1(5) 63 .0(5) 56 .1(5) 47 .4(5)
(6)
ratio
(1) Act in force for six months only in 1974 .
(2) Other arrests pending .
(3) Cases are still before the courts in relation to investigations of authorizations
originating in 1974 through to 1979 .
(4) &(5) These ratios will increase as investigations and prosecutions are completed .
(6) No meaningful ratios available at this time .
Using 1975 as an example, the 1979 Annual Report showed that, allowing for
the lapse in many cases of from one to at least four years between the granting
of an authorization and arrests and convictions in the cases concerned, the
figures originally reported in the year of the authorization undervalued the
significance of electronic surveillance as an investigative technique . There were
562 authorizations in 1975 . In those cases the following arrests and convictions
ultimately occurred :
Results of 1975 Authorization s
Number of Number of
Arrests Conviction s
Figures reported in 1975 1,208 196
Figures amended in 1976 1,492 514
Figures amended in 1977 1,523 836
Figures amended in 1978 1,557 968
Figures amended in 1979 1,561 1,12 5
The Annual Report stated that at the end of 1979 there were still some cases
concerning authorizations obtained in 1975 before the courts, so that the
number of convictions is expected to increase slightly in 1980 . This delay
should be borne in mind in considering the apparently low number of cases in
which evidence was adduced and convictions obtained in cases in which th e
2 The fourth and fifth categories of .the table appear to be described incorrectly : the
fourth category should be "Arrest/authorization ratio", and the fifth category should
be "Conviction/arrest" and is, it should be observed, not a ratio but a percentage .
151
�authorizations were granted in the years 1976 to 1979 : the full story of the
number of convictions obtained in those cases is not yet known .
5 . It is important to note that the statistics shown here relate to applications
for authorizations made by agents of the Solicitor General of Canada, and do
not include any information concerning applications made by agents of provincial attorneys general . The latter would cover the majority of investigations
under the Criminal Code . Thus, for example, the Annual Report of the
Attorney General of Ontario for 1978 disclosed that in that year in Ontario
there had been 237 applications for authorizations for wiretapping . In 1978
these applications in Ontario covered the following offences :
Suspected
Suspected
Conspiracy
to Commi t
Substantive
Offence the Offence
Bookmaking
61
45
Theft, robbery and breaking and entering 52 47
to commit theft
Possession of stolen property 41 36
Fraud
32
Murder
31
26
Extortion
20
18
19
Possession of counterfeit money 10 0
Forcible confinement 5
0
Although those figures are not related to investigations conducted by the
R .C .M .P ., the overall purpose of electronic surveillance cannot be understood
without reference to the provincial scene. Of particular interest is the fact that
the 1978 Annual Report of the Ontario Attorney General disclosed that 76
transmitting devices were installed . Although no precise information is available, it may reasonably be inferred that a number of such microphone
installations by police forces other than the R .C .M .P . have been made by entry
without the consent of the person entitled to give permission to enter the
premises . Thus the legal problems in Chapter 2 of this Part are not limited to
the work of the R .C .M .P .
Security Servic e
6 . From July 1, 1974, to the present, most warrants signed by the Solicitor
General have been signed by him at his regular weekly meetings with the
Director General . The totals of warrants issued from 1974 to 1978 inclusive
have been stated in the Annual Reports made by the Solicitor General to
Parliament pursuant to section 16(5) of the Official Secrets Act, as follows :
1974
1975
1976
1977
1978
1979
152
339
465
517
471
392
29 9
�7 . The annual figures are somewhat misleading because they include renewals which, in December of each year from 1974 to 1978, were signed by the
Solicitor General to authorize continuation, from the first day of the following
January until the 3 .1st day of the next December, of the interception of
communications under warrants already signed . This procedure is not provided
for by the statute . It resulted from an administrative decision made within the
Security Service that all warrants should be issued for periods no greater than
the period ending December 31 of the year in which the warrants are issued .
This decision was made by the Security Service with good intentions, as it was
thought that otherwise the statistics provided to Parliament would be misleading in that, if a warrant were granted for a period expiring in the following
year, the annual report to Parliament would not in fact disclose the total
number of warrants which were in effect in that year . However, it does not
seem to have been realized that the new system led inadvertently to another
misinterpretation .
8 . There is no provision in section 16 of the Official Secrets Act for renewals
of warrants . By way of contrast, section 178 .13(3) of the Criminal Code
expressly provides that a judge may grant "renewals of an authorization" from
time to time . The Honourable Allan Lawrence, Solicitor General in December
1979, did not follow the procedure which his predecessors had followed .
Perhaps this was because the issue of the validity of the granting of renewals
had been raised with Mr . Allmand during the latter's in camera testimony on
December 3, 1979, later made public in Vol . 162 (March 7, 1980) . The procedure
followed by Mr . Lawrence was to receive applications for new warrants only .
9. The renewal procedure and its effect on the statistics are exemplified by
the fact that on December 20, 1974, Mr . Allmand signed a document
purporting to renew 222 warrants previously granted by him . The number of
warrants reported in the Annual Report for 1975 as having been issued in 1975
included the 222 renewals . The same was true in following years . Thus in
December 1975, there were 214 renewals, of which 128 were renewals of
warrants which had originally been granted in 1974 and renewed in December
1974 . On December 20, 1976, 199 renewals were granted, of which 97 referred
to warrants originally granted in 1974 and renewed at the end of both 1974
and 1975, and 28 referred to warrants which had been issued in 1975 and
renewed at the end of 1975 .
10 . It should not be assumed that the Solicitors General have acted as rubber
stamps upon receipt of applications for warrants . Eleven applications made to
the various Solicitors General from 1974 to 1978 inclusive were refused . One
Solicitor General rejected three applications but subsequently granted them
when more information, especially as to the likelihood of the usefulness of the
warrant, was provided to him . Another rejected three applications, one because
it was proposed to be used to intercept the communications of a person on a
university campus, a second for a reason that was not recorded by the Security
Service, and a third for the'réason, as reported on Security Service files, that
he knew one of the people in the suspect group and was sure that that person
was doing nothing illegal . (That former Minister, however, has told us that he
remembers the application and that that is not what he said . He says that h e
153
�did not know the person but had heard of him, and that he did not say he was
sure that the person was doing nothing illegal . What he did say, according to
the Minister, is that he needed better evidence that the group fell within the
statutory provisions.) Another Solicitor General rejected five applications . One
of these applications had been made on the ground that the target was said to
be a member of a foreign terrorist group and who had participated in a bank
robbery in his native country in an attempt to collect funds for the terrorist
group . In one instance the Solicitor General rejected the application because he
required more information that the person was involved in the terrorist field
"in Canada" . Later in this chapter we shall comment on whether the statute
requires such proof; our point here is simply that the Solicitor General did not
grant the warrant sought.
11 . The previous paragraph affords substantial evidence that the Solicitors
General did not always comply with the wishes of the Security Service as
expressed in applications made under section 16(2) . In this regard the following points should also be noted . Three warrants, which had been issued and
acted upon were subsequently terminated by the Solicitor General contrary to
the wishes of the Security Service . Three warrants issued by the Solicitor
General were for a shorter period than the Security Service had requested, and
were not renewed at the expiry of the period . Finally, on one occasion, a
Solicitor General, in a special review requested by him of 22 warrants,
cancelled six of them, as in his opinion their continuation was not justified .
B . R .C .M .P . POLICIES CONCERNING THE PRACTIC E
Criminal Investigation Branc h
12 . In those parts of Canada served by the Bell Telephone Company, it was
an offence, even before July 1974 when wiretapping was not covered in the
Criminal Code, to intercept wilfully any message transmitted on the company's
telephone lines . Section 25 of the Act incorporating the Bell Telephone
Company of Canada reads as follows :
25 . Any person who shall wilfully or maliciously injure, molest or destroy
any of the lines, posts or other material or property of the company or in
any way wilfully obstruct or interfere with the working of the said telephone lines or intercept any message transmitted thereon shall be guilty of
a misdemeanour . '
13 . This section does not appear to have been interpreted in any court until
the decision in Re Copeland and Adamson in 1972 . Mr. Justice Grant held
that telephone tapping was not a violation of the section :
The only part of such section which it might be said would be breached by
wire-tapping would be the words "interfere" or "intercept" . Can it be said
that listening in on a telephone conversation is properly described by either
of such terms? The Shorter Oxford English Dictionary defines the word
"interfere" as follows :
"To interpose - intersperse ; to strike against each other ; to come into
collision ; to exercise reciprocal action so as to increase, diminish or nullify
the natural effects of each . "
' S .C . 1880, ch .67, s .25 .
154
�It defines the word "intercept" as follows :
"To take or seize by the way or before arrival at a destined place ; to stop or
interrupt the progress or course of ; to interrupt communications or connections with . "
I do not believe that wire-tapping which does not impede the conversation
between the parties nor impede its progress can form a breach of such
section because the material before me does not indicate that the audio
surveillance creates any disturbance of the conversation . ,
The same point of view was expressed by a brief on wire-tapping prepared in
1965, apparently by the Legal Branch of the R .C .M .P ., which pointed out that
the phrase "intercept any message", in the absence of judicial interpretation,
"must take its everyday meaning, i .e . to take or seize on the way from one
place to another, cut off, check, stop - in other words so that the message
would not be received by the intended receiver ." However, it may be assumed
from what follows that, before Re Copeland and Adamson was decided, at
least some people thought that the word "intercept" included listening . (It may
be noted that section 178 of the Criminal Code, which came into effect on July
1, 1974, has specifically avoided the difficulty by defining "intercept" as
including "listen to, record or acquire a communication or acquire the substance, meaning or purport thereof" . )
14 . In two provinces, Alberta and Manitoba, legislation specifically prohibited the interception and clandestine recording of telephone messages by
any means, including induction, as Commissioner McClellan noted in a letter
to the Deputy Minister of Justice in 1965 . The Commissioner, probably relying
on the legal brief, did not mention the provision in the Bell Telephone Act in
his letter . He wrote tha t
. . . with the exception of the Provinces of Manitoba and Alberta, there is no
legislation in force primarily enacted to prohibit telephone intrusion .
He expressed his "belief that a law enforcement agency is not prohibited from
intercepting telephone conversations" . ( Ex . E-1, Tab 21) .
15 . In 1936 it appears that Assistant Commissioner G .L . Jennings, who was
Director of Criminal Investigation, consulted the Deputy Minister of Justice
with regard to wiretapping . A member of the Department prepared a memorandum of which a copy was then sent by the Deputy Minister to Assistant
Commissioner Jennings . The memorandum quoted section 25 of the Bell
Telephone Act, then, clearly assuming the practice to be illegal, cited three
Canadian judicial decisions that evidence is admissible in court even if obtained
illegally . Assistant Commissioner Jennings in his acknowledgement to the
Deputy Minister, described the memorandum as including "legal opinions on
the admissibility of evidence obtained in an irregular manner" and advised that
the information had been disseminated throughout the Force . In his letter to
the officers commanding the various divisions the Assistant Commissioner
observed that it might be necessary to resort more and more to wiretapping,
and that "the consensus of the legal opinion" is that evidence obtained "in a n
'[1972] 3 O .R .248, 28 D .L .R . (3d) 26 .
155
�irregular manner" is admissible and that it is "not material to the case in what
manner such evidence was obtained" . (Ex . E-1, Tab lA . )
16. Thus R .C .M .P. Headquarters encouraged the use in some of its Divisions
of a technique that was then thought to be an offence under the Bell Telephone
Act . Presumably wiretapping was used in criminal investigations at least until
1959, for in March of that year a memorandum by Inspector (later Commissioner) Higgitt recorded that Commissioner Nicholson had "forbidden the use
of technical aids equipment for the interception of telephone conversations" .
(Ex. E-1, Tab 1B . )
17 . From that time onward there is considerable evidence (Ex . E-1, Tab 2)
that senior officers at Headquarters, including Commissioner Lindsay .in 1967
and three Directors of Criminal Investigation in 1964, 1966 and 1969, reiterated the policy forbidding the use of telephone tapping by members of the Force
in the investigation of criminal matters . Indeed, in 1966 Commissioner
McClellan, in a letter, assured the Solicitor General, the Honourable L .T .
Pennell, "that this Force does not practise telephone tapping in the investigation of criminal matters" . (Ex . E-1, Tab 2K .) At a meeting on July 5, 1968,
according to a memorandum prepared by Commissioner Lindsay, he and other
senior officers advised the Solicitor General, the Honourable John N . Turner,
of "the total absence of wiretapping by us in this field" (i .e . in criminal
investigations) . A note from Commissioner Lindsay records that the same
matter was discussed "in general terms" on July 11, 1968, with the newly
appointed Solicitor General, the Honourable George McIlraith . An exception
was made in cases where the consent of one of the parties to the conversation
was obtained . At the time the listening and recording of a conversation with
the consent of one of the parties was done by using an induction device near
but not necessarily attached to the party's telephone or wire . Even this
technique was not permitted in Alberta and Manitoba, because of local
legislation (Vol . 33, pp . 5430-1) . This technique might have been a violation of
section 25 of the Bell Telephone Act, but the practice was known in the courts
.and even by Chief Justice Dorion (in the Inquiry into the Munsinger affair in
1965) without raising adverse comment . Nevertheless, these senior R .C .M .P .
officers wanted the use of this investigative aid to be kept out of the public eye
as much as possible, particularly as they had hopes of obtaining legislation that
would permit the use of wiretapping by warrant, and they feared that public
exposure might prejudice the enactment of the legislation . Although the
Force's policy forbade participation in joint operations with other Canadian
police forces in the interception of telephone messages or in manning listening
posts, there was no hesitation in using the product of such activities or
transcribing tapes . In fact, the prohibition of telephone taps by Headquarters
was seen by the Force to cause tensions with other police forces, most of which
conducted telephone tapping (Vol . 33, pp . 5395 and 5400) .
18 . Therefore, so far as can now be ascertained, and so far as practice
reflected Headquarters policy, the use by the R .C .M .P. of devices to intercept
telephone conversations, at least from 1959, was limited to the use of induction
devices with the consent of one party to the conversation . According to Re
Copeland and Adamson, however, this was not an offence .
156
�19. It is clear that the policy enunciated by Headquarters, and the assurances
given so positively to government that telephonic interception was not permitted, were somewhat meaningless . Assistant Commissioner T .S . Venner testified
that in "some areas" R .C .M .P . investigators "simply relied on their local,
municipal and provincial police counterparts to do this work for them" . In
other areas ,
. . . our policy was held to be just a guideline, and key personnel, when
operational circumstances warranted it, went ahead with the necessary
activity, either not reporting it at all, reporting it only up to certain levels or
reporting it in an incomplete, less than fully informative fashion .
(Vol . 33, p . 5404 . )
One such area was "O" Division (Southwestern Ontario), to which Mr . Venner
was transferred from Edmonton in the summer of 1973 . Put more bluntly by
him, the fact that telephone tapping was being carried on in the field was
"withheld" from senior officers of the Force who were responsible for the
policy and were assuring Parliamentary Committees that there was no wiretapping for criminal investigation purposes (Vol . 33, p . 5453) . Indeed, in those
areas where the policy was ignored in practice, the R .C .M .P . now recognizes
that the telephone tapping was "carried on in an atmosphere of non-accountability, fear of discovery, even deception" (Vol . 33, p . 5407) .
20 . Mr . Venner told us that when he moved from Alberta to Toronto in 1973
as Officer in Charge of the Criminal Intelligence Divisio n
It also became apparent that telephone tapping was going on, was being
conducted by our criminal investigators, and to a very high degree it also
became apparent that this was an underground activity, that it was not
being reported, that information as to the character and extent of our
technical activity was being withheld from superior officers, and the people
who were doing it were people who became immediately subordinate to me
as soon as I arrived there.
(Vol . 33, p . 5440 . )
So, after examining the situation, he concluded that it was "impractical" not to
tap telephones, "policy notwithstanding" . Although it was "clear" to Assistant
Commissioner Venner that in 1973 "it was still a policy of the Force not to
wiretap" (Vol . 33, p . 5454), he considered the policy to b e
.
. . a guideline to be followed wherever possible, but when it was just not
practical to live within that policy, and where there was a greater public
interest, in my assessment, at stake, then telephone intrusion would form
part of our electronic surveillance program .
(Vol . 33, p . 5441 . )
He was aware not only that the practice was contrary to force policy, but that,
in the small percentage of cases in which it was necessary to enter premises in
order to tap a telephone, there was ( "at most") a violation of the Ontario Pett y
Trespass Act and possibly civil trespass (Vol . 33, pp . 5441-44) .
21 . This attitude was not restricted to Southwestern Ontario . In a letter to
the Solicitor General on October 6, 1977, Commissioner Simmonds wrote
Efforts to have our policy changed met with no success for a variety of
reasons and it became evident that there was a wide range of interpretation
157
�being applied with respect to the prohibition against telephone tapping . In
some areas, our investigators simply relied on their local, municipal and
provincial police counterparts to do this work for them . In other areas, our
policy was held to be just a guideline, and, key personnel, when operational
circumstances warranted it, went ahead with the necessary activity either
not reporting it at all, reporting it only up to certain levels or reporting it in
an incomplete, less than fully informative fashion . In some other areas, the
policy was rigidly adhered to, occasionally because local enforcement
programs were sufficient without this investigative aid, but more often
because the policy and public pronouncements by the Commissioners where
held to be an absolute bar to telephone tapping in the investigation of
criminal matters. I think it is fair to say that where this interpretation
existed and was applied, telephone tapping simply continued in an "underground" fashion and our previously high standards of accountability
became subject to violation . The damage this did has not yet been fully
repaired .
(Ex . E-l, Tab l . )
22 . The self-imposed limitation was removed with the enactment of the
Protection of Privacy Act, which came into effect on July 1, 1974 . At least as
far as the R .C .M .P . was concerned, that Act has apparently vastly increased
the use of telephone intercepts for criminal investigation purposes .
Security Service
23. The R .C .M .P . Security Service has been intercepting telephonic communications since arrangements were completed for that purpose in 1951,
under the Emergency Powers Act, which empowered the Minister of Justice to
require a communications agency to produce or make available, any communication "that may be prejudicial to or may be used for purposes that are
prejudicial to the security or defence of Canada" . Superintendent George
McClellan, who was then officer in charge of Special Branch, expressed the
view, in a memorandum for the Honourable L .B . Pearson, that there was no
legislation barring such action . However, the Minister of Justice, the Honourable Stuart Garson, appears to have been of a different view in January 1951
and a special procedure was apparently adopted to resolve the problem .
24 . The Emergency Powers Act expired on May 31, 1954 . That month the
R .C .M .P . proposed that sections 3 and 11(1) of the Official Secrets Act could
provide a satisfactory authority for continuation of interceptions of telephone
communications after that date . On June 16, 1954, the Deputy Minister of
Justice, Mr . F .P . Varcoe, gave a written opinion to the Minister of Justice,
which for the next 20 years was known as "the Varcoe opinion" and was the
rationale for the interception of telephonic communications for security purposes . His opinion was that telephonic communications could be intercepted
pursuant to a search warrant granted by a justice of the peace under section
11(1) of the Official Secrets Act .
25. At the date of that opinion the relevant provisions of the Official Secrets
Act' were as follows :
3 . (1) Every person who, for any purpose prejudicial to the safety or
interests of the State, (c) . .. communicates to any other person any . . . in5 R .S .C . 1952, ch .198 .
158
�formation that is calculated to be or might be or is intended to be directly
or indirectly useful to a foreign power ; is guilty of an offence under this
Act .
I l .(1) If a justice of the peace is satisfied by information on oath that there
is reasonable ground for suspecting that an offencé under this Act has been
or is about to be committed, he may grant a search warrant authorizing any
constable named therein, to enter at any time any premises or place named
in the warrant, if necessary by force, and to search the premises or place
and every person found therein, and to seize any sketch, plan, model,
article, note or document, or anything that is evidence of an offence under
this Act having been or being about to be committed, that he may find on
the premises or place or on any such person, and with regard to or in
connection with which he has reasonable ground for suspecting that an
offence under this Act has been or is about to be committed .
The reasoning, in part, was that while the search warrant provision in the
Criminal Code is open to the possible construction that it relates only to
tangible evidence, section 11 of the Official Secrets Act extends to "anything
that is evidence of an offence under this Act" . This "anything" must include
oral communications, since the communication of information of the kind
referred to in section 3, and in the circumstances referred to in that section,
constitutes an offence, and Parliament must be presumed, in enacting section
11, to have had in mind every means of communication, including telephonic
communication . Mr . Varcoe recommended a form of search warrant that was
to be granted by a justice of the peace, reading as follows :
OFFICIAL SECRETS ACT
WARRANT TO SEARC H
Canada,
Province of
City o f
To . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .of .the .Royal. . . . . . . . . . . . . . . . . . . . .
... ... .... ..
Canadian Mounted Police in the said City o f
WHEREAS it appears on the oath of. . .. .
.
. . .... .. .. . . . . . . that there are
reasonable grounds for suspecting that an offence under the Official
Secrets Act has been or is about to be committed, to wit : that information that is calculated to be, might be, or is intended to be, directly or
indirectly useful to a foreign power concerning secret official code words,
pass words, sketches, plans, models, articles, notes or other documents,
prohibited places or things in prohibited places, or concerning things
made or obtained in contravention of the Official Secrets Act, has been
or is about to be published, communicated or transmitted by means of
the telephone installed in . . . . . . . . . ... . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .
.
(here describe location of phone i .e . "house bearing civic number. . . .. . . . street "
or
"apartment (or suite) no . . . . . . . . . . . in the building bearing civic number. .
. . . .. . . . street" but do not use word "premises" )
159
�to agents of foreign powers and to other persons not lawfully entitled to
receive such information, for purposes prejudicial to the safety or
interests of the State ; and that there are reasonable grounds for suspecting that evidence or communications that are evidence of an offence
under the Official Secrets Act having been or about to be committed, by
the communication, publication or transmission of such information by
means of the said telephone, may be found in the premises of
. .
. . . ... . .... ... . .. . . . . . . . .(hereinafter called the premises) ;
.
This is therefore to authorize and require you to enter into the said
premises at any time and to search for, seize and record any communication or communications transmitted by means of said telephone installed
in . . . . .. . . . . . . . . . . . . . . . . . ... . . . that is or are evidence of an offence under the
.
Official Secrets Act having been or being about to be committed and
with regard to or in connection with which you have reasonable ground
for suspecting that an offence under the said Act has been or is about to
be committed .
Dated this .
. . . . . . . . . .day of . .
.
. . .A .D ., 195 . . .
.
.
Justice of the Peace in
and for .
. .
.. ... ... .... ..
The intention of the R .C .M .P . in suggesting this procedure was to rely on
section 17(1) and (2) of the R .C .M .P. Act which makes the Commissioner and
every Deputy Commissioner, Assistant Commissioner, Chief Superintendent
and Superintendent ex officio a justice of the peace . This procedure was in fact
followed from 1954 onward . However, ten years later, the Minister of Justice,
the Honourable Guy Favreau, by letter dated September 4, 1964, imposed a
control mechanism which required the Commissioner to seek the authorization
of the Minister in writing before the Commissioner ( acting as a justice of the
peace) would issue such a search warrant . The Commissioner was to make a
written request for such authority to the Minister, who was to be satisfied "that
such facilities are being or are likely to be used by a person engaged in, or
reasonably suspected by the Commissioner of being engaged in or about to
engage in activities which constitute offences made under the Official Secrets
Act" . There was an emergency provision for the Commissioner to issue a
warrant for 72 hours . The Minister was to carry out a monthly review of all
outstanding search warrants and he might re-authorize those which, in his
opinion, there were sufficient grounds to retain . The interception of telegraphic
communications was, as previously, to be based on an Order of the Minister of
Justice under the authority of section 7 of the Official Secrets Act .
26 . It was on the basis of the "Favreau letter" that the Ministers responsible
for the R .C .M .P ., until June 1974 received and approved monthly "certificates
of review" for all current warrants for the interception of telephonic
communications .
27 . It should be noted that this procedure did not cover the interception of
oral communications by microphone . The reason for the procedure in respect of
telephonic communications was that the telephone companies wanted a lega l
160
�basis for the co-operation they were being asked to extend . No such concern
inhibited microphone operations .
28. The Security Service policies concerning electronic surveillance by "bugging" - i .e . microphone installations - have been reviewed in Chapter 2,
section B, because the legal issues arising from that practice relate to "Surreptitious Entries" and were best discussed under that heading .
29. Two examples might be useful in illustrating that the Security Service at
Headquarters has exercised some prudence in deciding whether to apply for
warrants . In one instance, the person whose communications were the subject
of a proposed application for a warrant was an executive member of an
organization about which Headquarters decided not to make application
because the activities were not considered to be subversive . In the other
instance, the targetted group had its origins in another country and a history of
terrorist acts in Canada and other countries . While an earlier warrant had been
granted against members of the group in Canada, a subsequent request by the
field unit that a warrant be applied for in respect of the communications of a
person believed to be the leader of the group in Canada was turned down by
Headquarters because Headquarters had learned that the reason for the
group's violent activities had ceased to exist .
C . EXTENT AND PREVALENCE SECURITY SERVICE AND C.I .B .
(i) Security Servic e
30. Before July 1, 1974, as has already been indicated, "wiretapping" (which
includes the interception of both telephone conversations and telex messages)
was a common and frequently used investigative technique throughout Canada
- and consequently in those provinces where it may have been an offence . The
use of microphone installations, which per se was not unlawful but gave rise to
legal issues in regard to the manner of their installation, use and removal, was
also general and frequent .
31 . Since July 1, 1974, the legal issues in regard to both wiretapping and
microphone installations have changed . The use of both techniques remains
general and frequent, and is disclosed in the Annual Reports of the Solicitor
General .
(ii)
Criminal Investigation Branc h
32 . We have already described the official refusal of the Force to permit the
use of telephone tapping before July 1, 1974, and we have described what
evidence we have obtained of the policy being disregarded at the local level .
The evidence tended to refer to telephone tapping, and there is no evidence
before us as to the use of microphones, but the extensive use of the latter since
July 1, 1974, would lead us to infer that the evidence we received, which was
expressed in terms of telephone tapping, applied equally to other forms of
electronic surveillance.
161
�33. Since July 1, 1974, the extent to which those techniques are used by the
R .C .M .P . and other police forces has been disclosed in the Annual Reports of
the Solicitor General of Canada and the attorneys general of the provinces
which have been referred to in section A of this Chapter . They are used very
extensively in the investigation of crime .
D . LEGAL AND POLICY ISSUE S
(a) Legal issues common to Security Service and C .I.B.
Violations of Provincial Statutes
34 . We have already described the most significant legal issue regarding
telephone tapping before July 1, 1974 . That issue was whether it constituted an
offence under section 25 of the Bell Telephone Act . In Re Copeland and
Adamson it was held not to be an offence under that Act unless the conversation was disturbed by the eavesdropping . Legislation in certain provinces also
requires consideration in deciding whether telephone tapping before July 1,
1974, constituted an offence . The Alberta Government Telephone Act6 makes
it an'offence to interfere with the provincial equipment or facilities, record
conversations without advising the other party in advance and to use profane
and other specified language on a telephone or telecommunication wire . The
Manitoba Telephone Act' deals with the connection of receiving and transmitting equipment to provincial facilities without the approval of the Provincial
Commission . The Act also prohibits the recording of telephone conversations in
Manitoba unless the other party to the conversation is properly advised of the
proposed recording . The Nova Scotia Rural Telephone Acte provides penalties
for wilful and malicious interference with provincial telephone company equipment . The Quebec Telegraph and Telephone Companies Act9 prohibits the use
of provincial equipment to acquire, without lawful authority, knowledge of
private conversations .
35 . The Telephone Act of Ontario10 prohibits interference with equipment
and the divulging of telephone conversations to persons who were not parties to
a conversation except when lawfully authorized or directed to do so . The
Ontario Legislation was held to be intra vires the province : R . v . Chapman and
Grange ." These provincial legislative provisions under which offences may, at
least before July 1, 1974, have been committed by members of the R .C .M .P .
engaged in the investigation of crime, do not appear to have been considered at
any time within the R .C .M .P. when deciding upon the policy in regard to
telephone tapping .
6 R .S .A . 1970, ch .12 .
' R .S .M . 1970, ch .T-40 as amended by 1977 Man ., ch .45 .
8 R .S .N .S . 1963, ch .273 .
' R .S .Q. 1964, ch .286 .
10 R .S .O . 1970, ch .457 .
"[1973] 2O .R .290 .
162
�36 . These provincial statutes continue in effect . However, it is likely, in our
view, that the entry of the Parliament of Canada into the field by the
enactment of the Protection of Privacy Act means that the provincial legislative provisions are no longer effective in so far as they are in respect of the
same forms of conduct as are covered by the criminal legislation . Therefore it
is likely that, since July 1, 1974, when members of the R .C .M .P . have tapped
telephones under an authorization by a judge under section 178 of the Criminal
Code or by the Solicitor General under section 16 of the Official Secrets Act
there has been no offence committed under provincial legislation .
37 . As for the Security Service, the position since 1974 has just been referred
to . Before July 1, 1974, the tapping of telephones was carried out pursuant to
warrants issued under section 11 of the Official Secrets Act . Consequently it is
unlikely that offences were committed under the provincial statutes .
38. Listening to telephone communications in British Columbia and Saskatchewan (which do not have statutes creating offences specifically in regard
to telephones) and all forms of electronic surveillance in those provinces as well
as Manitoba may violate the provisions of the Privacy Acts of those provinces .12
These statutes create "a tort, actionable without proof of damage, for a person,
wilfully and without a claim of right, to violate the privacy of another" ." With
minor differences the three provincial statutes very closely resemble each other .
All three provide that privacy may be violated by eavesdropping or surveillance
whether or not accomplished by trespass . However, they all provide certain
defences to such actions, one of which is particularly pertinent . As stated in the
Saskatchewan Act (and similarly in the statutes of the other provinces) :
4 . (1) An act, conduct or publication is not a violation of privacy where :
(a) it is consented to, either expressly or impliedly by some person entitled
to consent thereto ;
(c) it was authorized or required by or under a law in force in the province
or by a court or any process of a court ; o r
(d) it was that of:
(i) a peace officer acting in the course and within the scope of his duty ;
or
(ii) a public officer engaged in an investigation in the course and within
the scope of his duty ;
and was neither disproportionate to the gravity of the matter subject to
investigation nor committed in the course of trespass .
In the case of defences for peace and public officers the Acts seem to set up a
series of variable permissible violations of privacy directly proportionate to the
seriousness of the "crime" .
1z Stats . B .C . 1968, c.39 ; Stats . Saskatchewan 1973-74, ch .80 ; Stats . Manitoba 1970,
ch .74 .
13 Privacy Act, Stats . B .C . 1968, ch .39, s .2(l) .
163
�39 . However, if a policeman cannot be said to be carrying out his duty if he
violates some other law, such as the law of trespass, the general applicability of .
a defence under section 4(d) must be discounted in cases of surreptitious entry .
On the other hand authorizations or warrants issued since July 1, 1974, under
section 178 of the Criminal Code or section 16 of the Official Secrets Act
would mean that most otherwise actionable incidents involving members of the
R .C .M .P . would be covered by a defence under section 4(c) .
40. We turn now to a consideration of a number of legal issues which are
common to both sides of the Force and pertain to the period from July 1, 1974,
to the present time .
Entry into private premise s
41 . The first issue to be considered is whether a judge or a Solicitor General,
in issuing a warrant, has the statutory power to authorize entries to install,
repair and remove a listening device, and whether if he does not expressly do
so, the power is implied . During the early months of 1972, while consideration
was being given in government to the Protection of Privacy Bill, the R .C .M .P .
suggested to the Department of Justice that it was preferable that even in
criminal investigations the legislation should provide for authorizations by the
Solicitor General of Canada or by provincial attorneys general rather than by
judges . The reason given by the R .C .M .P . was that a judge might refuse to
grant an authorization to plant a listening device if he were aware that
"unorthodox investigative methods" must be employed . It was also suggested
that the legislation should contain a specific power to install the device,
including the power to make surreptitious entries . This, it was suggested, would
be in keeping with the' recommendations of the Report of the Canadian
Committee on Corrections, 1969, which said that " . .. police powers should be
clearly defined and readily accessible" . The R .C .M .P . considered that such an
express statutory power of entry was necessary despite the existence of
subsection 26(2) of the Interpretation Act .'" Some doubt was expressed as to
whether this subsection could be relied upon in these circumstances .
42 . Following this, memos were exchanged among various R .C .M .P . and
government officials as a result of a suggestion that had been made to the
.effect that specific provisions authorizing entry were necessary in the proposed
legislation dealing with telephone interception both in the Official Secrets Act
and the Criminal Code . On April 19, 1972, Mr . Starnes, Director General of
the Security Service of the R .C .M .P ., in a letter to Mr. Goyer, agreed that the
legislation should provide specific provisions for entry upon "telephone company premises, installations, and dwellings generally" . Mr . Starnes felt that
these provisions should also exempt telephone company employees from liability when acting in good faith and under the direction of a peace officer . Mr .
Goyer in turn wrote the Honourable O .E . Lang, then Minister of Justice, to the
same effect . Mr . Lang, in reply, assured Mr . Goyer that a peace officer
performing his duty under the proposed legislation would have authority to
enter premises . He felt that the presence of section 26(2) of the Interpretatio n
'° R .S .C . 1970, ch .I-23 .
164
�Act was sufficient to cover this matter and therefore there was no need to be
specific on this point in the proposed legislation . Consequently no such express
power to install, or to enter premises to install (or to enter premises to conduct
a survey before the application, or to repair or maintain the device, or to
remove it) was included in the legislation, either in respect of interceptions
made pursuant to judicial authorizations or those made pursuant to a Solicitor
General's warrant .
43. In order to understand this decision it is necessary to cite the relevant
provisions of the Interpretation Act and section 25(1) of the Criminal Code :
Interpretation Act :
3 . (I) Every provision of this Act extends and applies, unless a contrary
intention appears, to every enactment, whether enacted before or after the
commencement of this Act .
26 . (2) Where power is given to a person, officer or functionary, to do or
enforce the doing of any act or thing, all such powers shall be deemed to be
also given as are necessary to enable the person, ôfficer or functionary to do
or enforce the doing of the act or thing .
Criminal Code:
25 . (1) Everyone who .
.. is authorized by law to do anything in the
administration and enforcement of the la w
(b) as a peace officer . . . is, if he acts on reasonable and probable grounds,
justified in doing what he is required or authorized to do and in using
as much force as is necessary for that purpose .
44 . According to the testimony of Assistant Commissioner T .S. Venner, an
oral opinion was given by the Department of Justice to the R .C .M .P . in May
1974, the purport of which was shared by the Legal Branch of the R .C .M .P .
This opinion, given before the Protection of Privacy Act came into effect in
July 1974, was to the effect that authorizations under the new legislation did
not expressly allow for entry into premises, and that the Force would have to
rely on section 26(2) of the Interpretation Act and section 25(1) of the
Criminal Code to justify such operations . A Legal Branch memorandum dated
April 29, 1974, reported on a meeting with Mr . Scollin and Mr . D .H . Christie,
Associate Deputy Minister of Justice, at which, according to the memorandum,
it was agreed that a sound basis in law for the use of surreptitious entries under
the new provisions of the Official Secrets Act was to be found in section 26 of
the Interpretation Act .
45 . On July 8, 1977, Mr . Louis-Philippe Landry, who was then Assistant
Deputy Attorney General, wrote to the Deputy Solicitor General, Mr . Tassé,
concerning "allegations of break-ins by members of the R .C .M .P . for the
purpose of installing electronic listening devices", which had apparently been
discussed recently by them . (Ex . E-l, Tab 2G .) With regard to entries made
since July 1, 1974, when an authorization has been issued by a judge pursuant
to section 178 .13, he wrote :
.
When a judge authorizes a peace officer to intercept private communications, the peace officer may, in order to achieve that purpose, enter
165
�premises in order to install the required electronic devices without the
knowledge of the occupant or owner of such premises . I understand that
most authorizations given provide for the authorization to enter premises
for such purposes . However, even in a case where the judge's authorization
is not a specific authorization to enter premises for such a purpose, the
officer who installs an electronic listening device for the purpose mentioned
in the authorization is not breaking any law .
(As will be seen, we have doubt that, where the authorization was for a
listening device, most judges would include an express authorization to enter
premises for such purposes . However, conclusive research is impossible because
of the statutory provisions against disclosure . )
46. On July 21, 1977, the officer in charge of the Legal Branch argued in a
memorandum that, even if section 26(2) of the Interpretation Act and section
25(1) of the Criminal Code gave the implied power to enter to make an
installation, it is doubtful that they give the implied power to enter to remove
it . However, on November 4, 1977, he wrote to Mr . Landry expressing the view
that an authorization of interception implicitly allows the police to remove the
device, even after the period stated in the authorization has expired . The
Director of the Criminal Law Section of the Department of Justice replied on
November 9, 1977, agreeing with that conclusion on the ground that "since the
Order authorizes the interception of communications during a specific period
of time, it is implicit that the device must be allowed to remain until that time
expires" .
47 . On September 22, 1977, Commissioner Simmonds sent messages to the
field directing that no surreptitious entry was to take place to install electronic
surveillance equipment unless the words "to install, monitor and remove" are
in the authorization received under the Protection of Privacy Act (Ex . E-1, Tab
3G) .
48 . On June 9, 1978, Mr . Landry wrote letters to all the provincial attorneys
general . He stated that the right of a peace officer to enter premises to install
or remove an electronic device under the authority of an authorization issued
by a judge to intercept telephone communications is possible only if any
"terms, conditions, and limitations, included in the authorization are strictly
observed" . Therefore, in the absence of any limitation on entry into private
premises the police officer would be entitled "to enter in order to install (or
remove) the device by virtue of section 25 of the Criminal Code and/or section
26(2) of the Interpretation Act, and provided such an entry appears necessary
to properly implement the terms of the authorization" . As to the right of a
police officer to remove an object without the owner's consent in order to
install the electronic surveillance device, Mr . Landry had some serious reservations and declined to commit himself one way or the other until the question
was examined in depth .
49. By February 13, 1979, after receiving opinions from a number of
provincial attorneys general, Mr . Landry's views were strengthened . In a memo
of that date, Mr . Landry stated that most of the provinces agreed with his
conclusion concerning the first issue stated in his letter of June 9, 1978, thoug h
166
�one province (unspecified) did advance the view that the authorization should
contain a clause expressly providing for the installation or removal of the
device in order that the peace officer executing the authorization would be
protected from civil and criminal liability . With respect to the second issue
raised in Mr . Landry's letter there was no consensus among the provinces .
Some thought that, in the absence of express removal powers in the âuthorization, if, for example, a police officer removed a vehicle in order to install a
listening device, he would be committing the offence of theft under section 283
of the Criminal Code or the offence of taking a motor vehicle without consent
under section 295 . Two provinces felt that regardless of the absence of express
removal powers in the authorization, a peace officer could take whatever steps
were reasonably required to execute the authorization, including the temporary
removal of a vehicle . After considering all the opinions Mr . Landry himself
opted for the approach that, if it was not specifically provided for by the
document authorizing the installation of the electronic surveillance device, then
no removal of an object should be undertaken .
50 . In December 1977, in R . v . Dass,15 Mr. Justice Hamilton of the Manitoba
Court of Queen's Bench considered the admissibility of evidence of communications intercepted by use of a listening device installed in premises . He held
that an authorization to intercept under section 178 .13(2) of the Criminal
Code, which extended to both telephonic and oral communications and contained the words "install, make use of, monitor and remove" any device
required, authorized a trespass necessary to effect the installation of the device .
In April 1979, Mr . Justice Huband in the Manitoba Court of Appeal,
delivering the judgment of that court in the Dass case,16 held that evidence
obtained from a listening device installed after a surreptitious entry but
pursuant to an authorizing order issued under section 178 .13 was admissible as
"lawfully made" under section 178 .16 even if it was made after a break-in,
trespass or illegal entry into the premises . He observed :
How that authorization is carried out is not germane to the issue of the
admissibility of evidence flowing from the interception . If a trespass has
been committed, then those who have committed the trespass will be
answerable in some other criminal or civil forum .
However, in remarks not necessary for the decision but evidently carefully
considered, he also specifically rejected an argument presented by Crown
Counsel that the authority to install carried with it by implication the authority
to enter the premises by force, if necessary, to install the device . Mr . Justice
Huband said : "
The order granted by Deniset J . and subsequently renewed by others
authorizes the interception, and "for such purposes to install, make use of,
monitor and remove" the devices . Crown counsel argues that the authority
to install carries with it by implication the authority to enter premises by
force or by stealth in order to implant the device .
15 [1978] 3 W .W .R . 762, 3 C .R . (3d) 193, 39 C .C .C . (2d) 465 .
16 [1979] 4 W .W .R . 97 .
" Ibid., at pp . 1 1 6-117 .
167
�As previously noted, the reference to the installation of the authorization
order is not a fiat by the courts to violate the laws of the land . I see nothing
in the Criminal Code which gives a judge the power to authorize or condone
illegal entry . Crown counsel points to s .178 .23(2)(d), which appears to
enable the judge to impose terms and conditions which he considers
advisable in the public interest . In my view, that provision was not intended
as a mechanism to have the courts authorize illegal acts . The public interest
is not served by acts which violate the civil or criminal laws of the . land . The
terms and conditions could not validly include permission, directly or by
implication, to ignore or breach such laws .
51 . Coincidentally, in the same month, the Supreme Court of the United
States held in Dalia v . United States" that Congress, in legislating for
electronic surveillance under a court order authorizing the installation, maintenance and removal of an interception device, without any statutory limitation
on the means necessary to accomplish the electronic surveillance, must have
intended to authorize the courts to approve means necessary and reasonable in
the circumstances .
52 . The R .C .M .P . advised us that as a result of the doubt created by the Dass
case, some attorneys general issued instructions to the police to cease interceptions where entry was required until the doubt could be removed either by
another court or by amendment to the law permitting entry . We requested all
attorneys general to inform us as to their position in this regard . A review of
the replies received by us indicates that what the R .C .M .P . had told us was
correct . Those attorneys general who did not :believe that the Dass case created
doubt as to the legality of entry in appropriate cases cited section 25 of the
Code, section 26(2) of the Interpretation Act, and the wording of authorizing
orders . One indicated a preference for the reasoning in Dalia . Several attorneys
general pointed out that, in August 1979, a resolution of the Criminal Law
Section of the Uniform Law Conference (a national body formed by the
federal and provincial governments to study and encourage uniformity of
legislation across Canada) had stated that the power of entry was implied in
law . However, the Conference had suggested . that the law be amended to
provide expressly that an authorization to intercept a private communication
under Part IV .I of the Code be deemed to include authorization to enter
premises and install, repair, maintain and remove listening devices, subject to
any restrictions imposed by the Court under section 178 .13(2)(d) .
53 . If Mr. Landry's opinion is correct, there are unanswered questions . If a
policeman acting under a judicial authorization is on premises surreptitiously
to install a listening device, and he is discovered in the act ~ y the occupant who
has returned unexpectedly, does the policeman have thé"kimplied power, by
virtue of section 26(2) of the Interpretation Act, to strike the occupant in order
to make his escape? If so, what degree of force may he use? .,May one of the
policemen outside, who is keeping watch, stop the occupant before the occupant reaches his residence, and if "necessary" restrain him by force? Assistant
Commissioner Venner told us that the implication is that whatever power i s
"(1979) 441 U .S . 238 .
168
�necessary "within reasonable limits" may be used by the police, who must
exercise "judgment" and use "reasonable conduct" . He would . not assert that
such steps would be "legal" but he thought that a policeman would have a
defence to a charge (Vol . 33, pp . 5462-7) . (We do not know what he meant by
drawing the distinction .) We note also that the combined operation of section
26(2) of the Interpretation Act and section 25 of the Criminal Code would, in
Mr . Venner's opinion, give the police the power to remove an automobile from
its owner's possession in order that a listening device may be secreted in it ; at
least, there would be "a defence against the charge of theft" (Vol . 33, p . 5463) .
54 . The same issue applies equally to entry for the purpose of surveying,
installing, maintaining and repairing and removing when, pursuant to section
16(2) of the Official Secrets Act, a listening device is to be installed in
premises under a warrant of the Solicitor General . Because'the procedure
employed in conducting electronic eavesdropping under'section 16 was, until
our public hearings, even less known to the public than that under section 178
of the Criminal Code, and, within the R .C .M .P . and government there does not
appear to have been any discussion of this issue in terms of warrants under
section 16, there has been little or no analysis of the issue in terms of section
16 . However, we do not see any difference between the issue as it arises under
section 16 and the issue as it arises under section 178 .
55 . It will be recalled that obiter dicta in the Manitoba Court of Appeâl in
the Dass case said that section 178 .13 of the Criminal Code does not empower
a judge to include in his authorization a term that authorizes entry into
premises for the purpose of installing a listening device . The judgment did not
refer to section 25(1) of the Criminal Code or section 26(2) of the Interpretation Act . We understand that those sections were not cited in argument
because counsel for the prosecution did not consider them to be relevant .
However, that was not the view of the senior officials of the federal Department of Justice in 1979 . For example, the Associate Deputy Minister of Justice
wrote a letter to the Department of the Solicitor General 'late in 1979, in
respect to a Solicitor General's warrant issued under section 16 of the Official
Secrets Act . The opinion expressed in the letter relied not so much on section
26(2) of the Interpretation Act as upon the argument that the legislation could,
in large measure, be rendered ineffectual if the` interceptions of communica
=tionswercdhtaoulbemdwihtanyrso'
surreptitious or covert entry of premises . Consequently, ~ according to that
opinion, only express words or absolutely necessary implication could lead to
the construction being properly placed on the legislation that there is no
implied power of entry .
56. It therefore becomes necéssary to consider those statutory provisions . It
will become apparent that in our considered opinion there is real doubt that
they support the opinions expressed by the Department of Justice . We say so
with considerable boldness and some hesitation, an ambivalence caused by the
fact that the opinion of the Department of Justice is supported by the views of
some provincial attorneys general and of the Criminal Law Section of the
Uniform Law Conference . That being so, we shall give our reasons in some
detail .
169
�Does section 25(l) of the Criminal Code justify such an implied power of
entry ?
57 . Section 25(1) derives from a large group of sections in the English Draft
Code of 1879, concerning which the Commissioners who had been appointed to
consider codifying the criminal law stated that these section s
. . contain a series of provisions as to the circumstances which justify the
application of force to the person of another against his will . .. We believe
that in the main these provisions embody the common law, though on some
points they lay down a definite rule where the law is at present doubtful,
and in others correct what appear to be defects in the existing law . "
The original limitation of the above series of sections, defining the circumstances that justify the application of force to the person of another, is still
evident throughout sections 25 to 33 of the present Code, wherein constant
reference is made to "using as much force as is necessary" or "uses no more
force than is reasonably necessary" . The same theme is evident in section 25(3)
which defines the circumstances in which the use of force that is intended to
cause death or grievous bodily harm is justifiable, and in section 25(4) in which
the acceptable limits to the use of violence against a person who takes flight to
avoid arrest are set forth . It is, therefore, not in our view permissible to suggest
that section 25(l) contains a blanket dispensation to peace officers to act in a
manner proscribed under the Criminal Code or the common law (e .g . of
trespass) in the course of effecting an arrest, or executing a court order or
judicial authorization . Moreover, the opinions of the Department of Justice
made no reference to the view expressed in the Supreme Court of Canada in
Eccles v . Bourque.20 The significant issue in that case, for our present purposes,
was whether a peace officer who is authorized under section 450(1) ( a) of the
Code to make an arrest without warrant is also authorized by section 25 to
commit a trespass, with or without force, in the accomplishment of that arrest .
Five members of the Court were content to reserve their answer to this question
until a later occasion . Mr . Justice Dickson, however, in an opinion that was
concurred in by three other judges, said :2 1
It is the submission of counsel for the respondents that a person who is by
s .450 authorized to make an arrest is, by s .25, authorized by law to commit
a trespass with or without force in the accomplishment of that arrest,
provided he acts on reasonable and probable grounds . I cannot agree with
this submission . Section 25 does not have such amplitude . The section
merely affords justification to a person for doing what he is required or
authorized by law to do in the administration or enforcement of the law, if
he acts on reasonable and probable grounds, and for using necessary force
for the purpose . The question which must be answered in this case, then, is
whether the respondents were required or authorized by law to commit a
trespass ; and not, as their counsel contends, whether they were required or
authorized to make an arrest . If they were authorized by law to commit a
trespass, the authority for it must be found in the common law for there is
nothing in the Criminal Code .
19 Cmnd . 2345, p . 18 .
20 (1974) 19 C .C .C . (2d) 129 .
21 At p . 130-31 .
170
�The same line of reasoning was apparent in the judgment of Mr . Justice
Robertson in the earlier disposition of the same case by the British Columbia
Court of Appeal :z z
.
.. it cannot fairly be said that a person who is authorized to make an
arrest is, because of s .25, authorized by law to commit a trespass with or
without the use of force . In other words, wherever the Criminal Code
confers a power to do a specific thing, s .25 does not confer a power to do
any and every thing that may assist or advance the exercise of the power .
The purpose of s .25(1) is twofold ; it absolves of blame anyone who does
something that he is required or authorized by law to do, and it empowers
such person to use as much force as is necessary for the purpose of doing it.
Another member of the court, Mr . Justice Nemetz did not express any opinion
on the scope of section 25(1) other than to observe:
. . . it is clear to me that, although police officers may arrest without
warrant (s .450), scrupulous adherence must be had for the principles set
out at common law respecting the procedures that are to be used by police
in entering a house without warrant . I do not read s .25(l) as giving a police
officer the right forcibly to enter a stranger's home when he is seeking the
arrest of a fugitive unless he can justify such forcible entrance on reasonable and probable grounds .
In our view, the opinions of the Department of Justice have failed to take into
account the limits of the extent to which section 25(1) affords the power to
commit what would ordinarily be trespass or theft . In our opinion, if Mr .
Justice Dickson's judgment in Eccles v . Bourque is (as we think) correct, it
requires one to look not to section 25(1) but to the common law for justification for the police power that is asserted . In that case, he found that the
common law did empower entry upon premises in order to effect an arrest . In
the case of the investigative technique which we are examining, there is no
common law precedent of which we are aware which may be called in aid of
the power of a peace officer to commit theft or trespass when authorized to
install a listening device .
Does section 26(2) of the Interpretation Act justify an implied power of entry?
58. Section 26(2) of the Interpretation Act has already been quoted . Does it
apply to an authorization by a judge given under section 178 .13 of the
Criminal Code or to a warrant issued by the Solicitor General under section
16(2) of the Official Secrets Act? The Act applies to `enactments', not to
judicial orders made pursuant to an enactment . Thus, it could be argued that
the power to trespass in order to install a device is implied in section 178 ; if
that is so, there would be an implied statutory power that would permit a judge
to include the power of entry in the authorization . However, in the absence of
any such term in the authorization, the issue would still remain : is there an
implied power of entry once an authorization is granted ?
59. In our view, it is doubtful that these provisions provide a defence in law
for what otherwise would be theft or trespass . Those who argue that th e
22 (1974) 14 C .C .C . (2d) 279 .
171
�Manitoba Court of Appeal in Dass was wrong point to the decision of the
Supreme Court of the United States in Dalia v . United States . There, the
majority opinion was that the power of surreptitious entry was necessarily
implied in the statute that authorized the courts to review and approve
electronic surveillance applications . However, in assessing the reasoning of the
majority opinion in Dalla v . United States it is important to note that it
emphasized the legislative history of the statute ; there was evidence from the
Congressional Record that Congress was aware that "most bugging requires
covert entry" . The opinion also stressed the importance of the fact that
"Absent covert entry . . . almost all electronic bugging would be impossible" . In
Canada, it is far from clear that either of these points was known to Parliament
when the Protection of Privacy Act was passed . Moreover, frequently the entry
needed may not be "covert" at all from the point of view of the person who is
the owner or occupier at the time of entry - as, for example, a hotel manager
who gives permission for the entry before the hotel room is occupied by the
suspect, or even while it is occupied by a short-term guest . In such cases there
would be no trespass . Many buggings arise in just such situations . Therefore it
is not clear to us that Parliament must have realized it was implicitly
authorizing trespassory covert entries .
60. However, there is a recent judgment of the British Columbia Court of
Appeal in another case, which upheld the implied power of a peace officer to
enter a residence to execute a warrant issued under the section of the Code that
permits the seizure of firearms .23 The court held, quite briefly, that in order to
give effect to the intent of the section, "we should hold" that the authority to
seize "includes the right to search . .. and includes the right to enter on a
person's property to make the search" . This decision is a sufficient reminder
that a court other than the Manitoba Court of Appeal might reach a
conclusion that trespassory entry for the purpose of installation is necessary in
order to give effect to a "paramount" public interest to which "the rights of the
individual are secondary" .24 Yet, in our view, it is not easy to reconcile the
approach of the British Columbia Court of Appeal with that of Mr . Justice
Dickson in Eccles v . Bourque . *
61 . In Part X, Chapter 1 we discuss the recent decision of the highest court of
England, the House of Lords, in Morris v . Beardmore . There it was held that a
statute that empowered a uniformed police officer to require a person to give a
breath sample could not by implication permit an officer to trespass in the
suspect's home in order to make the demand . Consequently, if a demand were
made during the course of such trespass, the demand would be unlawful and
there could not be a conviction for refusal to comply . Lord Diplock said that,
"if Parliament intends to authorize the doing of an act which would constitute
a tort actionable at the suit of the person to whom the act is done", there must
be an express provision to that effect in the statute . He stated that
23 R . v . Colet [1979] 2 W .W .R . 267 .
2 4 Using the language of Craig, J .A . who delivered the judgment of the British
Columbia Court of Appeal, in respect of the section he was interpreting .
172
�The presumption is that in the absence of express provision to the contrary
Parliament did not intend to authorize tortious conduct .25
Applying that reasoning to the Dass situation, we believe that it cannot be
inferred that Parliament, in enacting a general provision such as is found in
section 26(2) of the Interpretation Act, intended that otherwise unlawful
powers are deemed to be given to the officer to enable him to do the act which
he is empowered to do .
62 . We have already mentioned that in August 1979, the Criminal Law
Section of the Uniform Law Conference adopted a resolution . Its full terms are
as follows :
WHEREAS the Commissioners are of the view that section 25 of the
'Criminal Code and section 26 of the Interpretation Act constitute sufficient
authority to make it clear for the purposes of Part IV .1 of the Code that
lawful authority to intercept includes authority to enter premises and
install, repair, maintain and remove listening devices ; an d
WHEREAS the Commissioners also recognize that the
Dass case has :' .
created sufficient doubt in this area to place the-police in a position of
uncertainty ;
Be it resolved
that Part IV .I of the Criminal Code' be amended to provide that an
authorization to intercept a private communication is deemed to inclùde
authorization to enter premises and install, repair, maintain and remove
listening devices, subject to any restriction imposed by the Court under
s .178 .13(2)(d) .
zs [1980] 3 Weekly L .R . 283 at 289 .
* On January 27, 1981, four days after this Report was . delivered to the
Governor in Council, the Supreme Court of Canada delivered judgment in
the Colet case . In a unanimous judgment delivered by Mr. Justice Ritchie,
the judgment of the British Columbia Court of Appeal was reversed and the
reasoning of the trial judge was adopted . The trial judge had pointed out .
thât when, in the Criminal Code, Parliament sought to include the right to
search in providing for the authority to seize, it did so in specific terms . The
court quoted with approval from the judgment of Mr . Justice Dickson in
Eccles v . Boûrque and repeated the "common law principle" which "has
been firmly engrafted in our law since Semayne's case", that "the house of
every one is to him-as his castle and fortress, as well for his defence agains
. . .". Mr . Justice Ritchie rejected'th e-tinjuryadvolec,sfhirp
argument of the Court of Appeal and said :
.
.. it would in my view be dangerous indeed to hold that the private rights
of the individual to the exclusive enjoyment of his own property are to be
subject to invasion by police officers whenever they can be said to bé
acting in the furtherance of the enforcement of any •sebtion of 'the
Criminal Code although they are not arméd with express authority to'
justify their action .
Finally, Mr . Justice Ritchie held that section 26(2) of the Interpretation
Act could " . . .not be considered as clothing police officers by implication
with authority .to search when s .105(1) and fthe warrant issued pursuant f
thereto are limited to seizure" .
173
�The Commissioners did not comment on whether they considered that a
present "lawful authority to intercept" includes authority to remove a vehicle
from the owner's control, or to use the target's power supply to operate the
device, or to use force to restrain a person who appears on the scene .
63. The recommendation of the Uniform Law Commissioners would satisfy
the following observation by the Ontario Royal Commission of Inquiry into
Civil Rights, chaired by Chief Justice J .C . McRuer :2 6
When legislation is drawn which is intended to give the power of entry to
premises, the power should be stated in clear terms so that when it comes
before the members of the Legislature they will know what they are voting
on . They ought not to be left to examine the Interpretation Act, or the law
applicable to implied powers, when they are required to vote for or against
legislation purporting to authorize rights of entry to private property .
If the amendment recommended by the Uniform Law Commissioners is
adopted by Parliament, the amendment should be as clear as possible as to
whether the police or the security intelligence agency, in exercising the
authority granted by the means provided by statute, have all the specific
powers that may be required in order successfully to conduct an electronic
surveillance operation from beginning to end . The kinds of powers that
legislative attention must be addressed to are found in our recommendations in
Part V, Chapter 4 and Part X, Chapter 5 . If the word "premises" is to include
a vehicle or other things, the amendment should be clear whether there is to be
a power to remove a thing temporarily without the consent of the person
entitled to possession .
64 . The power to enter must be strictly circumscribed to prevent any possibility of persons acting under the warrant, in the event of being surprised in the
procedure of installation, maintenance, repair or removal, using any physical
force against any other person . In the absence of strict statutory prohibition of
the use of such force, there is a serious risk that the policeman acting under the
authority of a judicial authorization or members of the security intelligence
agency acting under a Solicitor General's warrant might consider themselves
authorized to use force to restrain a person surprising them during the course
of the operation . The danger of this occurring is supported by the opinion given
by the Deputy Minister of Justice on February 10, 1978, which stated :
Subsection 25(l) of the Criminal Code provides, in part, that everyone who
is required or authorized by law to do anything in the administration or
enforcement of the law as a peace officer is, if he acts on reasonable and
probable grounds, justified in doing what he is required or authorized to do
and in using as much force as is necessary for that purpose . By virtue of
subsection 25(3) a person is not justified in using force that is intended or is
likely to cause death or grievous bodily harm, unless he believes on
reasonable and probable grounds that it is necessary for the purpose of
preserving himself or anything under his protection from death or grievous
bodily harm .
26 Report of the Ontario Royal Commission of Inquiry into Civil Rights, Toronto,
1968, Vol . 1 at p . 411 .
174
�65 . For the sake of discussion, let us assume that the intention of Parliament
was to enable police officers, armed with a judge's authorization under section
178 of the Criminal Code or a Solicitor General's warrant under section 16 of
the Official Secrets Act, to enter premises, remove vehicles, use the target's
electrical power supply or restrain persons interfering . If sections 25(1) of the
Criminal Code and 26(2) of the Interpretation Act do not entitle a judge or
Solicitor General to include express terms to that effect in the authorization or
warrant, and if those statutory provisions do not imply such powers where the
authorization or warrant is silent, then Parliament's intention is frustrated .
However, this would not be the first time that the intention of Parliament has
been frustrated by the failure to use language sufficiently clear to give effect to
its intention . The remedy is to enact more explicit statutory provisions . It is
unsatisfactory to leave these issues unresolved, for otherwise the police and the
security intelligence agency will be left uncertain as to the extent to which they
are protected by such provisions as section 26(2) of the Interpretation Act and
section 25 of the Criminal Code .
66. In Canada the existence of an implied power to enter and do the other
things necessary for a successful electronic surveillance, once an authorization
or warrant is issued, is uncertain, and'so is the power of a judge or the Solicitor
General to insert a term in the authorization permitting such entry . In the
United States, despite the affirmation by the Supreme Court of the implied
power of entry, the government has introduced a bill before the Congress which
expressly provides for entry and for procedural safeguards to ensure that such
methods will be used only when, as the Assistant Attorney General, Criminal
Division, has said, "such methods have been found reasonable and necessary by
an informed, impartial judicial officer" . He continued :
Briefly, these amendments would require (1) that the application for an
order authorizing the interception of communications state whether surreptitious entry will be required to effect the interception and, if so, why other
means of effecting the interception are not believed to be feasible, (2) that
the issuing judge make a finding that such entry appears necessary under
the circumstances, and (3) that the order approving the interception
specifically state whether surreptitious entry for the purpose of effecting the
interception is authorized .2 '
Therefore we shall recommend in Part V, Chapter 4 that the statutory
provision replacing section 16 of the Official Secrets Act specify the incidental
powers that are available to those acting pursuant to a warrant ; and in Part X,
Chapter 5 we shall recommend that section 178 of the Criminal Code be
amended by specifying the incidental powers that are available to those acting
pursuant to a judicial authorization .
"Rummaging"
67 . Another issue common to both the Security Service and the C .I .B . is
whether policemen inside premises to install a listening device, having obtaine d
27 Statement of Philip B . Heyman before the Committee on the Judiciary, Subcommittee on Criminal Justice, United States Senate, concerning s . 1717, March 5, 1980 .
175
�either a judicial authorization under section 178 of the Criminal Code or a
Solicitor General's warrant under section 16 of the Official Secrets Act, are at
liberty to look around, to search for things or documents of possible interest,
and to examine and read and photograph what they find of interest? In other
words, may they lawfully conduct an intelligence probe? If they may, must it
be limited to observing and photographing what is visible to the naked eye
without "rummaging", or is the power ûnlimited? As has been seen in Chapter
2 of this Part, there are judicial decisions which allow the police latitude, when
executing a search warrant, lawfully to seize things found by them on the
premises even though those things are not referred to in the search warrant .
Does the same latitude apply to authorizations and warrants that are not
warrants to search and seize? In principle there is no practical way of
preventing policemen from observing what is readily visible on the premises
where the installation is being made, and merely seeing (even with a photographic eye) is no trespass . However, the moment the policeman begins to look
through documents, even though their top page is visible, or to open drawers or
luggage, there is conduct that is far beyond the necessary activity associated
with the installation of a listening device and there may be a trespass . As far as
judicial decisions are concerned, there does not appear to be any authority on
the point . In Chapter 2 of this part of our Report we saw that there are cases
which have held that, within certain limits, a policeman does not become liable
for damages for trespass if he exceeds his authority under the search warrant .
Chic Fâshions (West Wales), Ltd . v . Jones,28 which was concerned with search
warrants for stolen goods, held that a peace officer may seize under warrant
goods not specified in the warrant when he reasonably believes them to have
been stolen and to be material evidence on a charge of stealing or receiving
against the person in possession of them or anyone associated with him . Ghani
v . Jones29 suggests that a peace officer may seize from premises which he has
entered under warrant, any material of evidential value in connection with the
crime he is inyestigating, whether against the person he is investigating or
anyone associated with him in the offence . These English decisions, if they are
applied by Canadian courts, go far in permitting policemen to search and seize
beyond the terms of a search warrant . Yet they, and earlier authority to the
same effect,30 do not appear to us to support the power of peace officers, armed
with an `authorization' or a`warrant' to intercept communications, to conduct
a search for things . While the cases cited may be correct in allowing search
and seizure of things beyond the authority of a warrant, we find it difficult to
accept as valid the analogy between that situation and a search when an
. authorizâtion or warrant does not authorize any `seârch' . Consequently we
entertain, at the very least, serious doubt that there is in law any power to
search and look at things while on premises pursuant to an authorization given
under section 178 .13 of the Criminal Code or a warrant issued under section
16(2) of the Official Secrets Act . Any such power should be provided for in the
warrant for surreptitious entry which, as we have indicated in Chapter 2 of this
Part, should be granted only in security cases .
28 [1968] 2 Q .B . 299 ; [1968] 1 All E :R . 229 .
29 [19701 1 Q .B . 693 ; [1969] 3 All E .R . 720 .
1 0 e .g . Elias v . Pasmore [ 1934] 2 K . B . 164 .
176
�(b) Legal and policy issues unique to Security Servic e
68. We turn now to a consideration of the procedures adopted when warrants
have been applied for under section 16(2) of the Official Secrets Act, which
came into effect on July 1, 1974 . It will be recalled that this section was passed
as part of the Protection of Privacy Act . That statute made it an offence (under
Part IV .1 of the Criminal Code and particularly section 178 .11(1)) to intercept
a private communication wilfully by means of an electromagnetic, acoustic,
mechanical or other device, unless the person intercepting has the consent of
one of the parties or a judicial authorization . (There are additional protections
- for example, for telephone company employees engaged in checking the
equipment .) A further defence is provided by section 16(1) for a person who
makes an interception pursuant to a warrant issued by the Solicitor General
under section 16(2) . At this point it is desirable to set forth all the amendments
to the Official Secrets Act contained in the Protection of Privacy Act :
5 . Subsection 2(l) of the Official Secrets Act is amended by adding thereto,
immediately after the definition "document", the following definition :
"intercept" includes listen to, record or acquire a communication or
acquire the substance, meaning or purport thereof.
6 . The said Act is further amended by adding thereto the following section :
16. (1) Part IV .I of the Criminal Code does not apply to any person
who makes an interception pursuant to a warrant or to any person who in
good faith aids in any way a person whom he has reasonable and probable
grounds to believe is acting in accordance with a warrant, and does not
affect the admissibility of any evidence obtained thereby and no action'lies
under Part 1 .1 of the Crown Liability Act in respect of such an interception .
(2) The Solicitor General of Canada may issue a warrant authorizing the interception or seizure of any communication if he is satisfied by
evidence on oath that such interception or seizure is necessary for the
prevention or detection of subversive activity directed against Canada or
detrimental to the security of Canada or is necessary for the purpose of
gathering foreign intelligence information essential to the security of
Canada .
(3) For the purposes of subsection (2), "subversive activity" means
(a) espionage or sabotage ;
(b) foreign intelligence activities directed toward gathering intelligence
information relating to Canada ;
(c) activities directed toward accomplishing governmental change within
Canada or elsewhere by force or violence or any criminal means ;
(d) activities by a foreign power directed toward actual or potential attack
or other hostile acts against Canada ; o r
(e) activities of a foreign terrorist group directed toward the commission of
terrorist acts in or against Canada .
(4) A warrant issued pursuant to subsection (2) shâll specify
(a) the type of communication to be intercepted or seized ;
(b) the person or persons who may make the interception or seizure ; and
(c) the length of time for which the warrant is in force .
177
�(5) The Solicitor General of Canada shall, as soon as possible
after the end of each year, prepare a report relating to warrants issued
pursuant to subsection (2) and to interceptions and seizures made thereunder in the immediately preceding year setting fort h
(a) the number of warrants issued pursuant to subsection (2),
(b) the average length of time for which warrants were in force,
(c) a general description of the methods of interception or seizure utilized
under the warrants, and
(d) a general assessment of the importance of warrants issued pursuant to
subsection (2) for the prevention or detection of subversive activity
directed against Canada or detrimental to the security of Canada and
for the purpose of gathering foreign intelligence information essential
to the security of Canada, and a copy of each such report shall be laid
before Parliament forthwith upon completion thereof or, if Parliament
is not then sitting, on any of the first fifteen days next thereafter that
Parliament is sitting .
Warrants issued before July 1, 197 4
69 . Before section 16 of the Official Secrets Act came into effect on July 1,
1974, the Security Service wanted to ensure the continuance, without interruption, of telecommunications intercepts and electronic listening devices already
installed and in use. Consequently, from June 14, 1974 until the end of that
month, the Director . General applied for, and the Solicitor General, Mr .
Allmand, signed approximately 242 warrants, purporting to be pursuant to
section 16 of the Official Secrets Act (Vol . 162, p . 24855) . The number 242,
which was given in camera (Vol . C71, p . 9951), was inadvertently not
published in the publicly released version of that evidence . No one - whether
Mr . Allmand or Mr . Dare or anyone else - appears to have addressed the
question as to whether such warrants had any legal effect on and after July 1 .
In our view they did not . A statute cannot speak except from the time it comes
into effect, and section 16 of the Official Secrets Act did not come into effect
until July 1 . Only on and after that date could a warrant be issued which would
have any status in law . If Parliament intended to give effect to a warrant
signed on a date earlier than the date on which the statute came into effect, it
would have said so. As a result, in our opinion, although everyone concerned
acted in good faith, these warrants were invalid, and in theory those who acted
upon them after June 30, 1974 might be open to a charge under section 178 of
the Code. We do not think that in the circumstances anyone would think that
such charges should be laid . A broader lesson for the future that is afforded by
this issue is the need for the security intelligence agency and the Solicitor
General having at their disposal informed and competent legal advice, so that
issues of this kind may more likely be identified instead of being passed over,
unnoticed and unconsidered .
Legal and policy issues relating to the procedure of applying for warrants
70. The following are points arising from the present practice of making
applications to the Solicitor General under section 16 . A number of the points
178
�give rise to legal concerns, some of which may have escaped the perception of
the Director General and his subordinates, and the Solicitor General .
(i) Renewal procedure
71 . In December of each of the years from 1974 to 1978 the Director General
presented to the Solicitor General a document entitled "Application for the
Renewal of Warrants to Intercept and/or Seize", which reads as follows :
This is the application of Michael R . Dare, a member of the Royal
Canadian Mounted Police, hereinafter called the applicant, taken before
me.
The applicant says he has personally reviewed the applications to obtain
warrants to intercept and/or seize, sworn by him during the year 1974,
hereinafter called the applications .
The applicant further says in the applications numbered [there followed the
number of applications made during the year] his reasonable grounds for
suspecting that the communications described therein, or some part of
them, are passing, or will pass, still exist .
NOW THEREFORE the applicant prays that the warrants to intercept
and/or seize corresponding to the said applications and which would
otherwise expire on December 31, 1974, may be renewed .
The Solicitor General then signed a document entitled "Rénewal of Warrants
to Intercept and/or seize", reading as follows :
To : The Director General, Security Service, Royal Canadian Mounted
Police, and the members and agents of the Royal Canadian Mounted
Police acting under his authority or on his behalf .
WHEREAS the Warrants to Intercept and/or Seize under the Official
Secrets Act signed by me during the year 1974 are due to expire o n
December 31, 1974.
AND WHEREAS I am satisfied by evidence on oath of Michael R .
DARE, a member of the Royal Canadian Mounted Police, that he has
personally reviewed the Applications to obtain the said Warrants sworn by
him during thé year 1974, and that in the Applications numbered [here the
numbers of warrants are inserted] his reasonable grounds for suspecting
that the communications described therein, or some part of them, are
passing, or will pass, still exist .
NOW THEREFORE you are hereby authorized during the period
from the 1st day of January, 1975, to the 31st day of December, 1975, to
continue to intercept and/or seize communications under the Warrants
signed by me corresponding to the Applications above listed .
As we pointed out earlier there is no provision in section 16 of the Official
Secrets Act for renewals of warrants . By way of contrast, section 178 .13(3) of
the Criminal Code expressly provides that a judge may grant "renewals of an
authorization" from time to time . Both sections were enacted in the Protection
of Privacy Act . It is a general principle of statutory construction that the
statute must be read as a whole, so that if in one circumstance the statute
provides for the doing of a thing but in another circumstance the statute doe s
179
�not provide for the doing of that thing, in the second circumstance it may be
inferred that the statute does not authorize the doing of the thing . Applying
that principle, in our view there is no statutory authority for the granting of
"renewals" of warrants . The result is that a large number of warrants between
June and December 1974, all of which were framed so as to expire on
December 31, 1974, were not in law effective beyond December 31, 1974 . A
number of the 1974 warrants were the subject of so-called renewals at the end
of 1975, 1976, 1977 and 1978, and were considered by the Security Service to
be valid and operative until December 31, 1979 . Some of them, of course, were
cancelled or allowed to lapse at the end of a calendar year during that period .
More warrants were issued in 1975 and were the subject of purported renewal
at the end of 1975 and in the succeeding years ; and the same was'true of new
warrants issued in 1976, 1977 and 1978 . Thus, during the entire period from
January 1, 1975 until December 31, 1978, if we are right in our view of the
law, the Solicitor General, lacking the advice of either his Deputy Minister or
of the Department of Justice, by signing the so-called "renewal of warrants"
each December until 1978, may have inadvertently exposed the members of the
R .C .M.P . acting upon the documents to the theoretical possibility of prosecution . However, no doubt, in considering whether those members should be
charged under section 178, the Attorney General of Canada or of a province
would take into account that the members were relying upon purported
renewals of the warrants signed by the Solicitor General of Canada . Moreover,
the Attorney General should take into account that on the first occasion when
this procedure was used, in December 1974, the renewal forms had been
approved by a senior member of the Department of Justice, although it does
not appear that any written legal opinion was given by that member of the
Department of Justice as to the validity of the procedure which preparation
and approval of the forms clearly contemplated would take place each December . In Part V, Chapter 4, we shall make a recommendation as to the
procedure which should be provided for by statute when warrants expire .
72 . Lest anyone should think that our approach is unduly technical, we
hasten to add that there are sound policy grounds for criticizing the procedure
adopted in the years 1974 to 1978, in obtaining "renewals" . The policy of the
statute, as expressed in section 16(2), requires the Solicitor General to be
satisfied by evidence on oath "that such interception or seizure is necessary"
(our emphasis) for one of three purposes . This is a statutory criterion which
cannot be satisfied unless there is information placed before the Solicitor
General on oath as to why he should find necessity to exist in the circumstances . The so-called applications sworn to by the Director General before the
Solicitor General in December of each of the years from 1974 to 1978 did not
set forth any grounds upon which the Solicitor General might find that
necessity existed . All that the Director General stated on oath was that he had
"reasonable grounds for suspecting that the communications described therein,
or some part of them, are passing, or will pass, still exist" . Thus, even if the
applications for "renewal" are looked upon as if they had been styled "applications", and if the "renewal" were treated as if it were a series of "warrants",
there was no "evidence" of necessity given on oath, on the basis of which the
Solicitor General could grant such "warrants" .
180
�(ii)
Swearing of evidence under oath
73 . Section 16(2) authorizes the Solicitor General to issue a warrant "if he is
satisfied by evidence on oath" . During the early years of the .use of section 16,
the,so-called "application", which was the document purportedly sworn by Mr .
Dare, was frequently very brief in terms of describing the activities . of, the
target person or organization, and it stretches the imagination to claim that .the
bald, statement .that "such interception or seizure is necessary . . ." constituted
the requisite "evidence on oath" that such interception or seizure was, necessary . However, the practice also developed that aide-mémoires would be
prepared, and that Mr . Dare would bring these with him and show,them to the
Solicitor General together with the "application" . The aide-mémoire, was not a
schedule or annex to the "application", and thus, on the face of the documentation, there was no indication that the truth of the contents of the aide-mémoire
was sworn to on oath by Mr . Dare . Indeed, Mr . Dare's own evidence was that
he did not consider that he was swearing to the truth of the contents of .the
aide-mémoire (Vol . 126, pp . 19647-8) . (The accompanying memorandum was,
however, being referred to in the form of oath used by Mr . Dare by April 8,
1980, when helast testified on the subject (vol . C88, p . 12186) ) Yet Mr .
Allmand has testified that he considered that Mr . Dare, in taking the oath
before him, was swearing to the truth of all the information which Mr . Dare
presented to him (Vol . 115, p . 17756) . The Deputy Solicitor General, Mr .
Tassé, who was present on many of these occasions, testified that it was
customary that Mr . Dare, with Bible .in hand, swore "to tell the truth, the
whole truth, and nothing but the truth" . Although Mr . . Tassé .understood that
Mr . Dare was swearing to the truth of his affirmations or comments, Mr . Tassé
did not testify that in the form of oath there was any specific reference to the
"evidence" to be found either in the "application" or in the aide-mémoire
(Vol . 156, p . 23828) . Mr. Dare himself testified as to the procedure he .was
following :
,
If it is one or more than one, I stand and take the Bible .in my hand and
make my attestation . I identify myself as a member of the Royal Cana:dian
Mounted Police, do solemnly swear this or these warrants are reqûired for
the security of Canada under the Official Secrets Act . The applicable
section of the Act is sworn on each of the warrants .
(Vol . C88, p . 12186 . )
He said that "that was the form of oath", although by the time that he testified
on April 8, 1980, the word "warrants" is followed by the words "and the
accompanying memorandum" (Vol . C88, p . 12186) . Thus, if Mr ., Dare's
evidence is accepted - and it is he who has been personally involved for' six
years - then it would appear that this practice, as described, has not resulted
at all in his swearing to the truth of the statements of fact contained in the
application or in the aide-mémoire . What he has apparently doné is no more
than swear to the warrants being "required" . (See, in addition to the above
testimony, his earlier testimony at Vol . 126, p. 19649 .) If his evidence is
âccepted, then his practice has failed to satisfy the requirement of the statute,
for the "evidence" is not "on oath" . We do not question the sincérity of Mr .
Dare or his subordinates in preparing the material in support of the applica181
�tions for warrants or in attempting to comply with the statute . However, the
form prescribed by statute was intended to provide some assurance that a
Solicitor General would act only on the basis of "evidence" which some person
was prepared to verify "on oath" . Bearing in mind that the entire procedure by
its very nature is very secret, and will never be examined (apart from a
Commission of Inquiry such as ours) by any tribunal or by Parliament, it then
becomes more than just a matter of form, but rather a matter of form
becoming substance, to do the utmost to ensure that the procedure is treated
with all the seriousness that is deserved by intrusions into privacy which are
numerous and frequently perennial . In Part V, Chapter 4, we shall recommend
that the truth of all of the evidence should be sworn to under oath . Here,
however, we might add again that the problem we have identified might have
been avoided, had legal advice been obtained as to the proper form of the oath
to be sworn on these occasions .
(iii)
Identification of the statutory basis in the warrant itself
74: The warrants issued by the Solicitors General since June 1974 have
suffered from what in our opinion is a serious defect . Section 16(2) provides
that the Solicitor General may issue a warrant for wiretapping if he is satisfied
by evidence on oath that one of the following facts exists :
- that such interception is necessary for the prevention or detection of
subversive activity directed against Canada ;
- that such interception is necessary for the prevention or detection of
.
subversive activity . .detrimental to the security of Canada ;
- that such interception is necessary for the purpose of gathering foreign
intelligence information essential to the security of Canada .
The practice has been that the warrants have simply recited that the Solicitor
General i s
satisfied by evidence on oath of Michael R . Dare, a member of the Royal
Canadian Mounted Police, that it is necessary for the prevention or
detection of subversive activity directed against Canada or detrimental to
the security of Canada or is necessary for the purpose of gathering foreign
intelligence information essential to the security of Canada to intercept
and/or seize any communication hereinafter described . . .
When a search warrant is issued under section 443 of the Criminal Code, it has
been held that the offence must be referred to in the warrant .', One of the
reasons for such a requirement is so that the person whose premises are
searched and anyone concerned will know what the alleged offence is, about
which evidence is being sought . This reason is inapplicable to warrants issued
under section 16(2) of the Official Secrets Act, but another reason may be
pertinent : that naming the offence in the search warrant is evidence that th e
" R . v . Reâd, ex p . Bird Construction Ltd. [ 1966] 2 C .C .C . 137 (Alta S .C .) ; Re
McAvoy ( 1971) 12 C .R .N .S . 56 ( N .W .T .S .C .) ; Royal American Shows Inc . v . The
Queen, ex . rel . Hahn [1975] 6 W .W.R .571 (Alta . S .C .) ; PSI Mind Development
Institute Ltd . v . The Queen (1977) 37 C .C.C . ( 2d) 263 ( Ont . H .C .J .) . There is
disagreement in these cases only as to the degree of particularity required to be stated .
182
�justice has exercised his discretion judicially in issuing the search warrant . The
same may be said of warrants issued by the Solicitor General under . section
16(2) : identification of the specific activities being investigated, that is in terms
of the three possible alternatives referred to in the subsection, would be
evidence that the Minister had exercised his statutory powers with the required
degree of attention to the law . Perhaps this would be unimportant if the
"evidence on oath" directed the Minister's attention to one of the three heads .
However, the so-called "applications" which are the "evidence on oath" have
usually not indicated which category Mr . Dare has considered the circumstances to fall within . In Part V, Chapter 4 we consider this matter further and
make recommendations .
Problems in interpreting the meaning of "subversive activity" (section 16(3))
(i) "Sabotage "
75 . No warrants have yet been issued under section 16(3)(a) of the Official
Secrets Act where the allegation is that the activity in question is "sabotage" .
However, the Security Service has raised with us a question of definition of
"sabotage" as used in this section . The issue is whether the word "sabotage" as
used in the section is limited to the traditional dictionary definition of
sabotage, i .e . "the malicious waste or destruction of property or manufacturing
equipment"? Or, on the other hand, could a warrant be issued where the
nature of the sabotage was a systematic sabotage of the "effectiveness or
credibility of a federal government institution through the systematic leakage
of sensitive or classified documentation entrusted to that person's care"? In the
opinion of the Security Service, such systematic leakage "designed to discredit
or sabotage the effectiveness of a federal government institution, such as the
R .C .M .P . Security Service, could be interpreted as an act to retard an essential
public service" . The Security Service points to Webster's New International
Dictionary, Second Edition, as putting forward a second definition of
"sabotage" ,
Commission by a civilian or enemy agent within a country of any destructive act designed to impede the Armed Forces, or any act or neglect that
retards essential industry, public services, etc .
In our opinion, the word "sabotage" in the absence of any indication to the
contrary in the statute, should be interpreted in the normal sense in which it is
used as a title to section 52 of the Criminal Code, which makes it an offence to
do
a prohibited act for a purpose prejudicial t o
(a) the safety, security or defence of Canada, o r
(b) the safety or security of the naval, army or air forces of any state other
than Canada that are lawfully present in Canada .
Section 52(2) defines "prohibited act" as meaning
An act or omission tha t
(a) impairs the efficiency or impedes the working of any vessel, vehicle,
aircraft, machinery, apparatus or other thing, o r
183
�(b) causes property, by whomsoever it may be owned, to be lost, damaged
or destroyed .
(ii)
"Governmental change "
76. There is a question as to the meaning of the phrase "activities directed
toward accomplishing governmental change within Canada or elsewhere by
force or violence or any criminal means" as used in section 16(3)(c) . Does it
include only activities directed towards the overthrow of a government, or does
it cover also activities directed toward accomplishing changes of governmental
policies and legislation? The latter appears to be the interpretation of the
Security: Service, and warrants have been obtained under section 16(3)(c)
when the evidence presented to the Solicitor General has in no way suggested
that the target person or group had as his or its object anything in the nature of
revolution . On the other hand, the former Deputy Solicitor General, Mr . Tassé,
has testified that it was his opinion that the narrower interpretation was the
correct one, based on the equality of the two official languages for purposes of
interpreting a statute, and the fact that the French version of the subsection
refers to "changement de gouvernement" (Vol . 157, p . 23884) . It is by no
means clear that those in the Security Service responsible for the preparation
of applications have been aware of that opinion or acted upon it . In Part V,
Chapter 4 we shall make recommendations to overcome this ambiguity and
narrow the meaning of "subversion" .
77. A second question arising in the interpretation of section 16(3)(c), about
which the Security Service has expressed concern, is whether it applies to
activities by a domestic terrorist group whose activities are politically motivated . We see no problem . As "terrorism" is defined as "violence for political
ends", the question itself is redundant . In our view, a domestic terrorist group
whose objects fall within section 16(3)(c) in all other respects is one whose
activities are covered by the subsection .
78 . The Security Service is also concerned as to whether section 16(3)(c)
applies to activities directed toward governmental change at provincial and
municipal levels . In our view such activities are covered by the section . Some
members of the Security Service raise the issue whether the words found in
section 16(2) "subversive activity . .. detrimental to the security of Canada"
cover activities that would adversely affect Canadian economic security. The
matter has never been put to the test by way of an application to a Solicitor
General for a warrant, or even by way of preparing such an application nor
does it, appear that a legal opinion has ever been sought from the Department
of Justice . However, our view is that the intent of section 16(2) is that a
warrant may be issued under section 16(2) in respect to "subversive activity"
only where there is a form of activity falling within the definition of subversive
activity found in section 16(3) . Only section 16(3)(b) could apply to the
economic field . In our opinion, if the suspected activities were foreign intelligence activities directed toward gathering economic intelligence information
relating to Canada, that might not be "detrimental to the security of Canada"
in the physical sense, but it would be activity "directed against Canada" .
Therefore the Solicitor General would be authorized to issue a warrant if h e
184
�were satisfied by evidence on oath of the necessity of the interception or seizure
of a communication involved in such activity .
(iii)
"Governmental change outside Canada "
79. An issue of serious concern to the Security Service since January 1978
has been whether section 16(2) authorizes the issue of a warrant where the
activity within Canada is directed toward violent governmental change outside
Canada . Until January 1978 the Security Service had been under the impression that it could obtain warrants, and it did in fact obtain warrants, where the
activities of a person or persons within Canada had been directed toward
accomplishing governmental change elsewhere than in Canada by force or
violence . Thus, the Security Service had obtained warrants where it could
satisfy the Solicitor General that interception or seizure of communications
was necessary for the prevention or detection of activity of persons connected
with various foreign terrorist organizations . However, in January 1978 the
newly arrived Department of Justice counsel gave his opinion that warrants
could not be issued in such cases because the governing subsection is subsection
(2), which requires that the Solicitor General be satisfied that the interception
or seizure of a communication is necessary for one of the following situations :
- the prevention or detection of subversive activity directed against
Canada ,
- the prevention or detection of subversive activity detrimental to the
security of Canada, o r
- for the purpose of gathering foreign intelligence information essential to
the security of Canada .
Thus, although the activity concerned might fall within the definition found in
section 16(3)(c) ("activities directed toward accomplishing governmental
change . . . elsewhere . . .") it did not fall within any of the above three categories,
for, in the opinion of the Department of Justice counsel, such activity was not
"directed against Canada" or "detrimental to the security of Canada", or
(more obviously) "gathering intelligence information essential to the security
of Canada" . As a result of his opinion, warrants have not been sought since
that time, where the planning takes place in Canada but the target is another
country . Examples are the following :
- A landed immigrant was thought to be the leader of a "Liberation
Movement" of a foreign country . The field unit represented that there
was no way to penetrate the group by human sources, and that
therefore electronic eavesdropping was the only way of determining to
what degree the organization was involved with a Canadian group
considered to be "subversive" or what it was doing that might be
detrimental to the security of Canada .
- An application was not processed where the targetted individual was
said to be an organizer of a dissident movement in a foreign country
where that movement was banned . The Security Service field unit
described the movement as pro-Soviet and as advocating the overthrow
of its own government .
185
�- A similar example was that of a proposed warrant against communications of a foreign "leftist" thought to belong to a revolutionary movement in his country of origin and to be a leader of his countrymen in a
Canadian city .
80 . We question the correctness of the legal opinion upon which this reticence
by the Security Service has been founded since 1978 . We recognize that the
matter is not free from doubt, and we certainly do not criticize counsel for the
Department of Justice for giving the opinion which he gave . Our view is based
on mounting experience around the world, that one of the increasingly common
ways in which terrorist groups attack a country is not within its own borders
but outside its borders, as for example, by attacks on that country's missions
abroad or its mission personnel abroad . Thus, there is a strong possibility that a
foreign terrorist group whose members in Canada are suspected of actively
planning terrorist acts against their homeland may plan to do so by attacking
the mission premises or mission personnel of their homeland located in Canada .
Moreover, in our opinion, any such terrorist acts are quite properly described
as "activities directed against Canada or detrimental to the security of
Canada" . It is activity "directed against Canada" in that Canada has a duty
under international law, and under domestic statute law, to protect foreign
mission property and personnel. A failure to afford reasonable protection is a
breach of international and domestic law . Consequently, any conduct directed
toward attacking foreign mission premises or personnel is "directed against
Canada" . It may also be said to be "detrimental to the security of Canada" .
We think that the legislation should be amended to make it clear that activity
of the kind just discussed may be the subject of a warrant authorizing the
interception or seizure of communications .
81 . It follows from the same opinion by counsel for the Department of Justice
that the Solicitor General should not grant a warrant where it is clear that the
sole target of foreign terrorists in Canada is against the foreign country on its
own territory or at least outside Canada . Again, we think that terrorist activity
that is being planned and supported in Canada, regardless of whether it is
targetted against Canada or a foreign country, can threaten the security of
Canada . The failure to keep such activity under surveillance- may disable
Canada from discharging its obligations under international agreements to
prevent terrorism . The definition of threats to the security of Canada which we
shall recommend in Part . V as a statutory limit to security intelligence
surveillance will cover terrorist activity in Canada against foreign governments .
(iv)
"Foreign "
82 . Doubt exists within the Security Service as to whether the use of the word
"foreign" in section 16(3) includes Commonwealth countries . In our opinion,
by analogy with Canadian court decisions interpreting other statutes, the word
"foreign" does include all other countries, including Commonwealth countries .
Should it continue to be felt there is any doubt on this matter the doubt should
be resolved by legislation .
83 . We have not reviewed all the warrants issued since July 1, 1974, but
among those we have considered there are some instances in which it i s
186
�difficult to see that the activity of the target person or group was in any way
within section 16(2) and (3) . Either the police forces or thé security intelligence agency (we have doubts as to whether it should be the latter) should be
concerned to detect and prevent the activities of such a person and group, in so
far as they are directed toward damaging the property of other persons and
otherwise violating the Criminal Code and other lâws . Yet, we find it difficult
to imagine that their activities can properly be described, in any real sense, as
"directed toward accomplishing governmental change within Canada" .
What does "specify" mean in section 16(4) ?
84 . A legal question which appears to have gone unnoticed by the Security
Service and Solicitors General is that section 16(4)(b) requires the warrant to
"specify "
. . . the person or persons who may make the interception or seizure .
What is the meaning of the word "specify"? No such word is found in section
443, concerning search warrants to be issued by a Justice of the Peace, which
provides that the form of warrant shall be directed "to the Peace Officers in
the (territorial division)" . Section 178 .13(2) of the Criminal Code, relating to
electronic interceptions of private communications, requires that the authorization "generally describe the manner of interception that may be used" but does'
not say anything about the person who is to be . authorized to make the
interception . However, section 178 .13(2 .1) reads :
The Solicitor General of Canada or the Attorney General, as the case may
be, may delegate a person or persons who may intercept private communications under authorization .
Therefore, neither the provisions for search warrants nor for electronic interception in criminal investigations is of assistance in interpreting section
16(4)(b) . The Concise Oxford Dictionary defines the verb "specify" as follows :
Name expressly, mention definitely .
Webster's New Collegiate Dictionary defines "specify" as follows :
To name or state explicitly or in detail .
The form of warrant under section 16, prepared by the Department of Justice
before July 1, 1974, is directed as follows :
2 . To the Director General, Security Service, Royal Canadian Mounted
Police, and the Members and agents of the Royal Canadian Mounted
Police acting under his authority or on his behalf.
We have serious doubts that such a direction complies with the requirement of
section 16(4) that the warrant "specify" the person or persons who may make
the interception or seizure . Any statutory revision of section 16 should remove
this doubt, so as to ensure that the warrants do protect members of the security
intelligence agency, and for that matter, that they protect the officials of
telephone companies co-operating with the security intelligence agency, who at
present may be parties to an interception but cannot be said to be "agents" of
the R .C .M .P . acting under the authority of the Director General or on his
behalf .
187
�Can a warrant be issued under section 16(2) to intercept or seize written
communications ?
85 . During the first two years of the operation of section 16, the warrants
which were issued related to the interception of communications by wiretapping (principally telephonic communications), and by microphone operations
(called "oral" communications in the jargon of the Security Service) . In 1976,
in the investigation of the Omura case, application was made to the Solicitor
General for a warrant to authorize the interception of postal communications
of a person believed to be associated with Omura . The Solicitor General, Mr .
Allmand, signed the warrant but on condition that it not be executed except
upon an opinion being received from the Department of Justice that the
warrant was valid . On June 14, 1976, the Deputy Minister of Justice, Mr . D .S .
Thorson, Q .C ., by letter to Mr . Allmand, advised as follows :
I am of the opinion that the word `communication' in section 16(2) of the
Act includes letters . However, section 43 of the Post Office Act reads as
follows :
`Notwithstanding anything in any other act or law, nothing is liable to
demand, seizure or detention while in the course of post, except as
provided in this Act or the regulations . R .S .c .212, s .41 . '
In view of the clear wording of the above noted section in the Post Office
Act, section 16(2) of the Official Secrets Act cannot, in my opinion, be
interpreted as taking precedence over section 43 of the Post Office Act .
For present purposes, the significant portion of Mr . Thorson's letter is his one
sentence opinion that the word "communication" in section 16(2) of the
Official Secrets Act includes letters . In consequence, one warrant was obtained
in May 1976, authorizing the interception of "written communications" of a
target organization . Mr . Tassé testified that early in 1977, while he was still
Deputy Solicitor General, a further opinion, this time verbal, was obtained
from the Department of Justice that section 16 authorized the interception or
seizure of "written" communications (Vol . 156, p. 23814) . Later in 1977,
having become Deputy Minister of Justice, Mr . Tassé signed a written opinion
to the same effect . Consequently, since then the Security Service and the
successive Solicitors General have considered section 16 to authorize the
issuing of warrants to intercept and seize "written communications" . In our
view, there is a serious question as to whether section 16(2) authorizes the
issuing of a warrant to intercept or seize "written communications" . The
amendment to the Official Secrets Act in 1973 was part of the Protection of
Privacy Act, the principal provision of which made it an offence to "wilfully
intercept a private communication . . . by means of an electromagnetic, accoustic, mechanical or other device" . The provisions of the amendment to the
Official Secrets Act must be read in the context of the Protection of Privacy
Act as a whole unless there is some indication in the statute that the Official
Secrets Act amendment is to be read differently . As was said by Mr . Justice
McIntyre in the Supreme Court of Canada :
It was said that well-established canons of construction dictated that words
should receive a uniform meaning when used repeatedly in the same statute
or in one in pari materia . Following this principle, it was said, the separat e
188
�parts of the Protection of Privacy Act which amended the Criminal Code,
the Crown Liability Act and the Official Secrets Act, respectively, should
be construed as a unified whole, providing one body of law applying to the
separate situations covered by the separate Acts which were amended . I
have no quarrel with the general proposition thus expressed . ..3z
,
The amendment to the Official Secrets Act created an exception to the
criminal liability imposed by the principal part of the Protection of Privacy
Act :
16 . (1) Part IV .I of the Criminal Code does not apply to any person who
makes an interception pursuant to a warrant .
. .
This does not mean that one can read section 16 without regard to the
provisions of Part IV .1 of the Criminal Code, for both provisions formed part
of the Protection of Privacy Act . Moreover, unless there is language leading to
a contrary construction, the language of section 16(1) and (2) must be read as
providing a defence to what section 178 of the Criminal Code makes an
offence, and sections 16(1) and (2) must not be read as providing a statutory
procedure for authorizing something which is otherwise no offence under
section 178 . Thus "communication" as used in section 16(2), not being defined
in the amendment to the Official Secrets Act, must be given the same meaning
as in the remainder of the Protection of Privacy Act . In the principal part of
the Protection of Privacy Act, which enacted section 178 of the Criminal Code,
the word "communication" is defined only as part of the definition of the
expression "private communication" . Part of the definition of that expression
in section 178 .1 reads :
Any oral communication or any telecommunication . .
.
(The balance of the definition relates to the word "private", which has no
relevance to section 16 of the Official Secrets Act .) There is only one respect in
which section 16(2) may contain an indication that it is meant to apply to
communications of a broader or different kind than those with which the
balance of the Protection of Privacy Act was concerned : the word "seizure"
may imply that written communications are included within the purview of
section 16(2) . However, we doubt that that element overcomes the reasoning
previously stated . Thus, in our opinion, it is at least doubtful that section 16(2)
of the Official Secrets Act can be read as authorizing the Solicitor General to
issue a warrant in respect of written communications of any kind, whether
letters in the post or other written communications (other than telegraphs,
cables and telexes, which would be "telecommunications") . Therefore, if there
is to be legislation permitting the opening of mail for security purposes, section
16 of the Official Secrets Act would have to be amended further than needed
merely to provide that its provisions override the provisions of the Post Office
Act ; section 16 would have to contain language redefining "communication" .
Moreover, if section 16 is to be taken as authority for the issuing of warrants
for the seizure or copying or photographing of some forms of written communication in the course of post, other than letters, (e .g . printed books, typed books,
accounting records and code books), which may not properly be described as
32 Goldman v. Regina (1980) 51 C .C .C . (2d) I at 19 ; 13 C .R . (3d) 228 at 251 .
189
�"communications", the legislation should be amended to empower the Solicitor
General to issue a warrant authorizing such acts . It follows from our reasoning
that if the Bill introduced in Parliament in January 1978 had been enacted, it
would not have achieved its intended purpose .
Use of section 16 warrants for purposes of search
86 . After July 1, 1974, the Security Service was concerned as to the means by
which it should gain approval for "PUMA" operations, that is, operations
involving surreptitious entry upon premises to search and examine articles on
the premises and copy or photograph them . In the early period of the operation
of section 16, the Security Service considered that the use of warrants issued by
the. Solicitor General authorizing the interception of oral communications was
an umbrella for PUMA operations which was "not entirely appropriate but
better than nothing" . In two cases the Security Service applied for warrants
under section 16 under the representation that the interception or seizure of the
targetted individual or group's communications was necessary for the prevention or detection of subversive activity, when the real intention and sole object
of the Security Service was not to intercept oral communications but rather to
search, examine, copy and photograph articles found on the premises where the
electronic device was to be installed . We are not suggesting any impropriety in
these two cases ; the members involved in preparing the applications thought
that they were following the proper procedure for obtaining authority for such
a search. Other than these two cases, it can be said that the Security Se rv ice
considered that where it could find the grounds to support a genuine application under section 16, it was then consciously prepared, when entering the
premises to install a listening device, to have its members seize the opportunity
to search, examine, copy and photograph . This continues to be the approach of
the Security Service . Whether this is a lawful practice has already been
discussed under the title "Rummaging", earlier in this chapter .
Usé of information obtained through warrants issued under section 1 6
87 . There is a deficiency in section 16 of the Official Secrets Act from the
point of view of providing protection for members of the Security Service who
communicate the content or purport of a communication intercepted under a
section 16 warrant to a friendly foreign agency . For example, one may
reasonably expect information obtained by our security intelligence agency
about an international terrorist, who is in Canada, to be transmitted to the
agency of another country which shares Canadian concerns about the person's
future activities . If the Canadian security intelligence agency does not provide
information it has of that nature to friendly agencies, they in turn are unlikely
to give the Canadian agency information they have that may be of interest to
Canada . Reciprocity is expected . If the information has been obtained as a
result of electronic interception of communications, there may be a serious
legal problem in this action . It arises from section 178 .2(1) of the Criminal
Code, which prohibits the wilful use or disclosure of a private communication
"or any part thereof or the substance, meaning or purport thereof or of any
part thereof ' without the consent of one of the parties to the communication ;
190
�but subsection (2) provides that that does not apply to a person who makesany
such disclosure
(a) in the course of or for the purpose of giving evidence in any civil or
criminal proceedings or in any other proceedings in which he may be
required to give evidence on oath where the private communication is
admissible as evidence under section 178 .16 or would be admissible
under that section if it applied in respect of the proceedings ;
(b) in the course of or for the purpose of any criminal investigation if the
private communication was lawfully intercepted ;
(c) in giving notice under section 178 .16 or furnishing further particulars
pursuant to an order under section 178 .17 ;
(d) in the course of the operation o f
(i) a telephone, telegraph or other communication service to the
public, or
(ii) a department or agency of the Government of Canada ,
if the disclosure is necessarily incidental to an interception described in
paragraph 178 .11(2)(c) or (d) ; o r
(e) where disclosure is made to a peace officer and is intended to be in the
interests of the administration of justice .
None of these exceptions appears to protect a member of the R .C .M .P .
Security Service who discloses such information to the security intelligence
agency of another country . We shall recommend that statutory protection be
extended to such an employee of the security intelligence agency . (See Part V,
Chapter 4 . )
88 . There is legal protection for the employee of the Security Service who
listens to the intercepted communication and translates or transcribes it,
because section 16(1) of the Official Secrets Act says that Part IV of the Code
does not apply to a person who makes an interception pursuant to a warrant or
to any person who aids him . However, what about the employee or membôr of
the Security Service to whom the transcript is delivered, who then analyses it
and condenses it into a report which is placed on file for other members to read
or which is transmitted to other members or even to other departments of the
government? None of the exceptions contained in section 178 .2(1) affords
protection to him . Nor does section 16(1) of the Official Secrets Act afford
protection, for it cannot be said that any of those persons are persons who "in
any way" aid the person making the interception . Consequently we shall
recommend that protection be afforded to such persons by amendment to
section 16, when disclosure is made to any person for the purposes of carrying
out the functions of the security intelligence agency and subject to strict
guidelines about reporting security intelligence . (See Part V, Chapter 4 . )
Miscellaneous legal issues arising from the technical aspects of electronic
surveillance
89 . There are a number of legal issues that require resolution if the security
intelligence organization is to be able to carry out its responsibilities once a
warrant is issued authorizing electronic interception of communications .
191
�90. ~The R .C .M .P . identified as a problem the possibility that radio transmitters installed pursuant to a warrant issued under section 16 of the Official
Secrets Act might violate the licensing requirements of the Radio Act .. That
problem was resolved in 1979 when the Minister responsible under the Radio
Act granted a blanket licence for the use of "any and all' types of radio
apparatus to be used by persons acting under the direction of the Director
General of the Security Service in the course of investigations related to
national security matters, which radio apparatus is of a special design for
which the prescribed procedures for technical approval and acceptance are not
appropriate" . Such a licence is permissible under section 4(1)(b) of the Radio
Act . Thus, while there no longer is a legal problem, we note that until 1979
microphone operations may have violated the provisions of the Radio Act .
91 . Another concern is that members of the R .C .M .P . engaged in making the
technical installation may be violating the requirements of provincial laws
regulating the qualifications of persons making electrical installations . (The
problem presumably exists also in the case of installations made in the course
of criminal investigations under section 178 of the Criminal Code .) A similar
problem arises when the Security Service makes a major electrical installation
in its own premises, whether at Headquarters or elsewhere across the country
- for example, for the reception of electronically eavesdropped conversations .
The Security Service does not have personnel who meet the residency requirements of all the provinces . The use of contracted personnel bears inherent
security risks . Apart from accepting such risks and contracting with outside
personnel, we can recommend no other course but to negotiate lawful administrative arrangements with the provincial authorities and, if necessary, request
exemptive provincial legislation to cover the specific need . We realize that this
problem, and the problem discussed in -the next two paragraphs, may in law be
non-existent if a correct interprétation of the judicial decisions on the Constitution would lead to the conclusion that such works and undertakings by the
R .C .M .P . would not be subject to provincial regulatory laws . However, the
answer to that question, short of going to court - for a ruling, must remain
uncertain . Therefore we think it best that it be assumed that provincial law is
applicable and that negotiations with the provincial authorities be carried out .
92 . Another concern is that the installation of equipment in `observation
posts' and `listening posts' - houses, apartments and offices from which to
observe actions and receive intercepted communications at nearby targetted
premises - may violate provincial and municipal laws, such as fire regulations .
The Security Service wishes to avoid having to comply with such regulations
because compliance, meaning permits and inspections, might endanger the
security of such operations . Moreover, the nature of the installation is frequently such that the security intelligence organization will be unable to meet the
minimum provincial or municipal standards of protection . We can see no
alternative but to ask provincial governments to amend relevant statutes to
exempt such installations . In the specific case of fire regulations, for example,
the standards of protection should be inspected in all such posts by an inspector
of the office of the Dominion Fire Commissioner . There is already an inspector
in that office who has the requisite security clearance and inspects restricted
areas in buildings owned by the R .C .M .P. Security Service .
192
�93 . A similar concern is that provincial and municipal building codes may be
violated by structural alterâtions that may have to be made to premises used as
observation posts or listening posts . This may consist of the construction of
false walls, modifications to plumbing, etc . Applications for permits and
examination by provincial or municipal inspectors would endanger the security
of the operation . We doubt that many of the alterations to premises required
by such operations would constitute such `construction' or `demolition' of a
`building' as would violate the typical provincial statute which prohibits such
construction without a permit, or would constitute violation of the typical
provincial statute which prohibits a`material change' in a plan on the basis of
which a permit was issued without satisfying the authorities . Nevertheless,
because of the possibility that violations might occur, we think that provincial
governments should be asked to amend building code legislation to exempt
such alterations provided that they do not weaken the structure of, or otherwise
endanger, a building, or result in an occupant being subjected to an unreasonable danger .
94. Another concern is that sometimes the method of eavesdropping, when
authorized under section 16 of the Official Secrets Act, is by means not of a
wire microphone or a battery-operated radio transmitter but by a transmitter
which is powered by the power supply paid for by the subject of investigation
or another person . This may constitute an offence under section 287 of the
Criminal Code, which provides as follows :
287 . (I) Every one commits theft who fraudulently, maliciously, or without colour of right, (a) abstracts, consumes or uses electricity or gas or
causes it to be wasted or diverted .
. .
It might be argued that the Solicitor General's warrant gave the accused a
"colour of right" - i .e . a belief that he had a right to take "possession" of the
electricity for the purposes of the authorized interception - although we do
not subscribe to the validity of such an argument . To remove the lingering
concern, we shall recommend that the amendments to the legislation expressly
empower the use of devices that operate by using the electrical power supply
found upon the premises . We are advised that the value of the amount of power
thus used is a matter of cents per month, and we do not consider the burden
thus placed upon the suspect or neighbour to be significant . (The same solution
should apply on the side of criminal investigations, to section 178 of the
Criminal Code . )
Importing highly sensitive equipment
95 . Occasionally the Security Service, wishes to bring into Canada novel and
effective surveillance equipment, designed to detect communications and
observe conduct, which it would be too costly to manufacture in Canada . On
these occasions, the Security Service is properly concerned to reduce to a
minimum the number of people who know of the existence of this means of
detection and its capabilities . Therefore the Security Service has wished to
avoid inspection of such items by customs officers .
96. The Customs Act contains no provisions exempting any goods imported
into Canada from being examined by the Customs and Excise Branch . In fact ,
193
�in the case of another federal government department, military equipment is
imported without inspection by virtue of an arrangement under which the
customs officer is instructed not to inspect the goods . However, we believe that
a better and firmer solution should be found . An administrative solution that
would be preferable would see one Customs inspector being given the requisite
security clearance to attend to all such imports . If that should prove unworkable, we consider that the legislation chartering the security intelligence
organization should expressly exempt from the provisions of the Customs Act
such equipment as may be required by the organization for its purposes, such
requirement to be certified by a certificate of the Director General attached to
the particular goods .
Does the Diplomatic and Consular Privileges and Immunities Act raise any
impediment to a Canadian security intelligence agency's work in countering
espionage ?
97 . The Vienna Conventions on Diplomatic and Consular Relations were
signed by Canada on February 5, 1962, and have been part of Canadian
domestic law since June 29, 1977, as a result of the enactment of the
Diplomatic and Consular Privileges and Immunities Act . Section 2(1) of the
Act states that certain Articles of the Vienna Convention on Diplomatic
Relations and of the Vienna Convention on Consular Relations "have the force
of law in Canada in respect of all countries (including Commonwealth countries), whether or not a party to the conventions ." The provisions of the two
Conventions are substantially the same . Reference will be made only to the
Convention on Diplomatic Relations . The following are articles from that
Convention which, in the schedule to the Act, have the force of law in
Canada : "
22 .1 . The premises of the mission shall be inviolable . Agents of thé
receiving State may not enter them, except with the consent of the head of
the mission .
2 . The receiving State is under a special duty to take all appropriate steps
to protect the premises of the mission against any intrusion or damage
and to prevent any disturbance of the peace of the mission or impairment of its dignity .
27 .1 . The receiving State shall permit and protect free communication on
the part of the mission for all official purposes . In communicating with the
Government and the other missions and consulates of the sending State,
wherever situated, the mission may employ all appropriate means, including
diplomatic couriers and messages in code or cipher . However, the mission
may install and use a wireless transmitter only with the consent of the
receiving State .
2 . The official correspondence of the mission shall be inviolable . Official
correspondence means all correspondence relating to the mission and its
functions .
98 . The following legal issues have been raised :
(a) Is it Canadian law that a violation of the provisions of Articles 22 and
27 of the convention occurs if the telephone lines of a foreign missio n
" S .C . 1976-77, ch . 31 .
194
�were to be tapped or a listening device were to be installed and used in
the premises of a foreign mission ?
(b) Is it Canadian law that a violation of the provisions of the convention
occurs if the security intelligence agency were to have a human source
inside a foreign mission ?
(c) Is it Canadian law that a violation of the provisions of the convention
occurs if the security intelligence agency were to have a member or
other person enter the premises of a foreign mission, under a pretext ?
99 . Some introductory remarks are in order, concerning customary international law, the Conventions and the statute . In customary international law, the
inviolability of diplomatic premises has long been recognized as subject to the
overriding principle that the embassy must not be used to the detriment of the
host country or for the purpose of infringing the law of that country . The best
known example of not accepting the inviolability as absolute arose in 1896,
when the British Government announced its intention to invade the Chinese
embassy in London in order to rescue Sun Yat-Sen, who was being held in the
embassy against his will with the object of sending him back to China . The
purpose of a mission is to represent the views of its country to the host state .
The mission is not entitled to engage in espionage or endanger the security of
the host state . Nor is the host state required to tolerate activities by the mission
which go beyond its proper function . The host state is entitled to take such
measures as are necessary to preserve its own security . If the mission abuses its
rights, the host state is entitled to take measures to counter such activities, so
long as they . remain proportionate in character . The foregoing principles
however, do not provide guidance on the key question of the rights of the host
state when it comes to the acquiring of information concerning the possibility
of violations of diplomatic privileges and immunities . We are, however, persuaded that the host state has a right to acquire knowledge of whether the
persons who enjoy the privileges and immunities recognized by the Convention
are violating their own duty not to interfere in the affairs of the host state . It
therefore follows that the host state has the right to take reasonable steps to
acquire such knowledge .
100 . While normally a treaty would be regarded as overriding the principles of
customary law, this is true only when the treaty is a law-making document . In
the case of the Convention, the purpose was to codify what were regarded as
being the customary and accepted rules on the subject, and to provide some
text which would be acceptable to the new states, many of which have
contended that there is no true customary law in existence, since what is
described as being such law came into being before the creation of those states
and without their consent . To this extent, therefore, in so far as the text of the
Convention does not expressly overrule accepted rules of customary law, these
are considered to be still in existence . The Convention is confirmatory of
international customary law and to the extent that it does not expressly
override such law it leaves it intact (see, for example, The Amazone 34) .
34 [1940] P . 40 . This case referred to the Diplomatic Privileges Act, 1708, as being
declaratory and not exhaustive of diplomatic privileges, so that in so far as the Act
was silent the privileges of customary law still existed .
195
�Secondly, when codificatory instruments are being drafted it is not the practice
to list all the exceptions and waiver possibilities, particularly when state
practice over the centuries has recognized the possibility of even the invasion of
an embassy .
101 . It cannot be presumed that Parliament intended to legislate in a way
that would inhibit protective action, especially as such action is compatible
with the principles of customary international law concerning diplomatic
privileges and immunities . The statute is principally concerned with acts taken
by private individuals, which may contravene the rights of diplomatic missions,
and not acts by state agents or on behalf of the state . It does nothing more than
to give modern legislative form to what has been the position under customary
law, both national and international, with regard to the protection of
diplomats . The obligation upon the receiving state to protect the mission from
intrusion and the like relates to the activities of private interests and does not
create any criminal liability in respect of acts interfering with the mission's
security undertaken .by or on behalf of the host state .
102 . The purposes 'of the inviolability provisions of Article 22 are to enable
the mission to function peacefully and without interference, to prevent the host
state from inhibiting such activities by unwarranted interference, and to secure
the mission from illegal activities by local residents . The aim is to enable the
mission to carry out its proper activities (which are set'forth in Article 3 of the
Convention) .
-
103 . Article 22 does not protect the mission in so far as the mission goes
beyond the purposes for which it had been accepted . Article 41 .1 forbids
interference in the internal affairs of the host state, and Article 41 .3 forbids
use of the premises of the mission "in any manner incompatible with the
functions of the mission as laid down in the present convention or by other
rules of general international law or by any special agreements in force
between the sending and the receiving State ." Thus, if an embassy were being
used as a "prison" for natiofials of either the host or the sending country, the
mission would be violating the provisions of Article 41 .1 and 41 .3, and Article
'22, the purpose of which is to enable the mission to perform its proper
functions peacefully and without interference . The purpose of those articles is
not to preclude the local authorities from entering the embassy .
104 . As far as telephonic communications to and from the mission are
concerned, if they concern activities which are beyond the proper activities of
the mission, by the same reasoning Article 27 would not be violated by the host
state taking steps to detect such communications . In any event, provided that
the steps taken to "wiretap" occur outside the mission premises, there is no
question of a violation of such premises . Moreover, as far as Article 27 is
concerned, such listening does not obstruct or inhibit "free communication on
the part of the mission for all official purposes" .
105. If the electronic surveillance is by a microphone installed in the premises, where the host state has grounds for suspecting activities on the part of the
mission beyond the appropriate functions of the mission, in our view there is no
violation of either Article 22 or Article 27 .
196
�106 . Nor, in our view, does Article 22 prevent the security intelligence agency
of the host state from having a human source, inside the mission, or from
having a person enter the mission premises under a pretext . When Article 22
refers to entry, there is little doubt that the draftsmen had in mind a -physical
invasion . They were concerned with enabling the officers of the mission to
fulfill their tasks without threats or fears of bodily harm by local nationals
invading the 'premises . Article 22 does not preçlude the host state taking
measures of anticipatory self-defence, for example by obtaining information as
to whether there has been an abuse of the mission's functions .
107 . Our conclusion is that the use of certain investigative . techniques, when
there are grounds to suspect that the mission's staff is engaged in espionage,
would not result in an offence being committed under section 115 of the
Criminal Code, for there is a "lawful excuse" for . such conduct . Moreover,
persons involved in such conduct in the course of the investigation of suspected
espionage could not be said to be "wilfully" omitting to do anything which_ is
required to be done by any of the articles of the Diplomatic and .Consular
Privileges and Immunities Act .
(c) Legal and policy issues uniqûe to the C.I.B .
108 . The 1979 Annual Report prepared by the Solicitor General of Canada
and laid before Parliament in 1980, pursuant to section 178 .22 of the Criminal
Code noted somewhat obscurely that the following was an area of concern :
The provisions regarding the disclosure of information by electronic surveillance . These provisions impede rather than facilitate international
exchanges of information .
This no doubt is a reference to a problem that the R .C .M .P . has drawn to our
attention as to whether members of the R .C .M .P. may give to a foreign law
enforcement agency any information which the R .C .M .P . obtains from electronic surveillance . In the discussion of legal and policy issues concerning the
Security Service we have .mentiôned the offence created by section 178 .2(1) of
the Criminal Code for disclosure of the content or purport of a communication,
and the exceptions provided by subsection (2) . None of these exceptions
appears to protect a* member of the R .C .M .P . who discloses such information
to a'fôreign agency, unless it can be said that (e) js applicable, which is
doubtful . We shall recommend that section 178 .2(1) be amended to make it
clear that such information may lawfully be given to a foreign law enforcement agency .
109 . Another aspect of the limited exceptions is that members of the
R .C .M .P . are severely restricted as to what information they may give to
anyone involved in the preparation of the Annual Reports of the Solicitor
General of Canada and the provincial attorneys general . Consequently the
Annual Reports are likely to be less informative than they should be as to the
value of the intelligence product received, unless evidence adduced in court has
resulted . This limitation equally would severely impede any .attempt in the
futûre, whether within the R .C .M .P . or by any other body, . to conduct an
assessment-of the' benefits of electronic-sûrveillance in comparison with the
tangible and intangible costs of such operations . We shall recommend tha t
197
�section 178 .2(1) be amended to make it clear that such information may
lawfully be given to any person, whether that person is a peace officer or not,
who is involved in the preparation of the Annual Reports .
110 . Our examination of the operation of section 178 of the Criminal Code
has been limited to consideration of the procedure by which applications are
m* to a judge for an authorization . We did not think that consideration of
the entirety of section 178 was within our terms of reference . For there have
been no suggestions made to us that in some respect the R .C .M .P . has been
using section 178 in a way that is "not authorized or provided for by law" ;
consequently consideration of section 178 as a whole would not fall within
paragraph (a) of our terms of reference . Nor does it fall within paragraph (c),
for section 178 has not in practice been used as a means of obtaining authority
for the Security Service to conduct electronic interception of communications .
However, we did address our attention to the application procedure because we
wanted to have a good grasp of how it is functioning, in case some aspect of the
procedure would have a bearing on the procedure that might be used if the law
is amended to permit the opening of mail for purposes of any criminal
investigations, a subject that was certainly within the terms of reference
because of past practices "not authorized or provided for by law" . Whatever
our recommendation might be in that regard, we knew that the Bill introduced
in Parliament in January 1978 proposed that the procedure by which an
application for judicial authorization would be made should be akin to that
already provided for in the case of electronic interception . Therefore it seemed
to us that it was important to examine the existing application procedures .
111 . However, this was not an easy task . Section 178 .14 of the Criminal
Code requires all documents relating to an application to be treated as
confidential . Further, all the documents except the authorization itself are
required to be placed in a packet and sealed by the judge . The packet is to be
kept in the custody of the court and is not to be opened except for the purpose
of dealing with an application for renewal of the authorization, or pursuant to
an ôrder of a judge . An application was made on behalf of a provincial judicial
inquiry for an order to open a packet so that the inquiry might examine the
affidavit, but the Chief Justice of the Trial Division of the Supreme Court of
Alberta refused to make the order sought .35 Thus it is apparent that at present
the Code does not permit a Commission of Inquiry to gain access to affidavits
sealed in packets, to examine the quality of the documentation filed in support
of authorizations that have been given . Moreover, to comply with the spirit of
section 178 .14, the Department of Justice and the R .C .M .P . do not retain
copies of the applications once the authorization has been granted . So, even if
the Department were prepared to give us access to such documents, they are
simply not available for inspection . While on the one hand the law and the
administrative practice thus genuinely further the statutory objective of confidentiality, on the other hand they render it impossible to assess the quality of
the documentation other than by questioning some of those who since 1974
have been involved in the application process . This we have done, and while s o
's Re Royal Commission Inquiry into the Activities of Royal American Shows Inc . (No.
3), (1978) 40 C .C .C . (2d) 212 .
198
�doing we have explored with them the workings of the application procedure .
The constraints we have encountered in this regard have alerted us to the
impossibility under the present law of any thorough review of the quality of the
documentation which is prepared by agents of the Solicitor General - or, for
that matter, of the provincial attorneys general . Similarly, the prohibition
against disclosure of the content or purport of an intercepted communication,
found in section 178 .2, has exceptions (such as the giving of evidence in cô'urt,
or for the purpose of a criminal investigation, or where disclosure is made to a
peace officer and is intended to be in the interests of the administration of
justice), but they would not permit any independent review of the benefits of
interceptions compared with the expectations described in the affidavits . In
Part X, Chapter 5 we shall make a recommendation concerning independent
review of the authorization procedure, and we shall recommend an amendment
to section 178 to permit that review process to have access to the information it
would need .
E . NEED AND RECOMMENDATIONS BRIEF SUMMAR Y
112 . In this Chapter we have, in the course of giving the history and
discussing the legal issues, recognized the need for the use of electronic
surveillance in both security intelligence collection and criminal investigations .
We have also pointed to a number of deficiencies in the law which will be the
subject of recommendations in Part V, Chapter 4 and Part X, Chapter 5 .
199
��CHAPTER 4
MAIL CHECK OPERATIONS SECURITY SERVICE AND C .I.B.
A . ORIGIN AND NATURE OF PRACTICE SECURITY SERVICE AND C .I .B .
1 . Research carried out by us discloses that the interception of mail was a
matter of concern at least as early as the 1914-18 war . The War Measures Act
included a prohibition against dissemination of treasonable material or the
passing of information to the enemy . At the beginning of the war a number of
postmasters were simply handing over any mail they considered suspicious to
the then Royal North-West Mounted Police . It was soon realized that more
proper authorization was required and warrants were then obtained under what
was then section 629 (now section 443) of the Criminal Code - the section
that provides for a search warrant being issued by a justice of the peace . The
Post Office Department objected that this was contrary to what was then
section 84 of the Post Office Act . The problem was resolved by the senior law
officers of the Crown directing that in cases of suspicion the police were to
contact senior authorities at the Post Office who would make the necessary
arrangements in a proper case . This pragmatic solution continued for some
time after the war .
2 . The question again became important just prior to the 1939-45 war . By
this time the Intelligence Section of the R .C .M .P . had been formed . In early
1939, at about the time the Official Secrets Act was being introduced with a
view to meeting the anticipated problem of espionage activity, the Force
suggested that the Post Office Act should be amended to permit mail examination in order to counter suspected espionage . Consideration of this suggestion
was shelved when the war commenced and the Defence of Canada Regulations
brought postal censorship into effect . This solution lasted until the expiry of the
regulations in 1954 .
3 . In late 1954 correspondence and discussions took place between the Force
and the Department of Justice with a view to regularizing covert inspection of
mail . The Security and Intelligence Special Branch of the R .C .M .P . considered
such inspection necessary for security reasons . The possibility of using warrants
under section 11 of the Official Secrets Act was considered in view of the fact
that the offence created by section 55 (now section 58) of the Post Office Act
applied only to a "person who unlawfully opens . .. any post letter, or other
article of mail . . ." . At the time, however, it was pointed out that in 1950 sectio n
201
�41 (now section 43') had been introduced into the Post Office Act . It provided
as follows :
Notwithstanding anything in any other Act or law, nothing is liable to
demand seizure or detention while in the course of the post, except as
provided in this Act or the Regulations .
Consideration was given to amending the Post Office regulations to permit
covert examination of mail but nothing came of this suggestion .
4 . In October 1957, the Report to the Prime Minister of the Committee of
Privy Councillors Appointed to Inquire Into the Interception of
Communicationsz (the Birkett Report) (Ex . B-14) was published in the United
Kingdom . This report examined the legal authority for the interception of mail,
telegraph and telephone communications as well as the purpose, use and extent
of the power to intercept, and it made recommendations for the future use of
the power. In the United Kingdom all three methods of communication were in
fact services provided by the Post Office . The Birkett Committee found that,
although apparently originally based upon Crown prerogative, the power to
intercept communications in the course of post had been recognized by statute
in the U .K. for more than 200 years . Prohibitions similar to that found in
section 43 of the Canada Post Office Act had been subject to express exception
from 1710 onwards, permitting the interception of mail and, later telegraph on
the basis of a warrant of a Secretary of State . The Committee recommended a
clarification of the statutes regarding the power to intercept telephone communications . Upon reviewing the use of the power to intercept, the Committee
concluded that it had been effective and, subject to continued safeguards,
should be continued, since the interference with the individual liberty of
law-abiding citizens was relatively small .
5. In Canada, on March 1, 1962, the Director of Administration of the Post
Office issued a Directive, addressed to the Regional and District Directors and
Senior Investigators, entitled "Narcotics in the Mails" (Ex . B-49) . It directed
that the Post Office should extend every possible co-operation to the R .C .M .P .
in their drug investigations despite the fact that the newly enacted Narcotics
Control Act did not override the Post Office Act, which provided (and still
provides), that nothing is liable to demand, seizure or detention while in the
course of post . The procedure to be followed was not set out but rather left to
the discretion of senior officers in the field . The existence of mail suspected of
containing narcotics was to be communicated to investigating police in such a
way as to inform them of "the precise method, time and place of its delivery to
the addressee or of its return to the sender" . The co-operation of Customs was
to be enlisted in the case of international mail . It was also specified that those
in the field did not need to report to Headquarters .
6 . This Directive was withdrawn in 1972, when the Department was reorganized on a regional basis, and was subsequently replaced by a Directive dated
January 14, 1974, sent by Mr . P . Boisvert to the four Regional Chie f
' R .S .C . 1970, ch .P-14 .
z Cmnd . 283 .
202
�Inspectors of Security and Investigations (Ex . B-51) . This Directive specified
that because of section 43 of the Post Office Act and other factors, inquiries
from R .C .M .P . Drug Enforcement Branch personnel should be directed to
Security and Investigations personnel, preferably postal inspectors, rather than
the regular Post Office operational staffs . The postal inspectors were briefed on
this subject at a postal inspectors' training course held in October 1973, and
the issue of special relations with the Post Office was to be included in training
courses of R .C .M .P. Drug Enforcement Branch personnel . The January 14,
1974 Directive, and the understanding contained therein, was renewed in an
exchange of correspondence dated April 1, 1977 and subsequently confirmed
again by letter of January 6, 1978 from Mr . Boisvert to this Commission .
7 . Mr . Boisvert told us that it was his clear understanding that any mail cover
check operation (that is, the examination of only the outside of a piece of mail)
would be done (a) in the Post Office and (b) without removing the piece of
mail from the post office where it was located .
8 . Documents before the Commission indicate that consideration was given in
1973 to expanding the Protection of Privacy Bill to include specifically the
interception of communications by mail . Nothing, however, came of this
suggestion .
9 . The escalation of drug trafficking in the late 1960s and early 1970s made
the criminal investigations side of the Force more anxious to secure legal
authority to open mail . Interdepartmental meetings at the instance of the
R .C .M .P. began in 1974 with a view to securing appropriate amendments to
the Post Office Act .
10 . In the summer of 1976, the Security Service attempted to secure access to
first-class mail under a warrant which was issued by Mr . Allmand pursuant to
section 16 of the Official Secrets Act . He issued the warrant subject to receipt
by the Security Service of an opinion that such a warrant was legal . Having
been advised by the Department of Justice that section 43 precluded the
exercise of such a warrant, the Security Service joined the C .I .B . in seeking
amendments to the Post Office Act .
11 . Legislation patterned upon the Protection of Privacy Act, which would
have amended the Criminal Code, the Crown Liability Act and the Post Office
Act, was introduced as Bill C-26 on February 7, 1978, while our hearings
relating to Mail Check Operations were underway . This proposed legislation
provided for its automatic termination one year after the publishing in the
House of Commons of the final Report of this Commission . The Bill perished
with the prorogation of Parliament in May 1979, and has not been
re-introduced .
B . R .C .M .P . POLICIES AND PROCEDURES SECURITY SERVICE AND C .I .B .
(a) Security Service
12. Although it is apparent from the record before us that mail check
operations under the code name CATHEDRAL were carried out by member s
203
�of the Security Service from the demise of the Defence of Canada Regulations
in 1954, the investigation and evidence before us concentrated on the period
from 1970 onward . The principal reason for adopting this time period was that
before November 2, 1970, decisions with respect to the use of mail check
operations were made by area commanders at the division level, and no records
were kept at Headquarters .
13 . On November 2, 1970, a senior R .C .M .P . officer sent a memorandum
to the commanding officers of the various area commands of the Security
Service . The memorandum describes the three types of CATHEDRAL coveragé
as follows :
CATHEDRAL "A"- Routine name or address check (It was explained in
evidence that in this instance, a member of the R .C .M .P . asked a postal
employee to record in longhand the name of the addressee and any
information with respect to the sender by looking at the outside of
envelopes . )
CATHEDRAL "B" - Intercept (photograph or otherwise scrutinize by
investigator) but do NOT open
(In this instance the same procedure was followed as that in Cathedral "A"
but' a photographic copy was made of the outside of the envelope . It was
explained in evidence that this procedure was used to examine mail covers
for simple codes and the possible presence of micro-dots . )
CATHEDRAL "C" - Intercept and attempt content examination
.
14 . With respect to authorizing such operâtions the memorandum directed
that Cathedral "A" and Cathedral "B" could be authorized by the local officer
in charge, Security and Intelligence Branch, or his designee, but continued :
"Because of the special experience required to handle a Cathedral "C" and for
this reason only the D .S .I .'s authorization for an operation will henceforth be
required . This authority will be contingent on the importance of the case and
the availability of a trained technician" . The reason given for this change in
authorization procedure shows a very clear understanding on the part of the
senior officers at Headquarters as to the legality of such techniques . The first
two paragraphs of the memorandum read as follows :
Re: CATHEDRA L
It has, become apparent that considerable diversity exists in the understanding and the utilization of this source and that we are unconsciously
exposing this source's availability to unwarranted risk . Since this source is
extremely valuable, perhaps in regard to'counter-espionâge particularly, it
has been decided that there should be some uniformity brought into the
picture by outlining guidelines which will create as few restrictions and
limitations as possible and still effectively reduce the risk .
It must be clearly understood that any form of co-operation received
from any CATHEDRAL source is contrary to existing regulations. There is
absolutely no indication that this aspect is likely to be rectified in the near
future. Since these investigations involve National Security, it is considered
there is a sufficient element of justification to proceed with the development
and cultivation of sources who are willing to co-operate on this basis . Each
source who co-operates with the Force is actually risking his livelihood an d
204
�this fact must be kept in mind when the individual is being recruited or
subsequently handled .
Directions were given in the memorandum as to co-ordinating and, supervising
the operation at each of the divisions . Concern was expressed that all approaches to Post Office personnel should be co-ordinated and that liaison
should be maintained between the Security Branch and the C .I .B . "to ensure
there is no conflict" .
15 . It may be noted that, although from late 1970 onward policy required
that all Cathedral "C" Operations be approved by Headquarters, there were
Cathedral "C" operations in nine cases from 1971 to 1976, without approval
having been obtained (Ex . B-31) .
16. A former senior R .C .M .P . officer testified that Cathedral "C" was in fact
used in cases of counter-terrorism, countér-espionage and later to protect
persons against letter bombs . He knew of no other areas of activity in which
authorizations were granted in the Security Service for a Cathedral "C"
operation .
17 . In the late spring of 1973 an incident occurred in connection with mail
service which caused an addressee to communicate with Members of Parliament regarding the opening of mail . Because Headquarters was concerned that
this might result in public revelation of the Cathedral operations, a message
was sent on June 22, 1973 (Ex . B-17), to all Area Commanders which directed
that:
All Cathedral "A", "B", and "C" operations are to be suspended until
further notice . No further operations are to -be instituted until you are
advised the suspension is lifted .
18. No record or instruction has been' found to indicate that there was ever a
formal revocation of the suspensiôn of Cathedral operations directed in the
telex of June 22, 1973 . However, subsequent evidence (in camera) indicates
that one Cathedral "C" operation was authorized in September 1973 and a
number were approved in 1974 (Exs . BC-2, BC-3, and B-31) . '
19. Assistant Commissioner M .S . Sexsmith was in security and intelligence
work in the R .C .M .P . from 1958 until January 1978 . In May 1973, he was the
Area Commander of the Security Service in Toronto . In August 1975, he
became Deputy Director General (Operations) . He indicated to us that upon
his appointment as "D .D .G . Ops" he adopted a policy pursuant to .which he
had not seen fit to authorize any Cathedral"C" operations . The reasons given
by him for not authorizing any Cathedral "C" operation from the time of his
appointment on August 1, 1975 may be summarized as follows :
(a) The American experience with Watergate and the suspicion of the media
in Canada that there was a Watergate in this country might lead to
disclosure of the mail examinations and interceptions and thus cause
damage to the Security Service .
(b) Some former members of the R .C .M .P. were beginning to talk to the
media and "othér people" .
205
�(c) Several initiatives over a long period of time to have the law amended so
that the mail could .be opened legally "under strict control" had failed and
it seemed, to Mr . Sexsmith, to be unfair in the circumstances to ask
members of the R .C .M .P . "to stick their necks out and open mail" .
20. An incident involving a mail-cover check in the Hamilton area first came
to public attention on November 8, 1976, when Mr . Paul Boisvert, Director of
Security and Investigations in the Post Office, received information from the
Postmaster General's Office to the effect that a complaint had been received
concerning a mail check in Hamilton . Mr . Boisvert immediately telephoned the
Regional Chief of Security and Investigations and requested him to conduct an
investigation . The investigation disclosed that on or about October 4, 1976, a
postal inspector in Toronto received a request from the R .C .M .P . to implement
a mail-cover check on a subject living in Hamilton . The Toronto postal
inspector sent a memo to the manager of the Hamilton post office requesting
that mail addressed to the subject be sent under registered cover to the Toronto
unit .
21 . "Âpproximately 30 pieces of sealed letter mail" were received by the
postal inspector in Toronto, where these letters were photostated and returned
the same day, again under registered cover, to the Hamilton post office . None
of the envelopes was opened or left the custody of the Post Office (Vol . 17, p.
2638) . In one case the postal inspector remembered one small sealed envelope
having arrived at the Toronto office repaired with scotch tape on the centre of
the cover . According to the postal inspector this was returned in the identical
condition
. The postal inspector added in his report to the Chief Postal Inspector o f
.2
the Ontario postal region that in the past he had complied with similar
confidential requests "placed with (his) unit, by special law enforcement
squads" . He further pointed out that this type of co-operation was suggested in
his Investigator's Manual, and that the R.C .M .P . officers involved in the
matter never took possession of the mail, did not open or damage any articles,
and did not disclose the purpose of the investigation .
23. Mr . Boisvert met with the Postmaster General on November 16, 1976 at
which time he assured the Minister that "this was an isolated incident that was
improperly handled by the postal inspector who was due to retire next month" .
However, he was satisfied that "the mail never left the custody of the Post
Office", and, further, that he had met, with senior officials of the Royal
Canadian Mounted Police who assured him "that they did not come into
possession of the mail as for their purpose they were satisfied with the
photocopies of the outside of the envelopes only" . While he felt that the action
requested by the R .C .M .P . in that instance was justified, "in view of the
national and international implications" it was regrettable that the postal
inspector did not deal with the matter "more intelligently" . It . was Mr .
Boisvert's opinion that the postal inspector, in Toronto should not have written
a memo to Hamilton, and that the mail should not have been directed from
Hamilton to Toronto and back to Hamilton . Mr . Boisvert assured the Minister
that he was taking measures to avoid such incidents in the future .
206
�24 . As a result of this incident, on November 18, 1976, Mr . Boisvert met with
the Deputy Director General (Operations) and theofficer in,charge of the
Sources Branch concerning R .C .M .P . requests for Post Office co-operation and
assistance in matters relating to the national security of Canada . It was
decided at the meeting that any requests from the R .C .M .P. for special
investigations of the mail in cases where it was considered "in the best interest
of Canada and the public", would be funneled through the Ottawa offices of
the Security and Investigation Services Branch . The decision as to whether
co-operation should be extended by the Post Office would be made by Mr .
Boisvert as the Director of Security and Investigation Services, or by the Chief
of Investigations . If it were decided that co-operation was to be extended, the
Regional Chief Inspector would be contacted and instructed accordingly .
R .C .M .P . field units were not to seek assistance at the local levels, and any
such requests were not to be accommodated .
25 . In Mr . Boisvert's letter to the Regional Chief Inspector, he confirmed
that "under no circumstances will the Canada Post Office permit mail to be
illegally opened, delayed, tampered with or be removed from our premises" .
The R .C .M .P . report of this meeting is dated November 22, 1976, ~igned by
Assistant Commissioner M .S . Sexsmith as Deputy Director General' (Operations), and sent to all Divisions . Assistant Commissioner Sexsmith's guidelines,
as sent out to the field correspond to the guidelines sent by Mr . Boisvert to th e
field .
26 . From and after November 22, 1976, approval for all Cathedral operations
was centralized at Headquarters, (Ex . B-20) . At the same time area commanders were advised of the new policy which required that, instead of field units
making arrangements with local post office people, all requests for Cathedral
operations were to be sent to Headquarters for approval by either the Director
General or the Deputy Director General (Operations) . Assistant Commissioner
Sexsmith testified that, while he had not authorized any Cathedral "C"
operations since August of 1975, he had approved several Cathedral "A" and
"B" operations .
27. Although Assistant Commissioner Sexsmith had not authorized any
Cathedral "C" operation since August 1, 1975, he became aware, as a result of
research undertaken in the R .C .M .P. in preparation for his appearance before
us, that during 1976 a "local initiative" by a member or members of the
Security Service had resulted in the opening of two letters in the OMURA case
in Toronto . This case is dealt with in some detail in Part V, Chapter 4 .
28 . In addition, Assistant Commissioner Sexsmith testified that in July 1976
he was told of an operation in Ottawa by a member of the Security Service
which was directed against foreign intelligence officers . Approval for the
operation had been given in 1975 . During the operation, on three or four
occasions a letter posted was retrieved by members of the Security Service
while it was in the course of the post . Assistant Commissioner Sexsmith gave
instructions to cancel the operation, and it was stopped in July 1976 .
29. Apart from the two incidents mentioned above, Assistant Commissioner
Sexsmith believed, at least until the detailed review undertaken for th e
207
�purposes of the Commission, that the policies he introduced in August 1975,
had been followed in the Security Service . However, it is apparent that two
additional Cathedral "C" operations were approved at the divisional level
during 1976 in direct violation of the formal policy of the Security Service .
30. In September 1977, the officer in charge of the Legal Branch of the
R .C .M .P. was asked to consider the effect of the Post Office Act on mail check
operations. He consulted with the legal adviser to the Post Office Department
and in a memorandum (Ex . B-21) stated that it was illegal for anyone to open
and examine mail with or without the co-operation of the postal authorities at
any time after posting and before delivery . He also stated that he was not
aware of any regulations or postal policy restrictions which would prevent the
R .C .M .P ., with the co-operation of the postal authorities, from viewing or
photographing (not x-raying) any specific items of such en route mail . He
cautioned, however, that care should be taken that any such mail not be
detained .
31 . As a result, on September 23, 1977, Headquarters sent a message to all
area commanders (Ex . B-22), which quoted the text of the memorandum, and
continued :
. . .lt is emphasized that a Cathedral "B" operation must not go beyond
examination of the outside of mail . . . Cathedral "A" and "B" requests will
continue to require Director General or Deputy Director General (Operations) approval . As has been the practice in recent years Cathederal "C"
requests will not be considered .
32 . Assistant Commissioner Sexsmith, testifying before us in December 1977,
said that the message set out the current policy and procedure of the R .C .M .P .
Security Service .
33 . After the question of mail check operations had become a matter of
public discussion as a result of a television programme broadcast on November
8, 1977, Assistant Commissioner Sexsmith sent a directive, dated November
21, 1977, to area commanders, which he said resulted from the knowledge
which he had recently acquired, that in "very few instances" after he began his
term of office on August 1, 1975, Cathedral "C" operations had occurred
without the approval of Headquarters . The message (Ex . B-23), states :
It is therefore necessary to make clear that all Cathedral operations with
the exception of the Cathedral "A" category, will not be entertained under
any circumstances. As a result of discussions with postal authorities, it has
been agreed that they will continue to co-operate on Cathedral "A"
requests which are not illegal . There is one important stipulation to the
effect that mail must not leave postal premises and must not leave the
possession of postal authorities . Mail covers may be photographed or
photocopied provided secure facilities are available on post office premises,
but again under no circumstances is mail to be removed from postal
premises nor is it to be delayed for any reason .
This policy must not be abrogated for any reason whatsoever . Regardless of
the rationalization, no deviation however slight, shall be tolerated . It will be
the duty of every area commander to ensure that this policy is strictly
adhered to.
208
�Please ensure that Cathedral "A" requests are fully supported with complete rationale when seeking authorization .
This directive was in its essentials the same as the message of September 23,
1977 .
(b) Criminal Investigation Branc h
34 . A review of the use of mail check operations in criminal investigations by
the R .C .M .P . was more difficult thait the review of the use of such techniques
by the Security Service because the C .I .B . did not have any centralized system
of authorization or record keeping . It was apparent, however, that mail check
operations became increasingly important to the C .I .B . in the late 1960s and
1970s because of increasing use of the mails for the importation and distribution of drugs .
35 . Policy with respect to .the subject was dealt with in successive issues of the
R .C .M .P . Operations Manual . The earliest Manual page that could be located
that dealt with this matter was dated June 15, 1972 (Ex . B-27) .
Section 41 of the Post Office Act protects mail in transit from seizure,
except under the Customs Act . When you wish to search postal premises,
consult with the senior local representative of the Post Office Department
and arrange a postal inspection as postal officials are given additional
powers under the Act .
Since February 1973 the Manual has contained more detailed instructions .
36. In December 1973 the Director of Criminal Investigations sent a memorandum (Ex . B-28), to the commanding officers of the various divisions
concerning "Co-operation with the Post Office Department" . After quoting
what is now section 43 of the Post Office Act he said :
The Postal Department does not wish to jeopardize the co-operation which
presently exists between their investigators and our members, nor restrict
our drug investigations in any way . However, when it is anticipated during
an investigation that the Post Office co-operation will be brought out in
court proceedings the following policy is to be adhered to :
Parcels or letters committed to the mail service will not be opened nor the
contents ,interfered with, except during Customs examinations . To determine that a parcel originating in one area of Canada is the same parcel
which is received and delivered at some other location in this country .
.
.
(this was followed by a description of the technique) .
37 . At the time of the hearings before the Commission the instructions to the
Drug Enforcement Branch were given by a bulletin (Ex . B-29), from the C .I .B .
Directorate at Headquarters reminding members of the Force that in investigating illicit use of the mail system they were to "ensure that [they] are
familiar with the Post Office Act and particularly s .43 and 46" . At the time of
the hearings before us in December 1977, a new memorandum of instructions
was in the course of preparation .
209
�C . EXTENT AND PREVALANCE OF THE PRACTICES
SECURITY SERVICE AND C .I .B .
(a) Security Service
38. A detailed review of the records of the Security Service was undertaken
to determine the extent and prevalence of Cathedral operations during the
period from November 1970 to the end of December 1977 . A total of 94 mail
check operations were identified of which 66 involved the actual opening of
mail (Cathedral "C") and in two more cases opening was authorized but not
carried out. Of these 66 cases, 21 occurred in the period of 1970 to 1973 in
Quebec and were related to persons known or suspected to be involved in
F.L .Q . terrorist activities . Another 1 I related to persons known or suspected to
be involved in international terrorism . Suspected espionage activities and
foreign interference in Canadian political affairs accounted for 25 more cases,
and there were nine miscellaneous targets .
39. The examination of the exterior of envelopes without photographing them
(Cathedral "A") occurred in six cases, of which four related to suspected
international terrorists, and two related to suspected or known espionage .
40 . The examination and photographing of the exterior of envelopes (Cathedral "B") occurred in 19 cases and was authorized but not carried out in one
other case . Of these 20 cases, I1 related to suspected international terrorists,
and nine related to suspected or known espionage .
41 . The Post Office Department also conducted several surveys at the
Commission's request . In November 1977, the Post Office conducted a telephone survey across the four regions, Atlantic Region, Quebec, Ontario and
Western Region . Subsequently, Post Office officials conducted interviews with
79 postal inspectors across the country . This series of interviews related to the
relationship of the Post Office specifically with the Security Service of the
R .C .M .P., rather than with the entire Force .
42 . Of the Post Office surveys, the first survey, conducted over the telephone
on November 9, 1977, was intended to ascertain what knowledge the regional
Chief Inspectors had of the degree and number of requests which might have
been made to the Post Office by the R .C .M .P. for either the opening of mail,
or mail cover checks, for the period of November 1976 to November 1977 . The
results were as follows :
(a) Response from the Atlantic region indicated that although there were
some local contacts prior to 1976, the two requests originating from the
R .C .M .P. in the one-year period from November 1976 to November 1977
were both turned down by the Post Office .
(b) The Ontario region advised that it had received several requests through
the Ottawa office during that year, and that there had been local contact
prior to November 1976 . According to the information provided by the
Chief Inspector of the Ontario postal region, no mail was ever turned ove r
210
�to the R .C .M .P., and no cover checks carried out, though mail covers may
have been photocopied in the Ontario region Security and Investigation
office .
(c) Quebec postal region office was aware of several requests since November
19, 1976, as well as some local contact prior to that time, but it maintained
that no mail had ever been turned over to the R .C .M .P .
(d) As far as the Western region was concerned, some requests had been made
for mail cover checks before November 19, 1976 . No further requests were
made after that date . Also, no mail was handed over to the R .C .M .P ., or
left the Post Office .
43 . Post Office officials then conducted a more detailed interview survey of
postal inspectors, past and present, from across the country . Selection of the
postal inspectors was based on R .C .M .P . Security Service statistics which
indicated where, according to their records, mail may have been opened in the
course of Cathedral "C" Operations . At that time Security Service statistics
pointed to 70 Cathedral "Cs", and therefore an effort was made to inte rv iew
79 postal inspectors . Forty of the inspectors interviewed indicated that they
were never involved in any opening of the mail . Of the remaining 39 inspectors,
32 were current inspectors at the time of the interviews, and seven were former
inspectors . Of the 32 current inspectors, two had given verbal statements to the
Minister on November 16, 1977 . One other refused to give a statement,
another two were on sick leave at the time, and three others were not
interv iewed because they were not employed in the relevant area at the relevant
time . One said orally that he had no involvement but refused to give a
statement in writing, seven stated they were not involved because they were not
present at the time and place suggested . The remaining group of 16 was not
interviewed because information from the R .C .M .P . was that, although authorization to open mail had been granted, the procedures were not implemented ;
therefore no mail was opened in those instances . Of the seven former inspectors, two could not be located because their addresses were unknown and five
refused to give statements .
(b) Criminal Investigation Branc h
44. It was not possible to determine the extent and prevalence of mail check
operations of the C .I .B . from centralized records, nor were the various types of
check neatly classified by any code names such as Cathedral "A", "B", and
"C" . Because the interest of the C .I .B . arises particularly from the use of mails
for the importation or distribution of drugs, the C .I .B . used the additional
technique of "controlled delivery" . Two instances, cited to us, in which this
technique was employed, were (a) the receipt of advance information from
foreign countries indicating that as many as 260 letters containing drugs would
be arriving in the course of mail, and (b) Customs examination of packages
disclosing the presence of drugs . In such circumstances members of the
R .C .M .P. might participate in the delivery of mail to assist in the apprehension
of the intended recipients after delivery is clearly established and before the
drugs are put in circulation ( Vol . 8, pp . 1119-20) .
211
�45 . An attempt was made to have local divisions check for mail intercepts of
all kinds . The results are summarized in Exhibit B-84 and in the evidence of
Assistant Commissioner Venner• (Vol . 18, pp . 2802-19) . From this it will be
seen that the vast majority of incidents related to enforcement of the laws
concerning drugs . The difficulties occasioned by the definition of "letter",
"first-class mail", "post letter" and "delivered" as discussed later in this
'chapter make the results questionable . Nevertheless, the following points are
clear concerning the years 1970 to 1977 :
'
(a) There were 954 mail intercept operations .
(b) Of these, 799 involved the opening of pieces of mail .
(c) Of the 799 cases, 100 involved mail within the dictionary definition of
"letter", being "a written or typewritten communication on a piece of
paper" . The remainder (699) fell within the post office's broader
definition of "post letters" .
In addition, 592 pieces of mail were examined externally, and 258 pieces of
mail were delivered under controlled circumstances .
46 . These statistics provide a general indication of the extent and prevalence
of mail openings and mail check operations on the criminal investigation side of
the Force . They also show a great variance in different parts of the country in
the interpretation and application of provisions of the Post Office and Customs
Acts . It may be noted that there were no reported instances of C .I .B . mail
interception in Quebec in search of either drugs or other substances . The
explanation provided by "C" Division in Montreal for their statistics, which
indicate that no mail was opened, rested on their position that anything other
than "a simple envelope with obvious written communication inside is not
first-class mail, regardless of the postage paid on it", and it was felt that it was
not improper to open such other mail .
47 . Assistant Commissioner T .S . Venner testifying before us on February 1,
1978, said that the postal customs authorities in Montreal were and ar e
much more active in the opening of mail . . . than they are anywhere else in
Canada . Our people simply found it necessary to get that involved . They
rely on the postal customs people to alert them as to what they have found,
and, in some cases, put the material back in the system for control and
delivery and the openings are not done by our people .
(Vol . 18, p. 2803 .)
(Assistant Commissioner Venner subsequently informed us that he believes he
said "unnecessary", not "necessary" . We are satisfied that whatever he said, he
clearly meant "unnecessary" .) He explained also that another reason for
non-activity by members of the drug section in Montreal in opening mail is
that they "are not usually working on the kind of international cases which
involve the smuggling of quantities of heroin by mail" but on importation cases
which involve the use of couriers .
48 . In contrast, in Southern Ontario, 389 pieces of mail were opened to
determine whethér drugs or other substances were contained in them . Of the
389 opened in Ontario, 252 were second or other class mail . It was not clea r
212
�what percentage of the remaining pieces of mail were first class . Furthermore,
it was not clear how many pieces were opened by Customs and Postal officials,
and the suggestion was made that none were opened by the R .C .M .P . but
rather they were inspected or seen by the R .C .M .P . after having been opened
by persons other than a member of the R .C .M .P. That, of course, is not an end
of the legalism, for, if a source in the Post Office undoubtedly opens a letter, he
commits an offence under section 58 of the Post Office Act ; and a member of
the R .C .M .P . who encourages him to do so is a party to the offence by virtue-of
section 21 of the Criminal Code . The offence depends on the opening being
"unlawful" and that element of unlawfulness might be satisfied by the fact that
the postal employee may have committed an offence under section 387(1)(c) of
the Criminal Code ("Everyone commits mischief who wilfully. . .(a) . .. interferes with the lawful use, enjoyment or operation of property") or at least the
tort of conversion . Vancouver was the other city which showed a large number
of pieces of mail opened in the search for drugs : 406 pieces of mail were
intercepted in search of drugs and five pieces of mail were intercepted in the
search for other material .
49 . In order to examine the extent and prevalence of mail intercept and mail
opening practices by the R .C .M .P ., it was necessary, in addition to the general
statistics, to look at what might be involved in any single Cathédral or Mail
Intercept Operation . One Cathedral Operation may involve numerous pieces of
correspondence that are either checked on the cover or opened . The Commission heard evidence on behalf of both the Security Service and the Criminal
Investigation Branch concerning specific examples of Mail Opening or Cathedral Operations . In the OMURA Case, presented by the Security Service,
there were two instances of mail opening not authorized by Headquarters ou t
of 50 items of mail examined .
50 . On the criminal investigation side of the Force, eight cases were reviewed
publicly and in each case some of the parcels were opened either while in the
course of post, or after delivery . In most cases the openings were of international mail by Customs officials, with R .C .M .P . officers assisting or taking over for
controlled delivery procedures .
D . LEGAL AND POLICY ISSUES SECURITY SERVICE AND C .I .B .
Statutory provisions
,
51 . The following are the relevant provisions of the Post Office Act .
(a) A definition of ownership of the mail is found in section 41 :
41 . Subject to the provisions of this Act and the regulations respecting
undeliverable mail, mailable matter becomes the property of the person to
whom it is addressed when it is deposited in a post office .
Thus an addressee has a property interest in mail once it is deposited in a post
office . Consequently, any tampering with it is in some sense unlawful unless it
is done by consent of the addressee or by statutory provision .
213
�(b) A prohibition against "demand, seizure or detention" is found in section
43 :
43 . Notwithstanding anything in any other Act or law, nothing is liable to
demand, seizure or detention while in the course of post, except as provided
in this Act or the regulations .
This is the section which overrides search warrants under the Criminal Code or
ministerial warrants under section 16 of the Official Secrets Act .
(c) Sections 58 and 59 create offences . Of these, section 58 is the more
important for our purposes, as it makes it an indictable offence to delay or
detain any article of mail unlawfully, or to open it or suffer it to be opened
unlawfully :
58 . Every person is guilty of an indictable offence who unlawfully opens or
wilfully keeps, secretes, delays or detains, or procures, or suffers to be
unlawfully opened, kept, secreted, or detained, any mail bag, post letters, or
other article of mail, or any receptacle authorized by the Postmaster
General for the deposit of mail, whether the same came into the possession
of the offender by finding or otherwise.
59 . Every person is guilty of an indictable offence who abandons, obstructs
or wilfully delays the passing or progress of any mail or mail conveyance .
52 . There are only two exceptions to section 43 in the Post Office Act . The
first exception, found in section 7, allows the Postmaster General to detain
mail, and in certain cases, forward it to a Board of Review that may open and
examine it "with the consent of the person affected" . The requirement that
notice be given to the person affected renders this section inappropriate for
criminal or security investigations .
53 . The second exception is "found in, section 44 (formerly 46) which empowers Customs Officers to examine international mail, and provides in subsection
2:
(2) A customs officer may -open any mail, other than letters, submitted to
him under this section, and may
(a) cause letters to be opened in his presence by the addressee thereof or a
person authorized by the addressee ; o r
(b) at the option of the addressee, open letters himself with the written
permission of the addressee thereof ;
and where the addressee of any letter cannot be found or where he refuses
to open the letter, the customs officer shall return the letter to the Canada
Post Office and it shall be dealt with as undeliverable mail in accordance
with the regulations .
A member of the R .C .M .P . becomes part of this process by virtue of section
17(4) of the R .C .M .P . Act, which states as follows :
(4) Every officer, and every member appointed by the Commissioner to be
a peace officer, has, with respect to the revenue laws of Canada, all the
rights, privileges and immunities of a customs and excise officer, including
authority to make seizures of goods for infraction of revenue laws and to lay
informations in proceedings brought for the recovery of penalties therefor .
214
�Further ; the Customs Act,' in section 2(1) defines officer as :
["officer" means] a person employed in the administration or enforcement of this Act and includes any member of the Royal Canadian Mounted
Police ;
Effect of section 43 on section 16 of the Official Secrets Act
54 . Section 16(2) of the Official Secrets Act provides that :
(2) The Solicitor General of Canada may issue a warrant authorizing the
interception or seizure of any communication if he is satisfied by evidence
on oath that such interception or seizure is necessary for the prevention or
detéction of subversive activity directed against Canada or detrimental to
the security of Canada or is necessary for the purpose of gathering foreign
intelligence information essential to the security of Canada .
55 . On the face of it, "any communication" would seem to include postal or
written communication . As has already been recounted, Mr . Allmand signed a
warrant .in 1976 authorizing the interception of written communications subject to an opinion from the Department of. Justice . The opinion, however,
indicated that even though the word "communications" was seen by the
Department of justice as including letters, the wording of section 43 of the
Post Office Act was so clear as to preclude section 16(2) of the Official Secrets
Act from enabling the opening of letters in the course of post .
56 . In Chapter 3 of this Part, where we discussed in detail the legal issues
relating to Electronic Surveillance, we considered whether section 16(2) is, in
our view, available at all in respect of letters . In section E of this chapter, and
more fully in Part V, Chapter 4, we make recommendations as to the
circumstances and conditions in which the opening of mail should be permitted
in sécurity matters .
International mai l
57 . It will be recalled that, pursuant "to section 46(2) of the Post Office Act, a
Customs Officer (which, pursuant to the Customs Act, includes any member of
the R.C .M.P .) may open any mail other than letters . However, the Post Office
Act does not contain a definition of "letter" . It does contain, in section 2(1), a
definition of "post letter" :
"post letter" means any letter deposited at a post office, whether such letter
is addressed to a real or fictitious person, is unaddressed, and whether
intended for transmission by post or not, from the time of deposit at a post
office to the time of delivery and includes any packet prepaid or payable at
letter rate of postage ;
It will be observed that the definition appears to be .intended to be broad in
scope . In the absence of a statutory definition, the dictionaries tell tis that a
"letter" is a "written or printed message addressed to person(s), usually sent by
post or messenger and fairly long" (Concise Oxford Dictionary) ; "a direct or
personal written or printed message addressed to a person or organization "
' R .S .C . 1970, ch .C-40 .
215
�(Webster's New Collegiate Dictionary) . There do not appear to be any
Canadian judicial decisions interpreting "letter", but in the United States the
word has been construed as meaning "a communication in writing from one
person to another at a distance, and a written or printed message" .4
58. The evidence before us has shown that at least in one major point of
arrival for international mail there is a narrow interpretation of "letters" as
that word is used in section 46(2) by Customs officials . In Montreal they feel
free to open all international mail except "a simple envelope` with obvious
written communication inside", (Vol . 18, p . 2803) . If this interpretation were
used in all centres, there would be no impediment to the opening of any
envelope or packet in "international mail" that appears to contain something
other than a "written communication" . However, the Montreal interpretation
is not common, and therefore the Customs officials and R .C.M .P . in other
centres are constrained not to open mail that would be opened in Montreal,
although we do not have clear evidence as to the criteria used elsewhere .
59. The confusion becomes compounded when it is realized that, under the
Post Office International First Class Mail Regulations,s "first class mail" is
defined as including not only letters and postcards in handwriting or typewriting but also any item of mail that the sender chooses to prepay at first class
rates. Thus parcels as much as one cubic foot in size might, pursuant to the size
and weight limitations contained in those regulations, be "first class mail" if
there is first class postage prepaid . We note this simply because so many news
reports have spoken of the legal issue as being whether the R .C .M .P . or a
postal employee may lawfully open international "first class mail" . In fact, as
we have seen, section 46(2) empowers customs officers to open any mail, of
whatever class, without the addressee being present or having given his
permission - except in the case of "letters" . Consequently ; while we have
noted the international first class mail regulations, we do not believe that they
are relevant to the legal problem .
Domestic mail
60. We turn now from international mail to domestic (solely within Canada)
mail and all mail from abroad or addressed to a foreign destination while it is
in the course of post in Canada . The prohibition contained in section 43 applies
to all these kinds of mail : it is not subject to "demand, seizure or detention" .
Moreover, under section 58, it is an indictable offence to open any "article of
mail" unlawfully or wilfully to "delay" or "detain" it . The "unlawfulness" of
opening mail as such is found in a breach of the prohibition contained in
section 43 . We now apply those provisions to several possible domestic
situations .
(a) Examining the exterior of an envelope (what the Security Service has
called Cathedral `A') might be unlawful if the length of time it is taken out
of the mail stream results in its being "detained" or "delayed" . Even i f
° Buckwald v. Buckwald, 199 A . 795 at 799, 175 Md 103 .
s S .Ô .R ./71 .336 .
216
�that were not so on the facts of most situations, it might be argued that a
civil wrong is committed by interfering in the ownership of the article of
mail, but this is doubtful . On balance, we do not believe that this
investigative practice, if it does not involve removing the article from the
mail stream for any significant length of time, can be said to be an activity
"not authorized or provided for by law" . This is particularly our view if the
article of mail remains at all times in the control of a postal employee . Our
view is the same as that of the Director of the Legal Services Branch of the
Post Office, given in December 1977 . Nevertheless, as will be seen, we
consider that this technique involves such a degree of intrusion into the
privacy of the persons involved that a higher level of approval of such an
operation should be required than has been so in the past .
(b) The same remarks apply to photographing the exterior of an 'envelope
(what the Security Service has called Cathedral `B') .
(c) If a postal employee hands an article of mail to a member of the R .C .M .P.
so that, he may open and examine its contents, both he and the R .C .M .P.
member may be guilty as being accessories under section 58 of opening an
article of mail unlawfully . The unlawfulness will lie in wilfully interfering
with the lawful use, enjoyment or operation of property, which is mischief
under section 387(1)(c) of the Criminal Code, or in the civil wrong of
conversion, which • involves even a temporary interference with another
person's, interest in property . Even if there is any doubt about that, the
time taken to carry out the operation, especially if the opening is carried
out off postal premises, may well constitute wilful delay or detention .
Consequently, for one reason or another what the Security Service has
called Cathedral `C' would likely be an offence .
(d) Controlled deliveries : there are several techniques of controlled delivery
which must be examined :
(i) The first situation involves the substitution of other innocuous
substances for most of the drug found in any one item of mail,
leaving only a small part of the original substance. The item of mail
is then resealed and placed back in the system for delivery by postal
officials . In this case it may be argued that the mail was not
detained as long as this procedure was expeditious . Opinions written by legal officers of both the Department of Justice and the Post
Office have so indicated . However, the point may also be made that
the addressee's property has been tampered with, and that gives
rise to the issues of mischief and conversion that have already been
discussed, as well as theft .
(ii) The second situation involves the same type of substitution, but the
delivery itself is by disguised members of the R .C .M .P . tot the
addressee's residence, rather than. by postal officials . In this case, as
in the first, if the procedure is effected expeditiously, it would not
appear that section 58 concerning detention of mail is breached .
The second point, however, still remains the same ; there may have
been such tampering as gives rise to issùes of mischief, conversion
and theft .
217
�(iii) The third situation is exactly the same as the second, with the
provision that the delivery to the addressee's residence is made by a
disguised officer at a pre-arranged time under surveillancé by
R .C .M .P . members . This situation would probably involve the
detention of mail, depending on the length of the delay involved in
pre-arranging the delivery .
(iv) The fourth situation involves removal of an article of mail from the
post office premises to an R .C .M .P . laboratory, its being opened
there and its being subsequently resealed and returned to the post
office for one of the previous three methods of controlled delivery .
This clearly results in wilful detention and delay contrary to section
58 .
(e) In an examination or photographing of envelopes, or opening an article of
mail, before it is deposited in a "post office" (which includes a letter box),
nothing is being done to an article in the course of post, and so the Post
Office Act is inapplicable . A member of the R .C .M .P. could lawfully
employ any of these techniques pursuant to section 10 of the Narcotic
Control Act if he has a writ of assistance, the search is not of a
dwelling-house, and he reasonably believes the article of mail contains a
narcotic . If these conditions are not satisfied, any of these techniques might
result in trespass, mischief, or conversion, depending upon the
circumstances .
(f) The observations made in (e) apply to the examination or photographing of
envelopes, or opening an article of mail, after it is delivered to a locked post
office box, apartment box or rural mail box .
(g) In the case of letter bombs, if it is known that an article of mail contains
an explosive, then the article of mail is considered "non-mailable matter"
under sections 1 and 2 and Schedule I of the Prohibited Mail Regulations,
and consequently, whether it is domestic mail (section 44 of the Act) or
International mail (section 46(4) of the Act), it is to be disposed of by the
Postmaster General's Department "in a manner that will not expose postal
employees to danger" (section 4 of the Regulations) . However, no assistance is provided by the Act or Regulations where there is mere reasonable
belief that an article of mail contains a bomb, or only suspicion that it may
do so . In such cases it appears that a postal employee or a member of the
R .C .M .P. who opens an article of mail commits an offence under section
58, except when the mail is international and the article opened (by a
Customs Officer, which includes R .C .M .P . members) is not a "letter" .
61 . Counsel for the R .C .M .P. suggested to us that the R .C .M .P .'s power to
open mail might be available on the basis of the Crown prerogative, but in our
view, even if there were some such prerogative power rooted in history, the Post
Office Act, by prohibiting demand, seizure and detention in section 43 and
thus making opening "unlawful" under section 58 if it involves demand, seizure
or detention, has precluded any possibility of sustaining an argument that
opening is lawful by virtue of the exercise of a prerogative .
218
�E . NEED AND RECOMMENDATIONS - BRIEF
SUMMAR Y
62. In Part V, Chapter 4, we conclude that the need exists to permit the
security intelligence agency lawfully to open envelopes and read messages .
However, the use of this technique should be strictly and carefully controlled in
individual cases, and the subject of regular and prudent study by the independent review body which we shall recommend be established . The power to use
these techniques should be limited to the investigation of espionage, -foreign
interference and serious political violence .
63 . As for the criminal investigation side of the Force, we conclude in Part X,
Chapter 5 that peace officers should have the power to examine or photograph
an envelope or to open mail only in narcotic and drug cases . This power should
be limited to examination and testing of any substance found in the mail .
Unless a narcotic or restricted drug is found in the mail reading an accompanying message should be made an offence . Peace officers exercising this power
should require a judicial authorization subject to the same safeguards as are
now found in section 178 of the Criminal Code governing the use of electronic
surveillance .
219
��CHAPTER 5
ACCESS TO AND USE OF CONFIDENTIAL
INFORMATION HELD BY THE FEDERAL
GOVERNMENT - CRIMINA L
INVESTIGATION S
A. ORIGIN, NATURE AND PURPOSES OF PRACTICES
1 . The various departments and agencies of the federal government are a
storehouse of personal information about Canadian citizens and others who are
required under various statutes to provide that information to the government .
This is particularly so with respect to the income tax records of the Department
of National Revenue and the employment records of the Canada Employment
and Immigration Commission . Access to the government's store of information
has a strong attraction for the R .C .M .P., both for their own use and to assist
other police forces, at home as well as abroad . In investigating offences,
keeping the peace or simply assisting members of the public, the R .C .M .P .
need all available sources of information and obviously, the more they have
available, the better able they will be to resolve a given problem .
2. On the other hand the government, for several reasons, has felt it advisable
to restrict access to personal information provided to it by individuals . In
addition to the general reluctance to have the privacy of individuals invaded
unnecessarily, the government recognizes the need for confidentiality of tax
records if it hopes to operate a tax system which, although compulsory in law,
is in reality based on voluntary compliance . The government has also believed
that, to obtain public co-operation in a universal social insurance scheme
(including manpower and unemployment insurance programmes), it has to
provide an assurance that the information received by it will not be disseminated for other purposes . Consequently, many statutes which compel production of
such information include restrictions on access to it . The R .C .M .P ., in the
pursuit of its duties, has breached those provisions either with specific approval
from Headquarters, as a Force policy, or with the tacit approval of senior
officers . As will be seen in this chapter, this practice of law-breaking became
institutionalized within the R.C .M .P .
3 . The Criminal Investigation side of the R .C .M .P . has sought access to five
distinct sets of government records : the income tax records of the Department
of National Revenue, the employment records of the Canada Employment and
Immigration Commission (formerly the Unemployment Insurance Commission), the family allowance and old age security records of the Department o f
221
�National Health and Welfare, the Industrial Research and Development
Incentives Act financial grant records of the Department of Industry, Trade
and Commerce and finally the records cômpiled by the Foreign Investment
Review Ageney pursuant to the provisions of the Foreign Investment Review
Act . We shall now examine those five cases in detail .
B . DEPARTMENT OF NATIONAL REVENU E
Policy and implementation
4 . The relationship between the Criminal Investigations (C .I .B .) side of the
R .C .M .P . and the Department of National Revenue (D .N .R .) has varied over
the years . At present that relationship covers two distinct areas : first, the
routine enforcement of the Income Tax Act which includes the location and
prosecution of delinquent taxpayers, and second the organized crime Tax
Programme (Vol . 47, pp . 7582-3) . That programme, which we shall describe in
detail later, is an agreement between the R .C .M .P . and the D .N .R . to
co-operate in enforcing the provisions of the Income Tax Act against persons
described as being involved in "organized crime" . We heard considerable
evidence as to how different people working on the programme defined
"organized crime", but since for the purposes of examining the legality of the
actions of the people involved the definition of "organized crime" is not pivotal,
we will not examine it other than to quote one definition used by the R .C .M .P . :
"two or more persons concerting together on a continuing basis to participate
in illegal activities either directly or indirectly for gain" (Ex . G-1 ; Tab 35) .
5 . The activities of the R .C .M .P . relating to the routine enforcement of the
Income Tax Act include the locating of delinquent taxpayers, laying of
informations and complaints, serving summonses and executing warrants of
commitment and of àrrest, and obtaining search warrants (Vol . 47, pp . 7583-7 ;
Ex . G-l, Tab 3 ; Ex . G-2 for identification, Tabs 1 and 2) . The primary
responsibility for enforcement of the Income Tax Act lies with the D .N .R . and
the responsibility of the R .C .M .P . in this regard is secondary (Vol . 47, p .
7594) . This area of relationship is of long-standing duration and in itself has
not given rise to any misconduct which we have been able to uncover .
6 . Most of the activities which have been the subject of our concern arose out
of what came to be known as the Tax Programme . Prior to 1972 the R .C .M .P .
passed information to the D .N .R ., through a strictly informal arrangement,
about criminals being investigated by the R .C .M .P. (Vol . 47, p. 7597) . During
the 1960s a number of factors motivated the R .C .M .P . to push for co-operation
by the D .N .R . to fight organized crime . Those factors were : the collapse of
certain financial institutions and the involvement of organized crime in
associated bankruptcy frauds, a subject which was raised in Parliament and at
a 1967 Federal-Provincial Conference ; the 1964 Royal Commission on Banking, which mentioned problems in the securities industry ; the success of a U .S .
task force approach in this field ; and the fact that some attorneys general at
the 1965 Conference of attorneys general had felt that there should be some
co-operation between departments to pursue, the income of organized crim e
222
�figures (Vol . 47, pp . 7621-27, 7633-34 ; Vol . 62, pp . 9988-89 ; Ex . G-1, Tab 12 ;
Ex . G-11, Tab 8 ; Ex . G-2-for identification, Tab 3) .
7. Motivated by these factors, the R .C .M .P. initiated discussions with the
D .N .R . with a view to working out arrangements not simply to transmit
information to the D .N .R . but also to receive it . One of their reasons for
wanting such an exchange was to be able to advise their sources of information
that information supplied to the D .N .R . had been put to use . The R.C .M .P.
felt that otherwise the sources of information might dry up (Vol . 47, pp.
7667-8) .
8 . To pursue the objective of closer co-operation, the R .C .M .P . arranged a
meeting on November 1, 1967, with D .N .R . officials . According to a record of
the meeting the D .N .R . officials present advised the R .C .M .P . that there
would have to be a clear understanding in the D .N .R . that the department's
involvement was not intended specifiçally to produce revenue from delinquent
taxes but rather to assist in attacking organized crime . The records also show
that the D .N .R . officials indicated that the Department did not have the
manpower to help the R .C .M .P ., but they spoke of the desirability of there
being a "two-way exchange", since the then current interpretation of the
Income Tax Act "allowed the release of certain information to the police under
proper circumstances" (Vol . 62, p . 9988 and Ex . G-1, Tab 11) .
9 . The next recorded step in the development of this aspect of the relationship
is a letter of January 31, 1969, from, the Deputy Commissioner (Criminal
Ops.) of the R.C .M .P. to the Deputy Minister of National Revenue (Taxation)
requesting a meeting to discuss matters which might be of "mutual interest" .
The letter stated that the purpose of any co-operation would be to combat
organized crime, the D .N .R . to assist "through active participation in such
investigations" . The letter added that the "exchange of information between
them" should be a two-way effort (Ex . G-1, Tab 12) . Following that letter, a
meeting was held on February 18, 1969, between the Deputy Minister of
National Revenue (Taxation), the official in charge of special' investigations
for the D .N .R., Deputy Commissioner Kelly and Assistant Commissioner
Carrière, to discuss joint action to combat organized crime . A record of that
meeting shows that :
Kelly stated that this Force would be willing to liaise with members of
[D .N .R .] to ensure a two-way exchange of information and where necessary, to treat any information received as strictly confidential . He added
that the Force and himself were well aware in view of the content of Section
133 of the Income Tax Act that such a request could not be acceded to as
this was not a matter of policy but a matter of law .
(Vol . 47, pp . 7638-42 ; Ex . G-2
for identification, Tab 4 . )
10. Another meeting was held between officials of the D .N .R . and members
of the R .C .M .P. on April 23, 1969 . The D .N .R . officials advised that Department policy with respect to dissemination of information from their files to the
R .C .M .P. was limited to cases where the provisions of section 133(3) of the
Income Tax Act applied . Both parties to the meeting admitted that, in spite of
the official D .N .R . policy, there were "sometimes sub rosa arrangements made
223
�at the Regional Level with respect to specific instances" (Ex . G-1, Tab 13) .
Prior to 1972 the official policy of both the D .N .R . and the R .C .M .P . was that
all requests to the D .N .R . from the R .C .M .P . for assistance were to be directed
to R .C .M .P . Headquarters in Ottawa (Vol . 62, pp . 9984-5 ; Ex . G-2 for
identification, Tab 2 ; Ex . G-1, Tab 14) .
11 . In his testimony before us, the senior D .N .R . official present at that April
23, 1969 meeting told us that he did not consider that the words in the minutes
of the meeting referring to "sub rosa arrangements" implied any deviation
from official Department policy . He said that he interpreted those words to
mean that there would have to be some exchange of information at the district
level to determine whether the information was of any value (Vol . 62, pp .
10001-2) . He also told us that it was his view at the time of the meeting, that
the D .N .R . could furnish information to the R .C .M .P . where the Force would,
in some way, assist the Department in collecting tax because that would be an
enforcement of the Income Tax Act (Vol . 62, p . 9998) . It is clear from the
evidence before us that the official position of the D .N .R . at that time was that
information could only be communicated to another agency if to do so would
assist the Department in administering or enforcing the Income Tax Act (Vol .
47, p. 7651 ; Ex . G-1, Tab 14) .
12 . We have noted that on September 15, 1969, the officer in charge of the
R .C .M .P . Legal Branch gave a legal opinion to the assistant officer in charge
of the C .I .B . which stated that, before information could legally be given to the
R .C .M .P . by the D .N .R . under section 133, "there must be a tax interest" (Ex .
G-1, Tab 15) .
13 . Another high level meeting was held on October 29, 1969, between the
Deputy Minister and officials of the D .N .R ., and R .C .M .P . officers, to discuss
a draft memorandum which had been prepared by the two agencies on the
subject of "Co-operation relative to the investigation of organized crime" . At
that meeting the Deputy Minister insisted that there had to be a tax interest
before any tax information could be released by an authorized person . The
record of the meeting shows that the R .C .M .P . representatives present agreed
with that interpretation and agreed to the deletion from the draft memorandum of a statement to the contrary which said, in referring to section 133(7)(a)
of the Income Tax Act :
These words could also be construed to mean that an authorized person
could release the required information as part of his day-to-day job, and
that no particular tax interest is necessary .
The Deputy Minister also advised the R .C .MrP ., at that meeting, that direction
would have to be sought from the government for the change in policy by the
D .N .R . which would result from this new area of co-operation . He suggested
that the R .C .M .P . prepare a draft memorandum to Cabinet for the signature
of the Solicitor General (Vol . 47, pp . 7704-5 ; Ex . G-2 for identification, Ta b
5) .
14 . At some point, probably in 1969, the Commissioner of the R .C .M .P.
asked the Honourable G .J . Mcllraith, the Solicitor General, to do something to
enable the R .C .M .P . to obtain direct access to income tax returns for th e
224
�purpose of dealing with the subject of organized crime . In a letter dated
January 21, 1970 to Mr . Mcllraith, Commissioner Higgitt discussed obtaining
access to tax data to attack organized crime from the revenue viewpoint . Mr .
Mcllraith testified that during that same period he had discussions with
Commissioner Higgitt about the R .C .M .P .'s desire to get information from the
D .N .R . to assist in the investigation of certain criminals in the organized crime
field (Vol . 120, pp . 18707-9) .
15. On March 20, 1970, the R .C .M .P . forwarded to Mr . Mcllraith a copy of
a draft memorandum to Cabinet which had been prepared by the D .N .R . and
the R .C .M .P . (Vol . 47, p . 7705 ; Ex . G-2 for identification, Tabs 7 and 8) . Mr .
Mcllraith told us that he was supportive of the R .C .M .P . obtaining clarification of what they were entitled to get from the D .N .R . He also told us that,
from the time he was first approached with a request to do something to obtain
direct access by the R .C .M .P . to income tax returns until he left the Solicitor
General's portfolio on December 22, 1970, he refused to do anything about
that aspect (Vol . 118, pp . 18472-4 ; Vol . 120, pp . 18707, 18734) .
16 . Following the receipt by Mr . McIlraith of the draft memorandum to
Cabinet, which was forwarded to him on March 20, 1970, Commissioner
Higgitt noted in his diary on April 23, 1970 :
Solicitor General asked re cooperative action by Income Tax Branch and
R .C .M .P . Solicitor General said he would suggest to the Minister of
National Revenue that the Act gave sufficient leeway .
(Vol . 120, p . 18718 ; Ex . M-75 . )
Several months later Commissioner Higgitt recorded in his diary-entry of
September 8, 1970 that he had had a meeting with Mr . Mcllraith and he noted
the following :
Jogged Solicitor General's memory re income tax cooperation . He said he
had spoken to the Minister (Mr . Côté) last week . He said his departmental
people thought there ought to be a Cabinet paper . He, Côté, did not agree
and would like the Solicitor General to . clarify the matter before him, etc .
This is to be done as soon as convenient .
(Vol . 120, pp. 18722, 18733-34, Ex . M-76 . )
On December 22, 1970, the Honourable Jean-Pierre Goyer succeeded Mr .
Mcllraith as Solicitor General . Sixteen months later, a joint memorandum to
Cabinet dated April 27, 1972, signed by Mr . Goyer and the Minister of
National Revenue, sought approval for the D .N .R ., with the assistance of the
R .C .M .P ., t o
.
.. conduct a continuing programme of tax investigations into the affairs of
members of Organized Crime with a view to their prosecution undei the
Income Tax Act on the clear understanding that the restrictions set forth in
section 241 of the Income Tax Act apply to members of the Force engaged
in this enterprise and that they will be instructed not to communicate or
knowingly allow to be communicated to any person other than to those
persons designated by the Minister of National Revenue any information
obtained by or on behalf of the Minister of National Revenue for the
purposes of that Act .
225
�The memorandum also provided : "No public announcement is contemplated"
(Vol . 123, p . 19202 ; Ex . G-2c, Tab 7) . The Cabinet granted approval for this
programme, which was known as the Tax Programme, on May 25, 1972 . Mr .
Goyer testified before us that the objective of this contemplated programme
was to combat organized crime while administering the Income Tax Act (Vol .
123, p . 19202) .
17. Also on April 27, 1972, a Memorandum of Understanding between the
Department of National Revenue (Taxation) and the Department of the
Solicitor General was prepared and signed by the Deputy Ministers of the two
Departments . This memorandum was subject to the approval by Cabinet of the
proposal contained in the memorandum to Cabinet . In this Memorandum of
Understanding, the method of putting into operation the proposal contained in
the memorandum to Cabinet was made more specific . It provided as follows :
1 . The Minister of National Revenue, pursuant to the provisions of subsection (4) of Section 241 of the Income Tax Act, hereby designates the
members of the Directorate of Criminal Investigations of the Royal
Canadian Mounted Police as authorized persons for the purpose of
assisting him and his officials in carrying out investigations for such
purposes as the Minister of National Revenue may designate related to
the administration or enforcement of the Income Tax Act .
2 . The Royal Canadian Mounted Police acknowledges that the members of
the Directorate of Criminal Investigations of the Royal Canadian
Mounted Police will conduct for the purposes of the Income Tax Act,
such investigations of such persons as the Minister of National Revenue
may from time to time request, except when the Solicitor General is of
the opinion that having regard to the current tasks of the Royal
Canadian Mounted Police and the availability of manpower, it is not
practical for such investigations to be conducted .
3 . The Minister of National Revenue will furnish the Directorate of
Criminal Investigations of the Royal Canadian Mounted Police with
such information or material in his possession which in the Minister's
opinion will facilitate the conduct of any investigation which the Directorate of Criminal Investigations of the Royal Canadian Mounted Police
is carrying out on behalf of the Minister .
4 . The Royal Canadian Mounted Police acknowledges that all information
obtained for the purposes of the Income Tax Act by the members of the
Directorate of Criminal Investigations of the Royal Canadian Mounted
Police in the conduct of investigations referred to in clause 2 hereof are
subject to the restrictions set forth in Section 241 and that in particular,
no member of the Directorate of Criminal Investigations of the Royal
Canadian Mounted Police will knowingly communicate or knowingly
allow to be communicated to any person other than those persons
designated by the Minister of National Revenue any information
obtained by or on behalf of the Minister of National Revenue for the
purposes of this Act .
5 . The Solicitor General of Canada agrees to provide the Minister with the
names of individuals whom the Directorate of Criminal Investigations of
the Royal Candian Mounted Police suspects of being involved in organized crime and in evading or understating the amount of their income ,
226
�together with all intelligence information available to it on these
individuals .
6 . The Minister acknowledges that all information which he receives from
the Solicitor General of Canada either prior to or as a result of
investigations which have been carried on by members of the Directorate of Criminal Investigations of the Royal Canadian Mounted Police as
authorized persons will be treated as confidential information and will
not, without the express authority of the Royal Canadian Mounted
Police, be disclosed to persons other then [sic] designated individuals
who are members of the Special Investigations Division of the Department of National Revenue and their superior officers.
7 . The Minister agrees that if he should conclude that any investigation
which is being conducted by members of the Directorate of Criminal
Investigations of the Royal Canadian Mounted Police pursuant to the
provisions of clause 2 hereof is not likely to be fruitful and is being
discontinued by his officials, he will immediately so advise the Directorate of Criminal Investigations of the Royal Canadian Mounted Police .
8 . Members of the Directorate of Criminal Investigations of the Royal
Canadian Mounted Police will assist National Revenue, Taxation to
develop evidentiary standards to establish offences on the basis of
testimony relative to cash transactions where documentation is limited
or non-existent and will, in circumstances considered appropriate by
both National Revenue, Taxation and the Royal Canadian Mounted
Police, allow its criminal intelligence investigators to give evidence in
court on their knowledge of financial transactions entered into and
business procedures and techniques used by members of organized crime
prosecuted by National Revenue, Taxation .
9 . This agreement will take effect upon the approval by Cabinet of the
recommendations contained in a memorandum to Cabinet by the Minister of National Revenue and concurred in by the Solicitor General dated
April 27, 1972 .
18 . The Department of Justice assisted with the content and the drafting of
the Memorandum of Understanding and gave an opinion that the agreement
was legal . The Attorney General of Canada approved of the memorandum to
Cabinet when it was drafted (Vol . 62, pp . 10011-16 ; Vol . CI2, p . 1327) .
19. According to the testimony before us of Inspector R .D . Crerar, the officer
in charge of the R .C .M .P . Commercial Crime Branch, the kind of exchange of
information envisaged by the Memorandum of Understanding is not different
from that which was discussed at the meeting of April 23, 1969, i .e . it was
limited to cases where the provisions of section 133(3) of the Income Tax Act
applied (Vol . 47, pp . 7646-47) .
20. It will be noted that the Memorandum of Understanding designated the
members of the Directorate of Criminal Investigations as "authorized persons" . Testimony before us disclosed that the Directorate of Criminal Investigations included the Commercial Crime Branch (C.C .B .), the National Crime
Intelligence Branch (N .C .I .B .), the Contract Policing Branch, the Native
Policing Branch, the Customs and Excise Branch, the Federal Policing Branch,
the Drug Enforcement Branch and the Special "I" Branch . However, corn-
227
�munications from R .C .M .P . Headquarters to the divisions limited the application of the programme to the Commercial Crime Branch and the National
Crime Intelligence Branch . The evidence also disclosed that within the
R .C .M .P., the primary responsibility for carrying out the Tax Programme was
assigned to the C .C .B . and the N .C .I .B ., although there were times when other
members were involved (Vol . 48, pp . 7741-45 ; Vol . C12, p . 1432) .
21 . We were told that it was the understanding of the D .N .R . that certain
R .C .M .P . members within the Directorate of Criminal Investigations would be
assigned to the Tax Programme and that they would be the "designated"
persons . The R .C .M .P . did assign certain members to the programme (Vol . 62,
p . 10019 ; Vol . 48, pp . 7753-55, Ex . G-1, Tab 17) . The D .N .R . were assured by
the R .C .M .P . that the Force would not disseminate taxation data outside the
Force, and would only disseminate it within the Force on a strict `need to know'
basis . We heard evidence, which we shall discuss later in this chapter, that tax
information was given to members of the R .C .M .P . who were not on the Tax
Programme provided they had a`need to know' (Ex . G-1, Tab 17, Vol . 48, pp .
7758-60) . The current arrangement is that all R .C .M .P . members designated
under the Tax Programme must be designated in writing by the Director of
Criminal Investigations (Vol . 48, pp . 7830-39 ; Ex . G-l, Tab 23) .
22 . There was considerable evidence as to who were included in the definition
of "organized crime" but, as we mentioned earlier, because we do not consider
that a definition of that phrase affects the legal issues involved, we do not
propose to summarize the evidence nor to come to any conclusion about it . It is
clear that the D .N .R . did not particularly concern itself about a definition of
"organized crime" . An official of the D .N .R . involved in the Tax Programme
testified that the Department always understood that the people being investigated under the programme were those involved in criminal activities and that
the term "organized crime" was a more common phrase used to describe them
(Vol . 62, pp . 10030-3 1 ; Ex . G-12, Tab 11B) . As Mr. Justice Laycraft observed
in 1978 the working definition of "organized crime" used by the R .C .M .P . is so
wide as to include any two persons committing a second offence, and even "any
person making his living from crime" . '
23 . Regardless of who is included in the definition of "organized crime",
there does not appear to have been any difficulty or disagreement as to who
ought to be the subjects or "targets" of the programme . Initially, the targets of
the programme were provided by R .C .M .P . Headquarters . Subsequently,
targets were selected at the local district level by agreement between the
D .N .R . district official and the R .C .M .P . Unit or Section Commander . The
R .C .M .P . Unit advised R .C .M .P . Headquarters of each such selected target,
and on no occasion did Headquarters veto such a selection . The evidence
disclosed that both the R .C .M .P . and the D .N .R . could suggest names of
potential targets for consideration (Vol . 62, p . 10135 ; Vol . 62, p . 10058 ; Ex .
G-11, Tab K ; Vol . C48, p . 7767-72, and Ex . G-2, Tab 11) .
Report of a Public Inquiry into Royal American Shows Inc . and its Activities in
Alberta, June 1978, at p. C-42 .
228
�24 . The memorandum to Cabinet seeking approval for the Tax Prdgramrrie
indicated that no public announcement of the programme was contemplated,
but there is nothing in the Memorandum of Understanding nor in the Cabinet
decision that prohibits publication of the agreement . There was, however, an
agreement between the Department of National Revenue and the Solicitor
General's Department that the Memorandum of Understanding would not be
published . Later, some pressure developed within the government to disclose
publicly the existence .of the Tax Programme . By letter dated March 11, 1975,
the Honourable Ronald Basford, the Minister of National Revenue, wrote to
the Solicitor General, the Honourable Warren Allmand, advising that it was
his intention to make a public announcement regarding the programme . It
appears that Mr . Allmand sought the advice of Commissioner Nadon on the
matter, because a letter dated April 7, 1975, from Commissioner Nadon to Mr .
Alimand, set out the arguments on both sides with respect to publication . That
letter discloses that the main reason why, according to the R .C .M .P ., the
agreement should not be made public was that pressure groups would seek an
amendment to the Income Tax Act which would make the Act more restrictive .
Commissioner Nadon told us that, on balance, he had favoured publication of
the agreement .
25 . Mr . Allmand concluded that it was necessary to make a public announcement and, by letter dated May 10, 1976, he wrote to the Honourable Bud
Cullen, the Minister of National Revenue, stating that it was imperative that
some form of public announcement be made by Mr . Cullen's office . Mr . Cullen
replied, by letter dated June 9, 1976, agreeing that there ought to be an
announcement but added that there were some problems to be considered . He
told Mr . Allmand that Cabinet authority for the agreement had been obtained
on the assurance that no public announcement would be made and therefore
express authority would have to be sought from Cabinet for a public announcement . He suggested that Mr . Alimand take the initiative in seeking such
Cabinet approval and that he would support Mr . Allmand's position .
26. It is clear from the evidence that the R .C .M .P . and the D .N .R . had
different reasons for wanting to keep the agreement secret . The R .C .M .P .
wanted to keep it secret in order to combat organized crime . However, as time
passed the targets of the programme became aware that they were being
investigated by the R .C .M .P . through the reporting of cases coming before the
courts in which the R .C .M .P . had acted as witnesses . As more targets became
aware of the investigations there was less reason for the R .C .M .P . to maintain
the confidentiality of the agreement . The reason the D .N .R . wished to keep the
agreement secret was their concern that publication of it would damage the
credibility of their assertion of the confidéntiality of tax information .
27 . Publication of the agreement eventually took place in the Fall of 1977,
when its existence was made public as a result of . the Inquiry of Mr. Justice
Laycraft in Alberta .' Commissionner Nadon testified at the Laycraft Inquiry
without the benefit of a review of the R .C .M .P . documentation with respect to
possible publication of the agreement . He testified at that Inquiry that from
z Ibid .
229
�the outset, and during the course of the agreement, the R .C .M .P . had
endeavoured to have it published, whereas the evidence before us disclosed that
at least on one occasion the R .C .M .P . were satisfied that publication would not
be desirable .
28 . On March 3, 1977, Commissioner Nadon met with the Attorney General
of Alberta and at the meeting admitted that there was an agreement with the
D.N .R ., but he advised the Attorney General that its contents were confidential . Mr . Nadon refused to let the Attorney General see a copy of the
agreement unless the D .N .R . first agreed to such disclosure . He advised the
Attorney General that when the agreement was first entered into the R .C .M .P .
had been in favour of it being published but that the D .N .R . had been opposed .
Mr . Nadon told us that he considered that the agreement between the two
departments not to publish superseded his responsibility in his relationship with
the Provincial Attorney General because any disclosure by the R .C .M .P . would
not only jeopardize other arrangements they had with the D .N .R . but also
might preclude further information from being provided to the Force . (We
discuss the relationship between the R .C .M .P . and provincial attorneys general
in Part X, Chapter 4 . )
Extent and prevalenc e
29. At our request, a memorandum dated December 20, 1977, was sent from
R .C .M .P. Headquarters to the commanding officers of all R .C .M .P . divisions
asking, inter alia, for the following information :
Between 1969 and 1972, did R .C .M .P . Investigators obtain information
from Income Tax files in contravention of Section 241 of the Income Tax
Act? If so, under what circumstances, how many times etc . ?
Subsequent to the 1972 Agreemen t
Were there any incidents when information received as per the Agreement
was used for purposes other than enforcement of the Income Tax Act? e .g .
disclosed to other R .C .M .P . sections which did not have lawful access such
as - Security Service, Criminal Investigative Sections . If so, how many
times, under what circumstances ?
30. For the period from 1969 to 1972, the replies to that request for
information did not disclose any specific cases of dissemination of information
in contravention of the Income Tax Act. The reasons given in those replies are
either that no such information was provided to the R .C .M .P . or that no
records are available for that period to enable a reply to be given . The evidence
discloses that there was, however, a recollection that the D .N .R . sometimes
supplied biographical information to the Force (Ex . G2C, Tabs 12-27 inclusive,
Vol . 48, pp. 7861-7910) .
31 . The replies, which were filed as exhibits with us, disclose that, for the
period following the 1972 Memorandum of Understanding to the respective
dates of reply from the divisions, there were numerous instances in which
information was sought by R .C .M .P . members assigned to the Tax Programme
and passed on by them to other branches of the R .C .M .P. and to other police
forces, when such information was not being used for the purpose of enforce230
�ment of the Income Tax Act . The evidence shows that in most of those cases
the information was of a biographical nature but that in :some .cases it included
financial information (Ex . G2C, Tabs 12-27 ; Vol . 48, pp . 7861-7910; Vol . 50,
pp . 8016-43 ; Vol . 51, pp . 8260, 8270, 8317 ; Vol . 63, pp . 10320-32) . The
evidence also discloses that in many instances the D .N .R . officials involved
were aware that the information they were passing to the R .C .M .P . members
was not for the purposes of enforcement of the Income Tax Act (Ex . G-11,
Tabs 1-28) .
32 . We were also told in testimony that there have been instances where the
R .C .M .P . members involved in the Tax Programme have come across evidence
of serious criminal offences and have felt that they were not able to proceed to
prosecution with respect to those offences because they were not entitled to use
the information for that purpose (Vol . 48, pp . 7850-6 ; Vol . 49, pp . 7945-6) .
Legal issues
33. The Income Tax Act,' section 241, provides for the confidentiality of
information given by a taxpayér to the Department of National Revenue . It
also sets forth exceptions . It also makes it an offence to contravene the section .
The relevant parts of the section are as follows :
241 . (I) Except as authorized by this section, no official or authorized
person shal l
(a) knowingly communicate or knowingly allow to be communicated to
any person any information obtained by or on behalf of the Minister
for the purposes of this Act, o r
(b) knowingly allow any person to inspect or to have access to any book,
record, writing, return or other document obtained by or on behalf of
the Minister for the purposes of this Act .
(2) Notwithstanding any other Act or law, no official or authorized
person shall be required, in connection with any legal proceedings ,
(a) to give evidence relating to any information obtained by or on behalf of
the Minister for the purposes of this Act, o r
(b) to produce any book, record, writing, return or other document
obtained by or on behalf of the Minister . for the purposes of this Act .
(3) Subsections (1) and (2) do not apply in respect of crimina l
proceedings, either by indictment or on summary conviction, under an Act .
of the Parliament of Canada, or ., in respect of proceedings relating to the
administration or enforcement of this Act .
(4) An official or authorized person may ,
(a) in the course of his duties in connection with the administration or
enforcement of this Act ,
(i) communicate or allow to be communicated to an official or authorized person information obtained by or on behalf of the Minister
for the purposes of this Act, an d
R .S .C . 1970, ch .l-5, as amendéd by S .C . 1978-79, ch .5 .
231
�(ii) allow an official or authorized person to inspect or to have access to
any book, record, writing, return or other document obtained by or
on behalf of the Minister for the purposes of this Act ;
(b) under prescribed conditions, communicate or allow to be communicated information obtained under this Act, or allow inspection of or access
to any written statement furnished under this Act to the government of
any province in respect of which information and written statements
obtained by the government of the province, for the purpose of a law of
the province that imposes a tax similar to the tax imposed under this
Act, is communicated or furnished on a reciprocal basis to the
Minister ;
(c) communicate or allow to be communicated information obtained under
this Act, or allow inspection of or access to any book, record, writing,
return or other document obtained by or on behalf of the Minister for
the purposes of this Act, to or by any person otherwise legally entitled
thereto; o r
(d) communicate or allow to be communicated to a taxpayer, such information obtained under this Act regarding the income of his spouse or
of any other person as is necessary for the purposes of an assessment or
reassessment of tax, interest, penalty or other amount payable by the
taxpayer or of the determination of any refund to which he is entitled
for the year .
(a) The genera l rule stated in section 241 of the Income Tax Act
34. The section attempts to protect from unauthorized disclosure, a term
which is discussed below, "any information obtained by or on behalf of the
Minister for the purposes of this Act" . It further restricts inspection of or
access to "any book, record, writing, return or other document obtained by or
on behalf of the Minister for the purposes of this Act . "
(b) The exceptions
35. There are a number of exceptions to the general rule prohibiting disclosure . The rule does not apply in respect of criminal proceedings, either by
indictment or on summary conviction, under an Act of the Parliament of
Canada, or in respect of proceedings relating to the administration or enforcement of the Income Tax Act . Furthermore, an "official" or "authorized
person" may :
(i) in the course of his duties in connection with the administration or
enforcement of the Act, communicate or allow to be communicated to an
official or authorized person tax information and allow an official or
authorized person to inspect documents obtained for the purposes of th e
Act ;
(ii) communicate information or allow inspection of documents to or by the
government of any province for the purpose of administering a tax law of
the province ;
(iii) communicate information or allow inspection of documents to any person
.
"otherwise legally entitled thereto" ;
232
�(iv) communicate information to a taxpayer regarding the income of his
spouse or of any other person in order to permit an assessment or
reassessment of tax, interest, penalty, etc .
In addition, the Minister may permit a copy of a document containing tax
information to be given to the person from whom such document was obtained,
or to that person's legal representative or agent .
36 . Who is an "official or authorized person" for the purposes of section 241
of the Income Tax Act? Section 241(10)(a) defines "official" a s
. . any person employed in or occupying a position of responsibility in the
.
service of Her Majesty, or any person formerly so employed or formerly
occupying a position therein ;
Subsection (b) of section 241(10) defines "authorized person" a s
. . . any person engaged or employed, or formerly engaged or employed, by
or on behalf of Her Majesty to assist in carrying out the purposes and
provisions of this Act ;
37 . The major difference between "official" and "authorized persôn" is that
the section does not specify that the job or function of an "official" necessarily
requires that it be "to assist in carrying out the purposes and provisions of this
Act ." It thus appears that an R .C .M .P . officer could fall within the,definition
of "official" as being "employed in or occupying a position of responsibility in
the service of Her Majesty" . This was the view of Mr . Justice Laycraft, in the
Alberta inquiry.4 If this is the case, then an R .C .M .P . officer does not need to
be designated by anyone as an authorized person, and the prohibitions and
sanctions of section 241 apply automatically as long as he is dealing with what
has been termed above, for the sake of brevity, as tax information, and as long
as this information has been "obtained by or on behalf of the Minister fôrthe
purposes of this Act . "
38. On the other hand, an R .C .M .P . officer may become an "authorized
person" if he is either seconded to the Department of National Revenue, .or
hired by the Department to perform work in connection with the Act or in
some way "engaged . . . to assist in carrying out the purposes and provisions' .' of
the Income Tax Act . Then he automatically becomes an "authorized person"
and does not need to be so designated by anyone. The question whéthér
someone is an "official" or "authorized person" thus becomés a question 'o f
fact .
39. What restrictions apply to the dissemination of biographical • data provided to the Department of National Revenue by a taxpay,er? Not only does
section 241 of the Income Tax Act protect "any information obtained" as long
as it is obtained for "the purposes or' the Act ; it restricts access to any, "book,
record, writing, return or other document obtained" . . . "for the purpose of this
Act . "
° Report of a Public Inquiry into Royal American Shows Inc . and its Activities in'
Alberta, June 1978, pp . C-42-47 .
233
�40 . One of the qualifying phrases is "for the purposes of this Act" . The
question then arises whether biographical information is information obtained
for the purposes of the Act . Biographical information, as distinguished from
financial information, would include the taxpayer's name, address, telephone
number, employer's name, wife's and children's names, previous addresses,
S .I .N . number and any other information describing the identity or personal
situation and history of the taxpayer . It may be argued that this information is
necessary in order that the Department of National Revenue be able to make a
positive identification of the taxpayer and in at least that sense it is information
obtained "for the purposes of the Act ." Indeed, that was the conclusion
reached by the Ontario Court of Appeal in a recent case, Glover v . Glovers The
reasons for decision in that case said :
The address of the taxpayer is a necessary and integral part of the
information sought and received for the purposes of the Income Tax Act .
To deliberately misstate the address is an offence under the Act . The
section does not allow the Court to weigh the quality or relative value of the
information . It prohibits the communication of "any" information received
for the purposes of the Income Tax Act . In my opinion, the address received
by the Minister of taxpayers on the Income Tax returns is information
obtained by or on behalf of the Minister for the purposes of the Income Tax
Act . Such information can only be communicated to persons authorized to
receive it by virtue of the exceptions or qualifications contained in s .241 .
41 . We accept that analysis and proceed on the basis that it is correct . May
an "official" or "authorized person" use information covered by-section 241 to
pursue an investigation or proceed with the prosecution of an offence unrelated
to the Income Tax Act? Before the 1966 Amendments, which resulted in the
current section 241, various court decisions held that in certain circumstances
tax information could be used in a court of law, since the prohibition applied
only to administrative and not to judicial proceedings . A judge sitting in a
court of law was seen to be a person legally entitled to the information within
the meaning of the section of the Act . The 1966 amendments indicate that no
official or authorized person shall be required, in connection with any legal
proceedings, to communicate or to give evidence of any tax information or
produce tax records obtained for the purpose of the Act, unless such communication or testimony is in respect of criminal proceedings under a Federal
statute, or in respect of proceedings relating to the administration or enforcement of the Income Tax Act (Section 241(3)) . Despite the exclusion in
subsection 3, of a reference to other civil proceedings, subsection 4(c) indicates
that:
(4) An official or authorized person may .
.. (c) communicate . . .[tax]
information . . . or allow inspection of or access to any book, or other [tax]
document . . .to or by any person otherwise legally entitled thereto .
(Emphasis is ours . )
In Glover v . Glover6 it has now been held that a court is not a "person
otherwise legally entitled thereto" .
I Glover v. Glover, [ 1980] D .T.C . 6262 (Ont . C .A .) .
6 Ibid.
234
�42. However, apart from the question of whether a court is entitled to have
such information, there has as yet been no judicial interpretation of the section
as to whether a member of the R .C .M .P . who is given the information for
purposes, as far as the Revenue official is concerned, of the administration of
the Income Tax Act, may use the information in his own investigation of an
offence unrelated to the Act . We think the Act does not prohibit such a use .
However, if he communicates the information to another member of the
R .C .M .P . or a member of another police force, we do not think that he may
lawfully do so, for he is then not making the disclosure for the purpose of the
Act . If, as was held in Glover v . Glover, the court is not entitled, we cannot see
that a policeman conducting a criminal investigation unrelated to the Act is
entitled .' In Part X, Chapter 5, we shall recommend changes in the law so that
the R .C .M .P . would have access to tax information to investigate offences
unrelated to the Income Tax Act . Such access should be governed by a system
involving judicial authorization, similar to that which now exists for the use of
electronic surveillance . Whether the R .C .M .P . should be able to distribute tax
information received under judicial authorization to other police forces is a
matter for the Solicitor General of Canada to discuss with the provincial
attorneys general .
43 . Our conclusions are that :
(a) Furnishing of information, given to the Department by the taxpayer on his
income tax return, to the R .C .M .P. for purposes other than enforcement of
the Income Tax Act - for example, for a criminal investigation - is and
has been a contravention of the Act on the part of any Departmental
official communicating the information . If, in any of the specific cases, a
member of the R .C .M .P. abetted (encouraged) the source, he was a party
to the offence under section 21 of the Criminal Code . If he "counselled" or
"procured" the source to commit it, he was a party to the offence under
section 22 of the Criminal Code . We did not receive evidence as to such
encouragement, counselling or procurement in specific cases . We note that
the offence is a summary conviction offence ; therefore there cannot be
prosecution except within six months of the offence .
(b) No offence was committed if the information was communicated after the
commencement of criminal proceedings .
(c) Furnishing such information to the R .C .M .P . for the purpose of the
Income Tax Act, which was the express intention of the Memorandum of
Understanding, was not in contravention of the Act .
(d) If any member of the R .C .M .P . who received such information passed it
on to another member not engaged in an investigation relating to the
enforcement of the Act, he may have committed an offence .
'This subject was also discussed by Mr . Justice Laycraft in his Report of a Public
Inquiry into Royal American Shows Inc. and its Activities in Alberta, June 1978, at
p . C-45 .
235
�C. UNEMPLOYMENT INSURANCE COMMISSION
44 . Canadians are required by statute to provide information about themselves to the Unemployment Insurance Commission, both at the time of
registering for a Social Insurance Number, and when applying for benefits .
The Criminal Investigation Branch has been seeking access to this information
to help to locate persons wanted for the commission of crime, to identify bodies
and stolen property, and to find missing persons . In this section we give an
account of the history, over 30 years, of the C .I .B .'s involvement with the
U .I .C ., and combine it with a discussion of the legal issues, for during that
period there were several changes in the statute or in regulations, and it is
therefore clearer and more convenient to mix fact and law .
1946 to 1965
45 . Theré were no confidentiality provisions in the applicable statutes before
19461 and the transfer of information from the Unemployment Insurance
Commission to the R .C .M .P. before that year raised no legal issues other than
those that arise whenever a federal government employee gives official infôrmation to the police . In 1946 a confidentiality provision, section 105, was
written into the Unemployment Insurance Act . It provided tha t
Information, written or verbal, obtained by the Commission from any
person -pursuant to the provisions of this Act or any regulations made
thereunder shall be made available only to the employees of the Commission in the course of their employment and such other persons as the
Commission may deem advisable . ..9
Non-compliance with a requirement of the Act was made an offence in the
same amendments and this has been a feature of the unemployment insurance
legislation ever since . Therefore the release of confidential information to-the
R.C .M .P. was an offence unless the release complied with the requirement of
section 105 that the Commission deem it advisable . It is clear from the
evidence before us that members of the R .C .M .P . actively participated with
personnel of the U .I .C . in obtaining confidential information after 1946, and
thérefore may have committed an offence of conspiracy to effect an unlawful
purpose, contrary to section 423(2)(b) of the Criminal Code, or of abetting a
person to commit an offence, contrary to section 21(1)(c) of the Code .
46 . However, before it can be asserted that offences had in fact been
committed, the following questions must be answered :
(a) Was it necessary that the discretion conferred by the confidentiality
provision be exercised by the Unemployment Insurance Commission .
itself ?
(b) If so, could the Commission delegate this discretion, and can it be
proved to have done so ?
(c) Could the discretion be exercised by an employee of the Commission,
without authority to do so having been delegated by the Commission ?
8 See the Unemployment Insurance Act, 1940, S .C . 1939-40, ch .44 .
' 1946 S .C ., ch .68 .
236
�47. The first record of R .C .M ;P . policy on the matter dates from December
1950, when members of the Force were permitted to seék information from the
U .I .C . at its regional offices about individuals "who are being sought on
criminal grounds and also respecting missing persons" (Vol . 57, pp . 9354-5) .
This policy was based on a letter dated December 9, 1950, from the Executive
Director of the U .I .C . to the R .C .M .P . (Vol . 57, pp . 9352-3). A senior officer
of the R .C .M .P . advised the officer in charge of the C .I .B . and the officer in
charge of the Identification Branch that it, would be "well to refer to the
Commission only those cases where other enquiries are not . productive" (Ex .
H-1, p. 12) . The policy became part of the R .C .M .P . Policy Manual in about
1964 . In the same year the Social Insurance Number (S .I .N .) system was
introduced by regulation10 under both the Unemployment Insurance Act and
the Canada Pension Plan Act . On June 4, 1964, the Ontario Division advised
the U .I .C . that they would seek "information on the holder of a U .I .C . number
and/or a new Social Insurance Number" (Ex . H-l, p .15) . Yet at or about this
time the question was raised in the House of Commons as to whether
information on a social registration card would be be made available to the
R .C .M .P. On June 5, 1964 the then Commissioner of the R .C .M .P.,wrote to
the Minister of Justice, advising . him that the Force was not using the
information from the social security registration system and had no intention of
seeking access to it (Vol . 57, pp. 9367-73) .
48. On June 11, 1964, a Deputy Commissioner wrote to the Commanding
Officers of all R .C .M .P. divisions advising them that the Commissioner of the
R .C .M .P . had assured the Minister of Justice that the Force had . no intention
of seeking access to the information compiled during the social security
.registration programme and that "In line with this policy, no attempts are to be
made by any .member of the Force to obtain access to this material" . Copies of
this letter were sent to the Director of Security and Intelligence and the
Director of Criminal . Investigations (Ex . H-1, p . 16 ; Vol . 57, p . 9378) . Two
weeks later, however, the same Deputy Commissioner wrote a further .memorandum to the Commanding Officers . of all .divisions (Ex . H-1, p . 17) which
stated that access to the U .I .C . records was to continue whether the information had been given to the U .I .C . under the old alphabetical prefix system or
the new number prefix system (Vol . 57, pp . 9392-3) .
1965 to 197 1
49 . In 1965 the Canada Pension'Act" was enacted . Sections 100 to 106 of
this statute required that persons in "pensionablé emplôyment" file an application with "the M inister" for a Social Insurance Number . This provision cast a
far larger net than the Unemployment Insurance Commission Act since it also
covered self-employed persons . Section 107 of this statute contains the confidentiality provisions . These provisions differed considerably from the confidentiality section of the Unemployment Insurance Commission Act . Section 107
restricted the release of S .I .N . information compiled under that Act and woul d
10 See P .C . 1964-379 ; (S .O .R ./64-108) .
" S .C . 1964-1965, ch .51 .
237
�prohibit the release of information to the R .C .M .P . for the purpose of law
enforcement at large .
50. The C .P.P . (S .I .N .) Regulations1z were enacted on August 11, 1965 .
These Regulations provided that a person required to apply to the Minister foi
a S .I .N . under the Canada Pension Plan Act was to do so 'by delivering or
mailing his or her application to the local office of the U .I .C . (section 3(1)) .
51 . The evidence discloses that the S .I .N . information obtained by the U .I .C.
under the provisions of the Canada Pension Plan Act was compiled in the
Central Index of the U .I .C . The evidence shows also that the U .I .C . made no
attempt to segregate Unemployment Insurance Commission Act information
and Canada Pension Plan Act information in its Central Index, and responded
to all requests by the R .C .M .P . for S .I .N . information .
52 . While there is some evidence that the Force, including the Commissioner
and Deputy Commissioner, were aware of the two different sources of S .I.N .
information, there is no evidence that the Force was aware of the different
confidentiality provisions in the two statutes . However, the evidence shows that
the Force sought no legal opinion concerning these issues at any time during
this period . According to the testimony of Assistant Commissioner Jensen, he
always considered the matter to be an administrative, rather than a legal,
concern . It is not unfair to interpret this view to mean that, as long as an
employee of the U .I .C . in an apparent position of responsibility was prepared
to release information, the R .C .M .P . would use it for the purpose of law
enforcement generally .
53 . In new instructions to members of the Force in 1967 reference was made
for the first time to the Central Index of the U .I .C . It stated that requests for
record checks could be made by divisions, branches, etc . to the U .I .C . offices
and'/or Central Index at Ottawa .
54. In June 1969 the Chief Supervisor of the Central Index of the U .I .C .
advised by letter that he had no objection to R .C .M .P . field divisions sending
requests for information directly to the Central Index by telex ; and the
R .C .M .P . Policy Manual was amended accordingly . The amendment advised
that any telex message should indicate that the information was "being sought
in connection with a criminal offence" . It was clear in this policy that Social
Insurance Numbers could be used . However, the Minister of Justice was not
advised that the Force's position was now different from that which had been
stated by the Commissioner to the Minister on June 5, 1964 (Vol . 57, p . 9405) .
1971 to 197 7
55 . From early in 1971 until the fall of 1972 the formal flow of information
from the U .I .C .'s Central Index was considerably restricted, to the point that it
was all but terminated (Ex . H-1 ; Vol . 57, pp . 9408-23 ; Vol . 60, pp . 9827-8) . In
1971 the Unemployment Insurance Commission Act was under debate in the
House of Commons . It appears from the record that the restriction may have
resulted from these debates ; it was certainly contemporaneous .
1 1 P .C . 1965-1458 ; (S .O .R ./65-372) .
238
�56 . The Unemployment Insurance Commission Act, 1971, assented to on
June 23, 1971, carried forward the confidentiality provision previously found in
section 105, in what now became section 114 .13 However, the statute elevated
the U .I .C .'s S .I .N . registration system from the status of Regulations to that of
a statute (see sections 125 and 126) . With this elevation came a new confidentiality section, section 126(4), which provides as follows :
(4) The Commission may, subject to such regulations as the Governor-inCouncil may make in that behalf, make available such information contained in the registers maintained under section 125 or this section as the
Commission deems necessary for the accurate identification of individuals
and for the effective use by such individuals of Social Insurance Numbers
and Social Insurance Number Cards, to such persons as the Commission
thinks appropriate to accomplish such purpose .
This confidentiality section, rather than section 114, clearly applies to Central
Index information (viz : S .I .N . information) .
57. In August of 1972 the R .C .M .P . was made aware of the existence of
section 126(4) and in fact was advised that that section in part was the reason
for the change in position by U .I .C . personnel (Ex . H-1, p . 37) .
58. Up to this time it appears from the record that the R .C .M .P. took the
view that the predecessors of section 114 applied and took the further position
that the question whether the R .C .M .P . were persons whom the Commission
deemed "advisable" was an administrative issue, not a legal one . However, at
this point the R .C .M .P . did not seek a legal opinion . Instead it either continued
to assume that section 114 applied or was content to rely upon whatever
"administrative" decision was made by the employee of the U .I .C . with whom
it was dealing at the time .
59. In August and September 1972 the Executive Director of the U .I .C .
confirmed that the R .C .M .P .'s operations manual provisions as to access to
U .I .C . Central Index information "is acceptable to me but of course this does
not constitute the Commission's policy . . ." (Ex . H-1, p . 42) . The R .C .M .P .
manual was amended in October 1972, in such a way that members of the
Force were aware that information from the Central Index was again available .
There is no evidence that the Unemployment Insurance Commission itself ever
approved the arrangement (Vol . 57, pp . 9431-4) . Enquiries were to be limited
to certain specific major crimes "or any other serious crime" (Ex . H-1, p . 41) .
Assistant Commissioner Jensen told us that the words "serious crime" would
mean any indictable offence under the Criminal Code or any federal statute
(Vol . 57, pp. 9438-40) . R .C .M .P . Headquarters sought information in regard
to any type of "crime" until late 1976 . At that time, As a member of the
R .C .M .P . testified before us, information was to be requésted only when it
related to a crime on the list found in the 1972 arrangement or any other cases
approved by a specific regular member of the Force at Headquarters (Vol . 58,
pp . 9564-71) . The witness testified that indeed the policy permitted the Force
to obtain information for "some other purpose that is considered to be in the
public interest" : this included Security Service matters, missing persons an d
" S .C . 1970-71-72, ch .48 .
239
�deceased persons (Vol . 58, pp . 9504-11), and information to assist other police
forces or agencies (Vol . 58, pp. 9597-9606) . These instructions differed from
those agreed to by the Executive Director of the U .I .C ., who had agréed to
provide information only when the act being investigated "gives rise to a good
deal of public indignation" . Assistant Commissioner Jensen expected that
R .C .M .P . personnel would have exercised discretion as to when to seek
information (Vol . 57, pp . 9439-43) .
60 . The next major development in R .C .M .P. policy resulted from an agreement with the Chief of Benefit Control of the U .I .C . By a memorandum of
September 10, 1973, Commanding Officers were advised that "This is a
confidential verbal agreemènt we have with the Special Investigations Committee and therefore it should not be widely publicized . . ." . The ability to obtain
information from the U .I .C . was not to be disclosed "to anyone outside the
Force" (Vol . 57, pp . 9490-1) .
61 . The next document that gave rise to a change in policy was a memorandum of October 3, 1973, to the Commanding Officers of all field divisions and
to the Director General of the Security Service (Ex . H-1, p . 63 ; Vol . 58, pp .
9506-7) . This memorandum removed all restrictions concerning the crimes
with respect to which the R .C .M .P . could seek information from the U .I .C .
Assistant Commissioner Jensen testified that, although he was unaware of any
particular document that supported his understanding that the U .I .C . had
agreed to this change, this was his recollection as to what the Chief of Benefit
Control had agreed to . (Vol . 57, pp . 9507-8) . There is evidence, however, that
this officer of the U .I .C . expected that information would be given only in
"major cases" (Ex . HC-1, p . 32), and that he preferred all requests to be made
by R .C .M .P . Headquarters to the staff of the U .I .C . Special Investigation
Committee . Headquarters, in a memorandum to Commanding Officers, stated
that "any sib rosa arrangements which may exist" were not to be interfered
with (Ex . H-1, p . 63 ; Vol . 58, pp . 9550-2) . This memorandum represents the
policy as it stood when we held hearings into this subject in June 1978 .
62. Section 126(4) is capable of two interpretations, namely :
(a) the Commission has no authority to release information unless such
authority is granted by regulations enacted by the Governor in Council ; or
(b) the Commission has authority to release information unless the Governor
in Council enacts regulations to limit this authority .
63. Both these interpretations give rise to other problems of interpretation
concerning the meaning of "accurate" identification of individuals . Is this
phrase intended to help the Commission or law enforcement bodies in determining whether the individual using the card is entitled to do so under the
provisions of the statute? Or is the phrase intended to help in the general
identification of persons for any reason whatsoever? The former interprets the
purpose of section 126 (4) as related solely to the use of S .I .N . information or
cards in the social security system . This is supported by the evidence : the
S .I .N . " . . has been developed solely in connection with social security pro.
grams" (Ex . H-11) .
240
�64 . The second interpretation of the phrase "accurate identification of
individuals" would allow release of information, not only to law enforcement
agencies but also to banks, retail stores, credit agencies, and any other persons
or organizations . This broader meaning could be rationally supported if one
believes that the legislators in 1971 accepted the following : that S .I .N . had
become a national identification system and, consequently, that use of S .I .N . or
a S .I .N . card was for purposes some of which went beyond the social security
system .
65 . If the correct interpretation is that the . information can be released only
for accurate identification of individuals or the effective use by individuals of
S .I .N . numbers and cards, both for purposes of the statute, then the release of
the Central Index information by the Commission staff to the R .C .M .P .
subsequent to the Unemployment Insurance Commission Act, 1971, was
contrary to law unless it was released for the purpose of enforcing the
provisions of that statute .
66 . Even if the broader interpretation, i .e ., the identification of individuals for
any purpose whatever, is correct, a legal problem exists . It is clear on the
evidence that 'the 1972 and 1973 arrangements, which we shall 'describe
shortly, contemplated the release of information to the R .C .M .P . for the
investigation of either certain specified crimes or "crime" generally . The
evidence before us shows that the use of the information was not restricted to
"the accurate identification of individuals" or to the investigation of breaches
of the Unemployment Insurance Commission Act . True, in some cases, the
information was used by the R .C .M .P . to identify dead bodies and the use of a
S .I .N . Card,by a person othér than the person to whom it was lawfully issued .
However, it was also used in a considerable number of cases to locate wantéd
persons and in this regard was described by Assistant 'Commissioner Jensen as
a necessary tool in the location of fugitives - "people who are sought on
criminal grounds" (Vol . 57, pp . 9318, 9286, 9324 ; Vol . 58, p . 9657) .
67 . On Maÿ 10, 1973, the R .C .M .P. advised their personnel that the fact that
it could obtain information from the U .I .C . was not to be disclosed to outside
agencies or police departments and that any requests for information from
these bodies were to be denied (Ex . H-1, p. 55) . This policy was in effect
confirmed by the memorandum of September 10, 1973, which has already been
mentioned . It is therefore surprising that the evidence discloses that after 1973
the R .C .M .P . used its arrangement with the U .I .C . to provide information to
other domestic and foreign agencies and police departments . There is no
evidénce that the U .I .C . or its employees did not know that the arrangement
was being used for those purposes . The evidence is that the U .I .C . did itself
provide information to outside agencies and other police forces prior to 1 971
but not thereafter .
68. A further legal issue raised by section 126(4) is as follows . It provides
that "The . Commission may . .. make available . such information . .. to such
persons as the Commission thinks appropriate to accomplish such purpose" .
Can the Commission or its employees be said to have exercised its discretion i f
241
�it was unaware of the identity of the recipient of that discretion? We think it
cannot .
69 . A further legal problem arises on the facts . The R .C .M .P . was provided
with information from regional offices of the U .I .C . from the beginning of the
U .I .C . programme in Canada to June 12, 1978 (Vol . 57, pp . 9289-90, 9324-5) .
From at least 1972 onwards there is no suggestion on the evidence that the
arrangements negotiated with U .I .C . personnel related to anything other than
Central Index information : the obtaining of information from regional offices
after 1972 was not according to any agreement with U .I .C . personnel . As a
result the release of this information cannot possibly be said to have been
provided for under section 114 or its predecessor, unless one interprets that
section as permitting the release of information by an employee of the
Commission - an interpretation which we think is unsound .
1977
70 . Effective August 15, 1977, the statute was amended by the Employment
and Immigration Reorganization Act,14 (the "Reorganization Act") . It created
a department known as the Department of Employment and Immigration,
under the jurisdiction of the Minister of Employment and Immigration .
Pursuant to this Act, section 114 was amended in one significant particular :
responsibility for determining which "other persons" may share information
under that section is now assigned to the Minister of Employment and
Immigration . Thus, the concluding language of the confidentiality provision in
section 114 now reads "and such other persons as the Minister deems advisable" . (The emphasis is ours .) Moreover, the section now applies to information collected both by the Unemployment Insurance Commission and the
Department of Employment and Immigration . The section authorizes release
of that information to employees of the Commission or the Department of
Employment and Immigration in the course of their employment and "such
other persons as the Minister may advise" . (The emphasis is ours . )
71 . The terms of section 126(4) were, however, identical in the amendment .
Thus, the Commission remains vested with the discretion to determine "such
persons" as are appropriate to accomplish the "purpose" set out in section
126(4) . While the comments previously made concerning section 126(4)
continue to apply with respect to section 114, regard must be paid to a new
delegation of authority section introduced by the Reorganization Act . Section
5(2) provides as follows :
Except as provided in any other Act of Parliament the Minister may, by
order, authorize any officers or employees of the Department [of Employment and Immigration] or the Canada Employment and Immigration
Commission established by section 7 to exercise powers or perform duties
and functions of the Minister and any such officers or employees or classes
thereof specified in the order may exercise the powers or perform the duties
and functions mentioned in the order .
14 S .C . 1976-77, ch .54, assented to August 5, 1977 .
242
�Thus, section 5(2) permits the Minister to delegate the discretion he has under
section 114 to the Commission or to the Department or to employees of either
body. Such employees or classes of employees must, in accordance with the
terms of section 5(2), be expressly designated in the Minister's order and,
further, the powers or duties and functions to be performed by them must also
be expressly referred to in the order .
72 . There is no longer any doubt that the Commission may delegate its power
of decision . On the other hand, the new power of delegation excludes any
possibility that an employee of the Commission could lawfully release information in the absence of an express delegation . This conclusion is further
supported by the provisions of section 13(3) of the Reorganization Act, which
empowers the Commission, by order, to authorize :
(i) any officers or employees or classes of officers or employees of the
Commission ,
or
(ii) with the approval of the Minister, of the Department ,
to exercise powers or perform duties and functions of or delegated to the
Commission .
73. Section 9(2) of the Reorganization Act reads as follows :
The Commission shall comply with any directions from time to time given
to it by the Minister respecting the exercise or performance of its powers,
duties and functions .
This section is relevant to the Commission's authority under section 126(4) . It
permits the Minister to direct the Commission to release information under
section 126(4) provided always that the release is for the purposes set out in
that section .
74 . We have been advised that, since the present Act came into effect in
1977, the Minister of Employment and Immigration has not delegated his
authority under section 114 to the Commission or the Department or their
employees, or issued any direction to the Commission pursuant to section 9(2)
with respect to the release of information pursuant to section 126(4) . Finally,
there is no evidence before us to suggest that the Commission in turn has
sub-delegated its discretion under section 126(4) to any of its own employees,
to the Department or to employees of the Department . Consequently, if there
was no such sub-delegation by the Commission, in our opinion any release of
information between August 15, 1977 and the cut-off of information imposed
on June 12, 1978, may have been in violation of the statute .
75 . On June 12, 1978, a representative of the Canada Employment and
Immigration Commission advised the D .C .I . that the Force's access to Central
Index Information was terminated (Vol . 57, p . 9240) . The extent of the
restriction on the information flow and the reason for the restriction is found in
an excerpt from the House of Commons debates of June 21, 1978, which reads
as follows :
Mr . Bill Clarke ( Vancouver Quadra) : Mr . Speaker, my question is for the
Minister of Employment and Immigration . I want to ask him about th e
243
�recently revealed refusal to supply unemployment insurance information to
the R .C .M .P . In view of the fact that this information has been supplied for
many years, in spite of the regulation regarding the confidentiality of
unemployment insurance information, I ask what type of confidential
information was supplied to the R .C .M .P . and under what authority was
that information given ?
Hon . Bud Cullen ( Minister of Employment and Immigration) : Mr. Speaker, the legal opinion I received recently indicated that in the past the
information given to the R .C .M .P . went beyond that which was allowed
under section 126 . This was a legal interpretation of that section . It seems
to me that it is open to interpretation . Because we wanted to get the matter
clarified, it seemed the wisest policy was to issue instructions that information other than that for the administration of the Unemployment Insurance
Act or the administration of social insurance numbers should not be
released until we had clarification of section 126 . 1 am happy that the
McDonald Commission is looking into this particular area to give us advice
either that we do have authority to give additional information as the
minister shall determine, or that we should amend legislation to do what I
think is appropriate, that is, to give this information to the R .C .M .P . to help
their investigations .
Mr . Clarke : Mr. Speaker, I ask the minister what recent developments
caused the ruling to be investigated and forced the government to stop
giving that information .
Mr . Cullen : Mr. Speaker, until the carping of opposition members, we used
what we thought was common sense and tried to help the R .C .M .P . in their
fight against organized crime .
An hon . Member : Organized crime ?
Mr . Cullen : I might say that with the passage of Bill C-27, the hon .
member's colleague, the hon . member for Hamilton West, quite correctly
thought that the minister should have the responsibility for giving information under the Unemployment Insurance Act to other people, and insisted
that the wording be changed from "the commission"-to "the minister" so
that the minister had to accept responsibility . I sought a legal opinion to
determine whether we were acting within the provisions of section 126 . The
advice I have from legal counsel is to the effect that more information is
being provided than was authorized by that section . Because of that, I have
ordered it stopped .' s
76 . For the reasons given above our conclusion is that throughout the three
decades since 1946, the R .C .M .P . has obtained information from the staff of
the U .I .C . by means which, through a failure to take advantage of the
statutory provisions specifying the power of deciding upon access, have violated
the confidentiality provisions of the legislation.
Extent and prevalence of access by the C.I.B. to U.I.C. data
77. The R .C .M .P . maintained Request for Information files from 1974 to
April 1978 . These files were created as a result of the 1973 arrangement and
were maintained to record the requests that were made following the time o f
15 House of Commons, Debates, June 21, 1978, p . 6619 .
244
�that arrangement (Vol . 58, p . 9564) . The'requests for information made by the
C .I .B . to the U .I .C . for the period 1974 to 1978 were as follows :
1974
265
1975
92
1976
544
1977
648
74
.1978 (to April) -
1,62 3
Of the 648 requests for the year 1977, between 250 and 266 related to the
investigations of U .I .C . frauds . Accordingly the number of non-U .I .C . related
offences for 1977 was approximately 400 and for the period 1974 to April of
1978 was approximately 1,370 (Ex . H-7A ; Vol . 60, pp . 9664-7) . A review of
the relevant files for the year 1976 and 1977 indicated as follows :
Non-U .I .C . Recorded Reason for Request
Requests Not Indicated
1976 399 268
1977
428
31 3
78 . The R .C .M .P . advised us that the request files are incomplete, and that
the reason for the requests may have been communicated in a different fashion,
for instance by telephone, by correspondence, or by reference to a particular
case file . However, that information cannot be determined with any certainty
at the present time (Vol . 58, pp . 9671-2) .
79. The request files for the period 1974-78 indicate that other police forces
and other agencies contacted the Commercial Crime Branch Headquarters
computer terminal directly to make use of the 1973 arrangement . These
included requests that were acted on from the following bodies, which are
named here to illustrate the broad range of domestic and foreign forces an d
agencies whose requests were processed :
(a) Ingersoll Police Forc e
(b) Quebec Provincial Police Force
(c) Temagami Police Force
(d) Indiana State Police
(e) Winnipeg Police Forc e
(f) Medicine Hat Police Force
(g) York Regional Police Force
(h) Sudbury O .P .P.
(i) Kingston Police Force
(j) Burlington O .P .P .
(k) U .K. Customs
(1) . Canadian National Railway Police
(m) D .N .R . - Collections Department
(Vol . 58, pp. 9600-4 . )
245
�D . OTHER FEDERAL GOVERNMENT DEPARTMENTS
AND AGENCIE S
(a) Depirrtment of Industry, Trade and Commerce : the Industrial
Research and Development Incentives Act
80 . Under the Industrial Research and Development Incentives Act,16 known
as I .R .D .I .A ., the Minister of Industry, Trade and Commerce may authorize
the payment of a development grant to a corporation for scientific research and
development . A corporation applying for such a grant must provide such
information as is specified by regulation and prescribed by the Minister . A
statutory "privilege" is created by section 13, and disclosure of information
contrary to section 13 is made an offence .
13 . All information with respect to a corporation obtained by an officer or
employee of Her Majesty in the course of the administration of this Act is
privileged, and no such officer or employee shall knowingly, except as may
be necessary for the purposes of sections 11 and 12 or in respect of
proceedings relating to the administration or enforcement of this Act,
communicate or allow to be communicated to any person not legally
entitled thereto any such information or allow any such person to inspect or
have access . to any application or other writing containing any such
information .
15 .(2) Every officer or employee of Her Majesty who contravenes section
13 is guilty of an offence punishable on summary conviction .
Can the R .C .M .P . obtain access to such information? The references to
sections 11 and 12 are irrelevant for our consideration as they relate to
information obtained from the Minister of National 'Revenue or provided to
that Minister . But what is the scope of the phrase "proceedings relating to the
administration or . enforcement of this Act", and when are members of the
R .C .M .P . "legally entitled" to such information ?
81 . In 1974, the Commercial Crime Branch of the R .C .M .P ., during the
course of an investigation, wrote to the Deputy Minister of Industry, Trade and
Commerce to obtain information concerning I .R .D .I .A . grants made by the
Department to two firms. Apart from the existence and amount of grants, the
Deputy Minister declined to provide information because of the provisions of
section 13 of the Act . This resulted in contradictory legal opinions being given
by the Legal Branch of the R .C .M .P . and by the Legal Services Branch of the
Department . Finally, in May 1975, the Assistant Deputy . Attorney General
gave a written opinion that the Department may not, except pursuant to the
exceptions contained in section 13, reveal to the R .C .M .P . information
obtained under the statute . The Deputy Minister considered that opinion to be
binding upon the Department but expressed willingness to co-operate by
formally requesting an investigation pursuant to section 13 if the R .C .M .P . has
information indicating possible irregularities in the administration of
I .R .D .I .A .
16 R .S .C . 1970, ch .1-10 .
246
�82 . Such willingness to co-operate • would apply only if the investigation
related in a direct fashion to the Act . However, the investigation in question, in
which the governing opinion was that information could not be provided, was
under the . Criminal . Code . It concerned an allegation that an individual
received a percentage of an I .R .D .I .A . grant in return for exercising his
influence with the Government of Canada in regard to the application for the
grant .
83. It appeârs from the documents before us (Ex . N-1) that on another
occasion in 1974 a member of the Commercial Crime Branch conducting
another investigation did obtain "complete access" to information in the files of
the Department of Industry, Trade and Commerce, which had been obtained
under I .R .D .I .A . There is no other evidence before us to indicate the extent
and prevalence of such access . However, the Officer in Charge of the Operational Task Force (the group in the R .C .M .P. charged with tasks relating to
this Commission of Inquiry and others) reported to us by letter dated November 21, 1978, that there was one case in 1975 in which there was an
investigation of a possible "kick back" in regard to an application ; that case
resulted in the above-noted opinion being given by the Department of Justice .
He added :
Due to the fact that C .C .B. (Commercial Crime Branch) investigation files
were not categorized by Government Departments, it would require a
review of almost all Commercial Crime Branch files .to determine if they
dealt with an I .R .D .I .A . investigation .•From speaking to members of C .C .B .
they cannot recall any other case involving I .R .D .I .A .
We concluded that, the time and cost of undertaking such a massive search
were not warranted in the çircumstances .
(b) Department of National Health and Welfare : Family Allowances and
Old Age Security
84. Section 32 of the Family Allowances Regulations, 1954-1508, provided as
follows :
Except where required by law or when necessary for the Administration of
the Act or these regulations, no person who obtains information under the
provisions of the Act or these regulations shall disclose or communicate
such information or allow it to be disclosed or communicated .
85 . The Family Allowances Act was repealed and replaced by The Family
Allowances Act, 1973 . 17 The confidentiality provision is now found in section
17 of the, statute which provides as follows :
(1) Except as provided in this section or section 18, all information with
respect to any individual obtained by the Minister or an officer or employee
of Her Majesty in the course of the administration of this Act and the
regulations or the carrying out of an agreement entered into under Sebtion
18 is privileged and no person shall knowingly, except as provided in this
Act, communicate or allow to be communicated to any person not legally
entitled thereto any such information or allow any person not legally
entitled thereto to inspect or have access to any such information .
" S .C . 1973-74, ch .44 .
247
�The communication of such information contrary to section 17 is an offence :
20 . (I) Every person who knowingly
(e) contravenes section 17 by communicating or allowing to be communicated to any person privileged information or by allowing any
person to inspect or have access to any statement or other writing
containing any such information is guilty of an offence and liable on
summary conviction to imprisônment for a term not exceeding six
months or to a fine not exceeding one thousand dollars or both :
However, subsection (2) provides a number of exceptions when information
obtained by the Department in the course of the administration of the Act may
be communicated to persons outside the Department . These exceptions are the
Department of Indian Affairs and Northern Development, the Department of
Manpower and Immigration, the Department of National Revenue, the
Department of Supply and Services, the Unemployment Insurance Commission
and Statistics Canada . The prohibition found in subsection (1) is also expressly
not applicable to "proceedings relating to the administration and enforcement
of this Act" . Section 18 empowers the Minister to enter into an agreement with
the government of a province under which the Minister may furnish to the
government of a province any information which has been provided by a person
who has applied for family allowances .
86. The "Minister" referred to in that Act is the Minister of National Health
and Welfare . He is also the Minister referred to in the relevant provisions of
the Old Age Security Act," which have been in force since the Statutes of
1966-67 . A similar prohibition was previously found in paragraph 3(1)(a) of
the Regulations made pursuant to the previous Old Age Assistance Act . In that
statute the confidentiality provision is found in section 19(1) which reads as
follows :
(1) Except as provided, in this section, all information with respect to any
individual applicant or beneficiary or the spouse of any applicant or
beneficiary, obtained by an officer or employee of Her Majesty in the
course of the administration of this Act is privileged, and no such officer or
employee shall knowingly, except as provided in this Act, communicate or
allow to be communicated to any person not legally entitled thereto any
such information or allow any such person to inspect or have access to any
statement or other writing containing any such information .
Subsection (2) provides a number of exceptions when information obtained by
the Department pursuant to the Act or the regulations may be communicated
outside the Department . These exceptions are the same Departments of the
federal government as those referred to in the Family Allowances Act except
that the Departments of Finance and Veterans' Affairs are added and the
Departments of Indian Affairs and Northern Development and of Manpower
and Immigration are not included . Information may also be provided to any
provincial authority administering a programme of assistance payments . The
prohibition found in subsection (1) is expressly not applicable to "proceedings
relating to the administration or enforcement of this Act" .
18 R .S .C . 1970, ch .O-6 .
248
�87. The R .C .M .P . has long sought access to information provided to the
Minister of National Health and Welfare by a parent applying for family
allowances or a person applying for old age security . This information has been
sought in order to assist individuals who have asked for the help of the
R .C .M .P . in locating missing relatives and foreign embassies seeking persons,
although the policy has been that, if such information is obtained, the person or
embassy making the inquiry is not to be given the information if the "missing"
person objects .
88. The R .C .M .P. has also sought the informatiôn in criminal investigations .
For èxample,'where a person suspected of a crime has vanished with his wife
and children, information as to the address to which family allowance cheques
are sent at the request of the parents may be of considerable assistance in
enabling the police to locate the suspect .
89 . In December 1954 R .C .M .P . Headquarters asked the Department of
Justice for an opinion as to whether the furnishing of information to the Force
to assist it in locating missing persons violated the "security" provisions of the
Acts and regulations governing family allowances, old age security and old age
assistance . In January 1955 the Deputy Attorney General, Mr . Varcoe, gave
his written opinion that the provisions of the statutes and regulation s
preclude the giving of the information referred to therein to R .C .M . Police
officers to assist them in locating missing persons . These prohibitions apply
notwithstanding the manner in which a recipient proposes to deal with the
information .
90. Consequently, in March 1955, a written instruction was sent to all
divisions, sub-divisions and detachments . This advised of the ruling received
from the Department of Justice . It then directed that members of the Force
conducting enquiries as to the whereabouts of wanted or missing persons must
not approach any regional office for information from the family allowances or
old age security records . The instruction was entitled "Temporary" and was
"to be withdrawn September 1, 1955" . It was sent out as a "Temporary
Instruction "
. . . as it is felt that in six months time personnel in the field will be familiar
with the fact that no information can be obtained from this Division of the
Department of National 'Health and Welfare and a temporary instruction
will have served our purposes .
91 . In 1968 the officer in charge of the Commercial Fraud Section urged that
an effort be made to overcome the "roadblock" created by the prohibition
against disclosure that was then contained in a regulation under the Family
Allowances Act, either by the Deputy Minister or another senior officer of the
Department authorizing disclosure as a matter of policy, or by having the
regulation amended . In order to prepare for an approach to the Department,
the then Officer in Charge of the Criminal Investigation Branch, Superintendent M .J . Nadon, wrote to the Commanding Officers of the divisions to ask :
which Divisions are suitable to acquire information through confidential
sources within these Divisions
249
�despite "the fact that they are statute [sic] barred by secrecy provisions within
their regulations" . The letter added :
If we are receiving more co-operation at present than is apparent at this
Headquarters, we may avoid any contact with the Department if we feel
that such action would only serve to eliminate existing sources .
In reply, several commanding officers reported that information was being
provided by confidential sources within the Department . Of these, the report
from Alberta, by Detective Inspector T .S . Venner, explained that the assistance was being provided without the knowledge of the "national headquarters"
of the Department and that he had been assured that "any official approach
along these lines at Ottawa would only serve to eliminate these sources" . The
report from Manitoba was made by the member who obtained information
from the Departmental source . It observed that the source had told him that
the Regional Director of the Departmen t
continually brings to their attention the security aspects of their work and
threatens dire results should there be any breach of same .
92. There is no indication that at that time any approach was made by
R .C.M .P . Headquarters to the Department of National Health and Welfare .
We infer that no approach was made for fear of affecting adversely the
successful relationships that had been developed with sources within the
Department in several provinces .
93. In November 1978 the Operational Task Force of the R .C .M .P., which
had been created to carry out tasks related to Commissions of Inquiry, reported
to us that it had conducted a survey of all divisions to determine whether local
arrangements were in effect enabling members of the Force to obtain family
allowance information . The divisions generally replied that as far as they could
ascertain there did not exist any confidential arrangements with the Family
Allowances Division of the Department . However, four cases were reported in
which approaches were made by the Force to the Family Allowances Division
other than in regard to the administration of the Family Allowances Act .(i) In an investigation of the abduction of a seven-year-old child, the
approach was made to determine whether a new application had
been made for family allowance in regard to the abducted child .
The Department advised that no new application had been made .
(The mere disclosure that an application had or had not been made
would not be prohibited . )
(ii) In 1970 co-operation was received in regard to a murder investigation . No further details were given .
(iii) A contact was made with the local office in an investigation under
the Immigration Act . No further details were given .
(iv) A request was made in a fraud investigation . It does not appear
that any information was given out, the disclosure of which would
be prohibited .
Those cases illustrate the variety of situations in which information would be of
assistance in criminal investigations .
250
�(c) Foreign Investment Review Agency
94 . The Foreign Investment Review Agency (F .I .R .A .) was established pursuant to the provisions of the Foreign Investment Review Act .19 The Agency is
empowered to advise the Minister concerning' applications for the sale of
control in Canadian business enterprises to non-Canadians, or the establishment of a new business in Canada by non-Canadians . In the case of the sale of
an existing business, the applicant is the Canadian business enterprise . The
applicant must provide the Agency with detailed information about the
Canadian business enterprise or the new business. Section 14(1) of the Act is
the confidentiality provision, violation of which is an offence :
14 . (I) Except as provided in this section, all information with respect to a
person, business or proposed business obtained by the Minister or an officer
or employee of Her Majesty in the course of the administration of this Act
is privileged and no person shall knowingly, except as provided in this Act,
communicate or allow to be communicated to any person not legally
entitled thereto any such information or allow any person not legally
entitled thereto to inspect or have access to any such information .
The only exception provided for in the remainder of the section, which could in
any circumstances enable the R .C .M .P . to have access to such information, is
in respect of "legal proceedings relating to the administration or enforcement
of this Act" .20 (Even that exception may not permit disclosure until after an
information has been laid . )
95 . In 1977, in a major international fraud investigation relating to "finder's
fees", the R .C .M .P . attempted to obtain information from F .I .R .A . but
F.I .R .A . personnel refused to provide the information on the ground that it was
confidential . This illustrates that it is in the investigation of commercial fraud
cases that F .I .R .A .'s information would be useful . Later that year the
R .C .M .P. recorded that an arrangement had been made orally to deal with
requests by the R .C .M .P . for information "unofficially, on a case by case
basis" . The arrangement entered into appears to us to have contemplated the
furnishing of information in violation of the Act . However, so far as we have
been able to ascertain the R .C .M .P . has not since then obtained any such
information .
E. NEED AND RECOMMENDATIONS
96. In Part X, Chapter 5, we shall recommend that the R .C .M .P ., for
criminal investigation purposes, should have access to all personal information
held by the federal government with the exception of census information
collected by Statistics Canada . This access will be subject to a rigorous set of
controls and review . Specifically we shall propose that R .C .M .P . access to
personal information other than of a biographical nature be through a system
of judicially granted authorizations subject to the same terms and conditions as
are now found in section 178 of the Criminal Code with regard to electronic
surveillance .
19 S .C . 1973-74, ch .46 .
20 Section l4(4)(a) .
251
��CHAPTER 6
ACCESS TO AND USE OF CONFIDENTIAL
INFORMATION HELD BY THE FEDERAL
GOVERNMENT - SECURITY SERVIC E
A . ORIGIN, NATURE AND PURPOSES OF PRACTICES
1 . Members of the Security Service consider that important aspects of their
work have been helped by having access to government information about
individuals . Persistent efforts have been made to develop sources within
government departments, whether in Ottawa or at some other centre . The
Security Service members who developed these sources were, so far as can be
determined from examination of the files, usually quite conscious that the
sources would be breaking the law by contravening provisions of statutes
concerning confidentiality of information . However, the Security Service considered that such information was needed to protect the security of Canada,
and would be difficult and often impossible to obtain by other means . The
sources themselves agreed to provide the information for entirely unselfish
motives, being persuaded of the desirability and necessity of providing this
form of assistance to the R .C .M .P .
2 . As with the C .I .B . in Chapter 5, we shall examine the extent to which the
Security Service gained access to several distinct sets of government records .
B . DEPARTMENT OF NATIONAL REVENUE
Policy and implementatio n
(a) History
3 . During the Second World War, a regulation' made pursuant to the War
Measures Act on July 30, 1940, made it mandatory that the Commissioner of
Income Tax allow the R .C .M .P . to have access to any information contained in
any return or other written document furnished under the provisions of the
Act . This regulation was revoked on July 23, 1946 .
4. Nevertheless, it appears that the Special Branch (which later became the
Security Service) continued to have access to such information . On September 12, .1951, Superintendent (later Commissioner) McClellan advised the
R .C .M .P . divisions across the country that thenceforth inquiries, which previI P.C . 3563 .
253
�ously had apparently been directed to district offices of the Income Tax
Branch, should be directed to R .C .M .P . Headquarters, so that Headquarters
might ask the Income Tax Branch for information regarding the financial
structure of an organization or the circumstances of an individual . Superintendent McClellan stated that the Income Tax Branch had indicated that
statutory restrictions on the dissemination of information contained in Income
Tax Branch files made the matter "rather delicate, not only from the legal
viewpoint, but because of the fact it places employees of that branch in a rather
difficult position" .
5 . Although there are no details in R .C .M .P. files of the relationship during
the next 15 years, a memorandum on October 5, 1967, from an R .C .M .P .
officer to the Director of Security and Intelligence, Assistant Commissioner
Higgitt, stated that in November 1966, the Security and Intelligence Directorate's source in the Department of National Revenue had become increasingly
concerned about co-operating with the R .C .M .P . The source had based his
unwillingness to continue his co-operation on the fact that he was contravening
the provisions of the Income Tax Act . The memorandum concluded that the
source had been uncooperative for several months and appeared to be no longer
available . Until this time, according to another memorandum, the source had
provided information as to taxpayers' financial standing and other data which
appeared on income tax returns . In this memorandum, the officer again
recognized that a source, by co-operating, would be in contravention of section
133 of the Income Tax Act . On January 19, 1968, this officer wrote a
memorandum in which he accepted that the provision of such information
clearly resulted in a contravention of the Income Tax Act, and therefore it
would be undesirable to obtain a ruling from the Department of Justice which
could only state that the R .C .M .P. was excluded from obtaining the information . That, according to the officer, would then place the Security and
Intelligence Directorate in the position that, if it carried on as it had in the
past, it would be doing so "in contravention of a recent and explicit ruling from
the legal officer of the Crown" .
6 . On October 24, 1969, after publication of the Report of the Royal
Commission on Security, an R .C .M .P . memorandum suggested that renewed
efforts should be made to establish liaison with the Department of National
Revenue (Income Tax and Canada Pension Plan Divisions) and the Department of National Health and Welfare, "making the necessary submissions
through the Solicitor General" .
7 . A memorandum by an R .C .M .P . officer dated November 18, 1969, noted
the following passages in the Report of the Royal Commission, pertaining to
the R .C .M .P .'s general relations with government concerning security matters :
We have little sympathy with the more extreme suggestion that inquiries
about persons should not be undertaken because of the individual's `right of
privacy', nor with the view that the process of personnel investigation by the
State is alien to normal and democratic practice .
254
�Neither does an individual have a right to confidence ; on the contrary,
access to classified information is a privilege which the State has a right
and duty to restrict . 2
Although the role of the R .C .M .P. is admittedly ill-defined, and recognizing that government policy has been inhibiting ;• we are not sure that the
RCMP has made a sufficient, or a sufficiently sophisticated effort to
acquaint the government with the dangers of inaction in certain fields . We
are left with the impression that there has been some reluctance on their
part to take desirable initiatives and some inadequacy in stating the case for
necessary security measures in interdepartmental discussions at the higher
policy-making levels . 3
Obviously in these passages the Royal Commission intended to suggest that the
R .C .M .P. should, in formal discussions of policy and amendments to legislation, be aggressive in emphasizing its need for information that would ordinarily be protected : the Royal Commission did not imply that the R .C .M .P . should
make informal arrangements to obtain information by practices that resulted in
violations of provisions of statutes .
8 . However, it appears that even before that suggestion of such a formal
apprôach was made, the Security Service had taken its own initiative . According to a November memorandum, the Service had, "in recent months, established a rather tenuous and highly restricted relationship with [source X] of the
Income Tax Branch" . (X is the name given by this Commission to a member of
the Department of National Revenue, Income Tax Branch, who testified
voluntarily to the Commission in camera . While much of that testimony was
made public, the identity of X has been carefully protected by the Commission .) The memorandum continued that there was "the feeling that we cannot
use this source to the degree that should be possible under more relaxed
conditions, preferably generated from a more senior level" . The memorandum
also questioned the suggestion made of an approach through the Solicitor
General, on the grounds that involving the Solicitor General would imply an
attempt to amend the Income Tax Act, which would be self-defeating in that it
would likely produce publicity, and that an unfavourable ruling by the Solicitor
General would "effectively prevent us from subsequently attempting any
alternative route" . The memorandum suggested as an alternative that an
approach be made to the Deputy Minister of National Revenue .
9 . On November 25, 1969, in a note to the Director of Security and
Intelligence, Assistant Commissioner Higgitt, it was recommended that
Mr . Higgitt approach the Deputy Minister of,National Revenue to explain the
problem . If the Deputy Minister could not co-operate, the Security and
Intelligence Directorate would somehow have to obtain the Solicitor General's
good offices to intercede with the Minister of National Revenue . The note
stated that "to continue efforts at any lower level simply puts these individuals
on the spot" . There is nothing in R .C .M .P . files to indicate that any meetings
took place at or following that time between the Security and Intelligenc e
2 Royal Commission on Security, 1969, paras . 79 and 80 .
3 Ibid., para . 56 .
255
�Directorate and officials of the Department of National Revenue to establish a
regularized practice of providing information to the Security and Intelligence
Directorate .
10 . While all these approaches were being exchanged, the relationship of the
Security and Intelligence Directorate with X had been established . X received
requests for two types of information : the first was "tombstone data", meaning
such biographical information as the name and address of the taxpayer and his
place of employment ; the second was financial information . X agreed to
provide information because X was convinced that it was necessary for the
security of Canada . X's evidence was that X did not seek or obtain the
approval of superiors, but acted independently, and we accept this evidence . X
made the arrangements at a luncheon with R .C .M .P . officers, who explained
the difficulties the R .C .M .P . were having in obtaining information about a
certain class of persons of interest to the Security and Intelligence Directorate .
X insisted that all requests be carefully screened prior to submission to X, that
one- R .C .M .P. officer deal only with X, that no communication be on paper so
that no one in the Department would know what was going on, and that any
information X gave to the R .C .M .P. officer not be disseminated outside the
Security and Intelligence Directorate .
11 . X testified to being aware of the-provisions of Section 241 of the Income
Tax Act . With respect to the tombstone data it had always been X's opinion
that such information did not fall within the restrictions found in the section .
With regard to financial data concerning the taxpayer, X was doubtful that
providing the information was legal, and because of these doubts had insisted
that all communications be oral . X did not anticipate that the Department of
National Revenue would obtain any tax benefit in return for the release of tax
information to the Security and Intelligence Directorate . X was unaware that
at the time there was any consideration being given within the Security and
Intelligence Directorate to obtaining official approval for access to tax information, and did not know that representations were being made by the
R .C .M .P . concerning the matter.
12. The R .C .M .P . officer asked for and obtained, not'only information which
X could obtain from the computer, but also information which could only be
obtained from the field . X recalled that this probably included information as
to the source of income . In X's opinion, the Department of National Revenue
should not be officially engaged in passing information on these grounds
"because one of the cornerstones [of the administration of the Income Tax
Act] was that we kept our files confidential" . X testified that no one in the
Department of National Revenue at that time knew that X was passing
information to the R .C .M .P. Security Service . As far as X knew, no one other
than the R .C .M .P. contact or the previous R .C .M .P . contact knew of X's
identity as a source for the Security Service .
13 . X told us that the Department's firm policy was to co-operate with no one
at all unless there were legal grounds for doing so . If asked whether the
Department could enter into an agreement with the Security Service or have
anything to do with the provision of information to the Security Service, X' s
256
�advice would have been that that could not be done . Nevertheless, after
listening to what the R .C .M .P . contact said, X felt prepared to accept the
responsibility and risk of passing information, since the reasons for not passing
information were outweighed by the difficulties the police were having in
obtaining this type of information for what X considered "the security of the
country" .
14. X said that this was according to X's "own conscience, and my own belief
in what Canada represented" and "that whatever it was, I wanted to protect
that" . X could foresee no tax advantage, and regarded the relationship not as
being reciprocal, but rather as a one-way street . X acted out of a "sense of
national duty" . X admitted, that when an individual in the Department of
National Revenue decides in the interest of what he or she conceives a higher
duty to the state, to give information obtained under the Income Tax Act to
some body such as the police, "it certainly weakens the Department's image"
and weakens the public confidence that tax information will be kept confidential . X never sought or received any payment for the services given to the
Security Service, other than occasional lunches, and does not regret having
made the decision to assist the Security Service .
15 . We shall return to X later, but first it is necessary to refer to the evidence
before us as to whether, in 1970, an agreement was made between another
official of the Department of National Revenue and the Security Service for
the passing of such information to the Security Service . On September 4, 1970,
the R .C .M .P . officer who contacted X addressed a memorandum to the
Commissioner, to the attention of the Director of Security and Intelligence,
concerning contact X . (The code number rather than the name was used .) The
memorandum reported that the officer had continued to see X frequently as
and when required, and that X continued . to cooperate freely and willingly . The
memorandum reported that, while X had theretofore insisted on dealing
personally with the writer, X had, however, that day "quite spontaneously and
without any prior discussion" introduced the R .C .M .P . contact to Y, another
member of the Department of National Revenue . The memorandum recorded
that X very briefly explained to Y the nature of the relationship and told Y
that if X was not available the R .C .M .P . officer could pass inquiries to Y, and
Y would extend the same co-operation . The R .C .M .P . officer recorded that Y
"quickly grasped the delicate nature of the relationship" and indicated the
co=operation would be forthcoming . Mr . Starnes says that he does not think
that he was aware of this September 4, 1970, memorandum .
16 . On September 15, 1970, Mr . Starnes, in a longhand memo to Superintendent Chisholm, said :
I spoke to Commissioner about this matter on 3 September . He told me the
Minister was opposed to joining with his colleague the Minister of National
Revenue in a submission to cabinet . Could a`blind' memo on the present
state of play be prepared which I could use in talking to the Minister .
17 . On September 23, 1970, a longhand note by Mr . Starnes to the Commissioner stated :
.
257
�If you see no objection I would like to show this memo to Minister on next
occasion we see him to try and get action on question of access for S & I
purposes to income tax records .
The memorandum in question is one which related to the use to which such
information would be put by the Director of Security and Intelligence . In a
longhand note at the bottom of the memorandum dated September 23, 1970,
Commissioner Higgitt stated :
I have raised this a number of times with the Minister and will do so again .
He has not as yet been able to get the Minister of National Revenue to give
his Department the necessary instructions to cooperate even though he
seems to be favourably inclined himself. Mr . Côté is seemingly facing
considerable opposition from his departmental officials . I will raise it again .
I have retained a copy .
Mr . Starnes testified that he has no recollection of having raised the matter
with Mr . Mcllraith .
18. (It will be recalled that, in connection with criminal investigations,
Commissioner Higgitt had written to Mr . Mcllraith on March 20, 1970,
advising him that representatives of the D .N .R . and the R .C .M .P . had
finalized a draft agreement and a Memorandum to Cabinet . )
19 . On September 8, 1971, X's R .C .M .P . contact addressed a memo to the
Commissioner, to the attention of the Director General of the Security Service,
with regard to X, identifying X by code number . The memorandum recorded
that X's contact and another R .C .M .P . officer had entertained the source at
lunch on September 7, 1971, and that the other R .C .M .P . officer had been
introduced to the source . He also recorded that they discussed with the source .
. . . the fact that the Solicitor General had elicited agreement from [a public
servant in] the Department of National Revenue to provide the Security
Service with information from Taxation Records ; Source was fully aware of
this and told us how [the source] had explained to the [public servant] that
the arrangement would have to remain unofficial due to lack of a legal base
for passing such information . Source's view is that [the source] now has
approval from the source's [superior] to do what [the source] has been
doing for us on [the source's] own initiative for the past two years .
The memorandum also indicated that the Security Service should continue to
deal directly with X only . According to the memorandum of September 4,
1970, X had introduced the writer to Y, who was to be used as an alternative
only when X was not available . The writer believes that his memorandum
accurately set forth what happened (Vol . 147, pp . 22714-5) . In a further memo
of September 8, 1971, the writer also stated that X
insists on confining the arrangement to these few people as there is no legal
base for this activity thus leaving [the source's] department in an indefensible position should wider knowledge of the arrangement cause a leak into
the public domain .
20 . X confirmed to us having been introduced to another R .C .M .P. officer by
the R .C .M .P. contact and thinks it was at a lunch meeting . X recalled that the
R .C .M .P . contact was leaving his position and another R .C .M .P . officer was to
258
�replace him . However, X denied having discussed with the R .C .M .P . contact
that the Solicitor General had elicited agreement from a public servant of the
Department of National Revenue to provide the Security Service with information from taxation records . X denied having discussed the matter with the
person in the Department to whom the memorandum referred (Vol . 147,
p . 22672) .
'
21 . X testified that X never told any public servant what X .was doing in
respect of this matter, and had no recollection of introducing Y or making the
arrangement that Y would be a substitute . We accept the facts as set forth in
the memorandum written by X's contact . X further said that as far as X
knows, no one in the Department knew that X was passing information to the
Security Service (Vol . 147, p . 22656) .
22 . The consciousness of senior officers of the Security Service across Canada
that the practice was illegal is demonstrated by their honouring the request of
Headquarters that a memorandum of August 19, 1971, concerning access to
taxation records be returned for destruction .
23 . Despite attempts by the R .C .M .P . contact to have all requests for
taxation information routed through Headquarters, it appears that Security
Service members at the local level continued to use local sources in the
Department of National Revenue . On February 24, 1972, an R .C .M .P .
memorandum for file, written by X's contact, noted tha t
From the number of incidents appearing from the field of our members
inadvertently using long established local sources in this area it is obvious
that we are not going to be able to `turn off' the field Divisions in this area
without taking unnecessarily large issues [sic] on the subject .
His memorandum records that he proposed to the Acting Deputy Director
General, on February 16, 1972, that he discuss the matter with X and that if X
agreed, the R .C .M .P . contact would tell the divisions that it would be in order
to resume discreet use of the local sources . The R .C .M .P . contact records that
the Acting DDG agreed, that he spoke with the source on February 17, 1972,
and that the source agreed, saying that there was no "need for [the Security
Service] to persist in trying to prevent [its] members from contacting their
local contacts" . Consequently, on February 24, 1972, the R .C .M .P . contact
wrote to the Commanding Officers across the country, advising that the local
Department of National Revenue sources could be used discreetly .
24 . The official Security Service policy was recorded in the policy manual, on
a page dated April 19, 1972, as follows :
Liaison with Income Tax Branc h
Due to statutory restrictions imposed on information contained in Income
Tax files it is usually not possible to obtain the desired information from
district tax offices. Headquarters may be in a position to assist in this
regard provided the enquiry is sufficiently important and there are no other
sources from which to obtain the information . The specific information
desired concerning the financial structure of an organization or individual
must be stated in the requests to Headquarters .
259
�25. X continued as a source at the Department of National Revenue in
Ottawa until replaced by another (Ex . GC-11) .
Extent and prevalence
26 . A Staff Sergeant who since 1971 has been attached to the Branch of the
Security Service which has responsibility for programmes of developing
"human sources" testified that between August 1971 and the fall of 1977 he
was able to ascertain 132 instances in which information was obtained from
income tax files . Of these, 52 involved X's co-operation . The balance were
either through Headquarters (presumably through X's successor as source) or
through local contacts . He believes that divisions kept records of access from
August 1971, when they were informed that an agreement had been reached in
Ottawa . In late 1977 the association with the "main source" in Ottawa was
stopped by the Security Service handler . No instructions were sent by Headquarters to the divisional level that the members of the Security Service were
to desist from obtaining such information, and there is no evidence as to what
has occurred at the local level since the fall of 1977 .
27 . So far as can be ascertained, no payment was ever made to, or expected
by, sources in the Department of National Revenue .
Legalissues
28. An exposition of legal issues, as applicable to the Security Service, would
be no different than the discussion already set forth in regard to the C .I .B . in
Chapter 5 . There is no need to repeat what is developed there .
29 . If a court, engaged as was the court in Glover v . Glover,° in applying the
law as to the custody of children, is not a person "legally entitled" to the
address of a taxpayer, we think that a member of the R .C .M .P . Security
Service cannot be said to be a "person legally entitled" to biographical
information or financial information disclosed on an income tax return . If this
is so, the disclosures made by sources in Ottawa or elsewhere were offences by
those persons under section 241, and if in any of the specific cases, a member
of the R .C .M .P . "abetted" (encouraged) the sources, he was a party to the
offence under section 21 of the Criminal Code . If he "counselled" or "procured" the source to commit it, he was a party to the offence under section 22
of the Criminal Code . We did not receive evidence as to such encouragement,
counselling or procurement in specific cases . If the Attorney General of
Canada considers that further investigation of specific cases is desirable with a
view to considering whether there should be prosecution, he may begin his
investigation with some specific cases of which details of a general nature are
given in our records . However, we note that the substantive offence is a
summary conviction offence ; therefore there cannot be prosecution except
within six months of the offence .
°[ 1980] D .T .C . 6262 (Ont . C .A .) . This case is discussed in Part III, Chapter 5 .
260
�C . UNEMPLOYMENT INSURANCE COMMISSION
Security Service Policy
1950-1964
30 . Co-operation and information exchange between the Unemployment
Insurance Commission and the Security and Intelligence Directorate of the
R .C .M .P . initially developed out of the arrangements entered into between the
C .I .B . and the U .I .C . Until 1956 the Special Branch (predecessor of the
present Security Service) was part of the C .I .B . In 1956 it became the
Directorate of Security and Intelligence and ceased to be part of the C .I .B .
However, it "piggy-backed" on the C .I .B . arrangements to obtain biographical
data and other information collected by local offices of the U .I .C . (Ex . H-1, p .
134 ; Vol . C16, pp . 7852-3) .
31 . It will be recalled from our narrative in Part 111, Chapter 5, that the
Deputy Commissioner of the Force wrote to the Commanding Officers of all
divisions on June 11, 1964, to advise that the Commissioner of the Force had
assured the Minister of Justice that the Force did not intend to seek access to
confidential data which would be collected under social security legislation
then before Parliament, and that members of the Force were therefore not to
seek access to information accumulated by the U .I .C . under this programme
(Ex . H-1, p . 16) . This memorandum, a copy of which was circulated to the
Director of Security and Intelligence, and retained in the files of the Security
and Intelligence branch in Toronto, contained the following admonition : "This
is forwarded for your information . Please see that all members under your
command comply with the Deputy Commissioner's instructions" (Vol . C16, pp .
1861-2 ; Ex . HC-1, p . 72) . However, as we have also seen, the Deputy
Commissioner wrote a further letter on June 25, 1964, just two weeks later,
instructing that access to U .I .C . records was to continue .
1964 to 197 1
32 . From August 1964 to March 1971, the Security and Intelligence branch
at "A" Division in Ottawa had its own direct, person-to-person working
relationship with a U .I .C . representative, pursuant to which the branch,
through this representative, could gain access to the Master Index and obtain
information from regional offices of the U .I .C . (Vol . C16, pp. 1858-60 ; Ex .
HC-l, p .1) . There was no arrangement between the Security and Intelligence
Directorate at Headquarters and the U .I .C . -iduring this period, although
Headquarters was aware of the "A" Division arrangement (Vol . C16, pp .
1875, 1891-2) . There is no indication on the evidence that the Security and
Intelligence branch of any other division had such an arrangement with the
U .I .C . during this period (Vol . C16, pp . 1863, 1870, 1872) .
33. In March 1971 this flow of information to "A" Division was all but cut
off by the U .I .C . in light of "questions in the House of Commons" . Following
this restriction the U .I .C . continued to supply a social insurance number when
"A" Division could provide a name (Ex . HC-1, p . 8) . This "cut-off' of
information resulted in an exchange of correspondence at the ministerial leve l
261
�between the Honourable Jean-Pierre Goyer (the Solicitor General) and the
Honourable Bryce Mackasey (the Minister of Labour) following which meetings were arranged between U .I .C . and Security Service representatives to
discuss the resumption of the flow of information .
1972 to 1978
34 . On January 19, 1972, an official of the U .I .C . in Ottawa advised the
Security Service that the information flow to the Security Service in "A"
Division would be resumed . Two senior officers of the Security Service in "A"
Division became the Security Service contacts with the U .I .C . (Exs . HC-1, pp .
5-6, 17, 28-30 ; HC-2, pp. 1-2) .
.when the Special
35 . This arrangement continued until the summer of 197 3
Investigation Division (S .I .D .) of the U .I .C . made a new arrangement with the
Security Service at Headquarters to create an information flow (Ex . HC-1, p .
32) . The Security Service operated under this arrangement until June 12,
1978, and because of this new arrangement, "A" Division's relationship with
the U .I .C . ceased (Vol . C16, p . 1940) .
36. In addition to the Headquarters arrangement, working relationships
existed between the local offices of the Security Service and the local offices of
the U .I .C . These contacts were tolerated by the sources branch of the Security
Service at Headquarters (Vol . C16, pp . 1949-50 ; Ex . HC-1, p . 61) .
37. Finally, the evidence indicates that from October 30, 1973 until the fall of
1977 a quite distinct relationship existed between the Security Service at . "0'."
Division in Toronto and employees of the U .I .C . offices there . The Security
Service in Toronto could obtain information contained on social insurance
application forms and then check it against the benefit records maintained by
the U .I .C . on its National Claim Tape . The Security Service member could
then contact the District Office of the U .I .C . to obtain further information
(Vol . C16, pp . 1946, 1953, 1955-6 ; Ex . HC-1, pp . 52-53, 55, 62) . With the
disbanding of the S .I .D . at the U .I .C . in 1975, "O" Division's contact was
directed to a contact at U .I .C . Headquarters in Ottawa . This direct contact
ceased in the fall of 1977 (Vol . C16, pp. 1958-59, 1962) .
38. There is one aspect of the correspondence between Ministers in 1971
which we wish to mention . At the request of Mr . Starnes, Mr . Goyer wrote to
Mr . Mackasey, the Minister responsible for the U .I .C ., requesting the co-operation of the U .I .C . On August, 18, 1971, Mr . Mackasey replied to Mr . Goyer
agreeing to the suggested meetings between the U .I .C . and the Security
Service
. . . to discuss this whole matter and to formulate a policy recommendation
concerning all matters associated with the question, such as the Unemployment Insurance Act and Security Service requirements .
He also stated :
. . . the provisions affecting the release of information from the Central
Index . of the Unemployment Insurance Commission have been modified
somewhat under the new Unemployment Insurance Act . One of the pur-
262
�poses, therefore, of the proposed meeting between the officials of our two
Departments would be to review these new requirements in order to
determine how the Commission can provide assistance to the R .C .M .P .
within the framework of this new legislation .
(Ex . PC-2, p . 4 . )
A meeting was held between representatives of the Security Service and the
U .I .C . in October 1971 with the U .I .C . representative reported as stating he
would have to discuss the matter "with others" . On November 25, 1971, a
memorandum written within the Security Service to the Security Service
representative, as to what should be said in future discussions with the U .I .C .
representative, stated :
We suggest that in your discussions you subtly let him be aware of the fact
that you know that his Minister has agreed in principle to co-operate with
the Force in this matter, without showing him the actual correspondence .
(Our emphasis added .)
Now, Mr . Mackasey's letter could not be read as "agreement in principle to
co-operate with the Force in this matter" in the sense that he had agreed in any
operative sense to provide information to the Force . One can readily infer that
the reason for not showing the U .I .C . representative Mr . Mackasey's letter was
that, without seeing it, the U .I .C . representative would more likely swallow the
"subtly" communicated false information . Such an attitude by the R .C .M .P .
toward another department of government is indefensible .
39. The only evidence as to whether, in 1972, the U .I .C . representative at the
October meeting ever spoke to the Chairman of the U .I .C ., is that of a member
of the R .C .M .P . Indeed his 'evidence does not'include any indication, even by
hearsay, as to whether the U .I .C . official obtained any approval from anyone
for the arrangement he entered into .
40 . The association between the Security Service and U .I .C . was "never a
point of concern from the point of view of legality" in so far as the Force was
concerned (Vol . C16, p. 1966) . Moreover, as far as was known by an officer of
the Security Service who testified before us, the U .I .C . had not made it a
"matter of legal concern" . It is difficult to reconcile this position with a
Security Service memorandum dated January 6, 1972, from a senior officer of
the Security Service to the Deputy Director General, which recorded that at a
meeting with a senior official of the U .I .C . the official had said tha t
the matter could be raised verbally directly with the Chairman . . .who
would decide whether or not it would have to be taken up with the Minister
or whether an arrangement could be made for co-operation on a limited and
sub rosa basis .
Anyone reading that memorandum's reference to co-operation on a "sub rosa
basis" would be aware that there were problems .
Extent and prevalence
41 . There is no evidence as to the extent to which information was provided
by the U .I .C . to the Security Service at the divisional level of the R .C .M .P.
However, the person at Headquarters who contacted the U .I .C . from th e
263
�summer of 1973 to September _1977, testified as to the extent to which
Headquarters obtained, or attempted to obtain, information . In 1974 he made
127 requests, in 1975, 134 requests, in 1976 (the year of the Olympic Games in
Montreal) he made 373 requests, and in 1977 567 requests . His successor made
136 requests from September 1977 to June 7, 1978 . After June 12, 1978 no
further requests were made (Vol . C16, pp . 1944-61, 1976) .
Legalissues
42 . The legal issues are identical to those discussed in connection with the
C.1 .B.
D. OTHER FEDERAL GOVERNMENT DEPARTMENTS
AND AGENCIES
Department of National Health and Welfare : Family Allowances and Old Age
Security
43. We did not inquire into whether the Security Service obtained access to
family allowance and old age security information . We do know that, as in the
case of access to information in the possession of other federal government
departments, on July 27, 1971, Mr . Goyer, at the request of the R .C .M .P.,
wrote to the Minister of National Health and Welfare to request access to "the
considerable biographical and other data on persons which is maintained in the
Department of National Health and Welfare (Canada Pension . Plan and
Family Allowance and Old Age Security Divisions)", which he said "could be
of great value to the Security Service in the discharge of its duties" . The letter
asked for interdepartmental discussions to determine "whether the requirements of the Security Service could be met within the framework of existing
laws and regulations and in a manner which would attract no attention or
criticism" . In- his reply of August 18, 1971, the Honourable John Munro,
Minister of National Health and Welfare, wrote as follows :
While I am sympathetic with the desire of the R .C .M .P . to reduce costs and
improve efficiency in their operations, I am afraid that I would have to
oppose in principle the use of data secured in connection with applications
for Social Security benefits for any other reasons than to determine
entitlement to those benefits .
It has been our experience over the years in building up a structure of
Social Security plans for Canadians that in order to secure the acceptance
of the people of Canada of the various plans which have been introduced,
one of the essentials is for them to have the assurance that the information
they must provide will be kept in strict confidence, and will not be used for
other purposes . This is reflected in the fact that in each of the laws which
provides for the payment of social benefits there is a prohibition limiting
our authority to disclose information obtained under the Act or the
Regulations to situations where it is essential that this be done in order that
the legislation may be properly administered .
For any change to be made legislative action would be required, and I
believe that even if we were not opposed in principle such amendment s
264
�would not be acceptable to Canadians generally, particularly in the light of
present conditions . As I indicated earlier, it is necessary for the people of
Canada to accept the various laws if they are to be effective as approved by
Parliament . There is no question in my mind, . again apart altogether from .
the principle of the matter, that many persons, however much they might
wish to receive certain benefits, would be reluctant to make application if
they felt that the details they would have to provide concerning themselves
and their families could be used against them in some other way.
(It may be noted that it was not strictly correct to say that "each, of the laws"
prohibits disclosure of information except "where it is essential that this be
done in order that the legislation may be properly administered" . For, as has
been seen, the Old Age Security Act at the time already allowed information to
be communicated to six other federal departments whose functions did not
include administration of the Old Age Security Act . )
E . NEED AND RECOMMENDATION S
44 . In Part V, Chapter 4, we shall recommend that the security intelligence
agency have access to the same federal government information as we propose
for the R .C .M .P. in criminal investigations - that is, all personal information
with the exception of census data collected and held by Statistics Canada . Our
proposed system of controls to govern such access is similar to what we
recommend for other highly intrusive investigatory methods . For personal
information not merely of a biographical nature, the security intelligence
agency would require the approval of the Solicitor General before making an
application to a judge for a warrant .
265
��CHAPTER 7
COUNTERING - SECURITY SERVIC E
A . NATURE, ORIGIN AND PURPOSE OF DISRUPTIVE
COUNTERING MEASURE S
1 . Some of the R .C .M .P . Security Service's practices which have involved
activities not authorized or provided for by law have been referred to as
`countering activities' . There is considerable confusion as to what is included
under countering activities . Some witnesses referred to the successful collection
of intelligence about a security threat as a method of countering, but this usage
is so elastic as to be meaningless . We prefer to limit the use of the word
`countering' to any positive steps that may be taken by the agency itself as a
result of the collection and analysis of information, other than reporting
intelligence to government . Some of these steps have traditionally been taken
by other government departments or police forces rather than by the R .C .M .P.
Security Service . Some of the measures taken by the Security Service have
been unlawful . Of the lawful countermeasures, some have been of a nature that
are appropriate to a security intelligence agency, while others in our view are
not .
2 . Some of the countermeasures undertaken by the Security Service have
been regarded within the Service as `disruptive', a phrase used to describe
activities directed by the F.B .I . in the late 1960s against certain groups in the
United States . A memorandum of June 11, 1971 (Ex . D-2), from the officer in
charge of "G" Branch in Montreal, describes `disruptive tactics' as follows :
Making . use of sophisticated and well researched plans built around existing
situations such as, power struggles, love affairs, fraudulent use of funds,
information on drug abuse, etc ., to cause dissension and splintering of the
separatist/terrorist groups .
Certainly this suggestion was at least partly inspired by belief that these tactics
were in use in the United States, but since in a sense all countermeasures are
`disruptive' in their desired result, the word itself is unhelpful in assisting us to
discriminate between acceptable and unacceptable countermeasures .
3 . The use of tactics that, while not contrary to law, are intended to disrupt
the effectiveness of a targetted organization, is not new . There is documentary
evidence that the R .C .M .P., in 1956, distributed at least one letter among
members of the Labour Progressive Party - a letter which was prepared by
the R .C .M .P . as if it were written by a member of the Party and attacked the
Soviet Union on a vital issue and the Soviet Communist Party's post-Stali n
267
�leadership generally . The letter, which we saw, was reported to Commissioner
Nicholson and Assistant Commissioner Harvison, both of whom had apprôved
the operation, as having caused "definite concern and confusion within the
Party ranks" .
4. The national programme of `disruptive' countermeasures from 1971 to
1974 under the code names ODDBALL and CHECKMATE, which is referred
to in some detail later, was developed by a Special Operations Group at
Headquarters . The officer in charge, who thereafter rose to a senior' rank,
stated in a memorandum in 1979 tha t
(a) The use of calculated and measured security responses must be viewed
in a historical perspective . Checkmate was developed and implemented
as a proactive measure to contain or neutralize political violence at a
time when such violence was rapidly increasing and accumulating . The
lessons of the F.L .Q . crisis had indicated both to the government and to
the Security Service that reactive or passive measures were not adequate. The government's invocation of .the War Measures Act was a
security response which it did not relish nor wish to use again . The
onus to ensure this clearly fell within the mandate of the Security
Service .
(b) Checkmate was a calculated and measured security response aimed at
containing or preventing the occurrence of political violence . It was
strictly controlled to prevent abuses, but vigorously propagated to
ensure results .
(c) Many legal mechanisms in place at the time were either reactive and
therefore inappropriate to intelligence needs, or were inadequate in
terms of new security threats .
For these reasons he and the officers who served on the Special Operations
Group consider that the countermeasures undertaken as part of this programme should be viewed against the background of the times . The reasons for
the programme, as he described them in his testimony, can be summarized as
follows :
(a) In the late 1960s the Security Service found itself faced by what it
perceived to be an evolving threat to Canadian internal security which was
different from the Communist threat which had been posed in the past .
The new threat was seen as being a world-wide confrontation with
authority by various groups employing violence for political ends .
(b) Violence erupted on the part of students and union members in France in
1968 . Students battled police in the Federal Republic of Germany and
Mexico . Mexican terrorists were recruited in Moscow and trained in North
Korea . There was violence in the Middle East, and Palestinian violence
began to spread elsewhere in the world . Palestinian terrorists began to
work with the Japanese Red Army and the Baader-Meinhof gang. In 1972
the J .R .A . was responsible for a massacre at Lod Airport in Israel and the
Baader-Meinhof gang supported the Palestinian Liberation Organization
massacre at the Olympic Games in Munich . There was growing violence in
South America . In the United States there were major confrôntations,
including acts of violence and bombings, by such groups as the Weather268
�men and the Students for a Democratic Society . A strong and active black
`extremist' movement developed in the United States, including the formation of a Black Liberation Army, which was responsible for the killing of
policemen in New York City .
(c) In Canada in the late 1960s and early 1970s there were growing numbers
of confrontations and bombings, kidnappings and murder . The Security
Service was concerned about what it saw as a growing black `extremist'
movement which was believed to have contacts with the black `extremist'
movement in the United States . Computers at Sir George Williams
University were destroyed by students in 1969 . The Security Service was
also perturbed by small Marxist groups which it identified as New Left
groups . These groups were considered to be responsible for demonstrations
in which there were confrontations with the police . Some of these groups
had contacts with groups in the United States . New Left activists from
abroad, such as Daniel Cohn-Bendit and Jerry Rubin, visited Canada . The
Security Service had a' "major concern" that the New Left groups, the
black `extremists', the F.L .Q . "and the like" might form a common front .
There was also an organization which was involved in 39 street confrontations and other incidents with the police, out of which arose 175 convictions . Palestinian activists visited Canada, contacted the F .L .Q ., and
provided guerrilla training to F .L .Q . members in the Middle East . Eight
letter bombs addressed to Canada were intercepted outside Canada . The
Security Service was also concerned with the Trotskyist movement which,
at a World Congress in 1969, had approved the use of guerrilla warfare in
South America . Canada and four other countries experienced the bombing
of Yugoslav embassies and in Sweden the Yugoslav ambassador was
murdered . Anti-Çastro Cubans bombed Cuban mission premises in Ottawa
and Montreal .
5. To meet some of these threats or perceived threats, Canadian police forces
and the Department of National Defence were forming their own intelligence
units . The police forces hoped thereby to develop evidence for the purpose of
criminal prosecution . However, they found that prosecutions could rarely be
launched or carried to a successful conclusion except when violent confrontation occurred on the streets . A feeling developed that, because the law could be
applied only after offences were committed, the enforcement of the law was an
inadequate means of effectively forestalling politically motivated acts of violence (Vol . 169, pp . 23254-5) . Consequently, in 1970 the Security Service
established the Special Operations Group, the purpose of which was to bring
forward for the Countersubversion Branch innovative objectives and goals on a
national basis . In 1971, this group acted upon what they understood to be the
Director General's wish that there be more emphasis on containment, prevention and neutralization (Vol . 169, p. 23271) . When discussing ODDBALL, an
R .C .M .P. officér told the Group that they were to create programmes of
disruptive measures where the target was of such a nature as to make such
measures necessary . The limits were set -first by the extent to which the
operation was necessary, and second by the extent to which positive benefits
could flow from the operation . There is no evidence before us of any consider-
269
�ation having been given to whether operations should be within the law (Vol .
169, p . 23278) . In June 1972, disruptive measures were authorized including
"widespread harassment at every possible opportunity", against one Maoist
group considered to be responsible for much violence. This was contemplated
as consisting of the enforcement of by-laws and statutes, the execution of
warrants, the initiation of deportation proceedings and the exploitation of rifts
(Ex . PC-78, Tab 33) . In March 1972, at a meeting of senior officers, Mr .
Starnes urged that branches of the Security Service be "far more vigorous in
their approach to disruptive activity" and promised his complete support for
"well conceived operations" . In a summary of the meeting, subsequently
distributed by him, the "neutralization" of an organization or individual whose
purposes were "clearly seen" to be "at cross-purposes with the maintenance of
domestic stability" appeared as part of the discussion . Security Service officers
in the field, said the memorandum, should not allow "reticence" to influence
their work in disruptive operations, and if they failed to comply with tasks set
for them by Headquarters, they "would be subject to censure, including, if
necessary, transfer" (Ex . PC-78, Tab 26) .
6. A senior member of the Special Operations Group considers that any
CHECKMATE operations were proper "without any regard to whether they
.
were . . lawful or unlawful" as long as they were "responsible", "reasoned"
and "measured" . In his mind, any operations that met those criteria were as
acceptable as a peace officer's interception of the driver of a speeding or
recklessly speeding vehicle . He told us that in his basic training he was taught
that the law permitted reasonable response when in other circumstances the
same conduct would be illegal . He equated the emergency situation - the need
to apprehend an offender who is committing an offence - with taking
.
measures to bring an end to circumstances which, if unchecked, could lead to
"the ascendency of violence" in Canada (Vol . 173, p . 23640) .
7 . If we may generalize from the case of this witness, an experienced member
with a university degree, the early training of members of the R .C .M .P . as to
what their powers are as peace officers appears to be significant . Such training
had a bearing on the ability of members of the Security Service, in the early
years of the past decade, to appreciate the limits of their authority . A peace
officer undoubtedly has lawful power in an emergency, or when a crime is
being committed or is about to be committed, to take reasonable steps to
protect the lives of persons or to apprehend offenders . But this power ought not
to be invoked by a well-trained policeman in other situations where the
possibility of violence is general rather than immediate .
B. R.C.M.P. POLICIES AND PRACTICE S
8 . Security Service countermeasures were developed over the years sometimes
on the initiative of Headquarters and sometimes as a result of local initiatives .
Any countermeasures that could be called a`programme' would require the
support and even the initiative of Headquarters because of the need to commit
resources of money and personnel to such activity . The current "policy", as
stated on July 4, 1977, by the then Deputy Director General ( Operations) ,
270
�Assistant Commissioner Sexsmith, requires all countermeasures operations to
be approved by the Deputy Director General (Operations) and to be "conduct'ed within the limits of lawful authority and by legal means" . However, there is
evidence that the requirement of approval by the Deputy Director General
(Ops) is not regarded as more than a general rule, and that countermeasures
approved by the officer in charge of a`desk' or section at Headquarters will not
be regarded as unauthorized .
9 . Within the R .C .M .P ., both in the Security Service and in senior ranks of
the R .C .M .P. generally, many forms of countermeasures have been well-known
for decades . Perfectly proper methods of countering include : encouraging
foreign intelligence officers to become double agents or to defect ; briefings of
government departmental officials or travellers as to the dangers of compromise; lawful arrest and prosecution . At the other extreme are disruptive tactics
that include an element of unlawfulness, such as some of the CHECKMATE
operations. While it is true that in the early 1970s the R .C .M .P . was urged to
be "pro-active" - a word that appears to have been invented to describe action
before the event rather than afterward - that word carries no connotation of
illegality or indeed of anything more than the vigorous collection of intelligence
before a crisis develops . Between these acceptable and unacceptable extremes
are countermeasures that, while lawful in concept and execution, are in our
view inappropriate functions of a security intelligence agency . Some examples
of such countermeasures are inducing employers to discharge subversive
employees, or leaking information to the media about the subversive characteristics of individuals ; or undertaking "conspicuous surveillance" of domestic
groups or attempting to prevent one group from subverting another political
party .
'
C . EXTENT AND PREVALENCE OF COUNTERING
MEASURE S
10 . Our analysis of `extent and prevalence' applies not only to those countering measures that might be said to be "not authorized or provided for by law",
but also to activities which, although they may have been lawful, are not
acceptable . We analyze two categories of countermeasures - those carried out
by some members of "G" Section of the Security Service, concerned with
terrorism in Quebec, working in and outside Montreal in the early 1970s, and
those carried out by members of the Security Service in several other provinces
in the years 1971 to 1974 under the umbrella code names of ODDBALL and
CHECKMATE .
11 . The activities in Quebec included the following :
(a) The burning of a barn in which a meeting of a group believed to be
subversive was to have been held . The evidence before us is that the
object of the operation was to cause the group to move to another
location where electronic surveillance would be feasible . However we
cannot dispel from our minds the possibility that the members of the
Security Service who participated in that incident also contemplated
that the result would be a`disruption' of the group's activities . There is
no evidence to indicate that there was any other incident involving
similar destruction of private property other than documents .
271
�(b) Attempts in 1971 and 1972 to recruit human sources in groups
believed to be violence-prone . To some extent disruption was the
rationale behind the attempts . If in a particular case the attempt to
recruit were to be successful, the result would be receipt of information
about the activities of the group ; if the attempt were unsuccessful, the
attempt itself might become known to other members of the group who
might then regard the target of the attempt with suspicion . Thus the
very attempt might produce factionalism and disruption .
(c) Issuing a communiqué with the intention that the news media and
members of the F.L .Q . and their sympathisers would regard it as a
legitimate call to arms . There is no evidence that such a document was
produced more than once by the R .C .M .P.
(d) Attempting to disrupt, by conspicuous surveillance, a meeting of
members of an activist cell held in rural Quebec in September 1978 .
12 . The activities in other provinces, under the code names ODDBALL or
CHECKMATE, were developed by a Special Operations Group at Headquarters . Members of the Security Service across Canada were encouraged to
propose plans for new methods to help deal with threats of violence and of
activities by political groups and organizations considered to be agents of
hostile foreign powers . The evidence of those operations that were carried out
included several that involved activities that might be characterized as "not
authorized or provided for by law" in the sense that criminal acts may have
been committed (attempting to render a vehicle inoperative, filing an income
tax return in the name of another person, theft of a letter, and threats by
phone) . There was also one operation in which a criminal act (assault) was
under consideration but not carried out . In our investigation of the nature,
extent and prevalence, of these operations, the destruction of CHECKMATE
files has made us entirely dependent on a few members of the Security Service,
who have reconstructed what occurred from memory .
13 . In addition, the following incidents have occurred . They may not have
been unlawful in the circumstances, but represented activities the acceptability
of which is a matter of policy . They will be discussed in Part V, Chapter
6 . Some of these incidents occurred under Operation CHECKMATE ; others
did not :
(a) An approach to the employer of a person regarded as a terrorist or a
supporter of a terrorist or a`subversive' group with a view to persuading
the employer to discharge the person . One incident is known .
(b) Dissemination of adverse information through the media, believed to be
true, about an individual or group regarded by the Security Service as a
security threat . Two incidents are known .
(c) Spreading information, believed to be true, designed to discredit the leader
or other members of political or other organizations or to create dissension
among `subversive' groups . Two occasions are known .
(d) Spreading information, known to be false, designed to discredit a leader of
an organization regarded as `subversive' . One incident is known .
(e) Communicating anonymously with leaders of a political party to warn
them that some members of their party were planning to attempt to obtai n
272
�delegates' credentials for the leadership convention of another political
party in the hope of influencing the outcome of the convention . One
instance is known .
D. LEGAL AND POLICY ISSUE S
14 . The present mandate of the Security . Service authorizes it to "deter,
prevent and counter" certain specified activities . Within the Security . Service
there has been no suggestion that these verbs should be assigned different
meanings, and we can see no advantage in seeking to do so . Nor did the formal
submission to the Cabinet in March 1975 discuss thé meaning or consequences
of these verbs .
15 . Mr. Starnes and Mr . Dare consider that the use of these words in the
Cabinet Directive of March, 1975, was in effect a declaration of already
existing functions of the Security Service . Thus Mr . Starnes, both when he was
Director General and when he testified before us on this subject in 1979,
considered it natural that the Security Service should undertake a programme
of countermeasures ; he considered that the `countering' work of a security
intelligence agency is implied by the very use of the terms `counter-espionage'
and `counter-subversion' .
16 . Thus may words become masters . Whether or not the professional
terminology authorized `countering', two real questions remain : was, and is,
`countering' à proper and acceptable function of a security intelligence agency?
If it is, what kinds of `countering' are permissible and subject to what controls?
17 . Some activities that may be characterized as "countering" are an inevitable and proper result of the work of such an agency . The collection of
information, and its assessment and transformation into intelligence, may be
said to be part of the countering process, in the sense that without collection
and assessment nothing can be done, although to describe collection and
assessment as countering is to expand the definition of the term beyond its real
limits . A more obvious countering activity involves the `turning' of a member of
a hostile intelligence agency so that, while pretending to be still a genuine
agent of that agency, he in fact provides information to the Canadian security
intelligence agency . He becomes a double agent . If the Canadian agency can
obtain such information about the activities of the hostile agency's espionage in
Canada, those activities can be neutralized effectively . Thus the development
of an `agent in place' has `countering' consequences, but it is unhelpful to
describe this technique as a method of `countering' . In reality it is providing a
source of information that may also be used as a vehicle for a countering
operation . It is not only legitimate but desirable for a security intelligence
agency to be successful in persuading members of hostile foreign agencies to
defect so that the Canadian agency and its allies will have an improved
knowledge and understanding of the structure, personnel and methods of the
foreign agency .
18 . Information collected by the security intelligence agency is often transmitted to police forces and government departments, and may prompt these
273
�authorities to take preventive measures against individuals or groups . For
instance, security intelligence about terrorists is given to the police who are
responsible for protecting international visitors, and intelligence about terrorist
or espionage agents may be given to a police force having jurisdiction to
investigate crime so that it can be used as evidence . Information about the
secret intelligence activity of a foreign diplomat might be given to the
Department of External Affairs so that the Secretary of State for External
Affairs may decide whether to declare that diplomat to be persona non grata
or otherwise let it be known to the foreign country that his activities are
unacceptable . Similarly, in the security screening process, reports from the
security intelligence agency will affect decisions by government departments to
deny security clearance . The security intelligence agency may also pass information directly to individuals in preventive security briefings . For instance, the
agency may warn Canadians posted abroad or intending to travel in certain
countries of the methods which may be used to induce them to become sources
for a foreign agency . In all of the foregoing situations, the preventing or
countering action is taken by a police force or government department exercising an authorized governmental function, and the security intelligence agency's
contribution is confined to its proper role of collecting and reporting security
intelligence .
19. In the past, the "deterring preventing and countering" role of the
R .C .M .P. Security Service went far beyond the proper functions of a security
intelligence agency . Countering activities that are not acceptable include any
that are contrary to the law of Canada, whether it is a federal, provincial or
municipal law or the common law or the Quebec Civil Code . The legal issues
arising from any of the incidents mentioned earlier which may have involved
acts "not authorized or provided for by law" are analyzed in a separate Report .
As we have noted, the legality of Security Service countermeasures was not a
consideration for R .C .M .P . officers . This disregard for the rule of law is
completely unacceptable under the system which, later in this Report, we shall
propose for the future . No countermeasure should have been permitted which
violated any Canadian law . No unlawful countermeasures by the security
intelligence agency should be permitted in the future . Nor do we see any need
to recommend changes in the law which would make otherwise unlawful
countering measures lawful .
20. There are also countermeasures designed to disrupt the activities of
groups or of individuals regarded as subversive which, while not unlawful, are
nevertheless objectionable and unacceptable . This is particularly the case when
the individuals concerned are Canadians employed in purely domestic political
activities and not acting as foreign agents . We find it entirely inappropriate for
the Canadian state, through an agency the operations of which are essentially
secret, to take coercive measures against Canadian citizens and put them at a
serious disadvantage. Later in this Report, in Part V, when we set out our
recommendations on the laws and policies which should govern the Government of Canada's security intelligence activities, we shall discuss in detail the
kinds of countering activity which must be avoided in the future as well as
those which are acceptable .
274
�21 . The Security Service's use of unlawful countermeasures and those unacceptable measures referred to in the last paragraph was a grave mistake . These
methods violated the rule of law, inflicted damage on Canadian citizens and
involved secret attempts to manipulate political events and the news media .
Such practices not only violate important precepts of Canadian democracy but
they may also seriously damage the security agency itself . First there is the
corrupting effect which the carrying out of such `dirty tricks' is likely to have
on the ethos of the security intelligence organization . Secondly, there is the loss
of public respect which the disclosure of such tactics is likely to engender .
Approval of such tactics will reduce the public's support for any kind of secret
security intelligence activities .
275
��CHAPTER 8
PHYSICAL SURVEILLANC E
A . ORIGIN, NATURE AND PURPOSE OF THE
PRACTIC E
1 . When it is used in the course of R .C .M .P . investigations, the term
"physical surveillance" includes the following practices :
(a) the use of static or mobile facilities to observe activities occurring in
and around a fixed target such as a building ;
(b) the use of cars, motorcycles, airplanes or boats to follow a target ;
(c) the deployment of persons on foot to follow and watch a target ; and,
(d) the use of technical aids to surveillance .
While the purpose of physical surveillance has remained unchanged, techniques
have grown more complex over the years to cope with increasingly sophisticated methods of transportation and counter-surveillance . In the Security Service,
physical surveillance is used to monitor the clandestine activities of intelligence
agents from hostile countries, domestic groups which pose a threat to Canada's
security, and agents of international terrorism . This surveillance enables the
Security Service to acquaint itself with the personal habits of the human
targets, follow their movements, and learn of any clandestine relationships they
may be cultivating in'this country .
2 . Physical surveillance operations on the criminal side, unlike those in the
Security Service, are usually aimed at obtaining information which will result
in a criminal prosecution . It is for this reason that C .I .B . surveillance operations are generally of shorter duration than their Security Service counterparts .
Physical surveillance by the C .I .B . is frequently directed at drug crimes and
organized criminal activities .
3 . Because of their different organization and objectives, it is convenient to
deal separately with the structure of the Security Service and C .I .B . surveillance units .
The Security Servic e
4. One branch of the Security Service is responsible for visual monitoring on
behalf of all the main operational branches of the Service . It is basically a
technical service unit called in to provide visual surveillance of targets in
counter-espionage or counter-subversion operations, and is often referred to as
the "Watcher Service" . Although its responsibilities were later expanded t o
277
�provide surveillance support for all Security Service activities, initially it was
created to satisfy the surveillance needs of the Counter-espionage Branch and
in fact was first a section of that Branch .
5. The creation of the Watcher Service was inspired by considerable clandestine espionage activity on the part of Communist bloc intelligence services, a
significant portion of which was going undetected . A greater commitment to
physical surveillance was intended to uncover that activity . The part-time
surveillance effort in use until 1954 was incapable of meeting the challenge
posed by increased foreign activity in Canada . The Security Service committed
itself to the creation of a surveillance operation intended to possess a high level
of skill and continuity of experience . In essence, the Security Service sought to
specialize .
6. Surveillance, when required, may also be handled by regular members,
most of whom have received training from Watcher Service members, as have
many C.I .B . members and officers from other police forces .
The Criminal Investigation Branch (C.I.B .)
7 . Before the early 1970s, surveillance of a criminal target was carried out
according to manpower and equipment availability, without central co-ordination by a particular branch . No specialized group capable of conducting
intensive coverage existed . Results of surveillance were haphazard . In the early
1970s, investigators at Montreal's "C" Division were conducting wide-ranging
surveillance of targets . Because these targets routinely employed counter-surveillance methods, a need was recognized for a specialized su rv eillance unit,
capable of maintaining surveillance on difficult targets . This gave rise to the
first specialized C .I .B . surveillance team, which responded to requests for
su rv eillance on targets of interest to various C .I .B . sections at "C" Division .
Subsequently, specialized surveillance teams were introduced to several other
divisions .
8 . In March 1973 the R .C .M .P . designated the National Crime Intelligence
Branch (N .C .I .B .) to co-ordinate policy and supervise the activity of surveillance sections in C .I .B . divisions throughout Canada . In July 1974 the N .C .I .B .
surveillance sections were renamed Special "O" Sections . Terms of reference
now govern the duties and operational procedures for Special "O" Sections .
The duties include the collection of strategic and tactical criminal intelligence
on predetermined targets, familiarization through surveillance with the habits
and descriptions of regional organized crime figures, obtaining photographs of
suspect individuals, buildings and meetings, and reporting random sightings of
organized crime figures . In addition, surveillance assistance is given to all
R .C .M .P. investigative squads and other Division Criminal Intelligence Service
(D .C .I .S .) sections . Special "O" Sections are comprised of regular members,
who fill most of the supervisory positions, and Special Constables who comprise
the surveillance teams . Special Constables are given preparatory training for
eight weeks . As in the Security Service, C .I .B . surveillance units have been
forced to employ increasingly sophisticated techniques as targets themselves
become more adept at detecting and countering surveillance .
278
�B. LEGAL ISSUE S
9 . There are three categories of statutes which have presented difficulties for
surveillance work :
- those governing "rules of the road" ;
- those governing the identification of persons and property ; and
- those relating to trespass .
Rules of the roa d
10. The movement of motor vehicles on the highway is primarily regulated by
provincial statute . Representations made to us indicate that adhering to these
rules of the road when engaging in intensive surveillance operations has not
always been possible . Indeed, Watcher Service training has emphasized that
"there is no place for timidity in surveillance work" . One result of this lack of
timidity has been the violation of provincial traffic laws - particularly when a
vehicle carrying the target might itself not comply with traffic laws . In addition
to the violation of provincial laws, surveillance team members may have
breached municipal by-laws by committing "non-moving" violations .
11 . We have examined instances where surveillance was unsuccessful because
traffic laws were obeyed and we are satisfied that compliance with present
traffic laws must in many cases be responsible for the loss of surveillance and a
consequent loss of effectiveness of the security operation .
12 . The following provincial traffic violations have been specifically brought
to our attention : speeding, proceeding the wrong way in one-way traffic, illegal
U-turns and failure to stop . The list of possible violations includes :
- unnecessarily slow driving
- failure to yield right of way
- improper turns or signals
- failure to obey traffic lights
- failure to drive in proper lan e
- improperly overtaking other vehicles
- following too closel y
- failure to yield for emergency vehicles
- failure to stop at railway signal s
- failure to obey instructions posted on traffic signs .
Municipal "non-moving" violations have also occurred when surveillance drivers have stopped in a no-stopping or loading zone in order to maintain
observation of a target .
13 . The Criminal Code also creates offences in relation to the operation of
motor vehicles on the roadway . Section 233(4) affords an example :
(4) Every one who drives a motor vehicle on a street, road, highway or
other public place in a manner that is dangerous to the public, having
regard to all the circumstances including the nature, condition and use o f
279
�such place and the amount of traffic that at the time is or might reasonably
be expected to be on such place, is guilty o f
(a) an indictable offence and is liable to imprisonment for two years ; or
(b) an offence punishable on summary conviction .
There has been no evidence before us to suggest that Criminal Code offences
(such as criminal negligence and dangerous driving) relating to the operation
of motor vehicles have been committed by those engaged in physical surveillance in order for them to carry out their duties . Nor has there been any
suggestion that any authority to drive in such a manner is necessary in the
future .
The most recent attempt by the R .C.M.P. to state policy in regard to trajfic
laws
14 . A "bulletin" from the Commissioner of the R .C .M .P ., Bulletin OM-82,
sent to all members of the Force (both C .I .B . and the Security Service) on
August 25, 1980, states :
Every member of the R .C .M .P. discharging covert surveillance responsibilities, or overtly responding to emergencies is expected to comply with all
relevant provincial statutes, regulations and municipal by-laws .
The bulletin then promulgates "guidelines" to apply in "exceptional" circumstances, where "total" or "strict" compliance with "provincial statutes, regulations and municipal by-laws relating to traffic control" may, "because of the
nature and seriousness of an investigation", not be "necessary in the public
interest".
15 . The guidelines are as follows :
(i) Legal authorities and various provincial and federal statutory
enactments provide certain legal protection to members of the
R .C .M .P . when acting reasonably and responsibly in the discharge
of those duties they are empowered to perform .
(ii) Notwithstanding that certain legal protection would be provided to
members of the R .C .M .P . reasonably conducting their surveillance
and pursuit duties, every member is expected to comply with
provincial and municipal motor traffic requirements unless :
- to do so would seriously inhibit and prevent surveillance and/or pursuit
activity ; and
- there are exceptional circumstances ; and
- when ;
A . There are reasonable and probable grounds to believe,
(1) Life is in danger ;
(2) An indictable offence is in progress ;
(3) An indictable offence is about to be committed ;
(4) An indictable offence has been committed, is under active investigation, and the surveillance and/or pursuit is essential for purpose s
280
�of either identifying those responsible for that specific offence, or
collecting evidence deemed necessary for prosecution, o r
B . The surveillance or pursuit is in regard to:
(1) Persons known to be currently active in major criminal activity,
when it becomes apparent that crimes are being planned, the exact
nature and extent of which are still undetermined .
(2) A V .I .P . visit where it is necessary to keep surveillance on or to
pursue persons who might cause harm or serious disruption, and
the surveillance or pursuit is taking place during the course of that
visit, not in preparation therefor .
(3) The protection of Government property, as in the case of maintaining discreet surveillance on the carrier of a flash roll during
undercover operations .
(4) Investigations with respect to subversive activity as defined in the
Official Secrets Act .
Thus the Commissioner has told members engaged in surveillance duties that,
apart from cases where the law might afford a defence (such as the defence of
necessity) to a charge - for instance of going through a red light or speeding
- members may ignore such laws if the conditions in the guidelines are all
satisfied .
16 . The "bulletin" is stated on its face to be part of the Operational Manual
of the Force and the Commissioner has confirmed to us that it forms part of
that Manual . The bulletin states that "The following general guidelines must
therefore be adhered to in the future" . (Our emphasis.) If those words
constituté an "instruction or order", then failure to comply with thern would be
a breach of the Commissioner's Standing Order 1 .4 .C .l .a . which reads : '
The conduct and activities of a member shall at all times be such as to bring
credit to himself and to the Force . A member shall not :
Contravene or fail to comply with any oral or written instruction or order
issued in a manner authorized by the Commissioner .
Breach of such a standing order is a minor service offence under section 25 of
the R .C .M .P . Act . However, the Commissioner has advised us that, notwithstanding his use of the imperative word "must" in the bulletin, he did not
intend the bulletin to be an "order" . He says it is "only a guideline" . In our
opinion it would be difficult for a member receiving the bulletin to know the
legal nature of it . At the very least the member would be likely to regard the
bulletin as advice from the Commissioner that conduct which, in the case of an
ordinary citizen or even a policeman "cruising" in a patrol car would be a
violation of provincial or municipal traffic laws, will be permitted by the Force
in the sense that no disciplinary action will result if a member engages in the
same conduct in the circumstances described in the bulletin . The Commissioner
has told us that what he intended to convey by the bulletin may be summarized
as follows :
(a) as a general principle every member of the R .C .M .P. engaged in
surveillance activities is expected to comply with all provincial statutes
and regulations and municipal bylaws ;
281
�(b) where certain conditions are met, activities which otherwise would be
violations of those statutes, regulations or bylaws do not constitute
such violations ;
(c) the reference to "legal authorities and various provincial and federal
statutory enactments . . ." providing legal protection to members is to
such matters as the protection afforded by section 25 of the Criminal
Code, section 26 of the Interpretation Act, defences such as that
contained in the New Brunswick Police Act and common law defences
such as necessity or the immunity alleged to exist for members of the
R .C .M .P. as agents of the Crown ;
(d) in essence, the bulletin sets out circumstances in which, according to
the R .C .M .P .'s interpretation of various statutory and common law
defences and immunities, no violations of provincial laws and regulations or municipal bylaws occur .
In promulgating this bulletin the Commissioner relied in part on legal advice
obtained from the Department of Justice . In Part IV we discuss the various
"defences", such as the common law defence of necessity, the "implied powers"
provision of section 26 .2 of the Interpretation Act, the "justification" principle
embodied in section 25 .1 of the Criminal Code, and the various doctrines of
immunity, and we intend in the ensuing paragraphs to review each of these
briefly in the present context . In addition, as far as New Brunswick is
concerned, there is a provincial statutory defence to provincial offences ; this
defence is referred to by us in Part V, Chapter 4 . In the following brief
comments which we make with respect to the Commissioner's bulletin, what we
say is fully applicable only to those provinces which do not have a statutory
defence, i .e . all provinces other than New Brunswick .
17 . The common law defence of necessity would be available in regard to
provincial offences .' It would likely be available if life is in danger, or if an
indictable offence is in progress or is about to be committed or has been
committed and there is "hot pursuit" of the culprit, but even then it would be
necessary to balance the competing interests identified in Morgentaler v . The
Queen, which we discuss in Part IV . Focussing our attention on the specific
situations referred to in Bulletin OM-82, we do not think that the defence of
necessity would be available if "an indictable offence is in progress, or is about
to be committed or has been committed and the surveillance or pursuit of the
culprit is essential for the purposes of either identifying those responsible for
that specific offence or collecting evidence deemed necessary for prosecution" .
For example, a member driving a police vehicle while engaged in attempting to
identify a thief or a person who has wilfully damaged property, or attempting
to collect evidence of such offences, would not be able to rely on the defence of
necessity if he were charged with speeding or failing to stop at a stop sign or a
As a matter of principle, the common law defence of necessity would be available for
provincial offences, at least to the same extent as in prosecutions under the Criminal
Code . See R . v . Walker (1979) 48 C .C .C . (2d) 126 at 144 (Ont . Co . Ct .) . In Ontario
now the provision found in section 7(3) of the Criminal Code, which preserves
common law defences, is copied in respect to provincial offences : the Provincial
Offences Act, 1979, ch . 4, section 80 .
282
�red light . Similarly, we do not believe that the defence of necessity would be
available where traffic violations are committed by a member conducting
surveillance of those planning indictable offences, suspected of intending harm
to visiting V .I .P .s, or plotting damage to government property . The sense of
proportion between the perceived harm in the conduct of the criminal and the
departure from regulated conduct on the part of the member - so essential to
the application of the defence - cannot be assumed in advance as the Bulletin
seems to do .
18. In Part IV we also discuss section 26(2) of the Interpretation Act and
express the opinion that it cannot be invoked as authority in support of an
implied power to do that which otherwise would be unlawful . We also discuss
section 25(1) of the Code and, citing Eccles v . Bourque, conclude that it
provides justification for a peace officer only for the use of "force" and then
only when the law requires or authorizes him to do the very thing in question ;
violating a traffic law would probably fail to satisfy either condition ma
number of the circumstances specifically referred to in the Bulletin .
19 . It is apparent from what we have learned that the Commissioner's
Bulletin is also founded on advice that provincial law is not applicable to
actions of members of the R .C .M .P . that are "reasonably necessary to enable
them in particular circumstances to carry out duties and responsibilities
assigned to them by or under federal legislation" . This opinion is founded on
the statement by Mr . Justice Pigeon, delivering the reasons for judgment of the
Supreme Court of Canada in the Keable case,' that the R .C .M .P . is a branch
of the Department of the Solicitor General and its management as part of the
Government of Canada is unquestioned . The advice given to the R .C .M .P .
appears to be an invocation of certain of the doctrines of immunity which we
discuss fully in Part IV . We consider that, in its stated breadth of application,
it is likely not an accurate statement of the law, and that it may be an invalid
foundation for the Commissioner's Bulletin . We emphasize that we do not
criticize Commissioner Simmonds, who is entitled to rely on such advice,
especially when it comes from the source from which it did come . Consequently, we have serious doubts as to the legal foundation of Bulletin OM-82 . We
realize that it is not easy to frame guidelines for members concerning these
matters, in the light of the present state of the law . Implementation of our
recommendations would result in both the R .C .M .P . and the security intelligence agency having less difficulty in instructing their members in the future .
In the meantime, for the reasons we shall give in Part IV, we do not think that
members of the R .C .M .P . should rely on Bulletin OM-82 as authority which
could be cited as a defence if they are faced with charges under provincial or
municipal traffic laws, except in those circumstances when the defence of
necessity would properly apply .
Laws governing the identification of persons and propert y
20. A number of federal and provincial statutes require the accurate identification of persons or property . Examples include various provincial enactment s
z Attorney General of Canada v . Keable [ 1979] 1 S .C .R . 218 at 242 .
283
�requiring hotel guests to register in their proper names, and highway traffic
legislation requiring individuals to hold a valid driver's licence and identify
their automobiles with provincially issued licence plates .
21 . Registration and identification requirements are incompatible with the
covert nature of surveillance operations . As in the case of undercover operations involving members or human sources, the ability to conceal one's true
identity successfully is essential in physical surveillance operations . A target,
once aware of a surveillance effort, may simply delay his intended clandestine
or criminal -activity, or deliberately mislead the surveillance team . Furthermore, the team, once"`burned" (exposed to a target) is of little value in further
covert surveillance of that target . Hence, the need has arisen for surveillance
cars to have licence plates that cannot be traced to the R.C .M .P., and for
members to hold identification documents that allow them to remain in
proximity to a target without disclosing their true identity .
22 . At present, the two most commonly used false identification documents
are drivers licences and vehicle registrations . This documentation has in the
past been obtâined in a number of ways : applying for the document in the
normal manner, but supplying false information in the application ; entering
into agreements with senior departmental officials for the issuance of documents and, manufacturing high quality false documentation by the R .C .M .P .
23 . Supplying a false statement in an application for a driver's licence (in
order to obtain a licence in a false name) is an offence in most provinces, as is
the possession or use of a fictitious licence. Further violations occur in some
provinces where an individual holds more than one valid licence or applies for a
second licence while holding a valid licence . Finally, a licence may be invalid in
some provinces unless signed in the "usual signature" of the individual
licenced .
24. Dual registration of a surveillance vehicle violates other Highway Traffic
Act provisions in a number of provinces . Over the years a variety of practices
have been used to disguise the ownership of R .C .M .P . surveillance vehicles . It
is impossible to outline every variation of this practice ; a few examples,
however, are illustrative . In some cases, a car owned by the R .C .M .P . was
registered in the name of an "ostensible owner", who may have falsely
indicated in an application for registration that he was the true owner . In other
cases, an additional set of plates may have been obtained through making an
application, with the co-operation of provincial Registrars of Motor Vehicles,
for vehicles already registered in the name of the R .C .M .P. It is an offence
under provincial Highway Traffic legislation to make false statements (e .g . as
to the applicant's true identity, or the ownership of a vehicle) in an application
for registration ; it is also an offence in some provinces to use licence plates
other than those registered or issued for a vehicle . Finally, the use of out-ofprovince licence plates after a defined period of time may violate Highway
Traffic legislation .
25. Where a licence or registration has been obtained through making a false
statement in an application, such a statement may amount to a false pretenc e
284 '
�under section 320 of the Criminal Code . Section 319 defines a false pretence as
follows :
(1) A false pretence is a representation of a matter of fact either present or
past, made by words or otherwise, that is known by the person, who
makes it to be false and that is made with a fraudulent intent to induce
the person to whom it is made to act upon it .
26 . Section 320 states :
(1) Every one commits an offence wh o
(a) by a false pretence, whether directly or through the medium of a
contract obtained by a false pretence, obtains anything in respect of
which the offence of theft may be committed or causes it to be
delivered to another person ;
(2) Every one who commits an offence under paragraph (])(a )
(a) is guilty of an indictable offence and is liable to imprisonment for ten
years, where the property obtained is a testamentary instrument or
where the value of what is obtained exceeds two hundred dollars ; o r
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for two years,
or
(ii) of an offence punishable on summary conviction ,
where the value of what is obtained does not exceed two hundred dollars .
On some occasions false registration and identification documents have been
manufactured by the R .C .M .P . for use by the Criminal Investigations Branch
in lieu of having members apply for licences and other forms of documentation .
The manufacture of these documents may have amounted to forgery under
section 324 of the Criminal Code . That section reads, in part :
324. (1) Every one commits forgery who makes a false document, knowing
it to be false, with intent
(a) that it should in any way be used or acted upon as genuine, to the
prejudice of any one whether within Canada or not, or
(b) that some person should be induced, by the belief that it is genuine, to
do or to refrain from doing anything, whether within Canada or not .
(3) Forgery is complete as soon as a document is made with th e
knowledge and intent referred to in subsection (1), notwithstanding that the
person who makes it does not intend that any particular person should use
or act upon it as genuine or be induced, by the belief that it is genuine, to do
or refrain from doing anything .
(4) Forgery is complete notwithstanding that the false document is
incomplete or does not purport to be a document that is binding in law, if it
is such as to indicate that it was intended to be acted upon as genuine .
27 . Section 326 of the Code creates an offence when the forged document is
used :
326 . (1) Every one who, knowing that a document is forged,
(a) uses, deals with, or acts upon it, o r
285
�(b) causes or attempts to cause any person to use, deal with, or act upon it,
as if the document were genuine, is guilty of an indictable offence and is
liable to imprisonment for fourteen years .
i
28. When a member engaged in surveillance assumes the identity of a person,
whether living or dead, he may violate section 361 of the Criminal Code . That
section reads :
Every one who fraudulently personates any person, living or dead,
(a) with intent to gain advantage for himself or another person,
.
. or
.
(c) with intent to cause disadvantage to the person whom he personates or
another person ,
is guilty of an indictable offence and is liable to imprisonment for fourteen
years .
In most surveillance operations there is no personation of a person "living or
dead", so that no offence is committed . Where, however, an individual engaged
in surveillance might purport (although we have seen no examples) to be
another person, living or dead, he may violate the section .
29. In order for the offence to occur, the personation must also be fraudulent
and the personator must intend to gain advantage for himself or cause
disadvantage to the person he personates or another person . The word "advantage" in section 361 has been afforded a broad interpretation . In Rozon v. The
Queen' Mr . Justice Montgomery stated :
The words "gain advantage" could scarcely be more general in their scope,
and i find nothing to suggest that their application shoulci be restricted to
an advantage appreciable in money . 4
Mr . Justice Crête held that the word "advantage" must be taken in its larger
meaning. [Our translation ]
In reading this text, one can see that the legislator has declared guilty of an
indictable offence anyone who personates someone (a) to gain advantage without specifying its nature ; (b) to obtain any property or an interest in a
property - this is specific, in view of the definition of the word "property"
given in section 2 of the Criminal Code ; (c) to cause disadvantage to
another person - here again, without specifying the nature of the
disadvantage .s [Our translation ]
This reasoning was accepted in Ontario in Regina v . Marsh .6 Thus it appears
that almost any advantage or disadvantage is encompassed by section 361 .
Nonetheless, it may still be questioned whether the courts, in construing
"advantage" so broadly, intended it to encompass the investigative advantage
gained through personating another individual .
' (1974), 28 C .R .N .S . 232 (Quebec C .A .) .
" Ibid., at p. 233 .
S Ibid., at p. 237 .
6(1975) 31 C .R.N .S . 232 (Ont . Co . Ct .) .
286
�30. The most significant restriction in section 361 is the requirement that the
personation be "fraudulent" . In Rozon v . The Queen, Mr . Justice Crête
adopted a narrow construction of the word :
In my opinion, the word fraudulently as used in section 361 is an adverb of
manner which involves bad faith as opposed to good faith, or to an honest
error .' [Our translation ]
It therefore appears that an individual engaged in surveillance who personates
another person, living or dead, and gains an advantage or causes a disadvantage thereby within the meaning of section 361, nonetheless commits no
offence as long as he does not act in bad faith . The section then appears likely
to be of no consequence in relation to surveillance operations which are carried
out in good faith, i .e. for purposes falling within the mandate of the Security
Service or the policing duties of the C .I .B .
31 . The interpretation of section 362 of the Criminal Code, however, is
problematical . That section, dealing with personation at an examination, reads
as follows :
362 . Every one who falsely, with intent to gain advantage for himself or
some other person, personates a candidate at a competitive or qualifying
examination held under the authority of law or in connection with a
university, college or school or who knowingly avails himself of the results
of such personation is guilty of an offence punishable on summary
conviction .
We are aware of at least one instance, although not a surveillance operation,
where this section may have been violated . As we have seen in our examination
of section 361, the word "fraudulently" in that section implies bad faith on the
part of the personator ; the word "falsely" in section 362 may be interpreted in
a similar fashion, thus absolving a personator acting in good faith (e .g. in order
to carry out the mandate of the Security Service) . The little case law which has
construed the word "falsely" seems to support this interpretation . In Rex v .
Frank,' Chief Justice Campbell of Prince Edward Island found that the offence
of making a false statement in the Income War Tax Act, R .S .C . 1927, involved
not merely an inaccurate statement, but one made fraudulently, with mens rea
or intent to deceive . A number of American cases have reached similar
conclusions .9 Yet, "falsely" in section 362 is not so clearly defined that we can
ignore the possibility that Security Service activities of the nature mentioned
here violate the section . The example we have cited is not the only activity of
this nature of questionable legality : individuals engaged in surveillance operations might also have violated section 362 if they chose to obtain their "cover"
licences by supplying the name of a real person when taking their qualifying
tests . We are not aware of any specific instances where individuals engaged in
surveillance have personated other individuals in a manner that violates section .
362 ; that does not mean, however, that the practice has not occurred . In an y
'(1974) 28 C .R .N .S . 232 at p . 238 ( Quebec C .A .) .
8 ( 1945) 84 C .C .C . 94 (P .E.I .S .C .) .
' U.S . v . Achtner, 144 F . 2d 49 (C .C .A .N .Y .) ; Fouts v . State, 149 N .E . 551 ; U .S . .v .
King, 26 Fed . Cas . 787 ; U.S. v . Otey 31 F . 68 .
287
�event, this brief discussion serves to highlight the potential for running afoul of
these sections as the R .C .M .P . search for new and legal means of obtaining
"cover" documentation .
32 . Disguising one's proper identity may also have resulted in violation of
provincial hotel registration legislation . A number of provinces have legislation
prohibiting hotel guests from registering in an assumed name or falsely stating
their place of residence . This problem has been identified in four provinces in
particular - Nova Scotia, Prince Edward Island, Ontario and British
Columbia .
Laws relating to trespass
33. The surveillance sections of the Security Service and the C .I .B . have both
indicated to us that violations of petty trespass legislation are inherent in
surveillance operations . Common examples include entering parking garages in
apartment buildings to determine the presence of a target's vehicle and
entering an apartment building in order to determine by listening from a
corridor whether the target is within an apartment . These activities may,
depending on the circumstances, constitute a trespass to property in provinces
having trespass legislation .10 In addition, they may give rise to the Criminal
Code offences of Mischief and Trespassing at Night.
34 . Nova Scotia, Prince Edward Island and Saskatchewan have no trespass
legislation . Trespass legislation in British Columbia and New Brunswick
applies to narrow factual situations which are not relevant here, and the
Quebec statute, the Agricultural Abuses Act, is probably restricted to agricultural lands. Petty trespass legislation in Alberta and Newfoundland requires
notice not to trespass by word of mouth or in writing, or by posters or sign
boards, before an offence is committed and so poses problems where such
notice is given . Legislation in Ontario and Manitoba, however, does not in
every case require such notice, and therefore poses the greatest difficulty for
surveillance operations . In Ontario, an offence occurred until 1980 when there
was unlawful entry upon enclosed land, a garden or lawn, or land on which the
entrant has had notice not to trespass ; under the new Act there is an offence
when there is unauthorized entry onto premises "enclosed in a manner that
indicates the occupier's intention to keep persons off the premises" . In
Manitoba, the offence in part consists of entering into any land or premises
which is the property of another and is wholly enclosed .
35 . In Chapter 2 of this part, the Criminal Code offence of trespassing at
night (section 173) was discussed in relation to surreptitious entries . This
offence is equally germane for those who, in the course of conducting surveillance of a house or an apartment at night, "loiter or prowl" near such
buildings . If individuals engaged in surveillance merely enter a parking garage
to determine the presence of a target's car, and then leave they likely cannot be
said to be "loitering" in the sense of "hanging around"." Nonetheless, if the y
10 The statutes are referred to in Part III, Chapter 2, footnotes 20 to 26 .
" R. v . McLean (1970) 1 C .C .C . (2d) 277 ; 75 W .W .R . 157 (Alta . Mag . Ct .) .
288
�enter the garage they may be "prowling", in the sense of "hunting in a stealthy
manner for an opportunity to commit a criminal offence" (in this case,
mischief, contrary to section 387) .1 1
36 . Where physical damage, even nominal, occurs to a target's vehicle in the
course of an operation, section 387(1)(a) of the Criminal Code, dealing with
the wilful damaging ol~ property, may have been violated . In addition, an
offence may hâve been committed under section 388(1 .) of the Code, dealing
with the wilful destruction or damaging of property . It can_ also be argued that
merely handling the vehicle of the target amounts to a trespass upon chattels
and is thus an interference with the lawful use or enjoyment of the property
contrary to section 387(1)(c) . If this is so then the indictable offence of
mischief has been committed . Quite apart from possible criminal implications,
the tampering with a vehicle, even if it does not result in any damage to the
vehicle, may be trespass at common law . The R.C .M .P . position, based on legal
advice, is that there is a conflict of judicial authority as to whether trespass to a
chattel (a thing) is actionable - i .e . is a wrong - without proof of damage . In
our view there is not a conflict of judicial authority,13 but an absence of judicial
authority except for quotations of textwriters by judges . The textwriters quoted
assert that in principle trespass to chattels should be no different from trespass
to land . In regard to the latter the common law is clear that there may be
trespass without damage .
Laws relating to violation of privacy
37 . In British Columbia it has been held14 that a private investigator had not
violated the statutory guarantee of privacy by affixing a bumper beeper - a
small radio transmitter emitting signals to enable the location of the vehicle to
be traced - to the bumper of a car . The car belonged to a husband who was
being watched by the investigator pursuant to instructions given by the wife.
The court had regard to the fact that the wife was not motivated by malice or
curiosity, that she had not attracted public attention, that she had not acted in
an offensive manner and that her conduct was therefore reasonable . The use of
a "bumper beeper" is probably not in violation of Article 5 of the Quebec
Charter of Rights and Liberties of the Person, at least while the vehicle is
travelling on public roads . However, it has been argued that attaching such a
device to the personal effects or clothes of a person could be a violation . We
express no view in that regard .
1z Ibid.
The R .C .M .P. position was based on three cases . One was said to support the view
that trespass to a chattel is not actionable without proof of damage ; but a .reading of
the case - Everitt v . Martin [1953] N .Z.L .R . 298 - indicates that the court there
went no further than to cast doubt upon actionability without proof of damage . The
other two cases cited were Canadian cases : Demers v . Desrosiers [1929] 2 W .W .R .
241 (S .C . of Alta .) and Wolverine S.S. Co . v . Canadian Dredging [1930] 4 D .L .R .
241 (S .C . of Ont .) . In the first case the court did not decide the point but quoted three
English textbooks which suggest that the law is or should be that trespass to chattels
is actionable without proof of damage . In the second case the point was not decided .
14 Davis v . McArthur, [1971 ] 2 W .W .R . 142 (B .C .C .A .) .
289
�Could surveillance constitute intimidation ?
38. To this point we have not discussed the Criminal Code offence of
intimidation (section 381) . We have no documented instance where such
conduct in physical surveillance operations has occurred in the past ; therefore,
the subject cannot properly be examined as a past practice not provided for or
authorized by law . Nonetheless, we raise this offence as a legal issue, if only
immediately to discount it, because of its apparent connection with physical
surveillance activities in both the Security Service and the C .I .B . The relevant
portions of section 381 read :
381 . (1) Every one who, wrongfully and without lawful authority, for the
purpose of compelling another person to abstain from doing anything that
he has a lawful right to do, or to do anything that he has a lawful right to
abstain from doing ,
(c) persistently follows that person about from place to place ,
(f) besets or watches the dwelling-house or place where that person resides,
works, carries on business or happens to be ,
is guilty of an offence punishable on summary conviction .
(2) A person who attends at or near or approaches a dwelling-house or
place, for the purpose only of obtaining or communicating information,
does not watch or beset within the meaning of this section .
39 . Inherent in physical surveillance operations is the following (sometimes
persistently) of individuals and observation around buildings, dwelling-houses,
etc . It cannot be said, however, except perhaps in a few cases, that the
persistent following or watching and besetting has been "for the purpose of
compelling another person to abstain from doing anything that he has a lawful
right to do, or to do anything that he has a lawful right to abstain from doing" .
In virtually every case, physical surveillance has involved no "compulsion" ;
rather it has involved discreet observation of a target . Second, in the few cases
where the fact of surveillance has been deliberately made known to the target
(for example, in order to frustrate an agent meet) and where therefore there
may have been an element of compulsion, the activity in question was almost
inevitably not one which the target had a lawful right to perform - the
activity might have involved espionage or a criminal operation . Third, it
probably cannot be said that surveillance teams, whether . C.I .B . or Security
Service, have acted "wrongfully" and "without lawful authority" in their
pursuit of targets, at least insofar as they have acted in the discharge of their
functions as peace officers in combatting crime and countering threats to
security .
40. It is thus unlikely that section 381 has been violated by surveillance teams
engaged in normal (covert) surveillance activities . The possibility of a violation
does exist, however, where surveillance is carried out overtly, for example, in
order to deter a domestic group perceived by the Security Service to be a threat
to security. In such a case, there is intended to be an element of compulsio n
290
�resulting from the surveillance . If the group's activities are lawful, it may be
that the Security Service would be acting "wrongfully" and "without lawful
authority", thereby violating section 381 .
R .C.M .P. attempts to inform provincial governments of legal problems
associated with physical surveillance
,
41 . Under this programme carried out early in 1978, the R .C .M .P . held
briefing sessions with senior provincial officials in order to inform them of
covert investigative techniques which may have contravened provincial statutes .
In a letter dated June 6, 1978, Mr . Dare, Director General of the Security
Service, reported the results of these briefings to the Solicitor General, the
Honourable Jean-Jacques Blais . This letter stated :
As a result of the Commissioner's instructions of 31 January 1978, the
Security Service participated in a number of briefings to provincial Attorneys General on areas where the application of covert investigative techniques may have contravened provincial statutes . Specifically, the objectives, necessity and the consequences of discontinuance of i) alias
documentation, ii) dual registration and the use of secret plates for motor
vehicles, iii) registration in hotels or other accommodation using an
alias. . . .
42 . Briefings were carried out as follows :
Newfoundland
- February 3, 1978 - Deputy Minister of Justice briefed by C .I .B .
Nova Scotia
- February 2, 9, 1978 - Director General,
New Brunswick
Quebec
Ontario
Department of the Attorney General, briefed
by C .I .B . and Security Servic e
May 11, 1978 - Deputy Minister of Justice
and Director of Prosecutions briefed by C .I .B .
and Security Servic e
- February 7, 1978 - Deputy Attorney General,
Assistant Deputy Minister - Criminal Prosecutions, Assistant Deputy Minister - Police
Matters briefed by C .I .B . and Security Service
- November 7, 1977 - Attorney General,
Solicitor General and Assistant Deputy Attorney General briefed by C .I .B . and Security
Service
- January 11, 1978 - Assistant Deputy Attorney General briefed by C .I .B . and Security
Service
Manitoba
Alberta
British Columbia
- February 6, 1978 - Attorney General briefed
by C.I .B . (after C .I .B . consultations with Security Service)
- May 8, 1978 - Solicitor General briefed by
C .I .B . and Security Servic e
- January 16, 1978 - Attorney General briefed
by C .I .B .
291
�- February 6, 1978 - Deputy Attorney General
briefed by C .I .B .
(Note that some of the meetings took place before Commissioner Simmonds'
directive of January 31, 1978) .
43. There appears to have been no discussion with officials of the Saskatchewan Attorney General's department . Mr . Dare's letter to Mr. Blais explained
that the Security . Service in Saskatchewan carried out no covert operations
which would contravene provincial statutes and that therefore the Attorney
General would not be briefed .
44 . There appears to have been no mention of possible violations of "rules of
the road" under provincial highway traffic legislation or of possible violation of
provincial petty trespass legislation during these briefings .
C . NEED AND RECOMMENDATIONS - BRIEF
.SUMMAR Y
45 . The initial policy issue is whether there is an established need for physical
surveillance as an investigative tool for the Security Service and the C .I .B . If
so, should changes be made in existing legislation in order to bring effective
surveillance operations within the law? Should the changes give surveillance
teams special powers so that they may lawfully drive in ways that in the case of
other drivers would be offences under provincial or municipal laws? For
example, if a member of the Watcher Service exceeds the posted speed limit in
order to maintain surveillance of a target should the law be such that he is not
guilty of speeding? If the answer is yes, and . an accident ensues in which an
innocent third party is injured, or his property is damaged, should that person
be able to pursue a civil remedy by suing the individual member of the
surveillance team, the R .C .M .P :, or the federal or provincial governments? If
not, should compensation be available through other means ?
46 . Many, although not all, of the statutes which have been violated during
the course of . physical surveillance operations might be referred to loosely as
being "regulatory" in nature . To some observers, the violation of "regulatory"
laws may seem to be unimportant . At least one newspaper commentator has
said that breaches of "minor" laws by the R .C .M .P . is not a matter of concern .
We disagree . In a national police force, or a security intelligence agency, the
adoption of a policy that permits violations of "minor" laws is the thin edge of
the wedge . If it is permissible to violate "minor" laws in the public interest (or
more accurately, in what the members of the organization decide is in the
public interest), then an attitude arises that makes it easier to tolerate
violations of "major laws" . An ethos is created that excuses what is done for
noble reasons and asserts its validity . This cannot be acceptable.
47 . At the same time, if we, as a democratic society, insist that the police and
intelligence agencies, like all government institutions, must be subject to the
law, we also wish to ensure that those agencies can perform their assigned tasks
effectively . If "minor" laws will be obstacles to that effectiveness, and if a
lawful exception to their application can be made without damage to the socia l
292
�purposes of those laws, then the legislators should support amendments to those
laws to attain that objective .
48 . Physical surveillance operations are indispensable to both services of the
R .C .M .P . Present laws pose obstacles for surveillance operations and result in
unnecessary violations of the Rule of Law . Existing statutory and common law
defences are inadequate . Legislation is needed to provide a statutory defence
for individuals engaged in surveillance team operations, in defined circumstances, when their activities contravene some of the laws which restrict such
operations at present. Where amendments are necessary in respect of provincial legislation (highway traffic, petty trespass laws etc .), such amendments
should be enacted by the provinces concerned . Detailed recommendations are
contained in Part V, Chapter 4 and Part X, Chapter 5 .
293
��CHAPTER 9
UNDERCOVER OPERATIVES
INTRODUCTION
1 . In conducting both criminal and security intelligence investigations, the
R .C .M .P . frequently gather information through persons who are not openly
identified as members of the Force, or as persons working on its behalf . An
undercover operative is often able to approach or infiltrate the subject of
interest and so to obtain information which would not otherwise be accessible .
The undercover operative may be either a member of the R .C .M .P . or an
individual who has volunteered or been recruited by the Force . In the latter
case, the individual may already be `in place' near the target, or may be asked
to approach it in his own or in a disguised identity and to gain acceptance .
2. The use of undercover operatives is at once one of the R .C .M .P .'s most
effective investigative techniques and the one which causes the greatest difficulty and concern for the Force and the public at large : an undercover
operative can gather more important information than any technical or
mechanical source, but the nature of his task and the environment in which he
must work often create considerable pressure on him to commit unlawful acts .
3. This chapter is devoted to an examination of the use by the R .C .M .P . of
undercover operatives and the resulting practices and activities not authorized
or provided for by law .
A . ORIGIN, NATURE AND PURPOSE OF THE
PRACTIC E
4. History abounds with tales of informers . That is true of the Canadian past
as much as that of other countries . We described in Part II, Chapter 2, how, in
the early days of Confederation, undercover operatives were used by the
Dominion Police Force on both sides of the Canada-U .S . border to provide
intelligence about the activities and intentions of the Fenians . The primary
method of collecting information was to infiltrate informers into Fenian
organizations . These undercover operatives often spent years within the organization, in some cases working their way into influential positions . From the
early 1870s until the First World War, agents supervised by Commissioners of
the Dominion Police continued to play a role in providing intelligence information about politically motivated violence in Canada . Although the North-West
Mounted Police did not employ undercover operatives in dealing with the
North-West Rebellion of 1885, they did so in policing the Yukon Territor y
295
�during the gold rush at the turn of the century . In investigating rumours of
American plots to annex the Yukon Territory, the N .W .M .P . used operatives
to infiltrate suspect organizations and groups .
5 . During the First World War, both the Dominion Police Force and the
Royal North-West Mounted Police used undercover operatives in domestic
activities related to the war effort . Following the war, both agencies carried out
extensive undercover operations to investigate the labour movement . In the
years between the World Wars, the R .C .M .P . concentrated its intelligence
activities on counter-subversion, frequently using its own members to infiltrate
suspect organizations . The major targets of the Force in the late 1930s were
Fascist and Nazi political organizations in Canada . One of the most celebrated
instances of infiltration by Force members was that of Constable (later
Superintendent) John Leopold . In 1921 Leopold managed to infiltrate the
Communist Party in Canada . He remained undercover as a member of the
Party until 1928, when his true identity was discovered and he was expelled .
His testimony was later instrumental in securing the'conviction of eight persons
as members and officers of the Communist Party of Canada . Upon his
subsequent transfer to Headquarters, Leopold began to work full time on the
analysis of security files and reports coming in from the field . During the next
two decades Leopold would be the R .C .M .P .'s number one resource person on
Communism in Canada . He knew many of its leaders in Canada personally,
was' intimately acquainted with its activities and had a thorough knowledge of
its ideology .
6. In criminal matters, individuals operating undercover were first used in
earnest after the Second World War . They were deployed primarily in drug
investigations, which are a continuing operational priority . The use of longterm undercover operatives for non-drug criminal investigations has never been
extensive . The Criminal Investigation Branch has told us that it uses undercover operatives in non-drug investigations " . . . only where circumstances clearly
indicate that it is necessary and after all potential results, favourable and
otherwise, have been considered" .
7 . Those who work in an undercover capacity attract a variety of names
which obscure the subtle categories into which they fall . Colloquially, undercover operatives are variously called spies, informants or secret agents . The
Security Service itself uses the term "human sources" to describe civilian
operatives, the more casual of whom are called "contacts" .
8 . For the sake of clarity we refer to members and non-members undercover
as "undercover operatives", even though that expression is not used by the
R .C .M .R. There is in fact no umbrella expression used by the R .C .M .P. to
cover the various kinds of persons we refer to in this chapter . The general term
it uses to describe all non-member operatives is "human sources" . The categories into which undercover operatives fall are generally as follows :
(a) the volunteer source ;
(b) the undeveloped casual source ;
(c) the developed casual source ; and
(d) the long-term, deep-cover operative .
296
�While it is not possible to establish iron-clad definitions to cover every possible
type of undercover operative, these are the leading distinctions .
The volunteer source
9. The volunteer source does not truly operate undercover . He may be an
ordinary citizen who, overtly or otherwise, and often for a single occasion,
approaches the R .C .M .P . with information relating to either â criminal or' a
security intelligence matter . No recruitment or active solicitation is involved,
although the criminal investigation officers generally encourage responsible
persons to come forward with information about crime, and the Security
Service welcomes volunteered information from citizens and others about
suspected espionage, subversion or terrorism . Volunteer sources may be motivated by more than good citizenship; they may be seeking favours in exchange
for the information they will provide . A criminal may want protection from
other criminals, or police intervention with prosecuting authorities in order to
recommend a lighter sentence . On the security side, a foreign intelligence
officer may furnish information in exchange for assurancés . of asylum and the
provision of a new identity .
The undeveloped casual sourc e
10 . By way of contrast, what is called an "undeveloped casual source" may
be attracted by solicitation . The approach is invariably low-key and falls short
of an intensive "recruitment" but there is nonetheless a degree of active
encouragement . Taxi drivers, maintenance or utility personnel, and hotel
doormen are typical examples, since their normal tasks provide opportunities to
observe targets . Such people are initially interviewed and their co-operation is
sought . No reward or payment is offered . If they agree to help, discreet
interviews are periodically arranged . Such sources play no covert role and do
not disguise their identities by using false documents .
The developed casual source
11 . The "developed casual source" differs from the undeveloped source in two
respects : the nature of his recruitment and the frequency of contact with his
`handlers' . Before the first approach is made, the R .C .M .P . will assess his
interests and decide upon an inducement most likely to attract his co-operation .
Most frequently, casual sources recruited by the Security Service provide their
assistance out of a sense of loyalty . Inducements may, however, be needed . If
the source is a journalist, he could be offered preferred access to stories
emanating from the Force. In criminal matters, money may be promised . For
those awaiting sentencing, the Force may undertake to speak to the Crown
Attorney about the prisoner's "co-operative attitude" . The developed casual
source will be more likely than his `undeveloped' counterpart to be assigned an
active information gathering role, rather than simply reporting what he sees or
hears in the course of his usual activities . Although the source is described as a
`casual', his relationship with the Force may entail regular meetings and last
for years . While his affiliation with the R .C .M .P . will be kept secret ; his
identity is not normally disguised, and he will not normally carry false papers .
297
�The long-term deep-cover operativ e
12. By far the most intrusive undercover role is that of the long-term,
deep-cover operative . Here, both members and human sources commit themselves to extensive, lengthy and often elaborate operations to infiltrate and
remain inside a target's sphere . The ultimate long-term, deep-cover operative is
the intelligence officer of a hostile foreign power who has been `turned' by the
Security Service into a`double agent' . Because of the intensity, duration and
danger of such operations, long-term, deep-cover operatives are usually paid
for their intelligence, although some have worked for ideological reasons alone .
13 . In determining whether the person deployed in an operation requiring a
long-term, deep-cover operative will be a member or a human source, the
R .C .M .P . considers such factors as an individual's ability to penetrate a given
target, his trustworthiness, the extent of the control which will be required in
handling the operative and the availability of members for the purpose . Since
such a person will be committed to the role for periods sometimes as long as
several years (and even, rarely, decades), the Force generally prefers to use
sources and keep its members available for a greater variety of work .
14 . Normally, only undercover members assume false identities for operational purposes . It is extremely rare for a source to use false identification
documents during an operation, although such documents may be needed in
order to protect him at a later stage from vindictive targets . For the most part,
sources are chosen because of an existing personal history which allows them to
approach a target without arousing suspicion . For example, the source might
`espouse' a philosophy similar to that of the target . The source used by the
Security Service to penetrate the Western Guard (discussed below) was chosen
on this basis .
15. Where members assume false identities for long-term, deep-cover work,
they are provided with a fabricated life history, including such invented details
as the names of schools and churches attended, former employment and
previous addresses . These `legends' are given credibility through identity cards,
driver's licences and S .I .N . numbers which reflect the legend . No effort is
spared to give every appearance of genuineness to the elaborately fabricated
story, since some targets thoroughly investigate the personal histories given by
prospective adherents ; the consequences of detection could be grave . With his
legend in place, the undercover member develops a cover story which gives the
appearance of legitimacy to his approach to the target .
16 . It is not uncommon that the long-term, deep-cover operative is compelled
to dissociate himself for considerable periods from family and friends in order
to perform his role . Such isolation, taken with the stress and danger often
associated with undercover work, creates a need for able, dependable and firm
handling by experienced members . A bond develops between the operative and
his handler in such circumstances : a dependence arises which is virtually
parental . The dynamics of the relationship must be anticipated and understood
if control of the operative is to be maintained . Where control is lost, the
operative is withdrawn .
298
�17 . Long-term, deep-cover operatives may require extensive training in the
`tradecraft' of spying . Theirs are the most sophisticated of operations, necessarily so because of the sophisticated nature of their targets, whether hostile
intelligence agencies or organized criminal groups.
The use of undercover operative s
18 . The general manner of using undercover operatives in the Security
Service differs significantly from their use in criminal investigations . In the
latter they are used mainly to obtain evidence for prosecutions, of which drug
related charges form a significant part . Consequently, sources in criminal
investigation work, like undercover members in such work, expect that their
relationship with the R .C .M .P. will be exposed (or, in the vernacular of
security and police work, that they will be `burned') in a relatively short time
- a matter of perhaps months, not likely more than a year . However, the
Security Service seldom uses sources primarily for the collection of evidence
for use in court ; in the vast majority of cases the hope of the Security Service is
that the source will provide information over a matter of at least months and
frequently years without being `burned' . One such case came to public attention with the testimony of Warren Hart before this Commission . Mr . Hart
testified that he had been recruited by the R .C .M .P. from the United States
and directed to infiltrate a radical Black movement in Canada . A false
immigration record was arranged for him in order to enhance his credibility .
Mr . Hart succeeded in penetrating the movement and related information to
the R .C .M .P . while posing as a bodyguard for Roosevelt Douglas, one of the
leaders of the movement .
19. If the source acquires information which is evidence of a crime, the
Security Service may decide to lay charges, in which case it will do its utmost
to preserve the `cover' of the source by encouraging the police to obtain the
same or other evidence by their own means . If that approach succeeds, the
source will not have to testify and can thus continue to operate as a source in
the same group or at least in the same milieu . The security intelligence
agency's source will in any event not always acquire evidence of a crime . Even
if he does acquire such evidence, for example, evidence of espionage, the main
interest of the Security Service will not ordinarily be to prosecute the foreign
intelligence officer who may have committed the offence . An attempt may be
made to `turn' the intelligence officer into a double agent or to have him
declared persona non grata by the Department of External Affairs, or otherwise to neutralize his effectiveness while at the same time preserving the
source's cover .
20 . The practice of using undercover operatives in police and security intelligence work is well established in Canada and represents an important and
valuable technique in criminal and security investigations . In the Supreme
Court of Canada decision in Kirzner v . The Queen, Chief Justice Laskin
referred to the use of spies and informers as "an inevitable requirement for the
detection of consensual crimes and of discouraging their commission .", The
Home Office in England expressed similar sentiments in a 1969 statement :
'[1978 ] 2 S .C .R . 487 at p . 493 .
299
�If society is to be protected from criminals, the police must be able to make
use of informants in appropriate circumstances . Informants, appropriately
employed, are essential to criminal investigations . . z.
21 . The Report of the Canadian Committee on Corrections stated that :
One of the most important aspects of police work in the field of crime
prevention and the detection and apprehension of offenders involves the
gathering of information with respect to intended crimes and the organization of criminal groups .
. . .Traditionally, information as to intended crimes has been obtained from
informers and undercover agents . 3
22 . In a recent statement, Mr. Philip B . Heyman, Assistant Attorney General, Criminal Division of the United States Department of Justice, referred to
undercover techniques as a " . . minimally intrusive, powerfully effective
.
weapon to detect, combat and deter the most serious forms of crime . . ... °.
23 . United States Attorney General Edward Levi, in 1976, noted in setting
forth guidelines on F .B .I . use of informants in domestic security and criminal
investigations that informants may often be essential to the effectiveness of
properly authorized law enforcement investigations .' A number of other
American studies have stressed the importance of the human source in
criminal, particularly drug, investigations . 6
24 . In the R .C .M .P . Security Service, the use of undercover operatives is
greatest in investigating domestic groups in Canada . A senior Security Service
official stated to us, in the course of a briefing on the subject in February 1980,
that undercover operatives are the "bread and butter" of Security Service
operations . The vital importance of information provided to a security intelligence agency cannot be stated better than it was by the Royal Commission on
Security :
285 . All security activities depend upon information . The adequacy of
appreciations and judgments can be no better than the information available. Without accurate and full information, the perception of the threat by
the security authorities, and thus by the government whom they advise, will
be less than satisfactory . Unimportant threats may be overemphasized,
significant threats may be overlooked, and vital counter-measures -may not
be taken .
2 The guidelines were contained in the Home Office Consolidated Circular to the
Police on Crime and Kindred Matters, (Section 1, para . 92) .
Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice
and Corrections, Ottawa, 1969, at p. 75 .
° Testimony before the Subcommittee on Civil and Constitutional Rights of the
Committee on the Judiciary - House of Representatives (March 4, 1980) .
' Attorney General's Guidelines for F.B.I. Use of Informants in Domestic Security ,
Organized Crime, and Other Criminal Investigations, Washington, December 15 ,
1976 .
6 See e .g ., J .H . Skolnick, Justice Without Trial: Law Enforcement in Democrati c
Society, New York, John Wiley & Sons, 1966, at p . 133 ; J . Wilson, The'Investigators: Managing F.B.I. and Narcotics Agents, New York, Basic Books, 1978, at p . 58 .
300
�288 . Human agents are one of the traditional sources of intelligence and
security information, and any security service is to a large extent dependent
upon its network of agents, on the scale of their penetration of or access to
useful targets and on their reliability . Operations involving human sources
require the most sophisticated handling by trained men with wide experience . Nevertheless, in spite of the difficulties associated with some of these
operations, . we regard them as essential to an effective security posture . We
would go further, and suggest that it is impossible fully to comprehend or
contain the current threats to security - especially in the field of espionage
- without active operations devoted to the acquisition of human sources . '
We accept and endorse these statements emphasizing the utility of undercover
operatives . Next we turn to violations of the law that have stemmed from these
undercover operations during recent years . Before proceeding, however, we
wish to note that since the Supreme Court of Canada's judgment in the
Kirzner case there has been a view at very high levels of the R .C .M .P . that
Chief Justice Laskin's language in that case is authority for the commission of
offences by R .C .M .P. informers . In our opinion there is nothing in Chief
Justice Laskin's judgment that supports the view that illegal conduct by an
informer is or will be countenanced by the law .
B. LEGAL AND POLICY ISSUES ARISING FROM THE
ACTIVITIES OF UNDERCOVER OPERATIVE S
25 . In this section, we shall examine possible violations of federal, provincial
and municipal laws which may have been committed in the course of undercover operations and civil wrongs which may have occurred during such
operations . These potential illegalities fall within the following general
categories :
(a) violations of laws which require the accurate identification of persons and
property;
(b) breaches of statutes such as the Income Tax Act, the Canada Pension Plan
Act, and the Criminal Code arising out of payments made to sources and
the encouragement of sources not to declare as income payments received
from the Force for work on its behalf.
(c) violations of the Criminal Code and provincial laws during acts done to
gain acceptance or maintain credibility with target groups ;
(d) the breach of statutory prohibitions against possession and delivery of
controlled or restricted substances or narcotics by undercover operative s
investigating drug offences ;
(e) violations of laws forbidding breach of trust by public officers and interference with confidential relationships as a result of practices connected with
the recruitment and treatment of sources ;
(f) offences under the Criminal Code which may occur through the removal of
the property of others by an undercover operative and its delivery to the
police ;
(g) civil wrongs .
' Report of the Royal Commission on Security, Ottawa, 1969 .
301
�Each of these areas will be considered separately .
(a) False documentation and registratio n
26 . In the previous chapter we examined the use of false identification
documents ( support documentation) in relation to physical surveillance operations, where such documents were needed to maintain an operation's secrecy .
An even greater need for support documentation arises in the use of undercover
operatives . Some targets of the Security Service and, increasingly, suspects in
criminal investigations go to considerable lengths to verify the identity of
individuals who seek to gain access to their organizations . Convincing support
documentation is essential . To disguise effectively an operative's identity is not
only a strategic necessity, it is essential for the physical safety of the operative,
both during the actual operation and afterwards when it is sometimes necessary to relocate a threatened operative and to provide him with a completely
new identity . We may comment further in a future Report on the need to
protect the identity of sources, but at this time we withhold our comments
pending the decision of the Supreme Court of Canada in Solicitor General et
al v . The Royal Commission of Inquiry with respect to the Confidentiality of
Health Records in Ontario et al . 8
27 . As explained earlier, the need for false documentation arises primarily in
long-term, deep-cover operations . Casual sources do not ordinarily disguise
their true identities ; only their affiliation with the R .C .M .P . is kept secret .
There .is nonetheless an occasional need for false identification even for casual
sources . When meeting, frequently in hotels, sources and their handlers have
misrepresented their identities in order to avoid detection by their targets, who
may have checked hotel registers and bribed hotel managers in order to obtain
information about encounters with Criminal Investigation Branch or Security
Service officers . Meetings between a member of the Security Service and a
potential defector provide one example of the type of operations which have
been kept secret, both for diplomatic and operational reasons .
28 . The kind of support documentation used varies with the operation
involved . Several common types of false documentation have been brought to
our attention . They include :
- driver's licence s
- S .I .N . cards
- passports
- credit card s
- motor vehicle registrations
- licence plate s
- birth certificates
- education certificates
e The decision of the Ontario Court of Appeal, dated May 10, 1979, has not been
reported .
302
�29. The use of false documentation has resulted in the commission of a
number of offences by undercover operatives, and by their handlers . These
offences relate primarily to provincial highway traffic legislation (drivers'
licences, licence plates, vehicle registrations), provincial hotel registration
legislation (requiring registration in the guest's proper name) and a number of
Criminal Code offences relating to forgery . In the previous chapter we
examined in some detail these same legal difficulties as they arose in the
context of physical surveillance operations . The issues here, for the most part,
are identical, except that the broader range of identification documents
necessary for undercover operatives means that more statutes may have been
violated . In addition, one offence that we did not consider a problem in
physical surveillance operations poses one in undercover operations because of
the greater variety of cover or support documentation needed . It arises when
documents for undercover operatives may have been obtained to substantiate
the operative's cover story as to his date and place of birth, his supposed
marriage etc . . If the documents were forged or if the documents were obtained
through making a false statement in an application, and a record of such false
information was inserted in a register, an offence may have been committed by
those who caused the entry to be made . Section 335 of the Criminal Code
reads :
335 . (1) Every one who unlawfull y
(b) inserts or causes to be inserted in a register . . an entry, that he knows
.
is false, of any matter relating to a birth, baptism, marriage, death or
burial, or erases any material part from such register . . .
is guilty of an indictable offence and is liable to imprisonment for five
yea rs .
(b) Complying with fiscal
relationship s
statutes relating to employer-employee
(i) Non-declaration of income and non-payment of ta x
30 . Sources may have been given a number of concessions in exchange for
their assistance . The payment of money is a practice by police and security
forces in many countries . The Security Service policy reflects the widespread
acceptance of this practice :
The secret expenditure of public funds on human source operations is
recognized as a legitimate and necessary practice in the pursuit of intelligence gathering . It would not be possible to acquire a sufficient number of
sources without provision to compensate them for their efforts and
expenses .
Yet payments to sources threaten to reveal their covert role. Hence, care has
been taken to ensure that payments do not attract attention . While the C .I .B .
has no policy in this regard, Security Service policy until 1977 had been that
sources should be instructed never to include payments in calculating taxable
income . The policy read :
303
�All ;sources should be warned that any monies received from the Security
Service must never be declared as income on their income tax returns .
However, if part or all of such monies is retained in a manner which pays
interest, such interest must be declared to avoid the attention of the tax
department .
The policy was cancelled in November 1977, when its propriety came under
review .
31 . It is an offence under section 239(1) of the Income Tax Act for an
individual to make false or deceptive statements in his income tax return .
Where Security Service officers have advised their sources not to declare
payments from the Force as income, those officers may have committed an
offence .
(ii)
Employment relationship betwen R.C.M.P . and sources
32. There are other statutes which require an employer to deduct money from
remuneration due and to remit it to government . An example is the Canada
Pension Plan Act . The R .C .M .P . has acted as if no source is ever an employee
for the purposes of such statutes . While we have no doubt that that view is
correct in law in regard to most sources, we also are convinced that in some
cases a source is an employee of the R .C .M .P . within the meaning of the
general law and the statutes in question . For example, Warren Hart was a paid
full-time source of the R .C .M .P . Security Service from 1971 to 1975 . We think
that the tests that the law applies to determine whether a person is an employee
(not an independent contractor) were satisfied in his case : the Security Service
could order or require what was to be done, as to the details of the work ; his
work was an integral part of the "business" of the Security Service, not merely
accessory to it ; he was "part and parcel of the organization" ; and he put his
personal services at the disposal of the R .C .M .P . during some period of time
and did not merely agree to accomplish a specified job or task .9 We consider
that the R .C .M .P . should address these issues in this light and recognize that
non-payment and non-disclosure, particularly in the case of full-time sources,
may give rise to breaches of the law . In Part V, Chapter 4 we shall make
recommendations that the government should seek legislative amendments to
overcome these practical difficulties - amendments similar to those referred
to above in regard to the declaration of income tax .
(c) Acts done to gain acceptance or to maintain credibilit y
33 . Ttie most significant and intractable problem which arises in undercover
operations, particularly those carried out by the Security Service, is the
commission of unlawful acts by operatives in order to gain or maintain
acceptance by the targetted individual or group . Sometimes, it is only by
' These tests are found in such cases as Collins v. Herts County Council [ 1947] K . B .
598 ; Lambert v . Blanchette (1926) 40 Q . B . 370 (Que . C . A .) ; Stevenson London and
Harrison Ltd. v . Macdonald and Evans [1952] 1 T .L .R . 101 at 111 (Eng . C .A .) ;
Bank Voor Handel en Scheepwaart v . Stratford [1953] 1 Q .B . 248 at 295 (Eng .
C .A .) ; Alexander v . M.N .R. [1970] Ex . C .R . 138 at 153 (Exch . Ct .) .
304
�engaging in such conduct that the operative will advance to responsible
positions within a target group, and therefore increase his access to valuable
information .
34 . A useful example is afforded by a case which came to public notice in
1977 when a long-term, deep-cover operative placed by the Security Service
gave evidence at the trial of criminal charges laid against leaders of the
Western Guard Party . The Western Guard Party professed an extreme ideology of which the chief tenets were racism, anti-Semitism and strident anti-Communism . It was suspected of being responsible for a rash of spray paintings
which had defaced public and private property in Toronto in the early and
mid-1- 970s . More seriously, the Security Service suspected in 1975 that the
Western Guard planned to disrupt the 1976 Olympic Games, some of which
were to be held in Toronto. That the Toronto segments included a soccer game
involving the team from the State of Israel lent a particular urgency to the
investigation . The Security Service recruited Robert Toope, who had come to
its notice by reason of stories in the press concerning his anti-union activity at
his place of business . With a view to using that publicity as a foundation for his
cover story in applying to join the Western Guard, the Security Service sent
Mr . Toope to Western Guard headquarters, where he was accepted and given
membership . Mr . Toope testi fi ed at the trial of the accused that his involvement in the Western Guard Party fell roughly into four phases :
(i) The first phase included his initial penetration, his acceptance as a
member and then as a group leader, his involvement in the distribution of
- the Guard's literature and then in pasting its posters on public sites, all of
which occurred between May and September or October 1975 .
(ii) Immediately thereafter, two events occurred which signalled the second
phase of his penetration, deepened his involvement and led to his participation in acts and conspiracies of a more serious sort . The first event was the
arrival of one "A", a new member who had a penchant for aggressive,
violent behaviour . The second was the issuance of instructions by the
Guard's leader to engage in a broader category of crime . Thereafter and
through the late autumn of 1975 until February of 1976, Mr . Toope took
part with "A" in spray painting incidents, and acted as a driver on
occasions when "A" threw bricks through windows . As Mr . Toope became
more and more concerned about "A's" propensity for violence and his
increasingly uncontrollable behaviour, he expressed to his handler a desire
to reduce his involvement . As a result, in about February of 1976,
Mr . Toope told the Guard's leader that he no longer wished to accompany
"A" on his missions . He gave as his excuse his concern for his family's
welfare should he be caught .
(iii) In the weeks following, the quantity and quality of Mr . Toope's information waned . In about March 1976, the source and his handler decided that
he should broaden his role again, but within certain limits . Specifically, it
was agreed that Mr . Toope would attempt not to go out with "A", but
rather would try to involve other members in such expeditions, with the
hope that the presence of others would discourage "A's" impulsive an d
305
�dangerous tendencies . As well, Mr . Toope and his handler agreed that if
he was to be involved at all in acts such as throwing objects through
windows, his involvement would be strictly limited to driving the others to
the scene .
(iv) In this fourth and last phase of Mr . Toope's involvement, he won once
again the trust and confidence of the group . He was therefore able to
obtain information which led to the arrest of the members before they had
an opportunity to disrupt the Olympic soccer game at Varsity stadium .
The Guard group had planned to throw smoke bombs onto the field during
a game between the Israeli team and a team from South America .1 0
35 . While unlawful acts to gain admission or enhance credibility pose problems in undercover operations on both the criminal investigation and Security
Service sides of the Force, senior officers in the criminal investigation side have
reported that such violations in their work have been limited primarily to drug
investigations, and result from the narrowness of the statutory exemptions
available in the Narcotic Control Act and the Food and Drugs Act for police
and persons acting pursuant to their instructions . (For a discussion of those
violations, see below . )
36 . In order to determine the extent and prevalence of such unlawful acts on
the Security Service side, the Commission asked the present Deputy Director
General (Operations) of the Security Service to request certain Area Commanders in the Security Service to assess the frequency with which such
violations have occurred in the past, and to give their opinion whether
undercover operatives need to violate laws in order to work effectively . At our
request a message to this effect was sent on February 22, 1980 to certain Area
Commanders . We selected those Area Commands because they have been the
areas in which most use has been made of undercover operatives in the past two
decades, and they would therefore be the Area Commands most likely to be
able to give us evidence as to "extent and prevalence" . It asked how often in
the past 20 years there had been a "real need" for undercover operatives to
commit criminal acts, and whether there had been intelligence operations
which could not be commenced because criminal acts were known to be
required of new members in the target group . Area Commanders were also
asked to survey members in their command and ex-members in order to
identify cases which would illustrate the extent and prevalence of violations .
37 . One Command identified eight operations in which undercover operatives
had either committed violations or had been asked by the target group to do so .
The violations included mischief to property, fraud, failure to declare income,
and theft under $200 .00 . In one case, the source had been asked to obtain
certain articles the possession of which is illegal . The source was instructed by
his handlers to obtain some of the items and abided by that instruction . The
source was not instructed regarding others because his handlers were confident
that he would not become involved in the matter . In another case a source . was
10 Trial transcript, Regina v . Andrews et al, Criminal Assizes Court, Judicial District
of York (Toronto, Ontario), 1977, before His Honour Judge Graburn and a jury .
306
�asked by a target group to participate in a financial fraud . Group leaders
eventually decided to involve a different individual, and it appears that in any
event the fraud did not take place .
38. Another Area Command identified two cases in response to the inquiry
from Headquarters . In one, an undercover operative committed theft under
$200 .00 in order to enhance his acceptance by a`target group and was later
credited with preventing the commission of a serious crime . In the second case,
an undercover operative was directed by the target group to plan and carry out
a physical assault upon an enemy of the group . When the advice of Headquarters was sought by the field office involved, indirect steps were counselled
which would discourage the group leaders from pressing the attack, but it was
acknowledged by one senior officer that it might well be necessary for the
operative to carry out a simple assault in order to maintain his cover . The Area
Command has advised us that "there is no indication on the source file that
this was ever pursued further" .
39. Another Area Command reported no new cases, saying that all such
operations were already before this or other Commissions .
40. We have encountered additional cases in which undercover operatives
have violated laws . In some, operatives took part in illegal demonstrations . In
others, they purchased or possessed restricted weapons ; purchased and possessed explosives without appropriate permits ; obtained access to confidential
information in contravention of the governing statute ; committed mischief in
relation to private and public property and caused wilful damage to property .
41 . We wish to remark in particular about a practice which is common to
both the Criminal Investigation Branch and the Security Service - participation by the undercover operative in the planning of a crime . From our reading
of its policies, we have observed that the R .C .M .P . has been concerned that
such conduct itself amounted to a violation of law (as the offence of conspiracy) . We consider that such conduct is not unlawful so long as the operative
does not intend to take part in the act being planned . The Supreme Court of
Canada in Regina v . O'Brien" held that a mere agreement to commit an
indictable offence, without the intention to carry into effect the common
design, is not sufficient to constitute the offence of conspiracy . For the
operative to commit the offence of conspiracy, therefore, he would not only
have to agree but also to intend to put the common design into effect . If the
rest of the conspirators did so intend, they could be convicted of conspiracy .
(d) The Food and Drugs Act'z and the Narcotic Control Act "
42 . In drug investigations, an undercover member or source necessarily
adopts the guise and mannerisms of individuals whô typify the drug community . In the course of playing the part of an addict or trafficker, the undercover
operative may be asked to handle, administer or deliver drugs . Crimina l
" [1954] S .C .R . 666 .
1z R .S .C . 1970, ch .F-27 .
R .S .C . 1970, ch .N-l .
307
�investigation officers have repeatedly stressed that such acts- are essential to
attaining and maintaining credibility in the drug community . However, under
existing law, such acts may, depending on the circumstances, result in the
commission of drug offences by the operative .
43 . Drug offences are defined in the Narcotic Control Act and the Food and
Drugs Act . Section 3 of the Narcotic Control Act prohibits the possession of a
narcotic. Section 4(l) of the Act provides that "no person shall traffic in a
narcotic or any substance represented or held out by him to be a narcotic" .
Section 4(2) provides that "no person shall have in his possession any narcotic
for the purpose of trafficking" . The expression "traffic" means "to manufacture, sell, give, administer, transport, send, deliver or distribute", or to offer to
do any of these activities . Section 5 of the Act states that except as authorized
by this Act or the regulations, "no person shall import into Canada or export
from Canada any narcotic" . Section 34(1) of the Food and Drugs Act prohibits
trafficking in a controlled drug or any substance represented or held out to be a
controlled drug . Possession of any controlled drug for the purpose of trafficking
is prohibited under section 34(2) . In this section, the expression "traffic"
means "to manufacture, sell, export from or import into Canada, transport, or
deliver", otherwise than under the authority of Part III of the Act or the
regulations . There is no offence of possession of a controlled drug simpliciter.
Under section 41(1), it is an offence to possess a restricted drug . Section 42(1)
prohibits trafficking in a restricted drug or any substance represented or held
out to be a restricted drug, and section 42(2) prohibits possession of a
restricted drug for the purpose of trafficking . The expression "traffic" has the
same meaning as it does in the context of controlled drugs .
44. We now examine a number of problem situations which ar`ise in connection with drug investigations as such problems were presented to us in meetings
with senior officers from the R .C .M .P .'s Criminal Investigation Branch .
(i) The Commission or Kickback/Trafficking Situation : In making a purchase of narcotics directly from, or as a result of an introduction by a
middleman, the undercover operative frequently has been expected to
comply with the custom of the trade by giving a small percentage of the
purchase to the middleman as a commission . Under present legislation,
the undercover operative would be committing the offence of trafficking .
(ii) The Administering/Trafficking Situation : In the course of their associations with addicts, undercover members or sources (the latter of whom
may themselves be addicts) have been asked by the addict to administer or
assist in administering the drug . As in the "kickback" situation described
above, administering a drug may_constitute the offence of trafficking .
(iii) The Passing On/Trafficking Situation : Again, because of their required
association with drug users, undercover operatives have been called upon
to "take a joint" of marijuana, sniff cocaine, or even inject heroin .
Undercover members have been instructed to simulate the act where
possible or, if necessary, refuse the drug and pass it on . By passing on the
drug, the undercover member may commit the offence of trafficking .
Undercover sources, who may be regular users in any event, have bee n
308
�given no instructions to simulate the use of the drug . Nonetheless, in
passing on the drug, they may also have committed the offence of
trafficking .
(iv) The Offering/Trafficking Situation : As part of establishing and maintaining credibility, undercover members have been encouraged to offer drugs
for sale, but never to carry through such an `offer by actually making a
sale . This has been a regular operational practice . Undercover sources
(who are sometimes established traffickers) have generally been allowed
to operate as they normally would . Often this has meant that sources are
permitted to continue their possession or trafficking of drugs . In the case
of both members and sources, the offence of trafficking may have been
committed .
(v) The Distribution/Trafficking Situation : The "controlled delivery" of narcotics is another operational technique which has raised questions of
legality . In order to gain sufficient evidence or intelligence to implicate the
principals in illicit drug organizations, decisions have been made to "sacrifice" an amount of drugs (normally only a small amount) for distribution
to users in order to avoid the target's suspicion that would arise when a
quantity of drugs destined for the "market" did not arrive . Evidence led at
a'recent British Columbia Supreme Court drug trial illustrates this operational technique .14 C .I .B . handlers, after taking samples of a drug supplied
to their source by the target, permitted the source to sell the remaindér of
the drug for this very reason . 'Sacrifices' have also occurred in 'Test Run'
situations, where an international drug enterprise, having set up a major
deal with an undercover operative to import drugs into Canada, will first
run a comparatively small amount through the planned route before
delivery of the main shipment . Where undercover operatives have become
directly involved as couriers, they may have committed the offences of
importing and trafficking .
(vi) Possession : Section 3(1) of the Narcotic Control Regulations15 states in
part :
3 . (1) A person is authorized to have a narcotic in his possession where
that person has obtained the narcotic pursuant to these Regulations and . . .
(g) is employed as an inspector, a member-of the Royal Canadian Mounted Police, a police constable, peace officer or member of the technical
or scientific staff of any department of the Government of Canada or
of a province or university and such possession is for the purposes of
and in connection with such employment .
The apparent breadth of section 3(1) is limited by the requirement that the
narcotic be obtained "pursuant to these Regulations" . We do not think that
when an undercover member comes into possession of a narcotic while investigating narcotic trafficking, he is protected by this section . While the member
does have possession "for the purposes of and in connection with suc h
14 Reported on appeal in Regina v . Ridge, (1979) 51 C .C .C . (2d) 261 (B .C .C .A .) .
15 C .R .C ., ch .1041 .
309
�employment", he has not obtained the narcotic "pursuant to these Regulations" . The Regulations provide protection only in the specific case of an
R .C .M .P. member being supplied the narcotic by a licensed dealer (section
24(2)) . A provision similar to section 3(1)(g) is incltided in the part of the
Food and Drugs Regulations16 dealing with restricted drugs . (It will be recalled
that there need be no corresponding exemption in the case of a controlled drug,
as possession of that drug is not an offence) :
J .01 .002 . The following persons may have a restricted drug in their
possession :
(c) an analyst, inspector, member of the Royal Canadian Mounted Police,
constable, peace officer, member of the staff of the Department of
National Health and Welfare or officer of a court, if such person has
possession for the purpose and in connection with his employment .
Unlike the Narcotic Control Regulations, however, the Food and Drugs
Regulation does not cover possession by sources . In addition to the exemptions
described above for the possession of a narcotic, the Minister may, pursuant to
the regulations, authorize possession of a narcotic as follows :
68 . (I) Where he deems it to be in the public interest, or in the interests of
science, the Minister may in writing authorize
(a) any person to possess a narcotic ,
for the purposes and subject to the conditions in writing set out or referred
to in the authorization .
These authorizations for possession of narcotics and restricted drugs must,
however, be read in light of the comments of Mr . Justice Laskin, when he was
still a member of the Ontario Court of Appeal, in Regina v. Ormerod ." At that
time, the Regulation read as follows :
An inspector, a member of the Royal Canadian Mounted Police, constable
or peace officer or member of the technical or scientific staff of any
department of the Government of Canada, of a Province or university, may
be in possession of a narcotic for the purpose of, and in connection with, his
employment therewith .
His Lordship limited the effect of the section (now section 3(1)(g) of the
Narcotics Control Regulations, and similar to section J .01 .002 of the Food and
Drugs Regulations) by holding that the Regulation did not protect an undercover member of the R .C .M .P. who had purchased narcotics and therefore had
"possession as a direct consequence of trafficking which ensues from solicitation by a policeman" .18 It may be argued nonetheless that the member and
even his source would have a defence if charged with possession since the
courts have held the offence of possession to involve a degree of control which
would not be present if the possession was solely for the purpose of furthering
the investigation and the person in possession had the immediate intention of
turning the drug over to the police . In long-term undercover operations ,
16 C .R .C ., ch .870 .
"[ 1969] 4 C .C .C . 3, at p . 13 .
1e Ibid., at p . 240 .
310
�however, it is not always the member's or source's immediate intention to turn
the drug over to the police . The six operations described earlier in this
paragraph, although they may be unlawful, have been referred to us by the
R .C .M .P . as vital to the successful prosecution of drug-related offences .
(e) Breach of trust and interference with confidential relationships
(i) Section 111, Criminal Code of Canad a
45. When a source who is the employee of a government discloses information which he is bound by his office to keep in confidence, the issue arises as to
whether the source has thereby committed a breach of trust as that offence is
defined by section 111 of the Criminal Code .
46. The concept of "breach of trust" in this context is very elastic and
flexible . It includes any malfeasance in office . The leading case on the subject
in Canada is Regina v . Campbell,19 a decision of the Ontario Court of Appeal .
That Court emphasized that there may be guilt even for negligence . From this
it follows that it is not essential, in order to obtain a conviction, that the official
have the intent to injure the government . In our view all that the prosecution
need prove is that the official intended to do the act complained of - i .e . the
communication of the information . It follows that it would be no defence that
the official believed that he was acting in the public interest, or in the interest
of national security . In Regina v . Arnoldi,20 Chancellor Boyd said :
The gravity of the matter is not so much in its merely profitable aspect as in
the misuse of power entrusted to the defendant for the public benefit, for
the furtherance of personal ends . Public example requires the infliction of
punishment when public confidence has thus been abused . . . .
Thus, payment for the information would enhance the probability that a
prosecution would result in conviction . A . source in government, paid monthly
by a security intelligence agency for the provision of confidential information
received by him because of his public position, would likely be guilty under this
section unless the information were evidence of the commission of a crime . (In
the latter case he would be carrying out a citizen's duty that is recognized by
the law .) However, payment would not be necessary for conviction . It simply
makes conviction more likely because the payment of money would lessen the
possibility that a jury would be impressed by the protestation of the defence
that what the official did was for love of country .
47. The foregoing conclusion applies whether the government in question is
federal, provincial or municipal, provided that the information is of a type
which it is his duty not to divulge . If the government in question were a
provincial government, and the security intelligence organization asked an
official of that government to report to it information concerning that government's dealings with foreign powers, no doubt it might be contended on behalf
of the security intelligence organization, and on behalf of the official if he were
prosecuted, that he was providing information concerning matters which, in th e
" [1967] 3 C .C .C . 250 .
20 (1893), 23 0 . R . 201 ai p . 212 .
311
�circumstances, were not legitimate operations of a provincial government and
were within the sole legitimate concern of the federal government . However,
while a jury might not convict if it were satisfied that the official's concern was
genuinely limited to protecting Canada against unacceptable foreign intervention, we still think it probable that an offence is committed in those
circumstances .
48 . Moreover, the information provided may inevitably stray from the narrow
limits intended and include other confidential information about perfectly
proper provincial government plans and policies . Plans and policies might be
disclosed which concern matters under negotiation or future negotiation with
the federal government, or the negotiations of provincial governments with
foreign governments or privàte interests concerning economic matters . In that
event, the argument that there is no offence committed evaporates, and in
addition there is a very serious constitutional and political issue of a policy
nature involved if the federal government through its security intelligence
agency obtains confidential information about the policies and plans of a
provincial government .
49. If an offence is committed by such a source, the members of the security
intelligence organization handling the source, encouraging the source to provide such information and perhaps even paying him a regular honorarium,
would be guilty either of conspiracy or of being accessories to the offence itself .
50. A second problem presented by section 111 arises when the R .C .M .P.
refrains from bringing criminal charges so as not to compromise undercover
operations .
51 . Undercover operations often allow the R .C .M .P . to learn about crimes
which the target has committed or plans to commit, but it is not always
consistent with the objectives of the investigation immediately to arrest and
charge the target with the known or anticipated offence or conspiracy . For
example, an undercover operative in a drug investigation may observe scores of
violations of drug laws among those he has infiltrated, but his handler may
decide to await a larger, more serious transaction before arranging the arrest of
those responsible . Even then, some offenders may never be charged, because
the Force intends to use them as unwitting tools in order to acquire evidence
against "more important" offenders . This practice is known as "targetting
upwards" . On the security side, an operative may report on crimes committed
by a target over a period of years without charges being laid, since the object of
his mission may be to obtain continuous intelligence information about a
long-term threat to security .
52. All R .C .M .P . members are sworn to an oath of office which requires
them both to obey their lawful orders and "faithfully, diligently and impartially" to perform their duties . Since their duties include those assigned to peace
officers in the preservation of peace, the prevention of crime and offences
against the law and the apprehension of criminals and offenders, the question
arises whether they violate section 1 11 by enforcing laws "selectively" . Section
111 of the Criminal Code of Canada reads as follows :
312
�Every official who, in connection with the duties of his office, commits
fraud or a breach of trust is guilty of an indictable offence and is liable to
imprisonment for five years, whether or not the fraud or breach of trust
would be an offence if it were çommitted in relation to a private person .
The Supreme Court of Canada has held that section 1 1 1 of the Code applies to
a person who holds an office within the definition of that word in section 10721
and also a person holding an office within the usual meaning of the word
"office" . The Court took notice of the broader dictionary definition which is, in
part, "A position of duty, trust or authority, especially in the public service, or
in some corporation, society or the like" (per Chief Justice Fauteux, in Regina
v . Sheets22) . It is therefore beyond doubt that a member of the R .C .M .P. is an
"official" within the meaning of that word as used in section 111 of the Code .
Given that fact, is omitting to enforce the criminal law immediately upon
learning of each and every crime a "breach of trust . . . in connection with the
duties of his office . . ." ?
53 . The phrase "breach of trust" as it appears in the section has been given a
broad, non-technical interpretation by the Courts . Its meaning is not confined
to the rules and concepts of the law of trusts and fiduciaries . Nor is there any
requirement that there be a "trust property" . In the case of Regina v .
Campbell,z' the Court of Appeal for Ontario said :
I n our opinion s .103 [now Ill] is wide enough to cover any breach of the
appropriate standard of responsibility and conduct demanded of the
accused by the nature of his office as a senior civil servant of the Crown . . .
The question which will have to be determined and which has not been
considered is whether Campbell by reason of his dealings and actions
abused the public trust and confidence which had been placed in him by his
appointment as a servant of the Crown and thereby did he or did he not
commit a breach of trust in relation to his office ?
A later passage in the same judgment makes it clear that the Court of Appeal
accepted the term "trust" in its widest sense :24
The situation has been very tersely summed up in the United States . For
example, in the American Words and Phrases, Permanent Edition, Vol . 29,
p. 250, there is the following note :
"An 'office' has been defined as 'a special trust or charge created by
competent authority' ; more tersely still 'a public office is a public trust .'
. . . Gracey v . City of St . Louis, I I 1 S .W . 1159, 1163 . "
21 Section 107 defines "office" as follows :
"office" includes
(a) an office or appointment under the government,
(b) a civil or military commission, an d
(c) a position or employment in a public department,
22 (1971) I C .C .C . ( 2d) 508 at 513 .
23 [ 1967] 3 C .C .C . 250 .
24 Ibid., at p . 257 .
313
�The respondent suggests that the possible use of the word "trust" to
implicate "confidence" is a colloquial usage . While it is perfectly true that
the term "trust" is a term of art in the legal field of equity the Shorter
Oxford Dictionary at p . 1362, gives the following meaning for the word
"office" :
4 . A position to which certain duties are attached, especially a place of
trust, authority or service under constituted authority, M .E . e .g . The Office
of Coroner .
54 . There are many ways in which a public official can breach his trust in
office . He may accept a bribe, or neglect his job through laziness . Those types
of breach of trust are not relevant to the present discussion . Rather, the
question for present consideration is whether a deliberate omission to enforce
the law in certain circumstances may constitute a breach, notwithstanding that
it is motivated by the honest belief by the officer that he is acting in the best
interests of the public .
55 . The English Court of Appeal has had occasion in recent times to consider
this question in R. v . Metropolitan Police Commissioner, ex parte Blackburn,
(Blackburn No . 1) 2 5 and R . v. Metropolitan Police Commissioner, ex parte
Blackburn, (Blackburn No . 3) .26 In Blackburn No . I Mr . Blackburn sought
mandamus against the Metropolitan Police Commissioner to compel him to
enforce certain gaming and betting laws . A confidential instruction had been
issued by the Commissioner to senior officers of the London Metropolitan
Police, containing a policy decision not to prosecute gambling clubs fôr breach
of the gaming laws unless there were complaints of cheating or the clubs had
become the haunts of criminals . In the court of first instance, Mr . Blackburn
sought mandamus for three heads of relief . On appeal, he pursued only the
third head - a reversal of the policy decision embodied in the special
instruction . The Court of Appeal held that it was the duty of the Commissioner
and also of chief constables to enforce the law ; though chief officers of police
have discretion - for example, whether to prosecute in a particular case - the
court might interfere in respect of a policy decision amounting to a failure of
the duty to enforce the law . The following statements of Lord Denning, M .R .
are of interest:2 7
I hold it to be the duty of the Commissioner of Police, as it is of every chief
constable, to enforce the law of the land . He must take steps so as to post
his men that crimes may be detected ; and that honest citizens may go about
their affairs in peace . He must decide whether or not suspected persons are
to be prosecutéd ; and, if need be, bring the prosecution or see that it is
brought ; but in all of these things he is not the servant of anyone, save of
the law itself . No Minister of the Crown can tell him that he must, or must
not, keep observation on this place or that ; or that he must, or must not,
prosecute this man or that one. Nor can any police authority tell him so .
The responsibility for law enforcement lies on him . He is answerable to the
law and to the law alone .
25 [1968] 1 All E .R . 763 (C .A .) .
26 [1973] 1 All E .R . 324 (C .A .) .
27 Ibid., ai p. 769 .
314
�Although the chief officers of police are answerable to the law, there are
many fields in which they have a discretion with which the law will not
interfere . For instance, it is for the Commissioner of Police, or the chief
constable, as the case may be, to decide in any particular case whether
enquiries should be pursued, or whether an arrest should be made, or a
prosecution brought . It must be for him to decide on the disposition of his
force and the concentration of his resources on any particular crime or area .
No court can or should give him direction on such a matter . He can also
make policy decisions and give effect to them, as, for instance, was often
done when prosecutions were not brought for attempted suicide ; but there
are some policy decisions with which, 1 think, the courts in a case can, if
necessary, interfere . Suppose a chief constable were to issue a directive to
his men that no person should be prosecuted for stealing any goods more
than £100 in value . I should have thought that the court could countermand
it . He would be failing in his duty to enforce the law . ( Our emphasis . )
56. A similar issue arose in respect of police discretion in Blackburn No . 3 .
There Mr . Blackburn moved for an order of mandamus to direct the Commissioner to secure the enforcement of the law relating to obscene materials and to
reverse the decision of the Commissioner that no police officers would be
permitted to prosecute offenders against those laws without the prior consent of
the Director of Public Prosecutions . The Court of Appeal held that, although
the evidence disclosed that obscene material was widely available, the applicant
had not established that it was a case for the court to interfere with the
discretion of the police in carrying out their duties . Lord Denning, M .R .
concluded that :2 7
. . the police have a discretion with which the courts will not interfere .
.
There might, however, be extreme cases in which he was not carrying out
his duty . And then we would . I do not think this is a case for our
interference . In the past the commissioner has done what he could under
the existing system and with the available manpower . The new commissioner is doing more . He is increasing the number of the Obscene Publications Squad to 18 and he is reforming it and its administration . No more
can reasonably be expected .
57 . From the foregoing principles and authorities, we draw the following two
conclusions . First, generally, the decision in a given case to forbear in charging
an offender where investigation is continuing in respect of other offences
adjudged by the police as more serious, or in respect of other activities assessed
to be a greater threat to Canada, is a proper exercise of a peace officer's
discretion and will not constitute a breach of trust in connection with the duties
of his office, provided that the discretion is exercised in good faith and for
proper motives . Second, it will be otherwise where the forebearance amounts to
a complete failure to enforce the law, as, for example, where a known trafficker
in drugs is allowed indefinitely to continue in his crime with impunity, to the
knowledge of the police . We are enquiring into certain instances in which it has
been alleged to us that the R .C .M .P. has allowed a source who is a known
trafficker in drugs to continue trafficking with impunity upon the conditio n
281bid ., at pp . 331-2 .
315
�that he provide information about others when asked . In a future report we
shall consider those allegations in detail and make recommendations as to what
the practice should properly be .
(ii) Section 383, Criminal Code of Canad a
58. By virtue of section 383(1) of the Criminal Code of Canada, it is an
offence "corruptly" to give any form of benefit to an agent or employee in
exchange for that person doing any act or showing any favour in relation to the
principal's or employer's affairs or business . The issue arises whether in those
cases in which the R .C .M .P . has obtained information from a paid undercover
operative who is also an employee or agent, and in which the information
related to the principal's or the employer's business, the R .C .M .P . has committed the offence created by section 383(1) .
59. Section 383 of the Code is entitled "Secret Commissions -'Privity to
Offence - Punishment - Definitions" . It appears in Part VIII of the Code,
which is'entitled generally "Fraudulent Transactions Relating to Contrâcts and
Trade" . The section itself reads as follows :
383 . ( I) Every one commits an offence who
(a) corruptl y
(i) gives, offers or agrees to give or offer to an agent, o r
(ii) being an agent, demands, accepts or offers or agrees to accept from
any person ,
a reward, advantage or benefit of any kind as consideration for doing or
forbearing to do, or for having done or forborne to do, any act relating to
the affairs or business of his principal or for showing or forbearing to
show favour or disfavour to any person with relation to the affairs or
business of his principal . . .
(2) Every one commits an offence who is knowingly privy to the
commission of an offence under subsection (1) .
(3) A person who commits an offence under this section is guilty of an
indictable offence and is liable to imprisonment for two years .
(4) In this section "agent" includes an employee, and "principal"
includes an employer .
The offences generally resemble those dealing with bribery of public officials
created by sections 110 and 112 of the Code, and appear to be intended to
discourage similar evils respecting private master-servant and principal-agent
relationships .
60. In order for the offence to be committed, it need not be shown that the
giving of the information or the act done by the agent was in any sense
injurious to the principal's affairs, or even contrary to his best interests . It
would appear that the interest sought to be protected is the integrity of the
relationship itself, and that the gist of the offence is that a third party subverts
that integrity by paying the agent to do an act affecting the relationship .
61 . It is also noteworthy that the offence lies not in the performance of the
act or the exercise of favour but rather in the corrupt offer of or demand fo r
316
�reward . The act of the agent might itself be entirely proper, and indeed form
part of the .lawful duties which he is bound to perform . Nevertheless, an
offence is committed if reward is given in consideration of the act or
forbearance .
62 . In part, the section codifies the common law with respect to the fiduciary
obligations of agent and servant - specifically that they should receive no
secret profit or benefit. The receipt of a reward or benefit, and perhaps the
mere demand by the fiduciary for such an advantage, is a tortious breach of his
duty . However, it cannot be any breach of duty on the part of the agent or
employee if a third person offers him a secret advantage which he refuses,
although the third person may be criminally liable pursuant to section 383(1)
of the Code .
63 . Sections of the Code which prohibit bribery of those in public positions
refer only to the giving and accepting of benefits and rewards : the adverb
"corruptly" does not appear, as it does in section 383(1) . It would at first
appear that the word "corruptly" contained in section 383(1) adds an element
to the offence which would be lacking in the conduct of a police or security
officer in bribing an agent to inform on his principal . The defence would rest
upon the higher motive and lofty intent which inspired the bribe, the conduct
amounting to anything but "corruption" . That defence is not available, however, since there is clear and strong authority in Canada that the word
"corruptly" does not add an element which must be proven to establish guilt ;
rather, the word is redundant, since the act which is prohibited by the section
has been held to be intrinsically corrupt and so cannot be done under innocent
or extenuating circumstances . Perhaps the clearest illustration of the judicial
interpretation placed upon the section is afforded by R . v . Brown .128 In that
case, Mr . Justice Laidlaw, of the Ontario Court of Appeal, turned his attention
to the purpose for which the section was enacted :
The evil against which that provision in the Criminal Code is directed is
secret transactions or dealings with a person in the position of agent
concerning the affairs or business of the agent's principal . It is intended
that no one shall make secret use of the agent's position and services by
means of giving him any kind of consideration for them . The agent is
prohibited from accepting or offering or agreeing to accept any consideration from anyone other than his principal for any service rendered with
relation to the affairs or business of his principal . It is intended to protect
the principal in the conduct of his affairs and business against persons who
might make secret use, or attempt to make such use, of the services of the
agent . He is to be free at all times and under all circumstances from'such
mischievous influence . Likewise, it is intended that the agent shall be
protected against any person who is willing to make use secretly of his
position and services . . . In my opinion, the act of doing the very thing
which the statute forbids is a corrupt act within the meaning of the word
"corruptly" used in the section under consideration . I think that word was
19 The cases which have considered the section are R . v . Gross, [1946] 0 . R . 1 ; R. v .
Brown, [1956] O .R . 944 and R. v . Reid, [1969] 1 O .R . 158, all of which are decisions
of the Court of Appeal for Ontario.
317
�intended to designate the character of the act prohibited by the legislation .
If a person were to give a sum of money, secretly, to an agent for the very
purpose of having him do some act . .. it could not be said that he did not
intend to contravene the provisions of section 368[383], or that he acted
honestly or in good faith . It must be held that he intended to do the very
thing Parliament intended to prohibit . His act can be regarded only as a
corrupt act . In my opinion, it is not an answer in law for a person to say
that he believed he had a right to have a certain thing done by an agent's
principal, or that he believed that the agent ought to have done the act in
question with relation to the affairs or business of his principal . His belief in
respect of his rights does not justify his doing the very act intended to be
prohibited by law .' o
Mr. Justice Gibson, dissenting, would have concurred in the result on the
evidence but differed on the meaning of the word "corruptly" . He was unable
to agree that a payment honestly made would be corrupt, merely because it
amounted to the very act otherwise described in section 383 . He referred to the
common dictionary definition of "corrupt", and concluded that at the least, an
act done "corruptly" is done with an evil mind - with evil intention, and
except where there is an evil mind or intention accompanying the act, it is not
done corruptly . He concluded :
From the definitions it is difficult to understand how a corrupt act could be
honestly performed .
If the interpretation placed upon s .368[383] by the trial judge when he
recalled the jury is correct the word "corruptly" in the section is superfluous, and any payment to an agent for doing or forbearing to do any act
relating to the affairs or business of his principal is automatically an offence
- whether such payment is made with honest intentions or dishonestly .
This, in my opinion, goes beyond the true intent of the statute . "
64 . The rationale underlying Mr . Justice Gibson's dissenting view in Brown
was rejected by the English Court of Appeal in R. v . Smith .JZ There, the
accused had offered a bribe to a public official . When charged, he raised the
defence that he had done so with the altruistic intention of subsequently
exposing the corrupt public servant . It was held that his ulterior motive was
irrelevant . The accused acted "corruptly", as that word appeared in the statute,
because he deliberately did an act - i .e . conferred a benefit upon a person in a
defined class - which the statute forbade . In delivering the judgment of the
Court, Lord Parker, Lord Chief Justice, concluded that the object of such
legislation was to prevent public servants from being subjected to temptation .
The very act of offering was prohibited, and the word "corruptly" added
nothing to the Crown's burden in making out a case .
65. A second line of authority, emanating from English and Australian
courts, attaches some significance to the word "corruptly" . In an Australian
case, Rex v . Stevenson," Mr . Justice Hood considered the meaning of the word
30 [1956] O .R . 944 at p . 946 .
" Ibid ., at p . 962 .
9 2 [1960] 1 All E .R . 256 .
"[1907] V .L .R . 475 at 476 . (S .C . of Victoria) .
318
�"corruptly" in the Secret Commissions Prohibition Act, 1905 and -concluded
that in that Act, "corruptly" must mean some wrongful intention . In C. v .
Johnson, 34 the Supreme Court of South Australia examined the meaning of the
word "corruptly" in the Secret Commissions Prohibition Act, 1920 . Mr .
Justice Travers stated :
On normal legal principles one would expect that word [corruptly] to add
something to the meaning of the section . .. I think that this statute does
import that the defendant was acting mala fide .
. . and with wrongful
intention . . .
My view is that the commission of an offence against [the Act] necessarily
involves dishonesty, and that a man who acts corruptly within the meaning
of that section [of the Act] necessarily acts dishonestly .3 5
66 . English decisions have also illustrated an inclination to attribute some
meaning to the word "corruptly" . Although Mr. Justice Willes in the 1858
decision in Cooper v . Slade 36 indicated that the word "corruptly" in an election
statute did not mean "dishonestly", a number of subsequent cases have
imported some notion of dishonesty when the word "corruptly" appeared . In
Bradford Election Petition - No . 2,37 Baron Martin stated that the word
"corruptly" meant "an act done by a man knowing that what he does is wrong,
and doing so with evil feelings and with intentions" . More recently, in R .-v .
Lindley,38 D Mr . Justice Pearce interpreted the word "corruptly" in the
Prevention of Corruption Act, 1906 to require a dishonest intention . In R. v .
Calland,39 Mr . Justice Veale referred to Lindley and directed a jury considering that same Act that "corruptly" meant dishonestly . The Calland case,
decided in 1967, may not, however, have taken into account the 1960 decision
of the English Court of Appeal in R . v . Smith .4 0
67 . It can be seen that the Australian courts have imported an element of
dishonesty into the word "corruptly" . English courts have wavered, but it is
submitted that the Court of Appeal decision in Smith resolves the issue ; the
word "corruptly" imports no notion of dishonesty . The subsequent decision in
the Calland case may be regarded as having been made per incuriam . In any
event, the questions raised by the interpretation of "corruptly" have clearly
been resolved in Canada . In Canada, the word "corruptly", at least as used in
section 383, is redundant . We submit that this is the proper interpretation,
since the very act of rewarding an agent or employee for doing something in
connection with his principal's or employer's business violates the integrity of a
relationship that is sought to be protected .
68. We pass to the question whether any defences are available tô'R .C .M .P.
members who have paid agents to do an act or show favour with relation t o
34 [1967] S .A .S .R . 279 (S .C .) .
35 Ibid., at p . 291 .
16 6 H .L .C . 746 at 773 .
37 (1869), 19 L .T .R . 723 at 727 .
38 [1957] Crim . L .R . 321 (Lincolnshire Assizes) .
39 [1967] Crim . L .R . 236 ( Lincolnshire Assizes) .
40 [1960] 2 Q .B . 423 .
319
�their principal's affairs . Where the principal or employer is engaged in crime,
there is no lawful relationship the integrity of which is worthy of protection ; no
crime is committed should the agent or employee pass information for pay to
the R .C .M .P. Although there are no cases which have considered this point, we
do not interpret section 383(1) as protecting relationships tainted by a criminal
object . Similarly, we consider that section 383(l) has no application where the
information conveyed by the agent or employee, even when it affects the lawful
affairs of his principal, provides evidence of a crime . The difficult issue in this
context is whether section 383(1) is violated when the R .C .M .P. pays an agent
or employee to report about the lawful business or affairs of his principal or
employer, and no evidence of a crime is produced thereby . There have been
circumstances in which the R .C .M .P . (and particularly the Security Service)
have solicited and received such information in relation to its role in gathering
intelligence . Is an offence thereby committed? If so, are there defences
available ?
69 . We first consider motive . It may be argued that the act was performed
with a higher purpose in mind . Courts in Canada, Britain and the United
States have repeatedly held that "the criminal nature of an act is not purged by
good motive . . . . . 41 Glanville Williams cites the Criminal Law Commissioner's
7th Report (1843) :
To allow any man to substitute for law his own notions of right, would be in
effect to subvert the law .
Even in the United States, where certain punitive provisions have been held not
to apply to police officers executing their duties, altruistic intention or motive is
no defence to crime .42 A crime is a-crime although committed for the ultimate
purpose of enforcing the law .43 This issue is dealt with more fully in Part IV .
70. Similarly, we consider that defences are not afforded upon the principles
of Crown immunity or public policy ; nor do'we feel section 25 of the Criminal
Code provides an answer to such a charge . The common law defence of
necessity is also not available in such circumstances, as the practice of paying
secret commissions is merely one of a variety available to the Force to gather
information about a given subject . It cannot be said to be a "necessary"
technique, although it is undoubtedly an effective one . These issues are also
discussed in detail in Part IV .
71 . Thus, there may have been violations of section 383 of the Criminal Code
where the R .C .M .P . has given, or has offered or agreed to give a reward,
advantage or benefit to an agent or employee of a principal or employer, in
consideration of that person furnishing information concerning the business or
affairs of his principal or employer, unless that information was evidence of the
commission of a crime .
41 Glanville Williams, Criminal Law: The General Part, 2nd ed ., London, Stevens, 1961,
at 748 .
42 People v . Williams, (1952) 113 N .Y .S . (2d) 167 .
"' Hamp v . State of Wyoming, 1 18 P . 653 . See generally Corpus Juris Secundum,
Criminal Law, Vol . 1, pp . 9ff.
320
�72. If the law does make the furnishing of such information an offence, the
consequences from the point of view of the gathering of criminal intelligence
(which may not provide evidence of a crime or of an unlawful business activity)
by any police force - not just the R .C .M .P . - are seriously adverse to
effectiveness, if the police force is expected to remain within the law . Similarly,
the consequences from the point of view of the effectiveness of Canada's
security intelligence agency are serious, if the agency is to be expected to use
only lawful techniques . It would render impossible making payments to certain
sources engaged in a counter-espionage investigation or paying a source who
has penetrated a subversive organization and is in its employ in exchange for
information about the affairs of the organization .
73 . In the absence of further interpretation of section 383, it is not possible to
define the limits of permissible police and intelligence behaviour beyond the
limits of reasonable conjecture . This ambiguity is addressed and we make
recommendations on the matter in Part V, Chapter 4 and Part X, Chapter 5 .
(iii) Statutory barriers to obtaining information from sources with access
to "private sector" record s
74 . By the expression "access to private sector records" we mean the obtaining, from a source who is not in the employ of a . government institution,
information which he possesses by reason either of a business or professional
relationship with a third party . For example, a lawyer or doctor in private
practice may have records or personal knowledge of discussions with clients or
patients who may be of interest to a security intelligence agency or a police
force . A manager of a financial institution (e .g . a bank or trust company)
might also have access to financial data concerning individuals of interest .
75 . Although we have heard no evidence concerning instances of R .C .M .P .
access to private sector records, we have examined the R .C .M .P. submission to
the Commission of Inquiry into the Confidentiality of Health Records in
Ontario in June 1979 . That submission identified a number of situations when
the R .C .M .P . had approached private medical practitioners in order to obtain
medical or biographical information . In the area of V .I .P . security, the
submission noted that the R .C .M .P. had approached doctors some 147 times
within the past 15 years in order to determine whether a given individual
constituted a threat to the safety of a V .I .P. The R .C .M .P . has also, although
less frequently, approached medical doctors and psychiatrists about the reliability of individuals, for security screening purposes . The submission noted that
on two occasions R .C .M .P . officers approached medical doctors for information on prescriptions given to patients, in order to further drug investigations .
76. We have no data on the number of occasions, if any, on which the
R .C .M .P . has approached other professionals to act as sources in providing
access to private sector records, and therefore we cannot treat approaches to
these other professionals as "past practices not authorized or provided for by
law" . Nonetheless, we raise the possibility of the violation of federal and
provincial laws in obtaining access to private sector records because of th e
321
�potential problems to be encountered in this area . Similar problems have
surfaced in the United States .
77 . Federal restrictions on the use of sources with access to private sector
records are few . One statute, the Telegraphs Act,64 requires certain employees
of private telegraph companies falling under federal jurisdiction to swear an
oath of secrecy as to information they acquire in the course of their duties .
Unauthorized disclosure is a summary conviction offence . Another example of
federal controls on private sector information is the Canada Shipping Act,45
which provides for the privacy and confidentiality of wireless messages sent to
ships at sea . The penalty for wrongful disclosure may include a fine and
imprisonment .
78. More likely to constitute barriers are provincial statutory restrictions on
the disclosure of personal information obtained in the course of a professional
or commercial relationship . We have reviewed provincial legislation governing
the legal and medical professions in Quebec and Ontario as examples of such
statutory provisions . These provisions serve as a general illustration of restrictions likely to be found in other provinces . In both Ontario and Quebec, the
legislation we examined sets up a framework, inter alia, for regulating the
conduct of professionals through a governing body .
79. In Ontario the Health Disciplines Act" and the regulations enacted
pursuant to it define as professional misconduct a breach by a medical doctor
of his obligation of confidentiality vis-à-vis his . patients . Such conduct is
punishable by a variety of disciplinary sanctions administered by the governing
body . Exceptions to the general rule of confidentiality are very narrow and
would not extend to most securiiy intelligence agency or criminal investigations, nor would they permit release of a patient's psychiatric or medical files to
enable authorities to cope with an emergency such as a terrorist attack or a
hostage-taking incident . The severity of the confidentiality rule is mitigated by
the fact not only that the disclosure must come to the attention of the
Discipline Committee but that when it does the Committee is unlikely to
discipline a doctor if the disclosure were made to avert a threat to human life .
80 . The Law Society Act47 of Ontario and the regulations and rules enacted
pursuant to it make it a breach of that profession's code of professional conduct
to disclose,_;except in limited circumstances, confidential information concerning a client . Breach of the code of conduct by a lawyer may result in
disciplinary sanctions, including the loss of professional status .
81 . In Quebec, lawyers, notaries and medical doctors fall under the authority
of the Code des Professions '411 as do some 35 other professional bodies, such as
pharmacists, social workers and chartered accountants . Section 87 of the Code
requires that the "bureau" of each professional corporation adopt in regula-
°d R .S .C . 1970, ch .T-3 .
's R .S .C . 1970, ch .S-9 .
46 S .O . 1974, ch .47 .
" R .S .O . 1970, ch .238 .
'g 1978 L .R .Q ., ch .C-26 .
322
�tions a Code of ethics which must include confidentiality provisions . The code
also establishes disciplinary procedures, including the creation within each
professional corporation of a discipline committee which handles all complaints
lodged against its members for violations of codes of ethics . For example, a
violation of the Règlement concernant le code de déontologie49 adopted by the
medical profession may result in disciplinary proceedings against doctors who
divulge confidential information. Likewise, the Règlement concernant le code
de déontologie,50 adopted by the Bar, and the Loi sur le Notariats' impose
confidentiality requirements for lawyers and notaries respectively . Finally, the
Quebec Charter of Human Rights and Freedoms 52 makes provisions for
professional secrecy, and provides only narrow exceptions, which again would
not extend to police or security intelligence investigations . The Charter provides in section 49 that any unlawful interference with any right or freedom
recognized by the Charter entitles the victim to obtain cessation of such
interference and compensation for the moral or material prejudice resulting
therefrom . In the case of an unlawful and intentional interference, the party
guilty of the interference may be condemned to pay exemplary damages .
82. While we do not wish to forecast the application of the secrecy provisions
in Quebec, we are concerned that professionals who act as sources in providing
access to private sector records may risk discipline, fines and the possible loss
of professional status . This of course is primarily a problem for the source
himself, but R .C .M .P . members who conspire with the source to effect an
unlawful purpose .may be guilty as a party to the offence by virtue of abetting it
(section 21) and of the Criminal Code offence of conspiracy (section 423(2)) .
83 . In addition to the specific statutory provisions governing various professions, examples of which we have seen in Ontario and Quebec, general
statutory or regulatory restrictions at the provincial level may govern disclosure
of information to disinterested third parties . One such example is the Ontario
Consumer Reporting Act .53 That Act seeks to regulate the collection and
dissemination of consumer credit information . Its provisions would restrict the
release of personal, financial and career information to a security intelligence
agency or police force, although identifying information (name, address, place
of employment) may be released . This Act penalizes both the source who
improperly provides access to private sector records and the person who seeks
to obtain the information . Members of the R .C .M .P . who conspire with the
source to breach the confidentiality provisions may again be liable to criminal
charges of conspiracy under section 423(2) of the Code or, if the offence is
committed, may be a party to the offence by virtue of having abetted it (section
21) .
49 Reg . 816-80, 20 mai 1980 .
so Reg . 77-250, 5 mai 1977 .
Il L .R .Q . 1978, ch .N-2 .
52 S .Q. 1975, ch .6 .
Il S .O. 1973, ch .97 .
323
�in Canada to "turn" - i .e . to defect, or to remain in place as an agent of the
Canadian Security Service - the member would thereby be guilty of an
offence under section 63 of the Criminal Code . That section provides as
follows :
63 . (1) Every one who wilfully
(a) interferes with, impairs or influences the loyalty or discipline of a
member of a force ,
(b) publishes, edits, issues, circulates or distributes a writing that advises,
counsels or urges insubordination, disloyalty, mutiny or refusal of duty
by a member of a force, o r
(c) advises, counsels, urges or in any manner causes insubordination,
disloyalty, mutiny or refusal of duty by a member of a force ,
is guilty of an indictable offence and is liable to imprisonment for five
years .
(2) In this section, "member of a force" means a member of
(a) the Canadian Forces, o r
(b) the naval, army or air forces of a state other than Canada that are
lawfully present in Canada .54
,
The section was introduced into Canada in 1953, one year after the passage of
the Visiting Forces (British Commonwealth) Act and the Visiting Forces
(North Atlantic Treaty) Act .55 It may be inferred that the Parliamentary
intent was to provide the same penalty for subversion of such forces as was
applicable to subversion of members of the Canadian Forces . Whether that is a
necessary inference or not, it is noted that the section defines "member of a
force" as "a member of . .. forces of a state . .. that are lawfully present in
Canada" . While a military attaché may be lawfully present in Canada, he
cannot be said to be a member of "forces" present in Canada . If the military
intelligence officer is not a military attaché but is disguised in some non-military capacity in order to spy, he is not in Canada as "a member of a force"
and, even though he holds a diplomatic visa, he may not be "lawfully" in
Canada if he is engaged in espionage . Alternatively, whether the military
intelligence officer is an attaché or described as a chauffeur, the fact that he
holds a diplomatic visa is probably conclusive that he is present in Canada as a
diplomat and not as a member of a military force . For these reasons, we
conclude that the factual situation envisaged does not give rise to the commission of an offence under section 63 .
(f) Removal of property of others and its delivery to the police
85 . Undercover operatives, as well as supplying intelligence as a result of
their personal observations, have removed documents of intelligence interest
from a targetted organization . The classic example is that of Mr . Igor
54 1953-54, ch .51, s .63 .
ss S .C . 1952, chs .283 and 289 .
324
�Gouzenko who, in September 1945, defected from the Soviet Embassy in
Ottawa with documentary evidence of Soviet espionage in Canada and the
United States. Based on what Mr . Gouzenko told the police, the documents he
brought with him and subsequent investigations, the R .C .M .P . pieced together
the espionage roles of some officials of the Soviet Embassy and a number of
other individuals . Yet witnesses before us have asked whether the removal of
documents in circumstances such as Mr . Gouzenko's may amount to the
offence of theft, contrary to section 283 of the Criminal Code, and whether the
receipt and retention of documents by the Security Service may constitute the
offence of possession of property obtained by crime, contrary to section 312
(1) . We do not intend to quote those sections, for we consider that the law of
theft and of possession of stolen property does not impede the receipt and
retention of documents defectors are likely to bring with them and which relate
to the statutory mandate which we shall be recommending for the security
intelligence agency . Any such documents are likely to relate to the commission
of crime, and in our view the removal and retention of such documents by the
defector or members of the security intelligence agency would not be a crime,
if the information is disclosed to the appropriate law enforcement authority .
86 . We recognize that there may be cases in which a defector brings
documents to the security intelligence agency and those documents are neither
evidence of à crime nor do their contents fall within the purview of the agency's
mandate . We do not consider that such a situation requires any change in the
law . Rather, we think that it should be handled in accordance with the
proposals which wé have developed with respect to the dealings between the
federal and provincial attorneys general when evidence that violations of the
law, may have been committed by a member or agent of the security
intelligence agency . Our proposal in that regard is found in Part V ; Chapter 8 .
(g) Civil wrongs
87 . A further issue of concern in both the Security Service and the C .I .B . is
the commission of intentional civil wrongs by undercover operatives . While not
involving a violation of federal ; provincial or municipal law, civil wrongs merit
consideration as an issue since they constitute an interference with personal
rights to which society attaches significance and which the common and civil
law therefore consider worthy of protection .
88 . The range of potential civil wrongs arising from the use of undercover
operatives is both broad and difficult to predict . Two acts in particular inducing breach of contract and invasion of privacy - have been brought to
our attention . We deal with these here .
89 . The Force may have sought to obtain information from individuals such
as bank managers whose positions impose upon them an express or implied
duty in contract to keep in confidence information which they receive in that
position . In such cases, the individuals may be civilly liable for breach of
contract . R .C .M .P . members who procure such breaches of contract may be
liable in tort for inducing breach of contract . One textbook states that liability
for interference with contractual relations of this sort will attach if the
intervenor
325
�with knowledge of the contract and intent to prevent or hinder its performance, either ,
(I) persuades, induces or procures one of the contracting parties not to
perform his obligations, o r
(2) commits some act, wrongful in itself, which prevents such
performance .5 6
There appear to be two principal means in the situation noted above by which
liability for inducing breach of contract may have been avoided . A leading text
states :
A distinction is sometimes drawn between persuasion, inducement or
procurement, on the one hand, and advice on the other : the former being
actionable, but not the latter . . . 1 1
No liability attaches for simply advising an individual to breach his contract . It
seems unlikely, however, that the means employed by the Security Service to
"persuade" a person to breach his contract would be viewed as mere "advice" .
90 . The second and more likely means of avoiding liability for inducing
breach of contract lies in the defence of justification . The same text notes :
While spite or an improper motive on the part of the defendant is not an
essential part of the plaintiffs cause of action, the purpose prompting his
conduct may, on the other hand, be so meritorious as to require sacrifice of
the plaintiff's claim to freedom from interference .
.. The issue in each case
being . . . whether, upon a consideration of the relative significance of all the
factors involved, the defendant's conduct should be tolerated despite its
detrimental effect on the interests of the other . For this purpose, it has been
said, the most relevant are the nature of the contract, the position of the
parties to it, grounds for the breach, the means employed to procure it, the
relation of the person procuring it to the contract-breaker, and the object of
the person procuring the breach . Thus, it seems clear that if the methods of
interference are in themselves unlawful, at any rate where a fraud or
physical violence is employed, there can be no justification, even if the
defendant would have been privileged to accomplish the same results by
proper means. . . .
In several cases, a privilege to protect the public interest has been recognized, as where the defendant acted for the sake of upholding public
môrality .5e
While the Security Service (and indeed, the C .I .B ., where such potential
liability arises in the course of its undercover operations) may not be protecting
public morality, there is a compelling argument that inducing an individual to
provide information for intelligence reasons in breach of his contract can be
justified on grounds of public interest .
16 Fleming, The Law of Torts, Sydney, The Law Book Company, 1977, (5th ed .), at p .
678 .
57 Ibid., at p . 679 .
se Ibid., at pp . 682-3 .
326
�91 . The second possible civil wrong we examine here is that which the same
textbook states
. . . is often compendiously called the `right of privacy' . In its broadest
sense, the interest involved is that of `being left alone', of sheltering one's
private life from the degrading effects of intrusion or exposure to public
view .59
The text notes that the right to privacy has not, at least under that name,
received explicit recognition by British courts . Another text also lists infringement of privacy as a "doubtful tort" .
The balance of such authority as there is, appears to be clearly against the
existence of any independent tort of invasion of privacy . ..60
It is not clear in Canada whether an independent tort of invasion of privacy
exists . In Motherwell v . Motherwe1161 the plaintiff succeeded in an action for
breach of the right of privacy . In Burnett v. The Queen in Right of Canada '62
the court held that it is not clear that there is no tort of invasion of privacy so
that the action must proceed to trial on its merits . The court quoted from an
earlier decision where it was said :
It may be that the action is novel, but it has not been shown to me that the
Court in this jurisdiction would not recognize a right of privacy . The
plaintiff therefore has the right to be heard, to have the issue decided after
triaL6 3
92 . In the absence of a clear statement as to whether invasion of privacy is a
tort, so that protection of the right of privacy is afforded"as it is by privacy
legislation enacted in some provinces, we must consider other bases for the
potential right of action . The tort of trespass would not afford .such a basis,
since its boundaries are defined in relation to the plaintiff's person and
property, and are not drawn in relation to a broader right to be left alone . Even
the tort of nuisance offers only modest support ; for the tort to occur, the
offensive conduct must be devoid of any social utility and directed solely at
causing annoyance . It is unlikely that the use of undercover operatives for a
legitimate criminal, investigative purpose or in order to fulfill the mandate of
the Security Service can be regarded as an activity devoid of social utility .
Therefore, in light of the uncertainty surrounding the existence or scope of the
tort of invasion of privacy, and the probable inapplicability of trespass- and
nuisance to typical undercover operatives, we do not consider that these torts
pose a real legal problem in undercover operations, at least so long as such
operations are carried out within the mandate of the respective branches of the
Force .
59 Ibid ., p. 590 .
60 Winfield and Jolowicz on Tort, (10th ed .), at p . 492 .
61 (1976) 3 D .L .R . (3d) 62 (Alta . C .A .) .
6 2 (1979) 23 OR . (2d) 109 (Ont . H .C .) .
6 7 Krouse v . Chrysler of Canada [ 1970] 3 OR . 135 at 136 .
327
�C . NEED AND RECOMMENDATIONS - BRIEF
SUMMAR Y
93. There can be no doubt about the continued need to use undercover
operatives both for criminal investigation and security intelligence work . When
information is required about those who maintain a high degree of secrecy in
carrying out criminal activities or activities threatening the security of Canada,
often the use of undercover operatives is the only effective means of obtaining
it . However, as our analysis of the legal difficulties involved in the use of
undercover operatives has shown, very serious doubt exists as to whether
operatives may be used by either the criminal investigation side or the security
intelligence side of the R .C .M .P . without violating existing federal and provincial laws . Therefore, because we think the use of undercover operatives is
necessary and because we believe that both police and security intelligence
practices should be lawful, we will recommend a number of changes in the law
to remove doubts about the reasonable use of operatives for both police and
security purposes . We will make our detailed recommendations for changes
relating to security intelligence operations in Part V, Chapter 4 and for
changes relating to criminal investigations in Part X, Chapter 5 .
94. One other legal issue which may arise in using undercover operatives is
entrapment . Entrapment arises as a legal issue only in cases resulting in
prosecution . Therefore, it will be dealt with primarily as a problem relating to
the criminal investigations side of the Force . Although there is no offence of
entrapment in the Criminal Code, many believe (a) that such an offence'should
be introduced into the Code, or (b) that a defence should be established for an
accused person who committed a criminal act as a result of inducement by an
undercover operative, or (c) that evidence obtained by entrapment should be
excluded, or (d) some combination of the above . We will make our recommendations on this subject in Part X, Chapter 5 .
328
�CHAPTER 1 0
INTERROGATION OF ' SUSPECTS C .I .B . AND SECURITY SERVIC E
A. CRIMINAL INVESTIGATION S
1 . Much of the work . of the police consists of asking questions of innocent
people as well as suspects . The Supreme Court of Canada has recognized the
crucial, role that is played by police questions in the investigation of crime . In
R. v . Fitton' it was said that "it would be quite impossible to discover the facts
of a crime without asking questions of persons from whom it was thought that
useful information might be obtained" . The law on police interrogation of
suspects is almost entirely the result of judicial decisions as to the admissibility
in evidence of statements made by suspects to police officers . Some principal
features of this judge-made law will be referred to in this chapter
. The present R .C .M .P . Operational Manual begins with a .2 foreword b y
Commissioner Simmonds dated September 1, 1977 . It includes the following
paragraph :
Each member shall observe and comply with the policy and procedural
directives in this manual, and is expected to interpret them reasonably and
intelligently in the best interests of the Force .
The chapter entitled "Interrogations and Statements" has stated the following
policy since September 12, 1979 :
A member must avoid unethical conduct of any type when he interrogates a
person, e .g ., causing mental or physical suffering, and must pay particular
attention to the provisions of the Canadian Bill of Rights .
The policy has been the same, at least since December 1, 1978, except that
there had been no reference to the Canadian Bill of Rights .
3 . Assuming that the paragraph quoted from the Commissioner's foreword
constitutes a "standing order", a breach of that policy might constitute a
"minor service offence" under section 26 of the R .C .M .P . Act . If the conduct
were so grave as to be "scandalous" or "disgraceful" or "immoral" it might
constitute a "major service offence" under section 25 of the Act . Consequently
we are within paragraph (a) of our terms of reference in considering whether
any features of interrogation and taking statements from suspects would be
"unethical", for such conduct would be conduct "not authorized or provide d
'(1956) 1 16 C .C .C. I at 30 .
329
�for by law" . We shall consider these features here, and in Part X, Chapter 5 we
shall make recommendations arising from our findings . However, as our terms
of reference, as far as criminal investigations are concerned, do not permit us to
inquire into or make recommendations on a broad scale concerning the law or
the practice governing the R .C .M .P . in criminal investigations, we shall limit
our remarks and recommendations to those relating to and arising from
conduct that may be "not authorized or provided for by law" . It follows that
we do not intend to discuss some of the proposals that have been made for
radical revision of the present law .
4 . Before we embark on an examination of interrogation techniques it is
important to underline that the police do not have a general power to detain
persons for questioning . As Lord Devlin has said :
The police have no power to detain anyone unless they charge him with a
specified crime and arrest him accordingly . Arrest and imprisonment are in
law the same thing . Any form of physical restraint is an arrest and
imprisonment is only a continuing arrest . If an arrest is unjustified, it is
wrongful in law and is known as false imprisonment . The police have no
power whatever to detain anyone on suspicion or for the purpose of
questioning him . They cannot even compel anyone whom they do not arrest
to come to the police station . It is true that in the course of an inquiry they
frequently ask people to come to the police station and make a statement
there and that people almost invariably comply . z
Thus, the legal right to interrogate arises only after there has been an arrest,
although, as pointed out by Lord Devlin, questioning often occurs in the
absence of an arrest .
5 . Of all criminal investigation techniques, this power of the police to
question persons suspected of crime is the one most often suspected by the
public of being open to abuse . On the other hand, the manner in which accused
are questioned is frequently open to review by the courts, which have reserved a
right to reject statements made by an accused person to the police . There have
been no indications, whether by complaint to us or examination of the files of
the R .C .M .P ., that in the manner in which members of the R .C .M .P . question
suspects and take statements there is a general pattern of conduct which is
contrary to law or even subject to criticism on ethical grounds . Nevertheless,
there are some disquieting facts which have come to light, and which indicate
some degree of conduct which is not authorized or provided for by law and
therefore requires comment by us .
The Roberts bookle t
6. In 1975, questions in the House of Commons by Mr . David MacDonald,
M .P ., revealed that a document was in use by the Training and Development
Branch of the R.C .M .P ., entitled "Interrogation Techniques", written by Chief
Inspector A .R . Roberts of the Calgary City Police . At the time the R .C .M .P .
2 P . Devlin, "The Criminal Prosecution in England" (1960) at p . 68, quoted in Ed
Ratushny, Self-Incrimination in the Canadian Criminal Process, Toronto, Carswell,
1979, p. 143 .
330
�confirmed, in a press release, that it was used in a course offered to senior
investigators with between 5 and 15 years of experience . Mr . MacDonald
characterized the techniques that were described in the document as "intimidation, manipulation and brain washing" .' The Solicitor General of the time, the
Honourable Warren Allmand, wrote to Mr . MacDonald on April 11, 1975,
stating :
.
. . the booklet in itself does not represent Force policy on the subject . I feel
that the Royal Canadian Mounted Police policy on interrogation is clear
and is based largely on the Judges' Rules dealing with the admissibility of
evidence . I am sure that you will be interested in reviewing the Judges'
Rules and am attaching a copy for your information .
In the House of Commons Standing Committee on Justice and Legal Affairs,
Mr . Allmand stated that the booklet had been used to stimulate discussion as
to "the good and bad way of doing things", and that the author was brought in
as a guest lecturer, but not because the Force was recommending the use of all
the techniques listed, any more than bringing in an outside lecturer on Nazism
or Communism meant that the Force was recommending those doctrines . He
emphasized that the Force policy on interrogation is in the Operations Manual .
The Deputy Commissioner, R .J . Ross, assured the Committee tha t
in future in any such course of this nature there will be a final wrap-up,
stating exactly . . . that the policy is such, and that we will not allow any
deviation from the policy of the Force in this aspect .'
We are concerned that notwithstanding what was said orally nothing in the
Operations Manual tells the recruit or the experienced investigator which of
the many techniques listed by Chief Inspector Roberts are ethical and which
are unethical and not permissible .
7 . The booklet was used as a handout by Chief Inspector Roberts in late 1973
and supplied to candidates in two R .C .M .P . centralized training courses - the
Investigational Techniques Course and the Drug Investigational Techniques
Course . On June 4, 1975, the officer in charge of Training and Development
advised all Commanding Officers that Chief Inspector Roberts' booklet "is no
longer distributed on centralized training courses, due to the recent controversy" . Since March 1979 a much shorter manual entitled "Interrogation" has
been distributed to members attending courses that deal with the subject of
interrogation, for example, Junior Constables (1 1/2-3 years of experience)
and Senior Investigators (7-12 years) . This manual deletes most of the
objectionable material previously included in the Roberts booklet, but we note
with concern the following advice contained in it :
Make it difficult for the suspect to deny the crime by asking questions
where he has two answers - both incriminating .
Examples are then given, and the text continues : "This type of question is most
effective at crucial moments ." The R .C .M .P . have advised us that "the manua l
' House of Commons, Debates, March 26, 1975, p . 4531 .
" Minutes, House of Commons Standing Committee on Justice and Legal Affairs, May
15, 1975, p . 26 :19 .
331
�was developed by our Force Polygraphists" . We hope that this extract does not
represent the standards of polygraphic tests as used by R .C .M .P . polygraphers .
8 . During June 1975 and afterwards no instruction was issued within the
R .C .M .P . that the Roberts handbook was not acceptable. In 1980 the
R .C .M .P. advised us that in view of the fact that "most, if not all the
techniques described in it can be found in books generally available on the
shelves of most libraries", no instructions were issued to members regarding
the methods recommended . It is therefore not surprising to us that in the
summer of 1980 our researcher was told by one officer, who had been trained
in interrogation when the Roberts booklet was in use, that he learned only
some considerable time after 1975 that many of the techniques there advocated
are now frowned upon . Moreover, he was never so advised formally, as there
has never been a directive as to what parts of the Roberts booklet are
acceptable and what parts are not . It cannot be said that a press release stating
that the booklet did not represent Force policy, without further comment for
the benefit of investigators across Canada, can be taken as a serious internal
criticism of those techniques .
9 . Our review of the cases which have come to our attention reveals that there
are four areas of interrogation which give rise to concern : the right to counsel,
oppressive conduct, brutality, and trickery . In this chapter we shall discuss
each of these in turn, with reference to the problems they have caused in the
past, reserving our recommendations for change for Part V, Chapter 6 as they
relate to the Security Service and Part X, Chapter 5 as they apply to criminal
investigations .
The right to counse l
10. There are two aspects of this concern which require comment : whether
members of the R .C .M .P . advise persons in custody of their right to counsel
and whether persons in custody are denied counsel . There is no express
requirement in Canadian law that a person under arrest be advised of his right
to retain counsel . In comparison, section 29(2) of the Çriminal Code imposes a
duty upon everyone who arrests a person "to give notice to that person, where
it is feasible to do so, of . .. the reason for the arrest" . It is true that section
2(c)(ii) of the Canadian Bill of Rights recognizes the right of "a person who
has been arrested or detained" to "retain and instruct counsel without delay",
but it says nothing as to whether he must be advised that he has that right . The
R .C .M .P. Operations Manual states :
Advise prisoners of their right to engage legal counsel or to get advice from
a relative or friend .
This requirement probably goes beyond the requirements of the Canadian Bill
of Rights, and for this the R .C .M .P . is to be commended . On the other hand,
there is some uncertainty as to the scope of application of the instruction, for it
is unclear who are to be regarded as "prisoners" for this purpose . The chapter
in the Operational Manual on interrogation makes no reference to this
directive . We infer from this that it is not intended to be applied to persons
being interrogated . Indeed, the silence in both the chapter on interrogation an d
332
�the chapter on arrest, on the subject'of advising of the right to engage counsel
may indicate that the Force does not require its members to advise persons who
are being questioned but not yet arrested, or persons arrested but not yet
charged, to be advised of their right to counsel . Moreover, we have been
advised by senior officers of the R .C .M .P . that there is no Force policy
requiring persons who are not in custody to be advised of their right to counsel .
11 . There may be circumstances in which the right to contact a lawyer, and
to be advised of that right, should be tempered . The English Judges' Rules
(which are not the law in England or in Canada, but are considered• good
practice in both countries and are published in the R .C .M .P . Operational
Manual), have appended to them administrative directions (not published in
the R .C .M .P . manual) which, in this regard, face up to interests which
compete in certain circumstances . Under the heading of "Facilities for
Defence" they say :
a person in custody should be allowed to speak on the telephone to his
solicitor or to his friends, provided that no hindrance is reasonably likely to
be caused to the processes of investigation, or the administration of justice
by his doing so .
The proviso is intended to entitle the police to refuse a person in custody the
right to contact his lawyer (or friends) when there is reason to think that his
doing so may hinder the investigation underway by tipping off other suspects
not yet in custody . We doubt that this proviso, however reasonable, is consistent with the provision in the Canadian Bill of Rights . An allegation made to
us, with respect to which we shall be reporting in detail in another Report,
illustrates the problem . R .C .M .P . officers from a certain detachment, together
with other R .C .M .P . and municipal officers, arrested a number of people on
drug-related charges .' The arrested persons were first taken to the detachment
cells . One of the accused was allowed, by a constable acting on his own
initiative, to telephone his wife to ask her to come to the police station to pick
up their three-year old child' who had been with the father at the time of his
arrest . Later, during that afternoon, the R .C .M .P . corporal in charge of the
investigation, who had been made aware that the earlier call had been made,
allowed the same accused to speak on the telephone to his lawyer . Apart from
thése two calls, the remainder of the investigation was typified by attempts by
the police to prevent the arrested persons from making telephone calls and to
prevent lawyers, who were attempting to contact clients, from being able to do
so . After a defence lawyer involved in the case wrote to us about the
experience, the R .C .M .P . conducted an internal investigation . It produced the
following results :
(a) Members of the squads who had been involved in the events, and detachment personnel who were present at the station, when asked by lawyers,
claimed either not to know where the prisoners were or that they did not
know which other detachment the prisoners had been taken to .
(b) Lawyers were told that the officer in charge of the case would be informed
of their request or that inquiries would be made to obtain the necessary
information, but nothing was done in furtherance of these assurances .
333
�(c) Official forms which ought to have identified who had arrested whom and
where the persons detained were lodged were not completed properly . On
four of the forms, notations expressly stated that no telephone calls were to
be permitted to the prisoners concerned . The identity of the persons who
wrote those notations could not be traced .
(d) One of the accused was moved from the original cells to R .C .M .P . cells at
another detachment, then back to the original cells, then to still another
detachment, then back to the original cells again, and finally to the
provincial correctional facility, all in the course of three days and three
hours .
(e) Officers involved in the case gave, as reasons for the various movements of
prisoners, "lack of room" in the original detachment, "security", "separation of the accused", "investigational purposes" .
(f) The original purpose of the "no telephone calls" order may well have been
to prevent prisoners from hindering the continuing investigation by informing co-conspirators of what was happening . However, many of the officers
involved evidently translated this purpose into a practice of not allowing
the persons detained to have access to counsel, for reasons that were
unrelated to the original purpose .
12 . Judicial consideration of the admissibility of statements made by suspects
is, as it relates to the right to counsel, an insufficient incentive to the
attainment of proper standards . It has been held that even a specific denial by
the police to allow an accused to contact his lawyer, despite the contravention
of the Canadian Bill of Rights, will not render a statement thereafter obtained
from him inadmissible on that account .s This judicial attitude has led the
R .C .M .P . in at least one training course in 1972, to present the following
examination question : "The accused, Mr . O'Connor, was refused permission to
obtain counsel by the police at the police station . Is this illegal?" The desired
answer was "No, it was not illegal". In another case, a retrial was ordered
because of a denial of counsel, but the most that can be said is that this will be
an important factor when a court decides whether or not a statement is
voluntary .6 No case stands for the proposition that a statement obtained after a
denial of counsel must be held to be inadmissible . Although one judge has
expressed the view that denial of counsel by police may give rise to a civil
action in tort or possibly criminal action (for disobeying a federal statute,
under section 115 of the Criminal Code), the Canadian Committee on Corrections has argued to the contrary :
Section 2(c)(ii) of the Canadian Bill of Rights does not command a police
officer to do anything. It is a direction to a court not to construe the law of
R . v . Steeves [1964] 1 C .C .C . 266 (N .S .C .A .) . See also, O'Connor v . R . [1966] 4
C .C.C . 342 (Sup. Ct . Can .) and Hogan v. The Queen (1974) 48 D .L .R . (3d) 427
(Sup . Ct . Can .) .
6 R . v . Ballegeer [1968] 66 W .W .R . 570 (Man . C .A .) .
334
�arrest in such a way as to infringe the right of a person who has been
arrested to retain a lawyer . '
Oppressive conduc t
13 . As already stated, Canadian courts will not admit a statement made by
an accused person unless the prosecution proves that the statement was made
voluntarily . In one of the most recent judgments in the Supreme Court of
Canada, Horvath v . The Queen, Mr . Justice Martland said :
.
.. to render a statement of the accused to a police officer inadmissible
there must be the compulsion of apprehension of prejudice or the inducement of hope of advantage whether that apprehension or hope be instigated,
induced or coerced . 8
He reconfirmed that, as had been held in an earlier case in the Supreme Court
of Canada, the primary question is whether the statement was made voluntarily in the sense that it has not been obtained from the accused either by fear of
prejudice or hope of advantage exercised or held out by a person in authority .
Mr . Justice Martland declined to consider whether, beyond those circumstances, facts which constitute "oppression" would result in a statement being
ruled inadmissible . It is true that Mr . Justice Martland's judgment, with which
two other members of the Court agreed, was one which dissented in the result
of the case, and, as will be seen, his statement of the law represents the
narrowest of the statements of the concept of voluntariness found in the
Horvath case . In England, it has been held that "oppressive questioning" will
result in the exclusion of a statement, oppressive questioning being defined as
"questioning which by its nature, duration or other attendant circumstances
(including the fact of custody) excites hopes (such as the hope of release) or
fears, or so affects the mind of the suspect that his will crumbles and he speaks
when otherwise he would have remained silent" .9 In Horvath v . The Queen,
Mr . Justice Beetz, who spoke for himself and one other member of the Court,
said that the principle of voluntariness may exten d
to situations where involuntariness has been caused otherwise than by
promises, threats, hope or fear, if it is felt that other causes are as coercive
as promises or threats, hope or fear, and serious enough to bring the
principle into play .1 0
The third judgment in that case was delivered by Mr . Justice Spence, with
whom one other judge agreed . He also expressed the vie w
that a statement may well be held not to be voluntary . . . if it has been
induced by some other motive or for some other reason than hope or fear . "
Report ojthe Canadian Committee on Corrections . Toward Unity: Criminal Justice
and Corrections, 1969, p . 143 note 23 . The judge referred to was Mr. Justice Coffin
in R. v . Steeves .
$ [1979] 2 S .C .R . 376 at 388 . See also Ward v . The Queen [1979] 2 S .C .R . 30 .
The Queen v . Prager [1972] 1 All E . R . 11 14 (C .A .) .
10 [1979] 2 S .C .R . 376 at 424-5 .
" Ibid., at 401 .
335
�He found that in the circumstances of that case the accused's statements had
been made at a time when he was suffering from "complete emotional
disintegration", and that "no statement made by that accused under those
circumstances can be imagined to be voluntary" .
14 . These recent judicial statements indicate that the precise bounds of
"voluntariness" remain doubtful in Canadian law . That being so, it is impossible to say that review by the courts of the circumstances in which the accused
made a statement will constitute discouragement of "oppressive" police conduct in the interrogation of suspects .
15 . The paucity of complaints made to us about the manner in which
members of the R .C .M .P . have questioned suspects, and our examination of
R .C .M .P . files, lead us to the conclusion that oppressive questioning is not
widespread in the R .C .M .P . Yet there have been examples of such conduct .
The Horvath case involved members of the R .C .M .P . Some members of the
Supreme Court of Canada considered the circumstances of the interrogation
found in that case to be very objectionable . The accused, a 17-year-old, was
suspected of murdering his mother . He was questioned from 12 :20 a .m . until
3 :10 a .m . and from 12 noon until 4 :16 p .m . During the first interrogation, two
R .C .M .P . constables, in the words of the trial judge "hammered him with
[verbal] shots from both sides" for just under three hours, and accused him
again and again of lying . The trial judge found that the manner of questioning
was oppressive . The trial judge found that the "atmosphere of oppression" was
so great as to give the accused "a sense of being threatened" . During the
second period, the accused was questioned by a sergeant "trained with great
skill in interrogation techniques", and the trial judge found that in all the
circumstances the "complete emotional distintegration" of the accused had
been brought about .
16 . Another case, which we will be dealing with in detail in another Report,
also involved strong judicial criticism of conduct of R .C .M .P . members in
interrogating a suspect . The case raised the question not only of oppressive
conduct but also the matter of the right to counsel, discussed above, and
"trickery", discussed below . This was a murder case in which the accused was
suspected of having killed her common-law husband . Upon being taken to
police headquarters she was questioned from 7 p .m . until 2 :30 a .m ., at which
time she was admitted to hospital, . suffering from an apparently self-administered overdose of sedatives . At 9 :45 a .m . she was taken from the hospital back
to a police office and questioned again until some time before 12 noon . She was
then placed in city police cells and later that day charged with first degree
murder . The statements she made to the R .C .M .P . officers were tendered in
evidence by the prosecution at her preliminary inquiry . Because of the circumstances in which they were obtained, the provincial court judge held that the
statements were inadmissible and criticized the conduct of the members of the
R .C .M .P . No complaint was made to us by any person involved, but because of
the press publicity the case received, we inquired into it . We found that,
because of the judge's comments, there had been an internal investigation in
the R .C .M .P ., from which the following facts emerged :
336
�(a) The interrogation of the accused prior to her admission to the hospital was
continued over a period in excess of 7 hours, part of which occurred after
the R .C .M .P. members knew that the suspect had taken a sedative and was
lapsing into unconsciousness .
(b) The officers continued to interrogate her after they knew that any statement which might then be obtained would be inadmissible .
(c) The officers attempted to induce a confession by reminding the suspect
that if she were convicted of murder she would go to prison for life and her
child would be given up to welfare and brought up an orphan .
(d) After she had had only five hours of sleep in the hospital, the interrogation
continued .
(e) On more than one occasion the suspect told the officers that she wished to
call her lawyer . The officers used "delaying tactics" saying that the lawyer
would be called, but that a few matters had to be discussed first . (Since the
suspect had talked to her lawyer before going to the police office, the
officers claimed that this was not a denial of counsel but a "delaying
tactic" only. )
(f) Some of the officers claimed that nothing in their training or their
experience before the court led them to conclude that delay in providing
counsel, when an investigative interview .was in progrèss, was improper .
(g) Several weeks after the charge was laid, when it was intended to administer a polygraph test to the accused, a sergeant promised her lawyer that he
would be allowed to see the accused immediately after the test was
completed . The sergeant then broke his word and there was a further delay
of several hours before the lawyer was permitted to see his client, during
which the R .C .M .P . members ignored the lawyer's knocks at the door of
the very room where the accused was being interviewed .
(h) Attempts to interview the accused continued even after she had been
remanded, and included showing her a picture of the deceased, without
seeking the permission of her lawyer to do so .
(i) After the internal investigation had been completed at the Division, a
senior officer in Ottawa, reviewing the file, recorded that in his opinion
more ought to have been done by the investigators on the "right to counsel"
issue and that continuing the interrogation after the suspect was lapsing
into unconsciousness was an error . However, he expressed the opinion that
the conduct of the interrogation otherwise was "not unlike [that of] other
investigators and [that] the methods used were not harsh or unusual" . On
the issue of the "right to counsel", this senior officer, referring to the
knowledge by defence counsel that his client was being interviewed on the
later occasion, put the onus on defence counsel to protect the interests of
his client. The officer, in his report to the director of personnel, stated :
It would appear that once counsel knew his client's position, it was up to
him to properly advise_her and ensure her rights were protected .
17 . Our concern with this case is not only that experienced investigating
officers believed that their conduct was proper, but that a senior R .C .M .P .
337
�officer should come to the conclusion that it was "not unusual" . There is no
indication in his report on the matter that he found the conduct surprising or
aberrant . This gives us cause for grave concern . If the senior officer was correct
in his conclusions, then we are concerned that conduct of that type appears not
to be isolated, but despite every effort we have not been able to locate other
instances . On the other hand, if it is isolated and aberrant, it nevertheless does
not shock the conscience of a senior officer whose responsibility lies in internal
inquiries into disciplinary matters . In either case, we wish to express our
concern . Our comments with respect to the conduct of the various R .C .M .P .
members involved will be made when we consider this case in more detail in a
subsequent Report .
Brutality
18 . We are pleased to report that there is very little evidence before us to
indicate that in the R .C .M .P ., violence, or the threat of violence, is used to
obtain statements from suspects . Once again, we have only one case before us
which raises the issue . It was not a case arising from a complaint received by
us . The matter came to our attention only because the trial judge happened to
speak of the matter to a group of judges who by chance included the Chairman
of this Commission . Even the trial judge did not at the time have any intention
of placing the matter formally before our Commission . The case involved the
murder of a motorist who picked up a hitchhiker, the accused. When the
accused was arrested he was found to be in possession of things that afforded
strong circumstantial evidence that he was the murderer . He denied any
knowledge of what had happened to the deceased . Threats were made to him
during two interrogations lasting a total of six hours . He was then taken to a
room by an R .C .M .P . corporal and constable in plain clothes . The room was
stripped of all furniture except a chair . The corporal told him to stand up and
remove his spectacles, kicked him in the testicles, and hit him across the face
with the back of his hand . When the accused would not answer questions, he
was told by the corporal that he would be "taken for a ride" . The R .C .M .P .
officers then took him off in a car . They told him that they were not like other
police officers, but were from a special squad, and that what he told them
would not be for court purposes . The corporal struck him hard blows on the
head and body that caused swellings and lumps on his head . He was told that
he was being taken to a gravel pit . Afraid of what would happen there, he
made a statement as to where the deceased's body could be found . This
statement proved to be only partly correct, and resulted in a fruitless search for
the body . Following further threats, but no further physical violence, he finally
gave the correct location of the body . All these facts were placed before the
judge before whom he pleaded guilty to second degree murder . The facts were
placed before the court during the hearing as to sentence, by a statement of
facts agreed to by counsel . The corporal submitted a detailed report of his
activities, including the facts that concern us, to his superior officer, who did
nothing . A week after the sentence hearing, the trial judge mentioned the
matter in the presence of the Chairman of this Commission . In due course,
when we enquired as to what steps had been taken internally with regard to the
conduct of the officers involved, we were informed that nothing had been don e
338
�to investigate these matters . It was then, and only then, that an internal
investigation was commenced in the R .C .M .P . Following the R .C .M .P . investigation, two charges of assault occasioning actual bodily harm were preferred
against the corporal . No action of a criminal nature was taken against the
constable, whom the Crown intended to call as a witness against the corporal .
The charges against the corporal were disposed of in the provincial court where
he pleaded guilty to a lesser charge .of common assault . The Provincial Court
judge granted the corporal an absolute discharge, largely on the ground that
the corporal, in the meantime, had been medically discharged from the
R .C .M .P . as a result of heart trouble, and that he had suffered sufficiently
from the internal investigation and criminal prosecution . Disciplinary action
was taken against the constable (who had in the meantime been promoted to
corporal) for his "passive participation" in the assault on the accused, and
against the officer in charge at the detachment for "failure to initiate an
investigation" when he became aware of the circumstances .
19 . An interesting feature of this case is that although members of the
provincial Department of the Attorney General and the Provincial Court judge
who presided at the preliminary inquiry were aware of the circumstances in
which the statements had been obtained, no steps whatsoever were taken within
the R .C .M .P ., or otherwise, in regard to the conduct of the R .C .M .P. members .
After our Commission took an interest in the case, the officer in charge of the
C .I .B . in the R .C .M .P . Division issued a memorandum to the four officers
serving directly under him expressing his "wish to be briefed as soon as possible
on all serious crime incidents or unusual issues which may arise from time to
time" . The officer in charge has also advised that he and the Commanding
Officer of the Division had had a discussion "to the effect that the C .I .B .
Officer or another Officer should see major and/or sensitive files in addition to
any initialling of correspondence that might be done by other C .I .B . staff
members" . Although we would hope that similar conduct would not occur
elsewhere, its doing so remains a possibility . We therefore asked the R .C .M .P .
whether any system existed in other divisions in the country to ensure that
oppressive or violent conduct towards persons in custody would receive official
attention . The answer given to us was that there were no similar directives in
other divisions and that "one case does not a universal problem make" . We are
unfavourably impressed by the attitude taken by the R .C .M .P . toward this
issue . Even in the Division in which measures were taken we consider that the
."discussion" and the "wish" are likely to be forgotten, at least as soon as there
is a change in senior personnel . The impermanence and vagueness of the
"system" there afford little ground for optimism that a recurrence of such
conduct would be reported to senior officers at Divisional Headquarters . The
Headquarters attitude toward our request leaves us even more pessimistic
about the other divisions . We hope that this kind of possible deficiency in
administration would be examined by the independent review agency for police
matters (the Inspector of Police Practices) which we propose in Part X,
Chapter 2 .
339
�Trickery
20 . In determining whether a statement made by an accused to a policeman
is admissible, the Canadian courts have regarded a "trick" as having a bearing
on voluntariness . For example, if the trick is a lie, it may result in the
statement being held to be inadmissible if it in some way implies or at least
relates to a fear of prejudice or a hope of advantage resulting in an "inducement" or "extraction" or "obtaining" of the admission .12 The R.C .M .P.
Training and Development Branch booklet on interrogation which is handed
out to recruits in Regina says :
Never lie to or deceive a suspect for, if he discovers this, he will never again
co-operate . Never bluff, at least not when you may easily be discovered . If
he recalls [sic] your bluff and you cannot back it up, for all intents and
purposes the interrogation is over as your position is greatly weakened .
It will be noted that the limits are defined, not in terms of principle, but in
terms of effectiveness .
21 . Examples of a "trick" being used by field personnel are the pretences in
the last two cases summarized above that what would be said would not be
used for court purposes . Beyond these examples, we are unable to comment on
the extent or prevalence of the use of trickery in criminal investigations .
B . SECURITY SERVIC E
22 . Occasionally members of the Security Service may be required to interrogate people . The suspicion will ordinarily be that the person being questioned
has become the agent of a foreign intelligence agency . We do not consider that
our recommendations in regard to interrogations by the security intelligence
agency hinge upon the extent to which there have been such interrogations .
There is only one case that we know of that has given rise to any possibility of
the use of methods "not authorized or provided for by law" . We shall report on
it in a subsequent Report .
C . NEED AND RECOMMENDATIONS - BRIEF
SUMMAR Y
23. It is obvious to us that both the R .C .M .P., for criminal investigation
purposes and, to a lesser extent, the security intelligence agency, need to
interrogate suspects in order to perform their responsibilities effectively . In
Part V, Chapter 6, we shall state some concerns we have about the manner in
which interrogations should be conducted by members of the security intelligence agency . Then, in Part X, Chapter 5, we shall make recommendations on
the policy, reporting and review procedures and training practices of the
R .C .M .P. with regard to interrogations relating to criminal investigations, and
we shall also make' recommendations with respect to the admissibility of
illegally or improperly obtained evidence .
1 1 R. v . Materi and Cherille [1977] 2 W .W .R . 728 at 735 (B.C .C .A .) .
340
�CHAPTER I I
I
ACTS BEYOND THE MANDATE
INTRODUCTION
1 . In this chapter we do not examine Security Service acts or practices which
were unlawful . Rather, we examine certain acts and practices of the Security
.
Service to determine whether they were "not authorized . . by law" in the
authority to perform them . In Part V,
sense that there was no government
Chapter 3, we shall consider these same acts and practices again from the point
of view of their policy implications . These two examinations will form the
foundation for our recommendations for the future in regard to the matters
discussed .
A . GOVERNMENT DIRECTIVES ON SURVEILLANCE
ON UNIVERSITY CAMPUSE S
2. Although the government did not usually devote attention to the conduct
of operations by the Security Service, a specific policy was developed in the
1960s with respect to R .C .M .P . operations on university campuses . Because the
policy unquestionably constituted a governmental limitation on R .C .M .P .
operations on university campuses, we examine in this chapter whether the
R .C .M .P . violated the policy and thus may have acted beyond its authority .
3 . According to R .C .M .P . files, in June 1961 the Minister .of Justice, the
Honourable E . Davie Fulton, gave verbal instructions to Commissioner C .M .
Harvison to suspend the R .C .M .P .'s investigations of subversive activities in
universities and colleges . At the time the only activities that the R .C .M .P.
deemed subversive were those of Communist organizations . Apparently a
short-term freeze on operations was intended until a detailed study of the
problem could be completed . Divisions were advised by letter, dated June 21,
1961, that all investigations connected with Communist penetration of universities and colleges were to be suspended, but that long established and reliable
agents and contacts should be permitted to continue to report upon developments . That letter stated :
Owing to recent unfavourable publicity arising from enquiries conducted by S . & I . personnel in connection with Communist activity amongst
students, the Commissioner has directed that all investigations connected
with Communist penetration of universities and colleges or similar educational institutions, is to be suspended forthwith, pending an analysis of our
requirements .
341
�2 . This should not be interpreted as meaning that we have waived our
interest in Communist activities within educational institutions, but rather
that we must undertake a careful review of our approach to problems which
could result in critical and somewhat embarrassing reflections upon the
intentions of the Force . It should be made clear that no action of any kind
which could result in public discussion or complaints to the Minister is to be
undertaken until the review .
4. One interpretation of this instruction is that not all R .C .M .P . investigations on campus were curtailed, only those concerned with Communist activity .
However, it is important to point out that at that time the R .C .M .P .'s
counter-subversion programme was directed against Communist activity .
Throughout the 1960s the Fulton directive was regarded within the Security
Service as applying to all R .C .M .P . university operations with the exception of
reports from previously established sources and security clearance investigaA
tions .
5 . In 1963 the government changed, and, as a result of representations by the
Canadian Association of University Teachers (C .A .U .T .), further consideration was given by the government to R .C .M .P . activities on university
campuses . Meetings between the Prime Minister and the C .A .U .T . were held
in July and November 1963 . At the conclusion of the November meeting a
public statement was issued by the Prime Minister which read as follows :
There is at present no general R .C .M .P . surveillance of university campuses . The R .C .M .P . does, in the discharge of its security responsibilities,
go to the universities as required for information on people seeking employment in the public service or where there are definite indications that
individuals may be involved in espionage or subversive activities . '
This policy statement does not appear to have been a Cabinet decision ; rather,
it was an expression of present policy by the Prime Minister worked out after
discussion with officials and the representatives of the C .A .U .T . and the
National Federation of Canadian University Students . While it was not seen as
a formal government directive by the senior management of the R .C .M .P .,
divisions were advised in the course of a long report on the November meeting
with the C .A .U .T . that "absolute assurance was given that there was not at the
present time any general security surveillance of university campuses by the
R .C .M .P . nor of any university organizations as such" . In 1970 and 1971 the
Pearson policy statement was formally reaffirmed by Cabinet as government
policy and continues as such to this day . In one respect, the Pearson statement
supplemented the Fulton policy by recognizing that the R .C .M .P. might seek
information on campus "where there are definite indications that individuals
may be involved in espionage or subversive activities" .
6 . Thus, at the end of 1963 the situation was that the government had
specifically directed the R .C .M .P ., by means of the Pearson statement, that
there was to be no general surveillance of people or organizations on campus .
"R .C .M .P . Activities on University Campuses", C.A .U.T. Bulletin, Vol . 13, No. 2,
October 1964 .
342
�Furthermore, the Fulton moratorium on campus investigations - specifically
that no new sources on campus should be developed - had never been
rescinded and the policy, insofar as the R .C .M .P . was concerned, remained in
effect .
7 . In the mid-1960s the Security and Intelligence Directorate of the
R .C .M .P . reached the conclusion that much subversive activity had its origin in
universities and colleges and it was anxious to improve its coverage of such
activity . While subversive activity was still considered by the R .C .M .P . as
predominantly Communist, it was no longer seen by them as exclusively so .
Thus, in Quebec there was evidence that terrorist sympathizers were active in
universities and other educational institutions . The Security and Intelligence
Directorate therefore decided to put special emphasis on the development of
sources in the university milieu, but to do this within the constraints previously
imposed by government . There is no evidence that sources were developed from
among students, but it is clear that a good deal of effort was devoted to the
recruitment of faculty members . In an important directive to divisions, dated
November 29, 1967, a senior officer in the Security and Intelligence Directorate gave instructions to develop sources on campus :
As noted above, it is contended, with rather overwhelming supporting
evidence, that university campuses are the core [sic] to these newly
recognized, potential threats to national security . It is not suggested that
universities, per se, are involved in conspiratorial activities directed against
our democratic system, however, it is an irrefutable fact that they do exert
considerable influence on sociological issues of the day and are, therefore
ripe targets for communist infiltration and manipulation . You will undoubtedly agree that a person who privately harbours Communist sympathies and
who gains an influential position in a select faculty on a university, can
contribute immeasurably to the Communist cause . The value of such a
person to the movement is obvious as is our corresponding security responsibilities . In addition to this, universities are obviously being utilized as
stepping stones for infiltration of other intellectual groups and, of particular
concern to us, of "key sectors" of society . It seems apparent then, that
university campuses are the focal point of the entire problem .
In attempting to devise ways and means of attacking this problem,
many and varied methods, short of conducting on campus enquiries, have
been considered and implemented . As indicated above, however, the success
achieved has been negligible and leads one to question the suitability of our
current techniques . In analyzing these methods it is obvious they are
ineffective and completely inadequate in light of current demands . This
can, for the most part, undoubtedly be attributed to the present restrictions
placed, by the Government, on subversive enquiries at educational institutions . It is evident, however, that no appreciable progress can reasonably be
expected in this area without the cooperation of, or liaison with, select
faculty members on the universities concerned . Our experience during the
past six years has clearly shown that the desired information is simply
unattainable off campus and, if we are to succeed in this important
undertaking, our current methods will require a degree of revision . It is felt
that with tact and diplomacy we could achieve our objectives, or a good
portion of them, without transgressing the assurances we have provided to
the government .
343
�It will be recalled that in 1961 the Government was assured we would
refrain from conducting enquiries on subversive activities on university
campuses . Instructions in that respect are contained in our memorandum of
21-6-61 . . . This restriction is still in effect and, under the circumstances, we
are bound to abide by this directive until such times as it is revoked . It is
significant, however, that the restriction pertains exclusively to subversive
enquiries with no objection being made to the conducting of legitimate
security enquiries . Throughout the dispute of 1961 /62 relative to our
on-campus investigations the necessity of legitimate security enquiries was
conceded by even our most vocal protagonists . This position was never
refuted during subsequent debates and apparently, has been accepted by all
concerned .
While we are morally, and indeed, honour bound to respect the
assurances we made to the Government in this area, paradoxically, we are
still burdened with the responsibility of keeping that same Government
abreast of Communist penetration of the educational process . However,
since we are under this dual obligation it is clear that the probable solution
lies within the realm of security enquiries through which it is possible to
establish liaison with faculty members . Such enquiries are, in fact, the only
legitimate grounds on which we may establish this liaison . Since our efforts
are restricted to this one avenue, we should exploit the opportunity to the
fullest possible extent in keeping with our heavy responsibilities in this area .
As a point of interest, the limited success we have enjoyed to date was, in
large measure, accomplished through this medium .
While limited progress has been made in various areas, the success
realized at one particular institution may best illustrate the use to which
legitimate, on-campus enquiries may be put . Two senior investigators, well
versed in [counter subversion] Branch interests, were delegated to conduct
all university investigations, including the all important security screenings .
Our knowledge of Communist penetration of the institution was then
reviewed and, on the basis of the review, specific faculties were singled out
for further study . Security investigations relating to these faculties were
given particular attention with a view of eventually interviewing all professors who were not adversely recorded in our indices . All such professors
listed as references on the P .H .F .s [Personal History Forms completed by
applicants for employment in the public service] were interviewed without
fail . Additionally, faculty heads and assistants, even though they were not
specifically mentioned on the P .H .F .s, were requested to provide character
references on former students seeking sensitive government employment . As
part'of the character study the professor was routinely invited to comment
on the person's loyalty and patriotism . Needless to say, the members
concerned identified themselves as members of the Force and fully
explained to the professor in question the exact nature of the enquiry .
Under no circumstances was the overt and legitimate nature of the enquiry
deviated from .
Following each interview the investigator committed the salient points
thereof to paper in a book which was maintained for the express purpose of
compiling data on faculty members of the university concerned . This was,
of course, in addition to the usual report on the particular [security
screening] file . Each professor or staff member interviewed was allotted one
page which was headed with the faculty, the professor's name and hi s
344
�position . Beneath this were listed all interviews with him . These were
.
detailed as to the date of the interview, the reason therefore . . and most
importantly, the professor's personal reaction . Special attention was devoted
to his willingness, or lack of same, to cooperate with the investigator, his
general attitude towards the Force and what sentiments he displayed,
verbally or otherwise, to our presence on the campus .
All contacts on the campus were duly recorded and analyzed . Those
who were obviously well disposed towards us and who appeared willing to
cooperate, were given additional attention . Efforts were made to arrange
further interviews (based, as usual, on security enquiries) during which the
subject's reactions were further examined . As at the outset, subsequent
interviews were restricted to the security enquiries concerned . All reactions
were, however, recorded in the manner noted in the preceding paragraph . In
addition to fulfilling the requirements of the enquiry, the investigators
endeavoured to establish a personal rapport with the professors . This was
accomplished through general conversation on far ranging topics and, in
some cases, limited social contacts in the form of coffeeing or lunching
together . As in the past, no effort was made to directly solicit the individual's cooperation, nor was the matter of subversion broached . Essentially, a
friendship was developed with an attempt made to relegate the professional
status of both the investigator and the professor, and all that that entails to,
at least outwardly, a position of secondary importance .
The discussions entered into arose very naturally when our "business
transactions" were completed . Besides any number of topics of no particular concern to us, many persons, because of our declared interest in
"security", raised, in general terms, the subject of Communism . Under the
circumstances this was considered a natural course of events . Most had very
definite views and the discussions which ensued were, to say the least, of
more than passing interest to the investigators . In spite of a general opinion
to the contrary, it was found that many professors were not only very much
aware of the threat posed by Communism but also genuinely concerned
about it . Those discussions were enlightening and posed no threat to our
operations since the subjects raised were covered in depth in any number of
books or other publications available to the general public . Other subjects
such as the international situation, the Sino-Soviet dispute, local issues
(political or otherwise) were often raised in these general conversations .
One topic which, . not surprisingly, was frequently raised by faculty
members was the dispute raging overour "on campus" investigations .
Discussions in this vein quickly determined the person's views on the matter
and removed any doubts, one way or the other, the investigator might have
had .. In most cases, however, the issue was raised in a sympathetic manner .
Occasionally, when circumstances appeared favourable, a professor would
be asked outright if he had any objection to our security enquiries . This
frequently led to his revealing his views on the entire question of on-campus
investigations, subversive or otherwise . It is significant that, in most cases,
there was no objection to any of our enquiries so long as they were
conducted prudently and with discretion . A detailed account of all such
discussions would be impractical at this juncture, however, a brief insight of
their scope is provided by the foregoing points . No doubt the most important point is that neither the letter, nor the spirit, of the trust placed in us
by the Government was broken . All contacts were legitimate, honourable
and useful . Under no circumstances was the professor's formal cooperatio n
345
�sought nor was the subject of subversion raised by the investigators. In
short, every precaution was taken to ensure that our long range interests
were not compromised . The individuals concerned were provided no opportunity to voice any legitimate complaint of unethical practices on our part .
When the foregoing plan had been pursued over an extended period of
time, some rather pleasant developments took place . The most significant of
these was in the number of professors, etc ., who eventually offered their full
cooperation on all matters of interest to us . Many, without prompting on
our part, volunteered, or at least chose to discuss, the activities and political
views of a number of their colleagues . It was evident that they would have
spoken to us sooner but did not know anyone connected with the Security
Service and would not take it upon themselves, for obvious reasons, to call
our offices "blind" . Once an association had been developed some individuals actually called us to pass on pieces of information of potential interest to
us . This willingness to cooperate was displayed in varying degrees and in a
variety of ways, however, of immense importance to us was that a workable
liaison had been established . By mere social evolution our interest in
subversion was also accepted and information developed without the necessity of us first providing information on persons of interest to us . This was
also accomplished without the necessity of directly soliciting their
cooperation .
Of further value in an operation such as that described, is the fact that,
besides creating liaison with faculty members, it also determines those
persons who should not be contacted . This is of positive value since it alerts
us to potential problem areas which would otherwise be unknown . Such
information, gained through legitimate means, could prove useful in various
ways on future, unrelated enquiries . This could be of particular value
relative to extremely delicate (counter espionage) Branch enquiries which
very often involve this profession .
The essential point in this type of operation is that no attempt of any
kind is made to solicit an individual's cooperation . What we are doing, in
effect, is making ourselves known and available to the profession should any
of its members have occasion, and the desire, to speak to us . Once this
desire is expressed we would be grossly negligent in our duties if we refused
to listen to the person . In the operation described above a number of
persons did, in fact, indicate they were glad to meet us since they wished to
discuss certain matters . It is assumed that, had we not made our presence
known, the persons concerned would not have made any special efforts to
contact us . Although persons in this profession will not usually initiate
contact, it has been proven that they will confer with us if they know one of
our investigators through previous legitimate dealings . Once the desired
liaison has been established and continued over an extended period of time,
the individual concerned really becomes an established casual source with
whom we can safely deal .
It is noteworthy that in the above described operation, which has been
in effect for five years, no embarrassment to the Force resulted ; our
assurances to the Government were not broken ; standing policy within the
Directorate was not contravened, yet, a workable and valuable liaison was
established at the institution concerned . It should also be noted that
university students were not involved in any manner in the plan . All things
considered, it was a worthwhile and secure exercise which proved that, i n
346
�spite of the restrictions under which we are obliged to operate, we can
discharge our responsibilities in this delicate field of endeavour .
Despite the frequent disclaimers, there is no question that the actions outlined
and commented on in the directive represent a ., comprehensive, long range
programme of source development on campus . The security screening process
was being used as a means of making contact with faculty heads and assistants,
even though they were not mentioned as referees on personal history forms,
and persons who were obviously well disposed were re-interviewed and cultivated in the hope that a continuing relationship would be established . The method
employed was subtle and indirect but its object was clear : the development of a
number of faculty sources who would contribute to the counter-subversion
programme .
8. On July 8, 1968, the same senior officer who had signed the letter to
divisions of November 29, 1967, admitted in a lètter to the Secretary of the
Royal Commission on Security that the Security Service was endeavouring to
develop a few sources of high reliability with respect to campus subversive
activities, but these approaches were not being made on campus .
9 . It also appears that in 1968 and 1969 when student violence was a serious
problem, the Security Service held a number of consultations with university
presidents and senior administrators at several large universities . These consultations - which were welcomed and in fact encouraged by senior university
personnel - were not regarded as source development although through them
a certain amount of information on subversive activities on campus was
undoubtedly accumulated .
10 . We have reached the conclusion on the basis of this evidence that the
R .C .M .P . in the late 1960s embarked, without government approval, on a
significant programme to upgrade and improve their contacts with university
faculty members . This programme was undertaken in response to increasing
militancy in the universities and, in some universities, the development of
terrorism . Nevertheless, it appears to us that this programme was in conflict
with the instructions received by the R .C .M .P . in 1961 that no new operations
were to be conducted and that only established sources were to be used . It was
also in conflict with government policy enunciated by Mr . Pearson in 1963 that
there was no general surveillance of university campuses . In our opinion, the
procedure described in the directive to divisions, dated November 29, 1967,
was designed to circumvent the policy of the government and it was inaccurate
to claim that such procedures complied with government policy .
11 . By the end of 1970, in the aftermath of the October Crisis, the question
of surveillance on university campuses again came before Cabinet . After
considerable discussion the Cabinet, by a decision dated September 30, 1971,
reaffirmed the 1963 Pearson directive as a statement of general policy,
rescinded any other directives and ordered furthe r
that no informers or listening devices will be used on university campuses
except where the Solicitor General has cause to believe that something
specific is happening beyond the general free flow of ideas on university
campuses .
347
�After this directive it was clearly a prerequisite that the use of all sources on
university campuses have the authorization of the Solicitor General . However,
in a letter dated December 13, 1971, the Solicitor General advised the
R .C .M .P. that this Cabinet directive would not appl y
(a) in cases of emergency, provided a report was given to the Solicitor
General within 48 hours ;
(b) in cases where informers volunteered information to the Security
Service and were not paid for the information provided .
12 . It would appear that these instructions were issued by the Solicitor
General after consulting the Director General of the Security Service and that
the Cabinet decision of September 30, 1971, was not amended . It also does not
appéar that the Solicitor General knew of the number of "volunteer informers"
that had been developed by the Security Service . (We note that "volunteer
informers" is an ambiguous phrase as it does not distinguish between informers
who volunteer and unpaid informers .) We point out that the Cabinet directive
of September 30, 1971, applies in quite explicit terms to "informers" and we
can see no reason to interpret it as being limited to paid sources . Furthermore,
the emphasis placed by the Security Service in 1967 on the recruitment of
"volunteers" suggests that this could be a significant exception . In our opinion,
if the Solicitor General and the Security Service intended to adopt a narrow
interpretation of the word "informers", the Cabinet should have been advised
and the Cabinet directive should have been amended to make it clear that the
approval of the Solicitor General was to apply to the use of paid sources only
and that there should be an exception in the case of emergencies .
B . SURVEILLANCE OF LEGITIMATE POLITICAL
PARTIE S
13 . As we shall see in Part V, Chapter 3, Prime Minister Trudeau stated in
the House of Commons on May 11, 1976, that his view and that of the
government, which he said had been stated in Cabinet Committee, was tha t
if the party is legal, it should not be under surveillance systematically by
the Royal Canadian Mounted Police or any other police . 2
Mr. R .G . Robertson, who was Secretary to the Cabinet in the 1960s and
Chairman of the Security Panel, considers that this has represented the policy
of the government since 1964 . He testified that at that time the concern was
about the Rassemblement pour l'Indépendance Nationale (R .I .N .), a predecessor of the P.Q. He said tha t
the R .I .N ., as a legitimate political party, was not supposed to be subject to
the kind of surveillance that there would be of a terrorist organization or a
subversive organization . So that the R .C .M .P . had to operate under that
disability, that they could not have surveillance of the R .I .N . as such .
(Vol . C 107, p. 14068 . )
2 House of Commons, Debates, May 11, 1976, p . 13389.
348
�Mr . Robertson was referring to a deçision of the Security Panel on September
23, 1964, chaired by himself, to recommend to the Cabinet that the R .C .M .P .
be authorized, in security screening matters, to include in their report to
department s
the fact of membership in open organizations such as the R .I .N . together
with the detailed information concerning length of attendance, degree of
involvement and other pertinent information as was available, in order that
the department, on whom final decision for the clearance rested, could
consider the necessity of further investigation, as they would do in cases of
information concerning membership in the Communist Party, front organiiations or character weaknesses .
(Ex . MC-182, Tab 2 . )
He says that the words "other pertinent -information as was available" contemplated that the R .C .M .P . "might get that information from heaven knows what
sources, and if they had it they should produce . it . But the R .I .N . was not
subject to surveillance" (Vol . C 107, pp . 14066-8) .
14 . On May 6, 1976, Mr . Allmand had told the House of Commons that the
Cabinet's decision ha d
. .. confirmed that the R .C .M .P . should not survey legitimate political
parties per se, but of course individuals in all political parties should be
subject to surveillance if they are suspect with regard, to criminal activities,
subversion, violence or anything like that . '
This explanation corresponds with what Mr . Dare had written in a letter to
some senior officers on June 9, 1975, with regard to "criteria used to
investigate the Parti Québecois and its members" . He said tha t
The Prime Minister stated that the Security Service of the R .C .M .P . does
not have a mandate to conduct these enquiries unless they fall within Items
A to F of the Cabinet Directive of March 27, 1975 .
15 . If Prime Minister Trudeau's statement of May 11, 1976, were taken
alone; one might infer that systematic surveillance by the Security Service of
any "legal" party was not permitted . If that were so, an issue would arise as to
whether the, R .C .M .P . has conducted systematic surveillance of certain parties
that are "legal", in the sense that they are not prohibited from organizing as
political parties and that they nominate candidates in federal, provincial and
municipal elections . The issue arises . in respect to such parties as the Communist Party of Canada, the Communist Party of Canada (Marxist-Leninist), the
New Democratic Party's Waffle Movement and the Parti Québecois . If the
proper conclusion is that there has been systematic surveillance of such parties,
the question then .is whether it can be said that such surveillance was beyond
the authority of the Security Service - i .e . whether, in the language of our
terms of reference, it was "not authorized . . . by law" .
' Ibid., May 6, 1976, p . 13224 .
349
�The Communist Party of Canada
16 . The Royal Commission on Espionage, established as a result of the
defection by Mr . Igor Gouzenko, reported in 1946 that the evidence "overwhelmingly" established
that the Communist movement was the principal base within which the
espionage network was recruited ; and that it not only supplied personnel
with adequately "developed" motivation, but provided the organizational
framework wherein recruiting could be and was carried out safely and
efficiently.
In every instance but one, Zabotin's Canadian espionage agents were
shown to be members of or sympathisers with the Communist Party . ..
The evidence shows that the espionage recruiting agents made use in
their work of reports, including psychological reports, on Canadian Commùnists which had been prepared as part of the routine of the secret "cell"
organization of that Party . . .
. ..A preliminary feeling out of the selected recruit, before the latter
realized the sinister purposes for which he was being considered, could also
be made within the framework of normal Communist Party activities and
organization, and there is also evidence that this was part of the technique
of recruiting .°
The Commission then gave a detailed example of three scientists who were
recruited from among the secret members of the Communist Party . The
Commission concluded its exposition of this example by saying :
Thus within a short time what had been merely a political discussion
group, made up of Canadian scientists as members of a Canadian political
party, was transformed on instructions from Moscow into an active espionage organization working against Canada on behalf of a foreign power . . .
The evidence also discloses that secret members of the Communist
Party played an important part in placing other secret Communists in
various positions in the public service which could be strategic not only for
espionage but for propaganda or other purposes . s
17 . The Report of the Royal Commission on Security in 1969 observed that
it seems clear that the main current security threats to Canada are posed by
international communism and the communist powers, and by some element s
of the Quebec separatist movement . The most important communist activities in Canada are largely directed from abroad, although domestic adherents of and sympathizers with communism pose considerable problems in
themselves . . .6
The communist powers conduct espionage and subversive operations
.. through members of the communist parties in Canada, both overt and
underground . . .'
.
' Report of Royal Commission on Espionage, 1946, pp . 44-5 .
5/bid., at pp. 47 and 49.
6 Report of Royal Commission on Security, 1969, para . 14.
' Ibid., para . 16 .
350
�As far as the trade union movement is concerned, there is a long history of
attempts by the Communist Party to assume control at local levels and to
take all possible measures to influence national policies ; these attempts are
usually, but not always, frustrated . g
The Commission made no observations as to whether the Communist Party of
Canada was otherwise a threat to national security, or if it was, in what
respects it was . We have no reason to disagree with any of the passages just
quoted .
18 . As a political party, the Communist Party of Canada has received only
minimal electoral support . Since the conviction of Fred Rose, M .P . in 1947,
there has never been a Member of Parliament elected under the auspices of the
Communist Party of Canada . If the Party received more electoral support than
it does, the grounds upon which its activities would be watched would be more
obvious than they have been . The grounds on which surveillance has been
justified have been the features noted by the Royal Commission in 1946 : that
the Party is a breeding ground for espionage, and that its secret members
attempt to penetrate the government .
19 . Both those grounds have been recognized by the government of Canada
over the years as bases for the following intelligence activity by the R .C .M .P . :
(a) In the 1950s and 1960s the Advisory Committee on Internments, established and continued by successive Ministers of Justice, received "evidence
briefs" from the R .C .M .P . on organizations which the R .C .M .P . proposed
should be classified as "recognized Communist organizations" . If so
classed by the Committee, then, in an emergency, the organization could
be declared an illegal organization under regulations adopted pursuant to
the War Measures Act . The Advisory Committee was also to place names
on a list of members of those organizations who were "prominent functionaries", and who would be interned in the event of a national emergency .
In order that this system could operate, it was obviously necessary that the
R .C .M .P . have accurate and positive proof of membership in the Party or
other organizations . The Committee itself fell into decline in the late
1960s, but the collection and analysis of the same kind of intelligence has
continued within the R .C .M .P . to the present time .
(b) Cabinet Directive 35, which has been the foundation for security screening
in the Public Service since December 18, 1963, provides that the Government of Canada cannot place confidence in persons who are required to
have access to classified information in the performance of their duties, if
their "loyalty to Canada and our system of government is diluted by
loyalty to any Communist, Fascist, or other legal or illegal political
organization whose purposes are inimical to the processes of parliamentary
democracy" . It states that the following person s
must not, when known, be permitted to enter the public service, and must
not if discovered within the public service be permitted to have access to
classified information :
I Ibid., para . 18 .
351
�(i) a person who is a member of a communist or fascist party or an
organization affiliated with a communist or fascist party and
having a similar nature and purpose;
(ii) a person who by his words or his actions shows himself to support a
communist or fascist party or an organization affiliated with a
communist or fascist party and having a similar nature and
purpose ;
(iii) a person who, having reasonable grounds to understand its true
nature and purpose, is a member of or supports by his words or his
actions an organization which has as its real objective the furtherance of communist or fascist aims and policies (commonly known
as a front group) ;
(iv) a person who is a secret agent of or an informer for a foreign
power, or who deliberately assists any such agent or informer ;
All departments of the government have expected the R .C .M .P . to give them
information concerning applicants for positions in the public service so that the
departments may decide whether the applicants fall within any of these
categories . It is obviously impossible for the R .C .M .P . to provide this information without employing informers and other intrusive methods .
(c) When the Cabinet issued a Directive on March 27, 1975, defining the
mandate of the Security Service (apart from its security screening functions, as was later made clear), the R .C .M .P . made it known that it
considered that the authority that was requested would, if granted, be
taken as permission to "monitor" the activities of (inter alia) Communists,
Trotskyists and Maoists .
20 . The inevitable conclusion is that there has been systematic surveillance of
the Communist Party of Canada, and that there has been ample governmental
authority for the systematic surveillance of the Communist Party of Canada
and its members . It would be playing on words to assert that it has not been the
Party but only certain of its members who have been under surveillance . No
such distinction can reasonably be drawn when the surveillance is of the Party's
leaders and officers, and is aimed at determining their every word and action .
This very surveillance has been expected by government . Therefore it would
not really be accurate to say that the Security Service has lacked authority
from the government to conduct systematic surveillance of the Communist
Party of Canada . Moreover, even if, as we think is the case in law, the Prime
Minister's public statement or a Cabinet Directive cannot be taken as having
effect in law as authority for the R .C .M .P . doing or not doing a thing, section 5
of the R .C .M .P . Act does give the Solicitor General power of direction . So
what Mr . Allmand directed would have the authority of statute behind it, and
we think that his public statement in the House of Commons on May 6, 1976,
would have the status of a directive. That statement was that the R .C .M .P .
"should not survey political parties per se" . But that statement must be
qualified by the fact that Mr . Allmand, like other Solicitors General, did
authorize surveillance of the Communist Party of Canada . His doing so would
be a "direction" under section 5 . Consequently, the R .C .M .P . has had lawful
authority to conduct systematic surveillance of the Communist Party ; conse352
�quently its systematic surveillance of this legal party has not been an investigative activity "not authorized . .. by law" .
The Communist Party of Canada (Marxist-Leninist )
21 . The activities of this Party have been under intensive investigation in the
1970s . Its leader has been the object of both close surveillance and certain of
the disruptive tactics which were carried out under the "Operation Checkmate" umbrella . In 1972, when it ran a number of candidates in the federal
election as "independents", the Security Service drew the true nature of these
candidates to the attention of the press . As a result at least one newspaper
published an article as to their true identity not long before election day . The
Party's electoral support in the four federal elections of the past decade has
been minimal .
22 . There was governmental authority for the Security Service's interest in
this Party . The basis of this has been the Security Service's view that the Party
is "a self-styled revolutionary party whose activities are aimed at abolishing
our parliamentary system of government by force or violence and replacing it
with a worker dictatorship" .9 In addition, we have seen that when the Cabinet
Directive of March 27, 1975, was issued, the R .C .M .P . made it known that the
authority sought, if granted, would be taken as permission to monitor the
activities of Maoists . The latter category was at that time represented by the
Communist Party of Canada (Marxist-Leninist) . In regard to this Party the
same conclusion applies as that stated in regard to the Communist Party of
Canada .
The New Democratic Party
23. The New Democratic Party has been in existence since 1961 . It describes
itself as a social democratic party . It succeeded the C .C .F . (Co-operative
Commonwealth Federation), which had been founded as a socialist party in
1932 . First the C .C .F . and then the N .D .P . elected Members to Parliament in
every federal election since 1935 . In the past decade the Party has received
between 15 :4 and 19 .7 per cent of the popular vote in federal elections, and
elected from 16 to 32 members . It has formed the provincial government in
Saskatchewan most of the years since 1944, in British Columbia from 1972 to
1975, and in Manitoba from 1969 to 1977 . It has formed the Official
Opposition, and for many years it has been represented by significant numbers
of members, in the Ontario legislature .
24 . As we shall see in Part V, Chapter 3, in the early 1970s the R .C .M .P .
Security Service conducted an investigation of the Waffle Movement, which
was a faction within the N .D .P . The Security Service believed that Trotskyists
and Communists were joining the Waffle in order to influence its members and
attempt, through it, to take control of the N .D .P . nationally and provincially . I t
' The words quoted are from an application for a warrant under section 16 of the
Official Secrets Act .
353
�sought and obtained intelligence on the activities of those individuals within the
Waffle Movement and of the Waffle Movement within the N .D .P . It even
volunteered information to one leader of a provincial New Democratic Party on
the basis that he should be aware of subversives within his Party .
25 . Some of the language used by members of the Security Service in their
instructions, reports and their analysis of the objectives of their work in this
area shows that they regarded their task as the surveillance of "left-wing"
members of the N .D .P . For example, one of the stated types of information
which was sought was simply "The Waffle Movement" . General instructions
were given by Headquarters to all field personnel as follows : "We are interested in determining national aims, strategies and planned tactics of the Waffle
leadership, especially when insights we develop go beyond their open, public
announcements" . On the other hand, there is some evidence that the rationale
for the investigations was understood to be for the more limited purposes we
have stated . It may therefore be that there was an imprecise understanding
that varied from person to person, as to what the rationale was . Whether or not
surveillance of one faction of the New Democratic Party constituted systematic
surveillance of a political party is very much a matter of definition . On
balance, we believe that the investigation was understood within the R .C .M .P .
not to be an investigation of the N .D .P . as a whole but rather of certain persons
in one faction of that party . It follows from this conclusion that it would be
unfair to characterize what occurred in practice as surveillance of a political
party . Therefore, in our view, the investigation did not lack lawful authority . If
we are wrong in this, we can nevertheless say without hesitation that we have
found no evidence of any governmental or lawful authority to conduct systematic surveillance of the New Democratic Party . In Part V, Chapter 3, we
shall discuss this matter from the point of view not of lawful authority but of
its policy implications . Our concern there will be to identify some undesirable
features of this episode and to make suggestions how these undesirable features
can be avoided in the future .
The Parti Québecoi s
26 . The Parti Québecois was formed in 1968 as a provincial party in Quebec,
an official principal goal of which was described by the Party as sovereignty
association . That goal was regarded by some of its members and some of its
opponents as separatism . The concept includes the establishment of a nation
separate from Canada politically . It ran candidates in the provincial elections
of 1970 and 1973, in which it obtained 23 and 30 per cent of the electoral vote
respectively, and from 1972 to 1976 it formed the Official Opposition . At the
election of November 15, 1976, it obtained 41 .4 per cent of the popular vote
and formed the government .
27 . In Part V, Chapter 3 we shall point out that in the late 1960s the federal
government expected the R .C .M .P. to obtain information about membership
in, and the finances of, separatist organizations . From this it was not unreasonable that the R .C .M .P. would infer that it had the authority to investigate the
Parti Québecois . Additional reasons for the R .C .M .P .'s interest in the P .Q .
from 1968 onward are discussed in that chapter . So are the difficultie s
354
�r
encountered by the Security Service from 1975 onward in determining just
what its authority was in regard to the P .Q . and its members, under the
Cabinet Directive of March 27, 1975 .
28 . An example of the R .C .M .P .'s interest in the P .Q . per se is found in
instructions sent by Headquarters to "C" Division in Montreal in August 1970,
directing that intelligence be obtained concerning the Parti Québecois, if
possible at the highest level . The reason given was that the P .Q . was a group
dedicated to the dissolution of Canada :
It is our responsibility to inform the government of any, and all, groups or
organizations that are dedicated to the dissolution of Canada . The Parti
Québecois is clearly and publicly committed to the dissolution of Canada as
it presently exists . It will, therefore, be our responsibility to monitor the
various political influences which will infiltrate the Parti Québecois and
also any policy decisions as it may involve plans for seditious activity or
foreign involvement . We will not require detailed information en masse, as
is the case with recognized subversive organizations, however, we should
develop the capability of identifying and assessing the influential
functionaries . .
.
It is of further interest to note that the Headquarters instructions no longer
regarded the justification for "this type of investigation" as being that the only
interest was in possible terrorist activities or subversive infiltration .
29 . As of 1972 the Security Service's position was that, as Mr . Starnes said in
a letter to Mr . Bourne on September 25, 1972 ,
Our Service is not engaged in the investigation of the Parti Québecois per
se . The information that we have gathered on the Parti Québecois is
incidental and comes to us through our investigation of the Quebec
Revolutionary Movement as well as through the media and other overt
sources .
(Ex . MC-158 . )
Mr . Starnes appears to have believed the statement in the first sentence of the
passage quoted to be true . Thus, in a May 21, 1971, memorandum . for file, not
designed to be read outside the Security Service, he recorded that on that day
he and Commissioner Higgitt had had a discussion with Mr . Goyer in which
Mr . Starnes reasoned that the government could be seriously criticized if the
Security Service assisted the efforts of the Liberal Party "to oppose and to
defeat the aims of a political party such as . the Parti Québecois" . The criticism
would be "for attempting to use the facilities of the Security Service to carry
out political action, of one kind or another, against a duly constituted political
party in Canada" . Mr . Starnes added :
I said that it was true that the Security Service had for some years taken an
active interest in the Communist Party of Canada . However, in practical
political terms, this was very different from directly supporting political
action against the Parti Québecois .
(Ex . MC-15, Tab G . )
30 . As we have seen above, Prime Minister Trudeau and Mr . Allmand made
it clear in 1976, in the context of questions about the surveillance of the P .Q . ,
355
�that individuals in a legal political party should not be subject to systematic
surveillance unless their activities fall within the Cabinet Directive . Since then,
the category upon which the Security Service has relied in instructing paid
sources within the Parti Québecois has been "foreign intelligence activities
directed toward gathering intelligence information relating to Canada" . This
rubric has been thought to justify the collection of intelligence concerning
communications by foreign governments with the P.Q . government of Quebec .
Nevertheless, other information has been obtained and not rejected as being
irrelevant to the proper concerns of the Security Service, on matters of certain
importance to the Parti Québecois . Some of the information gathered has been
passed on by the Security Service to senior officials of the Public Service of
Canada without receiving any criticism in return for having collected it, even
though it is unrelated to any of the categories in the Cabinet Directive .
31 . Thus, even since 1976, whether it has sought the information or has been
the "passive" recipient of it, the Security Service has acted beyond its mandate
by receiving such information and retaining and using it . The Security Service
has, by receiving such information from its human sources, paid or otherwise,
received information unrelated to the categories of activities itemized in the
Cabinet Directive . Moreover, the kinds of information cannot be described as
other than surveillance of a legal political party per se . The passage of time and
the number of people involved make it extremely difficult to determine whether
information of this sort, when received by the Public Service, has been
transmitted to Ministers as a matter of course . If it has been, then, to the
extent that Ministers have received the information without criticizing the
Security Service, we do not feel that we should be more critical of the Security
Service for having acted outside its mandate than of the Ministers who fixed
the mandate in 1975 .
32 . We add that here we are discussing solely the issue of acting outside the
authority of the mandate, and not any question of whether some illegality was
committed by the manner in which the information was obtained .
33 . In our review of this matter, we came to the view that there was an
apparent disregard in practice by the Security Service of the government's
attempt, in regard to the Parti Québecois, to limit Security Service investigations to such activities of its members as fell within the 1975 Cabinet Directive,
which is illustrated by the following example from files . Before the provincial
election in 1976 a memorandum to the Deputy Director General (Operations),
read by Mr . Dare reported that the Service should not inquire into "legitimate
activities" within the Parti Québecois but rather that their "main interest" was
one of the six activities set out in the 1975 mandate . However, the genuineness
of this purported self-limitation to matters within the "mandate" is put in
question by the fact that a year earlier, an R .C .M .P . memorandum stated a
specific area of interest was to be pursued . The area of interest was not one set
out in the 1975 mandate . Again, after the electoral victory of the P .Q ., and
eighteen months after Mr . Dare had made known the limitations on the
investigation of the P .Q ., and R .C .M .P . officer wrote a memorandum in which
he observed that a particular investigative technique would enable the Securit y
356
�wrote a memorandum in which he observed that a particular investigative
technique would enable the Security Service better to fulfill its mandate . He
suggested that the technique be used to obtain information on "generalities
which may be very important to the central government but have little to do"
with any of the six activities set out in the 1975 mandate . He clearly expected
the technique would be used to obtain information "concerning" members of
the P .Q . Government . This recommendation was concurred with by a more
senior officer . The conscious determination to develop the investigative technique beyond the authority given by the "mandate" is reflected still further by
a memorandum to file, written a few days later by the same member . Again
discussing the same investigative technique, he contemplated that information
obtained would concern the P .Q. and "should help us to prepare realistic briefs
for Government" . A senior operational officer read that memorandum without
expressing disapproval .
34 . An R .C .M .P. Headquarters file disclosed another aide-mémoire written
in 1978 by an officer on the same topic which indicated that the investigative
technique would, on occasion, result in additional information being obtained
which fell outside the Security Service mandate . According to the aidemémoire, such information would not be sought, but if it came to the attention
of an investigator when he was dealing with mandate matters, he was to report
it in any event . Such information would "generally" concern "policy and
direction of the Government of Quebec" and was described as being "of
obvious value to the federal government in terms of national unity" . The
aide-mémoire records that the matter had been discussed with a senior
operational officer and that "as for passing information to government, a
decision will be made in each case as to whether material will be passed
because of its possible bearing on national security" . As we have said, there is
therefore evidence that since the 1975 mandate and public announcements
about surveillance of legitimate political parties, the Security Service has
actively sought information about the P .Q ., unrelated to the Security Service
mandate .
The Liberal Party of Quebec
35 . We have some evidence that from 1970 to 1976, while the Liberal Party
of Quebec formed the government of that province, the Security Service
collected intelligence about certain aspects of the activities of that government
and at least one paid human source had access to sensitive information about
that government's policies and its ministers . That source's objectives were
defined in 1971 as follows :
1 . The development of information on certain diplomatic personnel in
Quebec .
2 . To identify the disposition, propensity and ability to exercise influence,
of independentists employed in the government of Quebec and other key
sectors, who use their position to promote the separation of Quebec fro m
Canada .
3 . To determine the degree of influence that revolutionary or independentist influenced or controlled pressure groups (social, fraternal and
political) have on the Quebec government .
4 . To determine . the influence independentists and revolutionary sympathizers may have over the policies of [a certain department of th e
357
�provincial government] particularly in its relations with other Frenchspeaking countries .
36. In 1973, the source's handler commented on a detailed report that the
source had given . We have not seen the report, but the handler described it as
relating to infighting between individuals in ministries in the government of
Prime Minister Bourassa . The handler commented that the report made
evident that there were not very many individuals who are "died [sic] in wool
separatists at the very upper levels of the various Ministries, however, at the
lower level . . . there are a number of individuals who harbour separatist
sympathies" . The handler also stated that the source reported that the Quebec
Liberal Party had infiltrated the Parti Québecois at a very high level . The
handler concluded that the repor t
enables us to keep a close watch on individuals within the Bourassa
Government and this I feel is extremely important as it enables us as a
Security Service to be more fully aware of upcoming policies and activities
within the Provincial Government of Quebec . I feel that as a Security
Service it is one of our duties to be aware of what is happening in Quebec
even if the government formed is of a federalist nature .
37 . At almost the same time as the making of the report by the handler,
officers at a senior level authorized the handler to instruct and to stress to the
source that his objectives were not to report on the government of Quebec per
se, but that he was to report on revolutionary individuals in the government of
Quebec and on individuals responsive to foreign powers, and in addition he
might report any information which we might pick up from governmental
policy or governmental activities of a nature which he considered was "detrimental concerning the continuation of Quebec within Confederation" .
38 . For our purposes in the present context to draw a distinction between the
Liberal Party of Quebec and the government which it formed would be
irrelevant . It is clear that the source reported and was expected to report not
only on public servants but on elected members of that government, far beyond
any interest in foreign interference in Canadian affairs or foreign intelligence
activities . We know of no mandate which the Security Service had before
March 1975, to collect intelligence on such matters, and it would be clearly
unacceptable under the 1975 Mandate .
The Liberal Party of Canada
39. The Liberal Party of Canada, when in power as the Government of
Canada, may be said to have been of interest to the Security Service even
though the information received cannot be said to relate to the mandate of the
Security Service . An unpaid source reported to the Security Service from his
vantage point which, as his handler reported in 1975, enabled him to "receive
rather confidential information . . on Liberal strategy, and elected members ."
.
40. According to the file, the source has provided information about the
marital problems of two Ministers, suspicions entertained by some Ministers
that the R .C .M .P . was directing a plot against the government, and proceedings in the Liberal caucus. None of this information was relevant to the
security of Canada, as defined by the Cabinet Directive . The receipt, recording
and reporting of this information was completely unauthorized and without
justification .
358
�PART IV
-
REASONS ADVANCED IN
JUSTIFICATION OF ACTION S
"NOT AUTHORIZED OR
PROVIDED FOR BY LAW "
INTRODUCTION
CHAPTER 1 : Legal Defences
CHAPTER 2 : Extenuating Circumstance s
359
��INTRODUCTION
1 . In Part III we analyzed a number of investigative practices that may be
unlawful . The picture is incomplete unless we also discuss defences that might
be raised to exonerate those carrying out such practices . Our • insistence
throughout this Report that the national police force and the security intelligence agency should obey the law would be mere rhetoric if there were
accepted defences that would make their conduct in carrying out those
practices lawful . In the first chapter of this part of our Report we shall
examine whether any of these arguments do in law constitute defences if
members of the R .C .M .P . were to be charged with offences under the Criminal
Code or other federal or provincial statutes, or have civil actions brought
against them . In the second chapter we shall examine whether, if they are not
defences to a chârge or action, they may nevertheless be relied upon by
members of the R .C .M .P . as factors justifying compassion or mercy, before
prosecution or after conviction .
2 . As will be seen these issues cannot be examined as if the courts have ruled
decisively on their application to policemen . Even if there were more judicial
authorities directly on point, police forces should not expect certainty and
predictability in the application of principles to particular factual situations .
3 . There is a further introductory point to be made . Even if one or other of
these defences were to be available, if a particular investigative technique is
adopted as a matter of practice or particular conduct is planned in a specific
situation, it does not follow that the R .C .M .P . should adopt the practice or
engage in the conduct . The availability in law of one of these defences ought
not necessarily to be regarded as giving the green light from the policy point of
view .
361
��CHAPTER 1
LEGAL DEFENCE S
A . SUPERIOR ORDERS - MISTAKE OF FACT AND
MISTAK E
OF LAW - RELIANCE ON APPARENT AUTHORITY NECESSITY AND DURES S
(a) Superior orders
4 . Can a policeman rely on the plea of obedience to the orders of his superior
as a defence to a criminal or other charge? Judicial precedents are scarce . The
problem has usually been considered in a military context and as a matter of
international law .' However, it would appear that the answer is "no" : obedience to superior orders is not generally regarded as a valid defence in criminal
or civil law . There have been some judicial statements concerning the position
in domestic law . For example, in an English case which was actually concerned
with duress, Lord Salmon stated that the defence of superior order s
. . . has always been universally rejected . Their Lordships would be sorry
indeed to see it accepted by the common law of England . 2
0
In an earlier case, the then Lord Chief Justice of England said :
I hope the day is far distant when it will become a common practice in this
country for police officers to be told to commit an offence themselves for
the purpose of getting evidence against someone ; if they do commit offences
they ought also to be convicted and punished, for the order of their superior
would afford no defence . '
A leading authority on criminal law has written tha t
.
. . it is an established principle of constitutional law that official position
and superior orders (whether of the Crown or of a private master) are not
in themselves a justification for committing an act that would otherwise be
a legal wrong . °
' See M .L . Friedland, National Security: The Legal Dimensions, Ottawa, Department
of Supply and Services, 1979, at p . 104 ; L .C . Green, Superior Orders in National
and International Law, Leyden, A .W . Sijthoff, 1976. See also Geoffrey Creighton,
"Superior Orders and Command Responsibility in Canadian Criminal Law" (1980)
38 U. of Toronto Law Rev . 1 .
z Abbott v . The Queen [ 1976] 3 All E .R . 140 at 146 (P .C .) .
'Brannan v . Peek [1947] 2 All E .R . 572 at 574 (K .B .D .) .
° Glanville Williams, Criminal Law : The General Part (2nd ed .), London, Stevens,
1961, at p . 296.
363
�5 . Alongside these dicta, which were expressed in the context of English
criminal law, reference must be made to views expressed by several Justices of
the Supreme Court of Canada . Thus, in Chaput v . Romains and again in
Chartier v . A .G. Quebec6 the view was advanced, with specific reference to the
legal position of police officers, that "a subordinate is not necessarily exempt
from liability because the wrongful act was committed in order to comply with
a superior's order" .' In Chaput v . Romain the Supreme Court held police
officers who obeyed their superior's order liable civilly, and Mr . Justice
Tascheréau, whose decision was concurred in by three other members of the
Court, spoke of the law as to superior orders as follows :
[Translation] Furthermore, no reliance can be placed on the fact that the
respondents may have acted in obedience to a superior's orders . Obedience
to a superior's orders is not always an excuse . The subordinate must not act
rashly, and when he is made reasonably aware that the facts which led to
the order he received were without foundation he must back down . 8
This statement was cited with approval by four Justices of the Supreme Court
of Canada in the Chartier case . It evokes distinct echoes of the principle that
once prevailed in the area of military law, to the effect that the defence of
superior orders could be successfully relied upon only if the order was not
manifestly unlawful .
6 . Modern international and military law has tended to deny the defence even
when the order was not manifestly unlawful . Whatever the scope of the defence
in military law, the analogy between the soldier and the policeman is not
generally helpful . It is understandable that at least a limited defence of
superior orders might be argued for in the armed forces where, at least in
battle, there is a need for military discipline requiring prompt obedience .9
There may be an analogy in police work when there is sudden violence or some
other emergency, but in the kinds of investigative practices which,we have
examined, there is usually no such situation . These practices and acts involve
careful preparation and ample time for reflection and refusal to participate . It
cannot be said in these cases that a failure to obey promptly will imperil the
safety of fellow policemen .
7 . Our view is that in the present state of Canadian law it is doubtful that a
member of the R .C .M .P . would, at least in the absence of sudden violence or
some other emergency, be able to raise successfully a defence of superior orders
to a charge under the Criminal Code or any other federal or provincial statute .
8. However, it must be noted that a defence of a superior's order may be
relevant to the limited extent to which mistake of law gives rise to a defence .
Moreover, there may be situations in which the superior's order will cause a
policeman to labour under a mistake of fact, causing him to lack the inten t
1[19551 S .C .R . 83 4
6 (1979) 9 C .R . (3d) 97 .
' Per Mr . Justice Pratte in Chartier v . A .G . Quebec, ibid., at p . 177 .
8[1955] S .C .R . 834 at 842, quoted in English in Chartier v . A .G . Quebec, (1979) 9
C .R . (3d) 97 at 155 .
See Glanville Williams, Criminal Law: The General Part (2nd ed ., 1961), p . 298 .
364
�necessary for crime (mens . rea) . We turn now to a discussion of mistake of law
and mistake of fact .
(b) Mistake of fact and mistake of law
(i) Mistake of fact
9 . General propositions as to the availability of mistake as a defence to a
criminal charge are difficult to express in categorical terms .10 Indeed, it is
doubtful if any propositions on the subject of mistake have a universal
application . So much depends on the definition of particular offences and
whether proof of mens rea, a guilty mind, is an essential element that must be
established by the prosecution . To ignore the various qualifications that govern
the availability, in criminal cases, of a plea of mistaken belief is to run the
serious risk of misstating the law, or justifying questionable conduct by
invoking legal principles that have a very limited application .
10 . Several alternative circumstances need to be considered, the nature of
which will dictate the scope of mistake as a legal defence . First, it is open to the
legislative body, when it defines an offence, to state the criteria by which a
mistaken belief must be judged . Where it does so, the mistake must be judged
by an objective standard, in other words, according to whether a reasonable
person would have been mistaken in the light of the prevailing circumstances .
Anything less will not constitute a defence however genuinely mistaken the
accused might have been . Examples of this category are to be found in the
crime of extortion "without reasonable justification or excuse" ( Criminal
Code, section 305), or in pleading self defence which requires that the accused
"believes, on reasonable and probable grounds that he cannot otherwise
preserve himself from death or grievous bodily harm" (Criminal Code, section
34(2)) . Other examples will be found in our recommendations with respect to
the unauthorized disclosure of government information, in our First Report . "
11 . The second situation relates to those offences which abound outside the
Criminal Code, in federal and provincial statutes, and which are described as
offences of strict or absolute liability . This means that there is no requirement
of proving mens rea . Ordinarily, that would end the matter so far as invoking a
defence of mistake is concerned . Recently, however, the Supreme Court of
Canada in R . v. Sault Ste . Marie1z has declared it to be the Canadian law that,
unless Parliament or the legislature of a province has made its intention clear
when defining the offence in question that liability is absolute, with no question
of fault being involved, it is open to the accused to avoid liability by proving
that he took all reasonable care in the circumstances . This defence, the
Supreme Court has ruled, will be available "if the accused reasonably believe d
10 For a more detailed discussion, see J .U .J . Edwards, Mens Rea in Statutory Offences,
London, Macmillan, 1955, Chapter X1 .
Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, First Report, Security and Information, Ottawa, Department of Supply
and Services, 1979, paras . 58 and 59 .
12 (1978) 40 C .C .C . (2d) 353 .
365
�in a mistaken set of facts which, if true, would render the act or omission
innocent or if he took all reasonable steps to avoid the particular event" .
12. In thus recognizing a potentially wide field of application for the defence
of mistake of fact, it needs to be emphasized that the defence, in the context
referred to above, has nothing to do with proof or disproof of mens rea . The
principle expressed in the Sault Ste . Marie case comes into play only where the
particular offence is interpreted in a manner that excludes the requirement of
proving ; a guilty mind . Normally, establishing the requisite mens rea in a
criminal offence is part of the prosecution's burden of proof. In the special
circumstances outlined by the Supreme Court of Canada in the Sault Ste .
Marie decision, however, it is open to the accused to exempt himself from
criminal liability by showing that he was mistaken as to fact and that the
mistake was one that a reasonable man would have made in similar
circumstances .
13 . The third situation - the one which has generated the most controversy
surrounding the proper test to be applied - concerns those crimes that
specifically require proof of mens rea . Proving a guilty mind involves proving
that the accused had knowledge of the various factual elements that constitute
the offence in question . This may involve proof of intention or recklessness or
knowledge to the requisite degree . If it can be shown that the accused was
mistaken as to one or more of the essential elements, it follows that the
prosecution has failed to establish that the accused had the necessary mens rea
and, therefore, the accused cannot be held criminally responsible . This defence
is open to an objective and a subjective interpretation . Those who favour the
objective interpretation argue that, not only must the mistake occur and be
shown to have genuinely occurred, but it must also be shown to have been a
reasonable mistake . By thus setting the standard of exemption at the level of
ordinary, reasonable people, the likelihood of fanciful defences of mistake
being successfullly raised in a criminal case is severely reduced . Proof of the
necessary mens rea, however, is concerned with the actual state of mind of the
accused, not with the mental state of some hypothetical person . How can these
two positions be reconciled ?
14 . The courts have recently accepted the subjective interpretation but it will
be seen that they recognize that the reasonableness of belief may be relevant as
to whether the accused believed in the existence of the fact in question . After
two judgments13 delivered recently, one in the Supreme Court of Canada and
the other in the English House of Lords, it can now be stated that in cases
involving a defence of mistaken belief the essential question is whether the
belief entertained by the accused is an honest one and that the existence or
non-existence of reasonable grounds for such belief is merely relevant evidence
to be weighed by the tribunal of fact in determining such essential question .
This principle does not state that an accused person is entitled to be acquitted
however ridiculous his story might be . Neither does it imply that the reason-
" Pappajohn v . R . (1980) 14 C .R . (3d) 243 (Sup . Ct. Can .) ; D.P.P. v . Morgan [19761
A .C . 182 ( House of Lords) .
366
�ableness or unreasonableness of his mistaken belief is irrelevant . The present
law was expressed by Mr . Justice Dickson when he stated :
. . . the accused's statement that he was mistaken is not likely to be believed
unless the mistake is, to the jury, reasonable . The jury will be concerned to
consider the reasonableness of any grounds found, or asserted to be
available, to support the defence of mistake . Although 'reasonable grounds'
is not a precondition to the availability of a plea of honest belief .
.. those
grounds determine the weight to be given the evidence . The reasonableness
or otherwise of the accused's belief is only evidence for or against the view
that the belief was actually held and the intent was therefore lacking .14 1
r
Put more shortly, the reasonableness or unreasonableness of the mistake is a
question that goes to the credibility of the defence put forward by the accused .
That is a matter of evidence in each individual case . It is no longer the
governing criterion in cases of mistake, except in the two situations previously
described in this chapter .
(ii)
Mistake of la w
15 . So far we have been considering the nature and scope of a defence based
on a mistake of fact . Many of the situations that we have examined involving
the activities of the R .C .M .P ., suggest, however, that the officers acted in the
belief that they were lawfully entitled to act as they did . What is their position
under the criminal law if the mistake in question is not as to the facts but as to
the law? If the mistake is concerned with the existence of a legal prohibition
that forbids the doing of the act in question, in other words if it is a mistake as
to whether the particular conduct that is complainéd about is or is not a crime,
the answer generally is that such a plea is no defence to a criminal charge . For
reasons of public policy, ignorance of the law is not an excuse for committing
an offence . Derived from English common law, this principle is enshrined in
section 19 of the Criminal Code .
16 . Greater difficulty is encountered where the mistake relates to the interpretation of a particular law, statutory or otherwise, or as to the existence of a
right under the civil laws, for example, rights of property . This also qualifies as
a mistake of law, but is it caught within the broad exclusionary principle
contained in section 19 of the Code? It is in this area of what is loosely but
compendiously referred to as "mistake of law" that confusion usually arises .
We shall examine a series of situations in order to understand the true ambit of
the "mistake of law" umbrella, which in one form or another has been relied
upon by the R .C .M .P . in the belief that it excused or justified various activities
that were subsequently called into question .
17 . First, there are certain offences which by their very definition, including a
requirement of mens rea, have traditionally been interpreted in such a way as
to recognize a defence that is based on a mistake of law . Thus the offence of
theft as defined in the Criminal Code (section 283) requires a fraudulent
taking of the property of another without a colour of right . A long line of
authorities has recognized that if an accused has a bona fide belief that he wa s
1d Pappajohn v . R . (1980) 14 C .R . (3d) 243 at 267 .
367
�entitled to such property, even if his belief arises from a mistaken understanding of his rights under the law of property, he is not guilty of theft . The fact
that his mistake is as to the law, and not as to the facts, does not preclude the
accused from claiming that he was acting under a colour of right . The decision
whether such a colour of right was honestly entertained in the circumstances is
a question to be decided by the trier of fact, and what was said earlier on the
subject of reasonableness applies equally to this kind of situation .
18. Second, it is far less certain that the principles will apply to those offences
such aslwilfully damaging the property of another, wilfully interfering with the
enjoyment of another's property, arson or otherwise wilfully setting fire to
property, which are contained in sections 387 to 402 of the Criminal Code .
According to section 386 "No person shall be convicted of [any such]
offence . .. where he proves that he acted with legal justification or excuse and
with colour of right" (our emphasis) . It might properly be argued that a bona
fide mistake of law should entitle an accused person to claim that he was acting
under a "colour of right", but this defence does not stand on its own, as in the
case of theft . To a charge of arson or other wilful damage to property the
defence must show both a "colour of right" and a "legal justification or
excuse" . Examples of the latter exemption from criminal liability or the even
more familiar phrase "without lawful excuse" are numerous, whether the
offence in question is contained in the Criminal Code or a federal or provincial
statute . Irrespective of its source, the present legal position appears to leave no
doubt that a mistake of law does not qualify as a "legal excuse" or "legal
justification" .
19. Third, we note the reservation expressed recently by one of Canada's
foremost authorities on the criminal law . In R. v . Walker and Somma, Mr .
Justice Martin of the Ontario Court of Appeal said :
I would not wish to be taken to assent to the proposition that if a public
official charged with responsibility in the matter led a defendant to believe
that the act intended to be done was lawful, the defendant would not have a
defence if he were subsequently charged under a regulatory statute wiih
unlawfully doing that act .1 5
In principle, if the mistake of law arises from legal advice which is erroneous or
is later held by a court to have been erroneous, there is still no defence . The
reason, in part, is that it is undesirable to permit the definition of criminal
conduct or of conduct giving rise to other offences to be dependent upon
whether members of society can successfully shop around for a favourable legal
opinion .16 It may be assumed that even legal advice given by the Department o f
15 (1980) 51 C .C .C . (2d) 423 at 429 .
16 To the extent that the defence may exist, it is important that the efforts to ascertain
the law be in good faith, which means by efforts which are as well designed to
accomplish ascertainment as any available : see Regina v . MacLean (1974) 17 C .C .C .
(2d) 84"at 106, per Judge O Hearn (Nova Scotia), quoting Long v . State (Delaware)
(1949) 65 A . 2d 489 . See Hall and Seligman, "Mistake of Law and Mens Rea"
(1941) 8 U. Chi . L. Rev. 641 at 652 ; Arnold, "State-Induced Error of Law, Criminal
Liability and Dunn v . The Queen : A Recent Non-Development in Criminal Law,"
(1978) 4 Dal. L .J . 559 at 579 et seq . Reliance on a lawyer's advice was rejected in R .
v . Brinkley (1907) 12 C .C .C . 454 (Ont . C .A .) and R . ex . rel . Irwin v . Dalley (1957)
118 C .C .C . 116 (Ont . C .A .) .
368
�Justice to the R .C .M .P . that a practice is not criminal would not be recognized
as the basis for a defence to a criminal charge, although there is no jurisprudence on the point . We think that the courts should be reluctant to permit such
an exception . While the obtaining by the R .C .M .P . and the security intelligence agency of advice from the Department of Justice should be encouraged
and facilitated, we do not think that such advice, if erroneous, should afford a
defence to a charge . At most it should be considered as relevant to mitigation
of sentence, and to the treatment of the offender within government . Any other
approach would increase the tendency, which we have already observed, to seek
an opinion from a higher level of the Department of Justice when the
Department of Justice counsel assigned to the R .C .M .P . has givén an opinion
that the practice is unlawful .
20 . Our view, that reliance on an official interpretation of the law ought not
to be a defence, is contrary to that of the American Law Institute's Model
Penal Code which allows a defence if the accused acts in reasonable reliance o n
an official statement of the law, afterward determined to be invalid or
erroneous contained in . .
.an official interpretation of the public officer or
body charged with responsibility for the interpretation, administration or
enforcement of the law defining the offense . "
This proposed "official interpretation" defence assumes two things :
.
.. that the official is one to whom'authority has been delegated to make
pronouncements in a field of law, and that the authority can be held
accountable by explicitly grounding it in the hands of an identifiable public
official or agency . So grounded, the interest of both private citizens and
government is served by protecting actions taken in reliance on that
interpretative authority .1 e
Even if this defence were recognized by Canadian courts, 'we doubt that an
opinion by some member of the Department of Justice, rather than the
Attorney General himself, can properly be regarded as one by a public official
who can be "held accountable" .
21 . A final point that might be argued related to mistake of law is that a
policeman who commits an offence may have a defence if he believes that his
superiors have obtained lawful authority to conduct the operation . In the
Ellsberg break-in case, one of the judges held that because the "foot soldiers"
who carried out the break-in were outsiders assisting an agent of the White
House, they were entitled to act in objective good faith on the facts known to
them :
" American Model Penal Code, Proposed Official Draft, section 2 .04(3)(b)(iv) .
1e United States v . Barker and Martinez ("Barker 11") (1976) 546 F. 2d 940, per Judge
Leventhal (dissenting) at 957 . This was the second Barker case . Barker and Martinez
were the "foot soldiers" in the break-in at the office of the psychiatrist of Daniel
Ellsberg, who had obtained the Pentagon papers . One of the majority judges, Judge
Merhige, held that there was suffiçient evidence of reliance on an official interpretation of the law that the defence of reliance on such a defence should have been
submitted to the jury . The third member of the court, Judge Wilkey, approached the
case without basing his judgment on this point .
369
�I think it plain that a citizen should have a legal defence to a criminal
charge arising out of an unlawful arrest or search which he has aided in the
reasonable belief that the individual who solicited his assistance was a duly
authorized officer of the law .1 9
One commentator has written that the defence so stated "would seem to be a
narrow one and inapplicable to a police officer" .2 0
22 . In addressing this problem it is well to remember what has been said
already as to the dangers of considering the defence of mistake of law or
mistake of fact in the abstract . Much depends on the definition of the
particular offence . If the crime charged involves proof of mens rea, a policeman who mistakenly thinks that a warrant is in existence when in fact none
exists, may have a defence based on a mistake of fact . The critical question
then is whether the factual mistake negates the necessary mental element of
the particular crime . Mistake of law presents a more difficult hurdle for the
accused to get over . Even if the definition of the offence in question includes
the element of "unlawfully" or "without lawful excuse or justification", the
overwhelming body of Canadian and English case law denies to the accused a
defence that rests on a mistaken belief that he had the necessary lawful
authority to act as he did . Thus, an R .C .M .P . officer who acts in the mistaken
belief that his superior possessed due lawful authorization to command the
doing of certain acts, when in reality no such lawful authority is conferred by
the law, is precluded from successfully invoking a mistake of law as his
defence . If the principle tentatively expressed in R . v . Walker and Somma
comes to be recognized, it will have to find its justification in some basis other
than the defence of mistake .
(c) Necessity
23 . In criminal law the Supreme Court of Canada has expressed a qualified
acceptance of the defence of necessity . In Morgentaler v . The Queen, Mr .
Justice Dickson, speaking for the majority of the Court, said that, if the
defence does exist ,
. . . it can go no further than to justify non-compliance in urgent situations
of clear and imminent peril when compliance with the law is demonstrably
impossible . No system of positive law can recognize any principle which
would entitle a person to violate the law because in his view the law
conflicted with some higher social value .2 1
For the defence to be applicable, he said, the situation must be one of great
urgency and the harm averted must be "out of all proportion to that actually
caused by the defendant's conduct" .
24 . A situation in which the defence might arise is illustrated by an English
case, Johnson v . Phillips, which held that a police constable in an emergency
could violate a road traffic regulation without incurring a criminal penalty .
19 Ibid., at 954, per Judge Leventhal .
20 M .L . Friedland, National Security: The Legal Dimensions, Ottawa, Department of
Supply and Services, 1979, p . 103 .
21 (1975) 20 C .C .C . ( 2d) 449, at 497 .
370
�The court held that such action is justifiable if it is reasonably necessary for
the protection of life .or property . However the court emphasized the limits of
the decision :
No general discretion is given to a constable, even in cases where he himself
considers that an emergency has arisen, to disobey traffic regulations or to
direct other persons to disobey them .zz
In other words, to use the language of Mr . Justice Dickson, the defence of
necessity requires more than that the policeman himself thinks there is an
emergency . There must in fact be an emergency, and in addition, the harm
caused by violating the law must be less than the harm caused by not doing so .
25 . Assuming, then, that the defence of necessity exists in Canadian criminal
law, it becomes difficult to conceive of factual situations which have been
placed before us in which the first test is satisfied - i .e . that there is an
"urgent situation of clear and imminent peril" . That test is certainly not
satisfied by a perception, even if accurate, that in a vague and general sense
Canadian society was faced with an emergency - or a "state of war", as
Commissioner Higgitt described the situation confronting the R .C .M .P. in
1971-72 . Nor is the second test satisfied . At most it can be said that in criminal
investigations and the peace officer's role in the prevention of crime, the
defence may stand against charges of breaking and entry and of violation of
traffic laws . We refer to this further in Part III, Chapters 2 and 8 .
26. Before leaving necessity as a defence, we should note that it may also be a
defence if a policeman is sued for damages for a wrongful act . As far as the
common law of tort is concerned, the extent to which the defence exists at all is
unclear . One textwriter, in discussing necessity as a defence, says :
The defence, if it exists, enables a defendant to escape liability for the
intentional interference with the security of another's person or property on
the ground that the acts complained of were necessary to prevent greater
damage to the commonwealth or to another or to the defendant himself, or
to their or his property . . . There is some authority that the subject as well
as the Crown has a right and a duty at common law to justify a trespass or
other tort on the ground of necessity in the defence of the realm, but such a
right has been said to be obsolescent .z3
The textwriters appear to agree that, if the defence exists, it cannot be relied
upon unless there is a real and imminent danger .24 As one writer says, "Only an
urgent situation of imminent peril can ever raise the defence, lest necessity
become simply a mask for anarchy" .25 This must be true whether the defendant
is a private citizen or a policeman. Necessity, described by Milton as "the
tyrant's plea", has not been accepted as a ground for action by the state that
would otherwise be a tort. Ever since the case of Entick v . Carrington (see Part
III, Chapter 2), it has been accepted that necessity "for the ends of govern22 Johnson v. Phillips [1975] 3 All E .R . 682, at 685, per Mr . Justice Wien .
23 Salmond on Torts, 16th cd . 1973 (ed . Heuston) p . 504 .
21 Salmond on Torts, 16th ed . 1973, p. 505 ; Winfield and Jolowicz on Tort, 10th ed .
1975, p . 635 .
25 Fleming, The Law of Torts, 5th ed . 1977, p . 94 .
371
�ment" - "state necessity" - is not a defence recognized by the common law .
However, it should be noted that the question there was not one involving an
urgent situation of imminent physical peril to any person or property .
(d) Duress
27 . Unlike necessity, with respect to which the Canadian Criminal Code
makes no . express provision, the plea of duress is principally governed by
section 17 of the Code which states :
A person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the
offence is committed is excused for committing the offence if he believes
that the threats will be carried out and if he is not a party to a conspiracy or
association whereby he is subject to compulsion, but this section does not
apply where the offence that is committed is high treason or treason,
murder, piracy, attempted murder, assisting in rape, forcible abduction,
robbery, causing bodily harm or arson .2 6
When duress is pleaded, it is claimed that the wrong was committed in order to
prevent harm to the accused or another person . The basis of the defence is not
that thé threat of immediate death or serious bodily injury is such as to destroy
or neutralize the accused's will, nor indeed that it demonstrates the accused
had no mens rea . Rather it is an acknowledgment of and a concession to
human weakness . The law recognizes that in the face of an overwhelming
threat of grave personal injury it cannot expect extraordinary standards of
resistance.
28 . Until lately, it had been thought that the above quoted section in the
Criminal Code contained the all-embracing conditions of which the defence of
duress must be judged in a criminal case . This is no longer so, following the
decision of the Supreme Court of Canada in R. v . Paquette27 which held that
the restrictive terms of section 17 do not govern the situation where the
accused is charged with aiding and abetting rather than being the principal
offender who actually commits the crime in question . In the opinion of the
Supreme Court section 17 codifies the law as an excuse for the actual
commission of the crime but, by its very terms, it does not go beyond that.
Should the accused therefore be faced with a charge of aiding or abetting he
can invoke instead the defence of common law duress . After remaining static
for several centuries this branch of the criminal law has been the focus of much
attention in recent years by the English courts, culminating in the decision of
the House of Lords in Lynch v . D .P .P. of Northern Ireland,28 that the defence
of duress is available even with respect to the crime of murder, at least if the
charge is one of aiding and abetting . As for the other ingredients of the
defence, e .g ., the nature of the threats, there is no indication as yet that the
common law principles will be relaxed . It can, however, be said that the whol e
16 For 'a full discussion of this defence, see Mewett and Manning, Criminal Law,
Toronto, Butterworths, 1978, pp . 245 et seq .
27 [1977] 2 S .C .R. 189 .
28 [1975] l All E.R . 913 .
372
�tenor of the most recent jurisprudence is towards a relaxation of the previously
severe qualifying conditions of this defence .
29. What relevance then does the law of duress have towards the activities of
members of the R .C .M .P . or of a security intelligence agency? As in the case
of necessity it is difficult for us to imagine how the defence of duress would be
applicable to any of the practices or factual situations involving the R .C .M .P .
which have come to our attention . At most one could envisage the possibility of
its application of an undercover operative who has penetrated a violence-prone
group, whose true identity is suspected by the members of the group, and who
is threatened with bodily harm if he does not participate in some act of
violence . Such participation, it must be recognized, may take several forms
ranging from merely facilitating the commission of the crime by others (e .g .,
driving the members of the violent group to the scene of the crime) to the
actual perpetrating of the crime itself (e .g . setting fire to property or inflicting
blows upon another) . Furthermore, the amount of prior warning that a serious
crime is planned by the group and that some degree of participation by the
undercover operative is expected may vary according to the circumstances . It
would be wrong to conclude that the situations revealed to us are necessarily
conclusive as to the possible future eventualities that might befall undercover
operatives of the R .C .M .P . or the security intelligence agency .
30. It is clear, both in the common law and section 17 versions of the defence
of duress, that a person who, with knowledge of its nature, joins a criminal
association which he realizes might bring pressure upon him to commit an
offence, should normally not be entitled to avail himself of the defence .
Nevertheless, it could be argued that the position of a police undercovér
operative is essentially different from that of an ordinary person . This argument commended itself to the English Law Commission which in its report to
Parliament on the future law of duress stated2 9
There may also be cases where a person, employed .
.. by the police to
infiltrate a ring of drug smugglers or to seek out information about an
illegal organization, has to put himself in a situation in which he knows that
he may be subjected to duress because of his activities . It would be wrong to
deny him the defence in these circumstances, and for that reason we think
that the defence should be excluded only where the person has acted
without reasonable cause in putting himself in that situation .
31 . The dilemma facing the undercover operative as to whether he should
escape or not may vary in degrees of intensity, dependent upon the immediacy
of the threats and the serious nature of the dangers to the lives of innocent
people represented by the violence-prone group which has been infiltrated .
Faced with the choice between personally engaging in the criminal activities of
the group or dissociating himself from such activities, we think that the
undercover operative should withdraw from the group . At the same time we are
realistic enough to envisage extraordinary situations arising in the future for
which provision must be made in the relevant law of duress . With one
significant change we agree with the recommendation of the English La w
29 Law. Com ., No. 83, p . 13 .
373
�Commissioners and exclude the availability of the defence where the undercover operative has acted without sufficient and reasonable cause in either (1)
putting himself in the situation where threats to his life or person are to be
expected or (2) remaining in such a situation . The burden of establishing the
defence would remain upon the accused .
B . LACK OF EVIL INTENT
32 . It has been contended by counsel for the R .C .M .P. that no criminal
offence is committed by a member of the R .C .M .P . unless he has evil intention,
or a "vicious will" . Counsel for the R .C .M .P . place great stress, in support of
this argument, on the following passage from the reasons for the judgment of
the Supreme Court of Canada, delivered by Mr . Justice Dickson, in Regina v .
Sault Ste. Marie :
The doctrine of the guilty mind expressed in terms of intention or recklessness, but not negligence, is at the foundation of the law of crimes . In the
case of true crimes, there is a presumption that a person should not be held
liable for the wrongfulness of his act if that act is without mens rea .
Blackstone made the point over two hundred years ago in words still apt :
"to constitute a crime against human laws, there must be, first, a vicious
will ; and secondly, an unlawful act consequent upon such vicious will" . . .
See Commentaries on the Laws of England ( 1809) Book IV, l5th ed ., c . 15,
p. 21 . 1 would emphasize at the outset that nothing in the discussion which
follows is intended to dilute or erode that basic principle .3 0
33 . The judgment as a whole does not suggest that the Supreme Court of
Canada requires proof of a "vicious will" for a conviction in criminal cases ."
Mr . Justice Dickson quoted Blackstone to make the point that the facts of the
Sault Ste . Marie case did not concern a "true crime" but rather regulatory
offences . At a later point in the judgment he stated the principle which our
courts have followed :
Where the offence is criminal, the Crown must establish a mental element,
namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence,
or with wilful blindness toward them .
It will be noted that in that statement he makes no mention of evil intent or
"vicious will" . This is not surprising, for any requirement that "vicious will" be
present for a crime to be committed would introduce a fundamental change in
Canadian criminal law, and if that were intended we would have expected that
the Court's intention to do so would have been more clearly stated .
34 . The text writers have stated the accepted law without reference to such a
requirement . Indeed, on the contrary, the law has rejected such a requirement .
One leading text says :
30 (1978) 40 C .C .C . (2d) 353 at pp . 357-8 .
" The actual decision in the case was that in regard to crimes of strict liability in which
the definition of the offence does not refer . to or require a guilty mind, the absence of
negligence ( or the presence of due diligence in an attempt to avoid the conduct
complained of) is a relevant factor when considering liability .
374
�Mens rea refers to the mental element required for many crimes . It must
not be read in its literal sense as requiring moral wrong or dishonest intent
or conscious guilt . A person who breaks the law with a good motive, or for
conscientious reasons, or from religious belief, still commits a crime . So also
(in many cases) does a person who breaks the law in justifiable ignorance of
its existence, and with no intention of committing even a moral wrong .32
Another text book says :
Mens rea is a technical term . It is often loosely translated as `a guilty mind',
but this translation is frequently misleading . A man may have mens rea, as
it is generally understood today, without any feeling of guilt on his part . He
may, indeed, be acting with a perfectly clear conscience, believing his act to
be morally, and even legally, right, and yet be held to have mens rea .3 3
35 . It is true that in scattered cases in the nineteenth and twentieth centuries
there have been judicial statements similar to Blackstone's - phrases such as
`an evil mind with regard to that which he is doing', `a bad mind', or references
to acts done not `merely unguardedly or accidentally, without any evil mind' .34
As Professor`H .L .A . Hart has written :' s
Some of these well-known formulations were perhaps careless statements of
the quite different principle that mens rea is an intention to commit an act
that is wrong in the sense of legally forbidden . But the same view has been
reasserted in general terms in England by Lord Justice Denning : 'In order
that an act should be punishable, it must be morally blameworthy . It must
be a sin .'36 Most English lawyers would however now agree with Sir James
Fitzjames Stephen that the expression mens rea is unfortunate, though too
firmly established to be expelled, just because it misleadingly suggests that,
in general, moral culpability is essential to a crime, and they would assent
to the criticism expressed by a later judge that the true translation of mens
rea is `an intention to do the act which is made penal by statute or by the
common law' .37
Professor Hart also pointed out that the use of language such as Blackstone's,
excluding liability in the absence of fault or `moral wrong '
.
. . may have blurred the important distinction between the assertion that
(I) it is morally permissible to punish only voluntary action and (2) it i s
Jz Glanville Williams, Textbook of Criminal Law, London, Stevens, 1978, at pp . 49-50 .
See Proprietory Articles Trade Association v . Attorney General for Canada [ 1931 ]
A .C . 310 at 324, where Lord Atkin distinguished between morality and the criminal
quality of an act, the latter being judged by whether the act is prohibited with legal
consequences .
13 Smith and Hogan, Criminal Law, 4th ed ., London, Butterworths, 1978, at p. 47 .
'o Lord Esher in Lee v . Dangar [1892] 2 Q . B . 337 .
35 H .L .A . Hart, Punishment and Responsibility, Oxford, Clarendon Press, 1968, at p .
36 .
1 6 Sir Alfred Denning, The Changing Law, London, Stevens, 1953, p . 11 2 .
"Allard v . Selfridge [1925] 1 K .B . at 137, per Mr . Justice Shearman. Hart notes that
when quoting this passage in Criminal Law: The General Part (2nd ed .), p . 31,
Glanville Williams commented that the judge should•have added `or recklessness' .
375
�morally permissible to punish only voluntary commission of a moral
wrong .3 8
36 . In conclusion, we reject the general contention that the Supreme Court of
Canada has made it the law of Canada that the absence of an evil mind is a
defence by way of negativing mens rea .
C . INTERPRETATION ACT, SECTION 26(2 )
37 . . The R .C .M .P. has advanced as a general defence for the conduct of its
members, when they are authorized to do something specific, section 26(2) of
the Interpretation Act .39 This has been put forward particularly in connection
with the subject of electronic surveillance . Section 26(2) provides :
Where power is given to a person, of fi cer or functionary, to do or enforce
the doing of any act or thing, all such powers shall be deemed to be also
given as are necessary to enable the person, officer or functionary to do or
enforce the doing of the act or thing .
In Part III, Chapter 3 we discussed whether section 26(2) is authority for
concluding that when a judge grants an authorization under section 178 .13 of
the Criminal Code for electronic eavesdropping by microphone, or the Solicitor
General issues a warrant for the same purpose under section 16 of the Official
Secrets Act, there is an implied power of entry to effect the installation . Our
opinion, expressed in that chapter, is that section 26(2) does not provide such
authority .
38 . Here we need say no more than that section 26(2) cannot, in our opinion,
in general be relied upon as a defence where the act is otherwise unlawful . In
the absence of express words permitting the subsection to be construed as
granting not only lawful ancillary powers but also otherwise unlawful ones, we
cannot accept a construction of the statute that would countenance such a
result . The courts have traditionally presumed that a statute does not abridge
common law rights, and that such abridgement can occur only by the use of
express words or as a matter of "plain implication" .40 The argument has been
advanced on behalf of the R .C .M :P . that the implied powers provided for in
section 26(2) may be relied upon as a defence, generally, when methods
otherwise unlawful, are used in the course of operations within the scope of the
duties of a peace officer and reasonably necessary for their execution .
3 1 H .L .A . Hart, Punishment and Responsibility, Oxford, Clarendon Press, 1968, at p .
40.
" R .S .C . 1970 ch . 1-23 .
40 See Maxwell, Interpretation of Statutes, 12th ed ., London, Sweet and Maxwell, 1969,
at p . 116 ; Manitoba Government Employees Association v . Government of Manitoba
[1977] 5 W .W .R . 247 at 258 (Supreme Court of Canada) . See also Attorney General
for Canada v . Hallett & Carey Ltd. [1952] A .C . 427 at 450-1 (P .C .) ; Board of
Commissioners of Public Utilities v . Nova Scotia Power Corporation (1976) 18
N .S.R . (2d) 692 at 709-11 (N .S .C .A .) ; Fullerton v . North Melbourne Electric
Tramway and Lighting Co . Ltd. (1916) 21 C .L .R . 181 ; Quebec Railway, Light ._Heat
and Power Company v . Vaudry [ 1920] A .C . 662 at 679-80 (P .C .) .
376
�39 . Even if section 26(2) were available as a defence, it must be remembered
that powers must not be implied unless the powers expressly granted by the
statute in question "cannot otherwise be reasonably and effectively exercised"
without the powers sought to be added by implication . The statutory provision
does not alter the power to imply ancillary powers that the courts had at
common law, nor does it extend the right to imply such powers ."' Moreover, the
word "necessary" in section 26(2) is to be distinguished from such words as
"beneficial", "desirable" or "convenient" which are not found in the
subsection .42 The notion of necessity, in contrast with the other words just
mentioned, is interpreted by the courts as meaning that the absence of the
power sought to be implied would defeat either the purpose for which the
statute was enacted or the express powers conferred by the statute .4 3
D . CRIMINAL CODE, SECTION 25(1) "PROTECTION O F
PERSONS ACTING UNDER AUTHORITY "
40 . The R .C .M .P. has also submitted that section 25(1) of the Criminal Code
provides a broad legal justification for conduct which would otherwise be
unlawful . Section 25(1) provides :
25 . (1) Every one who is required or authorized by law to do anything in
the administration or enforcement of the la w
(a) as a private person ,
(b) as a peace officer or public officer ,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office ,
is, if he acts on reasonable and probable grounds, justified in doing what he
is required or authorized to do and in using as much force as is necessary
for that purpose .
41 . We have already discussed this provision when we considered, in Part III,
Chapter 3, whether it justifies an implied power of entry to install electronic
eavesdropping devices . But of course the section is of broader relevance .
Indeed, counsel for the R .C .M .P . has submitted that this section "affords a
valid defence to a member of the R .C .M .P., as a peace officer, in the context of
a prosecution arising out of any reasonably necessary act committed by the
member while acting in execution of a lawfully imposed duty" . However, this
statement of the scope of section 25(1) does not include all three of the
essential ingredients of the defence that may be founded on the section :
" Township of Nelson, v . Stoneham (1957) 7 D .L .R . (2d) 39 at 42-3 (Ont . C .A .) .
02 H.P. Bukner Ltd. v . J. Bellinger S.A . [ 1974] Ch . 401 (English C .A .) . At p. 423, Lord
Denning M .R . said that the word "necessary" is "much stronger than `desirable' or
`convenient"' . See also In re The Haggert Brothers Manufacturing Company (Limited) (1893) 20 Ont . A .R . 597 at 602 .
47 Interprovincial Pipeline Ltd . v . National Energy Board (1977) 17 N .R . 56 (Fed .
C .A .) .
377
�(a) The peace officer must be acting in his capacity as a peace officer or, to
use the more familiar phraseology, acting in the execution of his duties as a
peace officer .
(b) The act in question - the act alleged to be unlawful and in breach of the
criminal law or civil law - must be some act which the police officer is
required or authorized by law to do in the course of the administration or
enforcement of the law .
(c) There must be reasonable and probable grounds upon which the police
officer claims (i) that his legally authorized actions were justified in the
circumstance, and (ii) where appropriate, that the amount of force used was
necessary in the circumstances .
It is the second of these requirements that fails to find a place in the
formulation by counsel for the R .C .M .P . The importance of this requirement
was emphasized by Mr . Justice Dickson in Eccles v . Bourque,44 in a passage
that we quoted from in Part III, Chapter 3, and with which we agree. Before
the statutory protection can be relied upon, the act in question must be one
which the policeman is required or authorized by law to do, and it is inaccurate
and misleading to say that it is sufficient that the member was acting in
execution of a "lawfully imposed duty" .45 This point was clearly stated by
Judge Zalev of the County Court of Ontario in R . v . Walker .°b In that case the
accused was a police officer . He was charged with failing to stop at a stop sign .
He had driven one of two police vehicles that had been dispatched to a bank
because of a possible robbery . On approaching an intersection his emergency
lights were flashing and he slowed to about 10 m .p .h ., but he did not stop at the
stop sign . His vehicle collided with another car in the intersection . The police
officer was convicted at trial, and, on appeal, Judge Zalev upheld the conviction . He held that the defence of necessity did not apply, and he rejected a
defence based on section 25(1) . He adopted the reasoning of Mr . Justice
Dickson in Eccles v . Bourque and properly posed the central question raised by
the facts of the case as follows :
.
.. the question which must be answered in this case . . . is not whether the
appellant was required to answer the call to the bank without delay, but
whether the appellant was required or authorized by law to drive past a stop
sign without stopping .
There being no specific provision in the Ontario Highway Traffic Act which
requires or authorizes a police officer to ignore a stop sign, it became necessary
to consider whether any common law protection could be invoked so as to bring
the provisions of section 25(1) into play . He therefore discussed Johnson v .
Phillips, an English case which we have already referred to .47 As we understand Judge Zalev's conclusion, it is that while at common law the circumstances may afford a defence of necessity, the same circumstances would no t
~(1974) 19 C .C .C . (2) at pp . 130-31 .
Neither of the authorities cited by counsel for the R .C .M .P . (R. v . Redshaw (1975)
3 1 C .R.N .S . 225 ; R. v . Walker (1979) 48 C .C .C . (2d) 126) provides support for the
interpretation of section 25(1) urged by counsel for the R .C .M .P .
06 (1979) 48 C .C.C . (2d) 126 .
"[1975] 3 All E .R . 682 (Divisional Court) . See footnote 22 .
378
�support a defence under section 25(1) . We consider that conclusion to be an
accurate statement of the law .
42. There are two further submissions made by counsel for the R .C .M .P . in
regard to section 25(1) which we feel obliged to,comment upon . One is that
"section 25 affords a member of the R .C .M .P ., as a peace officer, a valid
defence to a prosecution in respect of acts that he was ordered to commit by a
person who had the jurisdiction, or the colour of jurisdiction, to make such an
order" . This proposition is cited in Taschereau's 1893 edition of the Criminal
Code .41 However, a reading of what was said there makes it clear that what
was envisaged was the kind of situation covered by section 25(2) of the Code
(justification for a person required or authorized by law to execute a process or
carry out a sentence, or for another person assisting him, even if the process or
sentence is defective or made without jurisdiction) - and has nothing to do
with section 25(1) .
43 . The other submission is that "a member of the R .C .M .P ., as a peace
officer, who acts in the honest belief that he was authorized to do what he did
under the circumstances, where that belief was reasonable on the facts of the
particular case, is entitled to assert the section 25 defence . . ." . We disagree . The
honesty or genuineness of the peace officer's beliefs is irrelevant where, as
stated in section 25(1), the governing criterion is whether there are reasonable
and probable grounds to support the police officer's claim that his legally
authorized acts were justified in the circumstances, and whether there are
reasonable and probable grounds for using the force which he used . The test in
both instances is objective, not subjective ; the issues involved in section 25(1)
have nothing to do with the state of mind of the peace officer .
E . IMMUNITIE S
44 . In this section we shall consider the extent to which members of the
R .C .M .P ., acting in the course of their duty, are protected by some ground of
immunity from successful prosecution for violation of federal statutes (such as
the Criminal Code) or provincial statutes that impose penalties (such as the
Highway Traffic Acts) . There are four possible grounds on which immunity
might be argued . Each of them will be discussed in turn . They are as follows :
(a) Crown immunity
(b) Intergovernmental immunit y
(c) Exclusive power (interjurisdictional) immunit y
(d) Immunity as a result of the paramountcy of the R .C .M .P . Act
Counsel for the R .C .M .P . has suggested that, if individual members of the
R .C .M .P . were prosecuted for federal or provincial offences, they might raise a
defence based on one or more of the foregoing if their acts in question were
"reasonably necessary for the effective performance of their duties" . This
argument, if valid, would apply to a far broader range of factual situation s
48 As quoted in Crankshaw's Criminal Code ( 8th ed ., 1979), at 1-133 .
379
�than would support the defence of necessity, which is discussed elsewhere in
this Part .
45. Our analysis of this issue must be largely on principle and by reference to
cases that do not decide the application or non-application of principle to the
R .C .M .P. There is a paucity of reported cases in which members of the
R .C .M .P. have been subject to prosecution under federal or provincial laws in
regard to their actions carried out in the course of their duties ; and no reported
cases in which these grounds have been raised as a defence and considered by
the court .
46 . When we refer to provincial laws, we must be understood to include
municipal by-laws, which depend on provincial legislation for their authority
and validity . In the case of municipalities within Territories, their status
depends on legislation enacted by the Parliament of Canada .
(a) Crown immunity
47. It has been submitted to us by counsel for the R .C .M .P . that members of
the R .C .M .P . are servants of the Crown and as such enjoy the benefit of the
immunity of the Crown itself from prosecution even under federal laws such as
the Criminal Code . It was conceded that members of the R .C .M .P ., while
performing law enforcement functions, might be liable to prosecution under
federal criminal law (but not under provincial law because of additional
arguments advanced under later headings) because their functions and duties
are similar to those of any peace officer or constable, rather than being
uniquely Crown functions or duties . In other words their extensive discretionary powers may disentitle them to the status (and immunity) of an agent or
servant, of the Crown . On the other hand, according to the submission of
counsel for the R .C .M .P ., because members of the R .C .M .P . performing
national security functions are exercising more restricted discretionary powers,
they engage in federal Crown activities and may be immune from prosecution
in the Courts for reasonably necessary acts committed in the course of their
duties . Their accountability, so it is contended, is to the Commissioner of the
R .C .M .P . and to the Solicitor General of Canada, not to the courts .
48 . It is undoubtedly true that at common law the Crown enjoys an immunity
from prosecution for a statutory offence unless the statute creating the offence
expressly states that the Crown is to be bound . The common law rule is
embraced by both federal and provincial legislation as to the interpretation of
statutes . Thus, for example, the federal Interpretation Act provides :
16 . No enactment is binding on Her Majesty or affects Her Majesty or
Her Majesty's rights or prerogatives in any manner, except as therein
mentioned or referred to.49
49 The statutory rule does not leave any room for a statute to bind the Crown by
necessary implication, as had been possible under the common law formulation of the
prerogative's effect : Her Majesty the Queen in the Right of the Province of Alberta v .
Canadian Transport Commission [ 1978] 1 S .C .R . 61 .
380
�Therefore, in order to restrict the Crown, a federal enactment must be very
specific in indicating that such an effect is intended .
49. The Supreme Court of Canada has held that the Criminal Code falls
short of meeting this requirement : though the code includes the Crown in its
definition of "person", a word used by the Code generally to refer to both
offenders and victims of criminal conduct, the reference to the Crown is only to
the Crown as victim rather than as wrongdoer .50 Consequently, the Crown
cannot be guilty of committing a Criminal Code offence and is, in effect,
immune from prosecution for such an offence .
50 . The rule of immunity from statute, in its prerogative or provincial
statutory form, has been taken to afford immunity to the federal Crown from
provincial statutes which do not specifically include the Crown .51 Consequently
the federal Crown enjoys a substantially similar degree of immunity from
provincial legislation as it does from federal legislation, such as the Criminal
Code, as a matter of construction of the relevant legislation .
51 . The benefit of immunity from statute accrues not only to the Crown (in a
practical sense - the government) but to servants and agents and others acting
on behalf of the Crown, if the Crown would be detrimentally affected by
prosecution . Thus in Canadian Broadcasting Corporation v . Attorney General
of Ontario the Canadian Broadcasting Corporation (the C .B .C .), a federal
Crown agency, was held to be free of any liability for broadcasting on Sunday
contrary to the general prohibitions of the Lord's Day Act (Canada) .52
However, in an even more recent decision involving the C :B .C .,53 the Ontario
Court of Appeal held the C .B .C . liable to prosecution for broadcasting an
obscene film contrary to section 159 of the Criminal Code because in so doing
it was acting outside the scope of its statutory authority . This was particularly
evident because the Regulations under the Broadcasting Act (Canada), to
which the C .B .C . is subject, specifically prohibit the broadcast of anything
contrary to law or any obscene, indecent or profane language or pictorial
presentation .
52 . Counsel for the R .C .M .P . argues that R .C .M .P . personnel, when acting
in the course of duty, are agents of the federal Crown and therefore enjoy the
same immunity as the Crown . It is at this point that the argument based on
Crown immunity breaks down, since in our view, even if members of the
R .C .M .P. are agents or servants of the Crown, it is only if contravention of th e
so See Canadian Broadcasting Corporation v . Attorney General of Ontario [1959]
S .C .R . 188 . It is true that what was being interpreted in this case was the Lord's Day
Act, not the Criminal Code . However, the Lord's Day Act incorporates the Code's
definition of "person" .
51 See, for example, R . v . Sanford [1939] 1 D .L .R. 374 (N .S .S .C . in banco) . There are
numerous cases on this point, which are collected in McNairn, Governmental and
Intergovernmental Immunity in Australia and Canada, Toronto and Buffalo, University of Toronto Press, 1977, at p . 24, n .3 .
52 Canadian Broadcasting Corporation v . Attorney General of Ontario [1959] S .C .R .
188 .
S' R . v . C.B .C. (1980) 16 C .R . (3d) 78 (Ont . C .A .) .
381
�law were unavoidable in the course of carrying out their duties that it could be
said that they could enjoy the protection of Crown immunity .
53. Let us first ask whether the R .C .M .P. itself is an agent of the Crown . If it
is not, then a fortiori its members are not agents or servants of the Crown . If it
is, however, it does not automatically follow that its members are entitled to
rely on Crown immunity .
54 . Is the R .C .M .P . itself an agent of the Crown? The general principle upon
which courts determine whether an individual or organization is a Crown agent
is as follows :
Whether or not a particular body is an agent of the Crown depends upon
the nature and degree of control which the Crown exercises over it .s a
A Crown agency is "a - body which is subject at every turn in executing its
powers to the control of the Crown" .ss Whether the R .C .M .P . is subject to that
degree of control will depend very much upon the meaning of section 5 of the
R .C .M .P . Act . In Part X, Chapter 4 we point out how ambiguous that section
is . There is no need to repeat here what we there observe ; the most we can say
is that the ambiguity of the section makes it likely that the section alone cannot
be regarded as the foundation for a proposition that members of the R .C .M .P .
lack the traditional characteristics of constables . The characteristics that we
refer to are those which leave the constables free from direct control in the
exercise of their powers of investigation, arrest and initiation of prosecutions .
55. Suffice to say that the R .C .M .P . may not be a Crown agent . If it is not,
R .C .M .P . personnel would not be able to claim Crown immunity from either
federal or provincial laws . Yet, there is some implied support to be found in the
R .C .M .P. Act for the proposition that members of the R .C .M .P . are agents or
servants of the Crown . It is true that section 53 of the R .C .M .P . Act and
section 37 of the Federal Court Act (Canada) specifically deem members of
the Force to be servants of the Crown "for the purpose of determining liability
in any action or other proceeding by or against the Crown" . But those
provisions appear on a strict reading to be referring to civil rather than
criminal proceedings . The expression "proceedings by or against the Crown" is
particularly apt to describe civil claims made by or initiated against the federal
Crown and does not easily fit the situation of a criminal proceeding against a
federal Crown servant . The proceedings by and against the Crown with which
the Federal Court Act deals are restricted to civil proceedings . It would be
logical to read section 53 of the R .C .M .P . Act in the same sense as the
comparable section of the Federal Court Act unless there is something in the
context of the former Act which clearly dictates another conclusion . The
R .C .M .P . Act does not in fact contain any language which suggests that the
larger meaning, embracing criminal proceedings, was intended in the deeming
provision of that Act .
se Westeel-Rosco Ltd. v . Board of Governors of Smith Saskatchewan Hospital Centre
(1976) 69 D .L .R . (3d) 334, at 342-3, per Mr . Justice Ritchie . More recently, see
Fidelity Insurance Co. v . Workers Compensation Board (1980) 102 D .L .R. (3d) 255 .
ss Per Mr . Justice Ritchie in the Westeel-Rosco case, Ibid ., at 343 .
382
�56 . Moreover, the provisions in the R .C .M .P . Act and the Federal Court Act
create a master-servant relationship for two purposes only : liability to the
Crown and liability of the Crown . They have no application to situations in
which what is involved is the personal liability of the R .C .M .P . member. In
conclusion, these sections do not assist in determining the status of a member
of the R .C .M .P. in criminal proceedings . It may be, however, that the
provisions of the R .C .M .P. Act, considered as a whole, support the conclusion
that a member of the Force is a Crown servant for all purposes, including that
of determining personal criminal liability .5 6
57 . It does not follow that R .C .M .P . members, even if they are agents or
servants of the Crown, are entitled to rely on Crown immunity. The immunity
which they would be entitled to enjoy would not be absolute . It would have to
be established in the particular case that the Crown would be prejudiced in
some significant way by making the servant or agent subject to the prohibition
contained in the statute . The decision in R . v . Stradiotto57 makes this clear . In
that case a member of the Canadian Armed Forces, who was driving an army
truck in the course of his duties when the truck was involved in a serious traffic
accident, was charged with an offence under the provincial Highway Traffic
Act . The Ontario Court of Appeal held that he was not immune from
prosecution under the provincial Act even though the legislation did not
specifically refer to the Crown . The Court pointed out that it is only the Crown
itself which is immune from legislation, not its servants . and agents ; the
immunity is applicable to servants and agents only to the extent that Crown
rights would be prejudiced if the servants or agents were subject to the
legislation . Thus, it was observed in the Stradiotto case, army personnel are
not required to have provincial drivers' licences in order to drive military
vehicles within a province, because such a requirement would interfere with the
right of the federal Crown to operate military vehicles in the province .SB The
immunity has been held to apply where, although unlicensed, the servicemen's
duties or superior orders have necessitated that they drive government vehicles
in the course of their military service .59 If, on the other hand, it is possible for a
servant or agent of the Crown to carry out his or her orders without
contravening the provincial law, as was the situation in the Stradiotto case, the
servant or agent is not immune from the law in question . Since the military
driver in Stradiotto did not have to drive negligently or unlawfully in order to
perform his duty, he was held to be subject to the provincial Highway Traffic
Act . Indeed, in other cases servicemen have been held liable for highway traffic
violations such as careless or unsafe driving .60 Liability in that situation doe s
5 6 This cannot be stated with conviction, for it requires an inference that the statute by
implication deviates from the traditional principle that police officers are independent
public officers rather than servants or agents of those who pay their salaries . For the
latter principle, see McCleave v . Moncton (1902) 32 S .C .R . 106 .
s' [1973] 2 O .R . 375 .
58 Citing R . v . Rhodes [ 1934] OR . 44 .
s'See R. v . Henderson [1930] 2 W .W .R . 595, and R . v . Rhodes [1934] 1 D .L .R . 251
(Ont . S .C .) .
60 See also R . v . McLeod [1930] 4 D .L .R . 226 (N .S .S .C . in banco) (serviceman guilty of
reckless driving) .
383
�not interfere with the right of the Crown to direct the activities of its servant
for normal Crown purposes . The R .C .M .P . has received legal advice that the
case of -Stradiotto is authority for the proposition that members of the
R .C .M .P . do not break the traffic law if members are doing that which is
reasonably necessary for the carrying out of the duties and responsibilities
assigned to them by or under federal legislation . We do not think that the case
is authority for that view . We consider that the decision in Stradiotto, which
may support the conclusion that there is immunity when the member is
carrying out a specific order and he cannot do so otherwise than by violating
the traffic law, does not provide support for a similar conclusion when the
member is merely carrying out his duties in a general sense .
58 . Applying these principles to the R .C .M .P ., we conclude that even if
members of the R .C .M .P . are agents or servants of the Crown, they will be
bound by provincial or federal laws while carrying out their duties, except to
the extent that non-compliance is unavoidable in the sense that they were
specifically directed to carry out the very conduct which is in question . In other
words, even if his actions are in the course of duty, a member of the R .C .M .P .
would be subject to successful prosecution for actions which violated a federal
or provincial statute and which he was not specifically directed to carry out . It
is at the very least doubtful that the member could successfully establish
immunity on the basis that what he did was "reasonably necessary" to the
performance of his duties, though not the subject of specific directions .
59. As a general rule, peace officers are subject to the criminal law except to
the extent that specific statutory protection is afforded to them . As Mr . Justice
Laskin said when he was a member of the Ontario Court of Appeal :
In principle, the recognition of "public duty" to excuse breach of the
criminal law by a policeman would involve a drastic departure from
constitutional precepts that do not recognize official immunity, unless
statute so prescribes . . . Legal immunity from prosecution for breaches of
the law by the very persons charged with a public duty of enforcement
would subvert the public duty . ..
The Criminal Code presently prescribes justification for policemen and
others in a number of respects where they are proceeding to enforce the
law, as, for example, by arresting offenders . This is designed as an aid to
enforcement, and presumes that the enforcing officers are not themselves
participating in the criminal activity that they are seeking to curb . Recognition of "legal lawlessness" is, however, something far different . It does not
represent a value that fits into our system of criminal law . .6 1
More recently and briefly, in the context of a case concerning the use of police
informers, Chief Justice Laskin has said :
The police, or the agent provocateur or the informer or the decoy used by
the police do not have immunity if their conduct in the encouragement of a
commission of a crime by another is itself criminal .6 2
6 1 R . v . Ormerod [1969] 2 0 . R . 230 at 244-5 (Ont . C .A .) .
62Kirzner v . The Queen [1978] 2 S .C .R . 487 at 491 . See also Attorney General of
Quebec and Keable v . Attorney General of Canada et al [1979] 1 S .C .R . 218 at 242,
where Mr . Justice Pigeon said that members of the R .C .M .P . "enjoy no immunity
from the criminal law" .
384
�60. In light of that principle, a criminal court would be unlikely to allow a
peace officer, even if he is a servant or agent of the Crown, much latitude to
rely on "reasonable necessity" unless a statute permitted it as a defence .
61 . There is another point to be made, which seems to preclude the availability of Crown immunity to a member of the R .C .M .P . Section 25 of the
Regulations under the R .C .M .P . Act imposes upon every officer and every
person in charge of a post the duty and responsibility of ensuring "at all times
strict observance of the law . ." by all members of the Force . It may be argued,
.
then, that each member of the Force should be taken to assume that orders
given to him are to be carried out in accordance with the law .63 However, if
those orders were to direct clearly a breach of the law or could be carried out
only by violating the law, then it may be that the superior from whom the
orders originated 'would be liable on the basis that his discretionary authority
did not extend to authorizing breaches of the law . If the orders emanated in the
first instance from an officer, as defined in section 6 of the R .C .M .P . Act, or a
person in charge of a post, then that individual would be in much the same
position as the C .B .C . in the second C .B .C . case .64 He would have exceeded a
requirement to ensure compliance with the law contained in regulations
governing his behaviour and should, accordingly, be subject to prosecution for
his criminal conduct .
62. There is no general rule that peace officers are not subject to criminal
liability because of the large degree of discretion entrusted to them . There is
authority for the proposition that no superior authority is responsible for the
tortious acts of a policeman or other public office holder who is exercising a
discretionary power conferred directly upon him .65 That rule does not remove
the personal liability of the policeman or other public officer and is, in any
case, a principle that has to do with civil rather than criminal liability .66 The
discretionary freedom which R .C .M .P . members may have in performing
certain police or national security functions does not, therefore, detract from
their personal responsibility for their conduct .
63 . It is sometimes said, however, that a peace officer exercising an independent discretion is not to be considered as anyone's servant when he exercises that
discretion .67 That statement is usually relevant in the context of determining
whether the Crown or some public authority is vicariously liable for the
conduct of the peace officer, or whether his exercise of discretion as to whethe r
63 See also section 25(o) of the R .C .M .P . Act which makes it a disciplinary offence for a
member of the R .C .M .P . to conduct himself in an immoral manner, which may be
taken to include acting in breach of the law . Reference may also be made to section
15(l), which requires every member of the Force to take an oath of office in which he
swears that he "will well and truly obey and perform all lawful orders and instructions
that I receive" .
61 R . v . C.B .C. (1980) 16 C .R . (3d) 78 (Ont . C .A .) .
65 See Schulze v . The Queen (1974) 47 D .L .R . (3d) (F .C .T .D.) and the cases referred to
therein .
66See P .W . Hogg, Liability of the Crown, in Australia, New Zealand and the United
Kingdom, Melbourne, Law Book Co ., 1971, at pp . 104-8 .
67 Ibid., at p . 212 .
385
�to arrest or to prosecute is subject to control . We do not think that the principle
is one of general application to all the functions of a peace officer .
64 . Even if members of the R .C .M .P. are not servants or agents of the
Crown, Crown immunity might be applicable. There are instances in which
persons other than Crown servants or agents have received the benefit of
immunity, the important question in every case being whether the Crown
would be prejudiced by subjecting that person to the burdens of the statute .
Therefore, immunity is potentially available even if a peace officer who is a
member of the R .C .M .P. does not act as a Crown servant in performing a
particular function . The criterion for determining whether the rule of immunity from statute is available remains whether there might be prejudice to the
Crown, or interference with Crown business (as it is sometimes put), in
subjecting the peace officer to criminal liability .
65 . Finally we turn to the suggestion made by counsel for the R .C .M .P. that
members of the R .C .M .P . "performing national security functions" may be
immune from prosecution for "reasonably necessary acts committed in the
course of their duties" . We think that this proposition is insupportable . It
amounts to a defence of "Act of State" or "State necessity", but that defence is
not recognized by our law . In the great case of Entick v . Carrington, the Chief
Justice, Lord Camden, said :
With respect to the argument of State necessity, or a distinction that has
been aimed at between state offences and others, the common law does not
understand that kind of reasoning, nor do our books take note of any such
distinctions .6e
As was said by an Australian judge ,
It is not the English view of law that whatever is officially done is law - a
view adopted by some jurists on the Continent of Europe - on the
contrary, the principle of English law is that what is done officially must be
done in accordance with law .69
A writer on constitutional law has said :
The Continental constitution often recognizes a "police power", under
which the government may act in a general way for the preservation of the
public peace or safety . No such doctrines are recognised by the common
law of England . With us a public authority must point, if questioned, to
some specific rule of law authorising the act which is called in question .70
We believe that Canadian law conforms to the above statements .
66 . On several occasions we have seen references in R .C .M .P . files to the
general proposition that government officials, who are responsible for national
security, must be the sole judges of what national security requires . This is the
old doctrine of state necessity, which is obsolete . R .C .M .P. memoranda cite, a s
6e ( 1765) 19 State Tr . 1065 .
69 Arthur Yates & Co . Pty., Ltd. v . The Vegetable Seeds Committee ( 1 945) 72 C .L .R .
37 at 66, per Sir. John Latham, C .J .
70 R .F.V . Heuston, Essays in Constitutional Law, 2nd ed ., London, Stevens & Sons,
1964, at p . 34 .
386
�modern authority for that view, the following words from a 1977 English case,
R. v . Secretary of State for the Home Department, ex parte Hosenball : "
But this is no ordinary case . It is a case in which national security is
involved, and our history shows that, when the state itself is endangered,
our cherished freedoms may have to take second place .
However, it is misleading to quote this statement out of context . The case
concerned an alien whom the Home Office ordered to be deported in the
interests of national security because the Secretary of State had information
that the alien had obtained information for publication harmful to the security
of the nation, including information prejudicial to the safety of servants of the
Crown . The alien claimed that he was entitled to see the report which was
made about him by a non-statutory advisory Committee which reported to the
Secretary of State before the deportation order was made . He contended that
natural justice so entitled him . It was in answer to that contention that the
above statement was made by Lord Denning, who then continued :
Even natural justice itself may suffer a set-back . . . In the first world war, in
R . v . Halliday,7z Lord Finlay L .C . said : 'The danger of espionage and of
damage by secret agents . . . had to be guarded against .' . . . But times of
peace hold their dangers too . Spies, subverters and saboteurs may be
mingling amongst us, putting on a most innocent exterior . . .
If they are British subjects, we must deal with them here . If they are
foreigners, they can be deported . The rules of natural justice have to be
modified in regard to foreigners here who prove themselves unwelcome and
ought to be deported .
It is thus quite inappropriate to quote what Lord Denning said outside the
context of whether the principles of natural justice apply to the exercise of a
power to deport, as if it were authority for altering the norms that bind the
policeman when national security is involved .
`
(b) Intergovernmental immunit y
67 . It is probably not within the constitutional powers of the provincial
legislatures to impose liability on the Crown in the right of Canada . In the
leading case, Gauthier v . The King, the Supreme Court of Canada held that
provincial legislation cannot proprio vigore take away or abridge any privilege
of the Crown in right of the Dominion .7 3
"[ 1977] 3 All E .R . 452 at 457 .
72 [1917] A .C . 260 at 270 .
"(1918) 56 S .C .R . 176 at 194 . It may be difficult to reconcile this decision with the
later decision of the Privy Council in Dominion Building Corporation v . The King
[1933] A .C . 533 . See D . Gibson, "Interjurisdictional Immunity in Canadian Federalism" (1969) 47 Can. Bar Rev., 40 at 51 . However, it has been argued that the two
cases can be reconciled : McNairn, Government and Intergovernmental Immunity in
Australia and Canada, p . 98 . Moreover, there have been several dicta in the Supreme
Court of Canada supporting the Gauthier decision : The King v . Richardson [1948]
S .C .R . 57, The Queen v . Breton ( 1968) 65 D .L .R . (2d) 76 ( S .C .R .) .
387
�It may be that this immunity is more extensive than the immunity called
"Crown immunity", which, as has already been noted, is also available to the
federal Crown when faced with the imposition against it of a provincial statute .
The immunity now being considered is one rooted not in the Crown prerogative
applicable to both unitary and federal states, but in the constitutional order
peculiar to a federal state . This "intergovernmental immunity" may go as far
as to protect the federal Crown from provincial statutes even when they, by
their express terms, are said to apply to the federal Crown . In that case, of
course, "Crown immunity" would not be available because of the specific
reference to the federal Crown in the provincial legislation . While "intergovernmental immunity" may have this broader effect, it is not clear that it does .74
68 . If "intergovernmental immunity" does have this larger role, a member of
the R .C .M .P . would be able to assert immunity, in a proper case, from
prosecution for a provincial offence even though the provincial statute creating
that offence expressly purported to bind the federal Crown .
69. If a member of the Force should choose to rely on Crown immunity or
intergovernmental immunity, it is likely that he would have to show some
particular prejudice to federal Crown interests if the provincial statute in
question were to apply to him . The threshold test of interference with Crown
functions relates logically to both forms of immunity .
(c) "Exclusive power" or "interjurisdictional" immunity : the general
immunity of federally controlled operations from provincial laws
70 . Operations and enterprises which fall under the legislative jurisdiction of
the Parliament of Canada must generally abide by the laws of the provinces
within which they carry on operations . 75
71 . On the other hand, enterprises which are under federal jurisdiction with
respect to their primary operational aspects are immune from provincial
statutes which go to the heart of their operations . Such provincial legislation
does not apply because the jurisdiction of the Parliament of Canada is
exclusive in relation to all those matters which are "an integral part of its
primary competence" over such enterprises .76
72 . When it is held that provincial legislation does not apply to an area which
is within the constitutional authority of the federal Parliament, there is
sometimes said to be an "exclusive power immunity" or an "interjurisdictional
immunity" from the provincial legislation .
'" See McNairn, Governmental and Intergovernmental Immunity in Australia and
Canada, at pp . 33-40 . McNairn's analysis is commented on by Gibson, (1978) 4
U. T. L .J. 445 .
75 e .g . C .P.R. v . Notre-Dame de Bonsecours [1899] A .C . 367 .
76 Construction Montcalm Inc . v . Minimum Wage Commission [1979] 1 S .C .R . 754, at
768-9 (Mr . Justice Beetz) .
.
388
�73 . The .federal Parliament has the constitutional authority to establish and
provide for the management of the R .C .M .P." The .primary basis for this
authority would appear to be the peace, order and good government clause of
section 91 of the British North America Act .
74. The key question, therefore, is whether control of the conduct of
R .C .M .P . officers, acting in the course of their duties, should be taken to be
"an integral part of primary federal competence", over the Force . The answer
to that question will depend upon the circumstances . The problems dealt with
by certain provincial laws would in many situations not form "an integral part"
of federal jurisdiction over the R .C .M .P. For example, a municipal by-law
relating to garbage disposal and imposing a penalty for violation of its
requirements would certainly apply to R .C .M .P . members responsible for
operating a staff cafeteria . On the other hand, a member . of the R .C .M .P . will
have an immunity from provincial legislation based on this ground, if the
application of that legislation to him would amount to an encroachment on
Parliament's jurisdiction to deal with the management and supervision of the
Force . For example, a provincial statute which provides rules of conduct for all
peace officers and sets up disciplinary procedures to ensure compliance with
them would not be applicable, on this basis, to peace officers in the service of
the R .C .M .P .'$ Another example would be a municipal anti-noise by-law,
which would not apply to the use of cruiser-car sirens by R .C .M .P. officers in
the course of their duties, even if the by-law did not have a built-in exception
for emergency vehicles .
75 . Generally speaking, the application of provincial penal statutes to members of the R .C .M .P . would not appear to be inconsistent with maintaining the
integrity of Parliament's power to provide for the management and administration of the force .79 Disciplinary measures internal to the R .C .M .P. could still be
taken with respect to conduct that constituted a provincial offence, subject to
any applicable rules designed to prevent double jeopardy . To the extent that
Parliament might see provincial laws as an embarrassment to the R .C .M .P .
and their invocation against a member of the Force to be intolerable, it could
effectively oust the provincial laws by providing specifically that they were not
to apply to members of the R .C .M .P .80 (The doctrine of paramountcy, discussed in (d) below, would apply .) There is in fact no federal legislation which
currently does that . In the absence of such legislation, members of th e
"See Attorney General of the Province of Quebec and Keable v . Attorney General of
Canada et al ., [1979] 1 S .C .R . 218, and The Attorney General of Alberta and the
Law Enforcement Appeal Board v . Constable K.W. Putnam and Constable M.G.C.
Cramer and the Attorney Genera! of Canada, [1980] 22 A .R . 510, [1980] 5 W .W .R .
83 [affirmed on appeal to the Supreme Court of Canada on May 28, 1981] .
78 See The Attorney General of Alberta and the Law Enforcement Appeal Board v .
Constable K . W. Putnam and Constable M.G.C. Cramer and the Attorney General of
Canada, [1980] 22 .A .R . 510, [1980] 5 W .W .R . 83 . This was a decision of the Court
of Queen's Bench of Alberta . The Alberta Court of Appeal upheld the decision, but
apparently on the ground of paramountcy, rather than on the ground of exclusive
power immunity .
79 But see R. v . Anderson [1930] 2 W .W .R . 595 .
80See R. v . Sanford [1939] I D .L .R . 374 (N .S .S .C . in banco) .
389
�R .C .M .P. would, except to the extent of the availability of the immunities
already discussed, be subject to provincial statutes creating offences, just as the
operator of a bus service which constitutes an interprovincial undertaking, who
is subject to exclusive federal jurisdiction for regulatory purposes, is nonetheless bound to comply with provincial highway traffic laws .8 1
76. We note that counsel for the R .C.M .P . has urged that this form of
immunity has a much broader scope than we think is likely acceptable in law .
He suggests that the immunity goes so far as to provide immunity from
provincial legislation in relation to matters which, on their federal aspect, are
simply "necessarily incidental" to the regulation of the R .C .M .P . In our
opinion, the immunity that covers matters that are an "integral part" of the
federal competénce is not available when the matters are simply "necessarily
incidental" to the regulation of the R .C .M .P . It is only with respect to matters
which are "integral" to R .C .M .P. operations that provincial laws may be
contravened with impunity . The words `integral' and `incidental' are virtual
opposites .
77 . Even if this "exclusive power" immunity might otherwise exist in favour
of members of the R .C .M .P . (which we do not agree is so as a universal
proposition), such an immunity may be eliminated by Parliament .82 Presumably it may also be eliminated by delegated legislation enacted by authority of
an Act of Parliament . If so, it becomes relevant to refer to section 25 of the
R .C .M .P . Regulations :
It is the duty and responsibility of every officer and of every person in
charge of a post to ensure that there is at all times strict observance of the
law, compliance with the rules of discipline and the proper discharge of
duties by all members of the Force .
(our emphasis is added . )
This may be strong evidence of an intention on the part of the Governor in
Council that not only federal but provincial laws be observed . There is nothing
in the surrounding language of the Regulations or in the R .C .M .P . Act itself to
indicate an intention that officers should comply with only some of the laws in
the provinces where they function . In the absence of such indication, it is
probable that the expression "strict observance of the law" should be given its
normal full meaning . If so, such "exclusive jurisdiction" or "interjurisdictional" immunity as might otherwise be available to R .C .M .P . personnel has been
eliminated .
78. Counsel for the R .C .M .P . also seems to suggest that "interjurisdictional"
immunity would apply even to R .C .M .P . members performing the functions of
a provincial police force in those provinces that have contracted with th e
See Attorney General of Ontario v . Winner [1954] A .C . 541, at 579 (P .C .) . See also
R. v . Pearsall (1977) 80 D .L .R . (3rd) 285 (Sask . C .A .), in which a provincial
prohibition against using an aircraft for the purpose of hunting game was held to be
valid notwithstanding that aeronautics is subject to federal jurisdiction under the
peace, order and good government power of section 91 of the B .N .A . Act .
" See D . Gibson, "Interjurisdictional Immunity in Canadian Federalism" ( 1969) 47
Can . Bar Rev . 40, at 46 ff .
390
�federal government for such services . Such arrangements are entered into by
the Solicitor General under section 20(1) of the R .C .M .P . Act, which reads in
part as follows :
20 . (I) The Minister may, with the approval of the Governor in Council,
enter into arrangements with the government of any province or, with the
approval of the lieutenant governor in council of any province, with any
municipality in the province, for the use or employment of the force, or any
portion thereof, in aiding the administration of justice in the province or
municipality, and in carrying into effect the laws in force therein ;
We find it very difficult to see how the activities of the R .C .M .P ., which are
carried out pursuant to a contract relating to internal provincial policing, could
be said to be "integral" to Parliament's "primary" jurisdiction over the
R .C .M .P . Section 20 limits the purpose of all such contractual arrangements to
"aiding the administration of justice in the province or municipality, and. .. carrying into effect the laws in force therein" . "Administration of Justice in
the Province" is, of course, a specific head of provincial jurisdiction under
section 92 of the B .N .A . Act . Since interjurisdictional immunity exists for the
purpose of protecting the exercise of federal constitutional jurisdiction from
provincial restrictions, it would make no sense to apply the immunity to
individuals who are performing functions within the constitutional competence
of the provinces .
79 . Our conclusion in this regard is in no way affected by the provisions of
the current form of agreement with eight of the provinces, which provides that
the "internal management" of the Force while engaged in provincial policing
shall remain under .federal control . In our opinion the words "internal management" cannot be construed to include liability of members of the Force for
breaches of provincial law . Moreover, paragraph 4 of the agreement makes it
abundantly clear that the Force is generally responsible to the provincial
attorneys general with respect to provincial policing :
4 . (I) The Commanding Officer of the Provincial Police Services shall for
the purposes of this agreement act under the direction of the Attorney-General in the administration of justice in the Province .
(2) Nothing in this agreement shall be interpreted as limiting in any way
the powers of the Attorney-General, relating to the administration of justice
within the province .
In any event, whatever the provisions of the agreement, we think that such an
agreement cannot alter the duty owed in law by a member of the R .C .M .P . in
regard to conduct that is an offence under the provincial statute . For all these
reasons, therefore,' we conclude that whatever limited interjurisdictional
immunity may be available to members of the R .C .M .P . (and we think there is
no such immunity generally available except, for example, in regard to
disciplinary powers), it does not extend to members performing functions under
federal-provincial contracts .
(d) Immunity as a result of the paramountcy of federal legislation
80 . It is a commonplace of Canadian constitutional law that if an otherwise
valid provincial statutory provision and a competent federal statutory provisio n
391
�cover the same ground and the application of each to a particular set of facts
gives rise to a conflict, the federal enactment will be paramount .83 The
provincial provision will be displaced, at least in its application to that fact
situation .
81 . It is undeniable that the Parliament of Canada has the constitutional
jurisdiction to make laws about the R .C .M .P .84 So, according to counsel for the
R .C .M .P ., if the R .C .M .P . Act conflicts with provincial law, the paramountcy
of the R .C .M .P. Act might be a basis for a claim of immunity from the
provincial law by R .C .M .P . members . Counsel for the R .C .M .P . argues that a
conflict, and therefore federal paramountcy, arises from the fact that "the area
of discipline, management and control of members of the R .C .M .P. performing
reasonably necessary acts in the course of duty is fully occupied by" Part II of
the R .C .M .P . Act and the R .C .M .P . Regulations . The flaw in this argument is
that Part II and the Regulations involve only such matters as insubordination,
immorality and ineptitude, and do not include illegal acts . In other words, the
disciplinary offences under the Act are by no means co-extensive with the
offences generally provided by provincial laws . The disciplinary offences are, in
many ways, much more extensive, reaching immoral conduct generally, and
not just specifically proscribed acts . Far from being "fully occupied", the field
of trial and punishment of R .C .M .P . personnel for breaches of the law federal or provincial - is left entirely untouched by the R .C .M .P. Act . Indeed,
in two respects the Act and the Regulations may be said to have an effect
which is the opposite of "occupying the field" . First, as far as civil liability is
concerned, section 37(3) of the R .C .M .P . Act acknowledges that provincial
laws will continue to operate with respect to R .C .M .P . personnel . It reads :
Nothing in subsection (2) prejudices any right or remedy that may exist
apart from this section against any person, including the Crown, for any
injury to the person or damage to or loss of property in respect of which a
member is under this section ordered to make payment of damages or
restitution . . .
Second, section 25 of the Regulations, which has already been quoted, expressly requires every officer and every person in charge of a post "to ensure that
there is at all times strict observance of the law" . Apart from such specific
points, the Canadian courts have adopted a very strict or narrow test of conflict
for this purpose, with the result that there is considerable room for the
concurrent operation of federal and provincial legislation .es
82 . For all these reasons our conclusion is that there is nothing in the
R .C .M .P . Act or Regulations which suggests that there was an intention to
displace any provincial laws in their application to members of the Force . I t
89 See, for example, Attorney General of Ontario v . Attorney General of Canada [ 1896 1
A .C . 348 at 366 (P .C .) .
84 Attorney General of Quebec and Keable v . Attorney General of Canada et al . (1978)
90 D .L .R . (3d) 161 at 180, (S .C .C .) per Mr . Justice Pigeon .
85 See P .W . Hogg, Constitutional Law of Canada, Toronto, Carswell, 1977, at pp.
101-110.
392
�follows that there is no basis for a claim of immunity based upon the
paramountcy doctrine .
F . AUTHORIZATION BY MINISTER S
83 . If a member of the R .C .M .P . were charged with an offence, arising out of
his selfless conduct intended to protect the security of Canada or the public
good and not to advance his own interests, would he be entitled to raise as a
defence that the Solicitor General or the federal Cabinet had, expressly or by
implication, authorized illegal activities in general or the specific act or activity
which gave rise to the charge ?
84 . Senior members of the R .C .M .P . have a habit of referring .to Ministers as
their "political masters" . Does this mean that such authority might be regarded as a "superior order" (to the extent that there is a defence of superior
orders)? The answer must be no in the case of the Cabinet, which is not in law
a "superior" to members of the R .C .M .P . unless it speaks by regulation . In the
case of the Solicitor General, he might be regarded as a "superior" in view of
his power of direction found in section 5 of the R .C .M .P . Act .
85. However, the kind of hypothetical situation which we are considering
here is the effect in law not of an "order" but an "authority", that is, some sort
of express or implied permission or licence to do that which is unlawful . Does
the law recognize that such a licence can relieve a member of the R .C .M .P.
from liability for a statutory offence or a civil wrong such as trespass? The
answer is no . To allow such a defence would violate a fundamental constitutional principle, established in the Bill of Rights in 1689 and the cases
interpreting its prohibition of the prerogative of dispensing and suspending
laws .
In the Bill of Rights it was declare d
1 . That the pretended power of suspending of laws, by regal authority,
without consent of parliament, is illegal .
2 . That the pretended power of dispensing with laws, or the execution of
laws, by regal authority, as it hath been assumed and exercised of late, is
illegal .eb
As far as the dispensing power was concerned, the foregoing spoke only of the
past . However, the dispensing power was prohibited for the future as well :
. . .[N]o dispensation by non obstante of or to any statute or any part
thereof, shall be allowed, but . .. the same shall be held void and of no
effect, except a dispensation be allowed of in such statute .
.
.
Thus the present rule of constitutional law is stated as follows by Halsbury's
Laws of England :
The Crown may not suspend laws or the execution of laws without the
consent of Parliament ; nor may it dispense with laws, or the execution o f
86 1 Will . & Mar . sess . 2 c .2 . Halsbury's Statutes of England, 3 ed ., vol . 6, p . 489 . Also
found in C . Stephenson and F .G . Marcham, Sources of English Constitutional
History (Rev . ed .), New York, Harper and Row, 1972 .
393
�laws ; and dispensations by non obstante of or to any statute or part thereof
are void and of no effect except in such cases as are allowed by statute .87
The suspending and dispensing powers which had been used before the
Glorious Revolution of 1688 were explained in a Canadian case, in which Chief
Justice Freedman of Manitoba said :
The distinction between these two ancient powers may be briefly noted .
By virtue of the suspending power the Crown suspended the operation of a
duly enacted law of Parliament, and such suspension could be for an
indefinite period . . .
Under the dispensing power the Crown purported to declare that a law
enacted by Parliament would be inapplicable to certain named individuals
or groups . By virtue of a dispensation in their favour the law would not
apply to them, but it would continue to apply to all others . It has been said
that the dispensing power "was derived from the Papal practice of issuing
bulls non obstante statuto, `any law to the contrary notwithstanding . . . . . . 8 1
Chief Justice Freedman then quoted the English historian, F .W . Maitland ,
who in discussing the Bill of Rights, had asserted : "This is the last of the
dispensing power" . Chief Justice Freedman then continued :
"This is the last of the dispensing power ." Maitland could never have
thought that in the year 1968, nearly three centuries after the Bill of
Rights, a certain departmental official of Manitoba, acting in fact or in law
under the authority of his Minister, would purport to grant a dispensation
in favour of a certain group, exempting them from obedience to a particular
law to which all others continued to remain subject .
Chief Justice Freedman then added :
The other point is that nothing here stated is intended to curtail or affect
the matter of prosecutorial discretion . Not every infraction of the law, as
everybody knows, results in the institution of criminal proceedings . A wise
discretion may be exercised against the setting in motion of the criminal
process . A policeman, confronting a motorist who had been driving slightly
in excess of the speed limit, may elect to give him a warning rather than a
ticket . An Attorney-General, faced with circumstances indicating only
technical guilt of a serious offence but actual guilt of a legs serious offence,
may decide to prosecute on the latter and not on the former . And the
Attorney-General may in his discretion stay proceedings on any pending
charge, a right that is given statutory recognition in s .508 [am . 1972, c . 13,
s .43(l)] and s .732 .1 [enacted idem, s .62] of the Criminal Code . But in all
these instances the prosecutorial discretion is exercised in relation to a
specific case . It is the particular facts of a given case that call that
discretion into play . But that is a far different thing from the granting of a
blanket dispensation in favour of a particular group or race . Today the
dispensing power may be exercised in favour of Indians . Tomorrow it may
be exercised in favour of Protestants, and the next day in favour of Jews .
87 4 ed ., vol . 8, para . 912 .
88 Regina v . Catagas (1978) 81 D .L .R. (3d) 396 at 397-8 (Man . C .A .) per Chief Justice
Freedman . See also R . v . London County Council [1931] 2 K .B . 215 at 228 ; London
Borough of Redbridge v . Jacques [1971 ] I All E .R . 260 .
394
�Our laws cannot be so treated . The Crown may not by Executive action
dispense with laws . The matter is as simple as that, and nearly three
centuries of legal and constitutional history stand as the foundation for that
principle .
86 . While the law precludes reliance on executive suspension or dispensation
as a defence, the circumstances as a whole, including any such purported
suspension or dispensation, may be invoked in mitigation of sentence . No
generalization is possible as to the effect such a licence might have on the
question of sentence .
395
��CHAPTER 2
EXTENUATING CIRCUMSTANCE S
1 . In the foregoing chapter we discussed whether there are legal defences
open to members of the R .C .M .P . if they were charged with offences or sued
arising from their having been engaged in the kinds of investigative practices
and other procedures we discussed in Part III, Chapters 2 to 10 . Our
conclusion was that in most cases the defences raised would likely fail as a
matter of law .
2. That does not, however, dispose of the matter fully . Although all the issues
discussed in Chapter 1 may not be the basis of defences in law to charges or
suits, the same circumstances might properly be factors to be taken into
account - not as a matter of right but of grace - when the decision is being
taken whether or not to prosecute, what the appropriate sentence is, and
whether a pardon should be granted . When these decisions are being made, at
least two additional considerations may be applicable to members in the lower
ranks of the police force . These are first, that a member's actions were
motivated by noble objectives - enforcing the law or preserving national
security - and second, that he received ambiguous policy instructions from
senior management as to whether or not it was appropriate at times to commit
an unlawful act or to refuse to obey an unlawful order . We cannot imagine any
member of a lower rank successfully raising either of these considerations as a
legal defence. Yet he might ask that these matters be taken into account when
discretion is being exercised in making the three kinds of decisions referred to .
We examine each of these considerations below .
The pursuit of law enforcement or national security objective s
3. A member of the R .C .M .P . might argue, in seeking a favourable exercise
of prosecutorial discretion, or in mitigation of sentence or in applying for a
pardon, or in seeking at least public sympathy, that what he had done was in
pursuit of law enforcement or national security objectives as he understood
them to be defined and approved by the senior management of the Security
Service or the R .C .M .P ., or by the "political masters" . Thus, it would be
argued, he was motivated by noble purposes and not self-interest . This is a
question with which we shall deal in a subsequent Report when we consider
specific factual situations . All we wish to say here is that, while mercy and
compassion are among the important considerations to be taken into account in
assessing such an argument, it is also important not to encourage a belief by
members of a police force or a security intelligence agency that if they break
the law they will be protected by "the system", even if not by the law . We note
that this justification of noble purpose = justification which in this contex t
397
�may affect the treatment which might be afforded the member consequent
upon a breach of the law - is distinct from the defence based on lack of "evil
intent" . We examined and rejected this defence in Chapter 1 of this Part .
Nevertheless, common to both the `defence' and the `extenuating circumstances' arguments is the motivation of the member . The point at which and
purpose for which each of these arguments is advanced often become blurred,
thus leading to considerable confusion .
Ambiguous policies adopted by senior managemen t
4 . It is also important that members of the police force or security intelligence agency who are at the level of senior management should not think that
members should consider it as a duty to obey policies adopted (formally or
informally) by senior management, that tolerate violations of the law . On the
other hand, members are entitled to expect senior management to give them
clear instructions as to what conduct is permissible and within the law, and
what conduct is unacceptable and unlawful . Senior management has a duty to
ascertain what the law is in order that the law may be obeyed by the members .
An opinion of the Judicial Committee of the Privy Council has stated tha t
It is the duty of the Crown and of every branch of the Executive to abide by
and obey the law. If there is any difficulty in ascertaining it the Courts are
open to the Crown to sue, and it is the duty of the Executive in cases of
doubt to ascertain the law, in order to obey it, not to disregard it . ,
Moreover,
.
.. matters of practice and policy of the Government and of any depart-
ment thereof are not to be permitted to override the performance of the
duty [quoted above] . z
5 . It will not always be possible or desirable for the instructions to be applied
mechanically . Some doctrines of the law that give a defence to a criminal
charge or a civil suit must be stated in broad terms, such as the doctrine of
necessity, which we discussed in Chapter 1 of this Part. No answers can be
provided in advance as to how to react lawfully in the case of emergencies such
as are contemplated by that defence : no one can expect senior management to
do more than state guidelines that are in accordance with the law .
6 . However, more can be expected in the direction of operations that do not
involve emergencies . Instructions can be more precise . The member engaged in
an operation is entitled to expect direction based upon carefully conceived
policies that comply with the law .
7 . Members are entitled to receive more assistance than Commissioner
Higgitt thought sufficient in 1970 . In June 1970, some members of the
Security' Service, in a training class, questioned their position if criminal or
civil action were to be brought against them . Their concern referred to carrying
out what were described, in a memorandum (Ex . M-1, Tab 2) summarizing th e
' Eastern Trust Co . v . McKenzie, Mann & Co . [1915 ] A .C . 750, 22 D .L .R . 410 (Privy
Council) .
2 Glazer v . Union Contractors Ltd . (1960) 25 D .L .R . (2d) 653 .
398
�discussion, as "certain tasks performed by S .I .B . [Security and Intelligence
Directorate] or C .I .B . personnel" that required "that the law be transgressed,
whether it be Federal, Provincial or Municipal law, in order that the purpose of
the undertaking may be fulfilled" . The memorandum observed that "The
particular task will have been sanctioned in many cases by a number of officers
who will at least be aware of the means required to achieve the end product,
and who will have given their tacit or express approval" .
8 . The members of the class wanted to know to what extent the Force would
back its members in these circumstances, whether their families would be cared
for in the,event of imprisonment and where members stood in terms of future
employment . The Legal Branch suggested that members be told that if there
were express approval of a particular operation by a superior, or a superior
were aware of "the means required to achieve the end results" and had given
•implied approval by communicating the fact of his knowledge to the member,
an attempt should be made to persuade the Attorney General to stay any
criminal proceedings ; if conviction should result, the Commissioner should
retain the member in the Force ; the Force should pay any fine ; and, in the
event of imprisonment, the member's employment should be continued . The
Legal Branch also suggested that if a member acted independently without
authority, and if he were convicted the Commissioner could, both morally and
legally, discharge the member as he was acting outside the scope of his
employment . In both situations the Legal Branch also suggested when counsel
should be provided, but that need not be summarized here (Ex . M-1, Tab 3) .
9 . The Deputy Commissioner (Criminal Operations), J .R . Carrière,
expressed approval of these views, which he felt could not be published in
policy instructions but could be made available to Commanding Officers and
C .I .B . officers so that they could advise members . He also felt that these views
could be imparted to members attending certain training courses and seminars .
In addition, the Director General, Security and Intelligence, Mr . Starnes,
agreed with the views expressed by the Legal Branch and made similar
suggestions as to how they might be transmitted to members engaged in
Security and Intelligence work .
10 . A three-page policy memorandum was then prepared for Commissioner
Higgitt's approval . This memorandum, in addition to incorporating the points
noted above, contained the following paragraph which is ambiguous and may
even contradict itself:
It must also be borne in mind, of course, that where a member is directed to
perform a duty which may require him to contravene the law for any
purpose or where the means required to achieve a specific end can reasonably be foreseen as illegal, a member is within his rights to refuse to do any
unlawful act . Such a refusal may be given with impunity . Though no
disciplinary action would be taken, a transfer may be indicated in such a
situation (Ex . M- 1, Tab 7) .
(The emphasis is ours . )
11 . Commissioner Higgitt refused to sign this policy memorandum . Instead
he decided, and noted on the memorandum tha t
399
�Under no circumstances should anything of this nature be circulated in
written or memo form . The reasons ought to be obvious . I do not believe
this is the problem it is being made out to be . Members know or ought to
that whatever misadventure happens to them the Force will stand by them
so long as there is some justification for doing so .
(Ex . M-1, Tab 7 . )
In view of this decision, the Deputy Commissioner (Administration) instructed
the Director of Organization and Personnel to put the communications concerning this matter away "in secret envelope on policy file", and that the
contents were "to be relayed to S . & I . and C .I .B . classes orally when convene
[sic] at H .Q . Ottawa" . The draft policy memorandum was conveyed to an
officer for the information of lecturers and to Mr . Starnes .
12 . In his testimony concerning this policy matter, Mr . Higgitt made several
noteworthy points . First, he confirmed the validity of the problem which gave
rise to efforts within the R .C .M .P . to develop the policy memorandum referred
to above :
The problem at the moment was members of the Force . . . getting themselves into difficult situations as a result of quite straight forward, honest
carrying out of their duties, getting themselves into difficulties, it could be
with transgressions of a law or it could be with a number of other things ; it
was a problem that was inherent in not only the Security Service, in the law
enforcement generally, that occasionally placed members in difficult circumstances . (Vol . 88, p . 14452 ; see also Vol . 85, pp . 13965-6 and Vol . 87,
pp. 14330-1 . )
13. Second, it is not clear from his testimony what Mr . Higgitt believed the
R .C .M .P . policy to be for dealing with this problem . At several points, Mr.
Higgitt stated that the draft policy memorandum was, in effect, Force policy :
Q . So, the text of the draft letter did remain the policy as it is explained
there, as it is expressed there ?
A . Right, in essence it was the policy . (Vo) . 85, p . 13948 ; see also Vol . 84,
p. 13751 . )
Nonetheless, at other points, he testified that the draft memorandum did not
represent Force policy . Rather, he said that his handwritten note quoted above
was the extent of Force policy (Vol . 87, pp . 14282, 14289, 14303) . Notwithstanding this lack of clarity about what precisely was Force policy, Mr . Higgitt
testified that this policy had been in effect for over 30 years and that his
handwritten note was not intended to change the policy in any way . Rather, it
was "restating the obvious" (Vol . 85, p . 13992 and Vol . 86, p . 14190) .
Furthermore, he gave three reasons why the policy on this matter should not
have been written down and circulated among R .C .M .P . members :
(a) the policy was well known to members (Vol . 84, p. 13751 and Vol . 86, pp .
14190-1) ;
(b) the problem addressed by the policy was not as significant as it was being
made out to be and publication of the policy might have the effect o f
400
�" . . . giving some degree of freedom which, certainly, I did not wish to give
in that way to members at large to engage in this sort of thing" (Vol . 84,
pp . 13751-2) ; an d
.
(c) Mr . Higgitt believed that there was " . . really no answer that one can put
.
in written form to the problem involved here . . you could not begin to
describe the various things that could happen . You can't describe, except in
a very general way, what the Cominissioner's response would be to those
things" (Vol . 87, pp . 14282-3) . Notwithstanding these reasons for not
writing down the policy, Mr . Higgitt believed that the policy should have
been communicated orally to those members of the Force likely to be
affected (Vol . 85, p . 13940) .
14. Third, contrary to the draft policy memorandum, Mr . Higgitt testified
that the Force would not necessarily stand behind the member who obeyed an
unlawful order given by a superior :
Q . Would I be correct then that in a situation, say, where a senior N .C .O .
instructed a constable to do something that involved a transgression of
the law, that under your policy, that the constable would be protected
by the policy, but the N .C .O . would not be ?
A . That is a question that could only be answered given the circumstances .
Protection wasn't necessarily always involved . (Vol . 85, pp . 13992-3 . )
On the other hand, Mr . Higgitt stated that if a member disobeyed an unlawful
order, he might well be transferred, although in Mr . Higgitt's view, such a
transfer would not be "a disciplinary matter" (Vol . 85, pp . 13959-64) . *
15. Members of a police force or a security intelligence agency at the
operational level are entitled to receive guidance as to the law so that they may
obey the law, not disregard it . Because the members of any agency of the State
must abide by and obey the law, they are entitled to receive advice that is as
precise as possible so that they may remain within the law . While support for
members who are charged with offences is acceptable, the rationale of the
support must not be expressed in such a way as to suggest that express or tacit
approval by a superior will relieve members in all circumstances of the
obligation to obey the law . Based on our review of this episode, we conclude
that a member of the R .C .M .P. during this period could argue with considerable justification that he did not receive the advice and guidance he was
entitled to . Rather, it would be surprising if he did not find Force policy on this
matter vague, confusing and at timés contradictory . Moreover, he would have
grounds for concluding that (a) there were times when the Force would expect
him to disobey the law, and (b) he might be punished if he refused to obey an
unlawful order .
16. In conclusion, while the blame to be attached to "foot soldiers" for
breaking the law cannot be absolved by'the failure of managerrtent to provide
clear and proper instructions, the consequences which flow from such law
breaking may be affected by that failure . It is a factor that, depending on all
the circumstances, may properly be taken into account in the exercise of
prosecutorial discretion ; the determination of the appropriate sentence, or the
decision whether to grant a pardon .
401
��PART V
A PLAN FOR THE FUTURE:
ROLE, FUNCTIONS AND
METHODS OF A SECURITY INTELLIGENCE
AGENCY
INTRODUCTION
CHAPTER 1 :
Fundamental Principle s
CHAPTER 2 : A Security Intelligence Plan for the Future : A Summary
CHAPTER 3 : The Scope of Security Intelligenc e
CHAPTER 4 : Information Collection Methods
CHAPTER 5 : Analysis, Reporting, and Advising Functions
CHAPTER 6 : Executive Powers and Preventive Activities
CHAPTER 7 : International Dimension s
CHAPTER 8 : Relationships with other Departments, Provincial and Municipal Authorities
403
��INTRODUCTION
1 . We now turn from the past to address the future . In Parts V to IX we
present an outline for the future of security intelligence work in Canada and
make recommendations for statutory and administrative reform . These reforms
encompass : the functions of the security intelligence agency ; the investigative
and other techniques which it should be permitted and enabled by law to
employ ; the structure of the agency ; its relationship with its Minister and the
federal government generally ; its relationship with Parliament ; its relationship
with provincial governments and the agencies of foreign countries ; the means
by which it should be held accountable to ensure effectiveness and to prevent
abuses of its powers either by the agency itself or by the federal government ;
and, changes in existing laws relating to national security .
2 . We stress that the recommendations contained in these Parts are put
forward as a set of interlocking proposals, of countervailing forces . To accept
the recommendation as to the kinds of activities about which the agency should
be empowered to collect intelligence, without implementing the recommendations as to scrutiny and control by the Minister, Parliament, and the independent review body would be dangerous . To accept the recommendations about
relationships between the agency and the agencies of foreign countries without
the same régime of scrutiny or oversight would be dangerous . To accept the
recommendations as to the qualities of the men and women who should .carry
out the agency's tasks without accepting our conviction that those qualities
cannot be achieved if the agency remains within the R .C .M .P. would be an
exercise in futility . To accept our recommendations as to the ultimate responsibility of the federal government in matters of security intelligence without
adopting our views as to the role of the provinces would bedevil the effectiveness of the agency . To expect the agency to carry out the mandate which is
imposed upon it by statute without giving it the statutory powers of intelligence
collection that are necessary for its effectiveness would be to invite disaster in
the face of crisis . To grant the agency powers of intelligence collection which
are not possessed by the ordinary citizen without imposing the recommended
system of ministerial approval, judicial authorization and ex post facto scrutiny by the independent review body and Parliamentary Committee would open
the way to unacceptable levels of intrusion into the private lives of our people
and perhaps a repetition of the institutional acceptance of disregard of the law .
405
��CHAPTER 1
FUNDAMENTAL PRINCIPLE S
1 . In Part II of this Report we stated that we have been guided by the
fundamental precept that Canada must have effective security within a democratic framework . We must return to that theme here, for it provides the
bedrock of principle on which our recommendations for a new security system
are based . The changes in structures, procedures and laws that we will
recommend should be judged in terms of how well they serve this basic
objective . Although in Part II we have already set out our understanding of the
requirements of security and the requirements of democracy, we must return to
them and relate them more specifically to the role of the Security Service .
2 . When we speak of the need for security we have in mind the need for
protection against the clandestine activities of agents of foreign powers in
Canada and the activities of individuals or groups which threaten the fundamental rights, structures and processes of our democratic system . We believe
that it is a responsibility of government in Canada to protect Canadians
against these kinds of activities .
3 . The protection needed goes beyond apprehending and punishing those who
are in the process of committing a crime . There are many contexts, other than
law enforcement, in which government needs accurate advance intelligence
about persons or groups who may threaten the security of Canada . Foreign
powers should not be able to establish networks of espionage and secret
interference in this country . If security against attempts to establish such
networks is not provided, Canadians' enjoyment of self-government on their
own territory is in jeopardy, as is the trust of our allies . Similarly, we think
Canadians are unwilling to risk the danger to the exercise of their democratic
rights and liberties that would result if the responsible government agencies
remained ignorant of the plans and preparations of terrorist or subversive
organizations until they surfaced in the form of outright criminal acts . In the
next chapter we shall expand on this theme, as it is essential to understanding
the need for a security intelligence agency .
4 . Thus, the effectiveness of the R .C .M .P . in enabling government to identify
and prevent activities threatening the security of Canada is one standard by
which we must assess the policies, procedures and laws governing it in the
discharge of its responsibility .
5 . Effectiveness must not be the only standard for judging security arrangements . As we stressed in the first chapter of Part II, it is essential that our
security system also meet the requirements of democracy . This means that
because Canada is a democratic country it must tolerate security risks which a
407
�non-democratic state would not . A totalitarian state need put no limit on the
extent to which it spies on its own citizens to ensure its survival . In such a
country all dissident opinion is suspect, the enjoyment of privacy is not a
protected social value, foreign visitors are not free to travel on their own,
secrecy rather than openness is characteristic of government decision-making,
and the subjection of government officials to the sanctions of the law is not a
hallowed feature of the political tradition . In such countries security arrangements need be judged only in terms of their effectiveness . But in Canada the
overriding objective of our security arrangements is the preservation of our
democratic system . It follows that our security system must be assessed in
terms of both its effectiveness and its conformity with the requirements of
democracy .
6. In Part II we identified three essential requirements of democracy : responsible government, the rule of law, and freedom of legitimate political dissent .
These, we would emphasize, are requirements of democracy . As requirements
they are not to be compromised, whittled down, or balanced off to make
effective security possible .
7 . Responsible government must mean that responsible Ministers can know
about all the practices and policies of security agencies and about any of their
operations which raise policy or legal issues . The security system must be an
open book to responsible Ministers and to the Prime Minister . No pages in that
book should be sealed because security officials think they contain information
too sensitive for Ministers' or Prime Ministers' eyes or ears . Responsible
Ministers cannot be expected to know everything that a security agency does,
but they can and must be expected to know the policies governing the
operations of the security agency and to establish procedures for ensuring that
operations raising difficult policy issues are brought to their attention .
8 . Nor is the rule of law a principle that should be compromised for the sake
of national security . Government agencies, including a security service, should
not pick and choose which laws they will obey . We do not accept the idea that
there are some `minor', `regulatory', laws which security agencies should be
free to ignore when they stand in the way of security investigations . There may
well be a need to change the laws so that exemptions are provided for members
of a security agency or police force, but it is not for security agencies, or police
forces, or even for the Ministers responsible for these agencies, to decide which
laws apply to them and which do not . Under the rule of law in our system of
government, the legislators, federal and provincial, determine general rules of
law, and disputes about the application of the laws to particular cases are
decided ultimately by the judges and juries .
9 . We should make it clear that when we insist on the rule of law as an
absolute principle we have in mind the absolute prohibition of institutionalized
unlawfulness . We realize that in all organizations, public and private, there will
be members who from time to time break the law . That will happen in the best
managed police forces and security agencies . When it does, the rule of law
requires that such incidents be reported to the prosecuting authorities and be
subject to the regular procedures for the administration of justice . What i s
408
�completely intolerable is-to permit police and security forces, as a matter of
institutionalized practice, to condone certain legal violations by their members
as a necessary means of carrying out the responsibilities of their organizations .
10 . If governments and police forces do not strictly apply the rule of law to
themselves it will become increasingly difficult for them to persuade private
organizations and individuals in .our society to respect the law . It is essential
that those whose function it is to uphold the law should adhere to it themselves .
In the words of Mr . Justice Brandeis of the United States Supreme Court :
Decency, security and liberty alike demand that government officials shall
be subjected to the same rules of conduct that are commands to the citizen .
In a government of laws, existence of the government will be imperilled if it
fails to observe the law scrupulously . Our Government is the potent, the
omnipresent teacher . For good or for ill, it teaches the whole people by its
example . Crime is contagious . If the Government becomes a lawbreaker, it
breeds contempt for law ; it invites every man to become a law unto himself ;
it invites anarchy . To declare that in the administration of the criminal law
the end justifies the means - to declare that the Government may commit
crimes in order to secure the conviction of a private criminal - would bring
terrible retribution . Against that pernicious doctrine the Court shôuld
resolutely set its face . '
11 . The third requirement - democratic dissent - is perhaps the most
difficult to maintain because its observance requires such careful judgment .
Still, we believe that the distinction can be made between, on the one hand,
those who wish to overthrow our democratic system or use violence or threats
of violence to violate our democratic procedures, and on the other hand, those
who seek .radical change in our social, economic or political arrangements
within our democratic system . The difficulty of making this distinction in
particular cases is not a reason for abandoning it . On the contrary, the
importance to democracy of drawing the line correctly between legitimate
dissent and subversion calls for sophisticated judgment and political understanding on the part of those who carry out security operations . It also requires
sensitive direction by responsible Ministers and independent review of security
operations to ensure that the line is properly drawn and maintained .
12. In addition to the essential features of democracy which we have
described there are other liberal democratic values which must be balanced
against the requirements of security . One such value is individual privacy . In a
liberal society the extent to which the state pries into the private life of the
individual, secretly intercepts his private communications or enters without his
consent onto his private premises, should be kept to a minimum . Individual
privacy may not be an absolute value in our society but it is one facet of the
enjoyment of freedom and we are sure that Canadians greatly value it and
would qualify it only for very pressing, countervailing reasons . Thus, when we
turn to consider the investigative techniques which should be available to a
security intelligence agency our concern will go beyond maintaining the rule o f
' Olmstead v . United States, (1928) 277 U .S. 438 .
409
�law . It is fundamental that all investigative techniques not lawfully available to
the ordinary citizen be provided for by law . However, in considering whether to
recommend any changes in the law to provide additional investigative powers
for security or police purposes, the need for more effective security or law
enforcement must be balanced against the cost of making additional inroads on
individual privacy . Indeed we must consider whether the reduction of privacy
inherent in existing police and security service powers is justified in terms of
the contribution such powers make to security and effective law enforcement .
13. Another liberal value which must be balanced against the requirements of
security consists of certain norms of procedural justice . One of these norms
requires that when an individual is threatened with penalties by the state, he
should know the case against him and has a chance to refute it . But in security
screening cases, for instance, there may well be situations where to disclose to
the individual the entire case against him would do grave damage to continuing
security investigations and imperil the lives of those who have provided security
information . Total adherence to the norms of due process in such cases would
make it difficult to maintain a feasible security screening system . Similarly, in
situations of grave national emergency it may be necessary to extend the period
during which persons may be detained without being brought before a judge or
magistrate beyond that which we normally deem compatible with our ideal of
due process . Here again a careful balancing of security needs and democratic
values is required .
14 . In judging the extent to which security arrangements should be permitted
to encroach on individual privacy or deviate from the requirements of due
process, our principle should be to minimize the extent of encroachment or
deviation . If these democratic values are as highly prized by Canadians as we
believe, they should be departed from only when there is a strong case for
holding that it is essential to do so in order to protect the security of Canada .
Such values cannot be inviolable : effective protection against genuine threats to
the security of Canada will require secret and intrusive methods of investigation and other departures from democratic values . But the guiding principle
should be that these reductions in the enjoyment of liberal democratic values
and procedures should be held to the minimum required for the safeguarding of
the democratic system itself.
15 . One further element of Canada's constitutional system, which must be
recognized by Canada's security system, is its federal character . Given the
national and international character of threats to the security of Canada, it
makes good practical sense for the federal government to play the lead role in
obtaining advance information about these threats and in ensuring that this
information is reported to governments and police forces having the executive
responsibility for dealing with such threats . It makes equally good sense for the
provincial and municipal authorities to play the lead role in taking police and
prosecutorial measures against threats of political violence at the local level .
We think the practical requirements of sound security demand effective
cooperation among federal, provincial and municipal authorities in determining
the division of labour between them in national security matters .
410
�16. Above all, national security must be a field of intergovernmental cooperation : it must not be permitted to become a field of federal-provincial competition . The security of Canadians would be damaged by rival investigative forces
spending as much effort watching one another as watching those who threaten
Canadian democracy . National security must be recognized as embracing
interests that transcend those of either level of government . The measures
adopted to protect the security of Canada must recognize that principle .
17 . The principles we have set out above are the standards by which we hope
our recommendations will be judged . The security system we recommend
constitutes a structural edifice of law, institutional arrangements and administrative practice . In our view, the merit of that edifice should be judged in terms
of how well it reconciles the requirements of security with the requirements of
democracy within the Canadian federal system of government .
411
��CHAPTER 2
A SECURITY INTELLIGENCE PLAN
FOR THE FUTURE :
A SUMMAR Y
A . REASONS FOR HAVING A SPECIAL FEDERAL
AGENCY FOR SECURITY INTELLIGENC E
1 . In considering the policies, procedures and laws which should govern the
R .C .M .P . in the discharge of its responsibility to protect the security of
Canada, we are concerned first and foremost with the R .C .M .P . Security
Serv ice . It is the Security Service which now fulfills the function of Canada's
security intelligence agency . Thus our recommendations for Canada's security
arrangements will focus on the future of the Security Service . We will be
concerned with its intelligence collection role and powers, its role in providing
advice to government, especially with respect to security screening and in crisis
situations ; its relationship with police forces, other federal departments and
provincial and municipal authorities, and with foreign agencies ; its personnel,
internal management and organizational structure ; its direction and control by
Ministers, and the review of its activities by Parliament and independent
bodies .
2. Before we deal with these various features of the security plan for the
future, a preliminary question must be faced . Does Canada need an agency at
the federal level with the specialized task of a security intelligence agency? Or
could the various tasks involved in collecting, analyzing and reporting information about threats to the security of Canada be left to other existing government departments and agencies and to regular police work at the federal,
provincial and municipal levels? This is clearly an essential question, for if
there were no need for the federal government to maintain an agency which
specializes in security intelligence functions, then our leading recommendation
in this part of our Report would be to abolish the R .C .M .P . Security Service
and not replace it with any distinct organization devoted to security intelligence responsibilities .
3 . The question as to whether there is a need for a federal security intelligence organization is also fundamental in terms of public accountability . We
believe that we have reached a point in Canadian history when a security
service, if it is to serve Canada effectively, must have a clear public mandate .
Whatever the merit in the past of keeping the existence and responsibilities of
such an organization secret, that practice has had its day in Canada . If there i s
413
�to be a security service, especially one with intrusive investigatory powers, both
the government and the public must have a clear understanding of the need for
it .
4 . The question of the need for a national security intelligence organization
has two aspects: first, is there a need for intelligence pertaining to national
security? Second, is there a need in Canada for a specialized agency at the
federal level to provide that security intelligence ?
5 . Our answer to the first part of the question, as we indicated in Part II, is in
the affirmative : Canada does need security intelligence . But this answer means
very little unless we explain what we mean by security intelligence . Security
intelligence is essentially advance warning and advice about activities which
threaten the internal security of Canada . In our First Report we put forward
the view that the term `security of Canada' (or `national security') involves at
least two concepts : first, the need to preserve the territory of our country from
attack ; second, the need to protect our democratic process of government from
violent subversion . In Part II of this Report we referred in general terms to the
activities which we regard as constituting the principal threats to the security
of Canada . Such activities fall into three general categories : foreign intelligence activities, terrorism, and domestic subversion . With respect to each of
these categories we think it important to indicate in more detail the types of
activity about which governments and police forces in Canada should have
advance intelligence .
Nature of the threats
6 . First, as to foreign intelligence activities, it is evident that all of the major
powers and a number of other powers have foreign intelligence agencies with
mandates to operate in a clandestine or deceptive manner in foreign countries .
As we reported in the historical overview at the beginning of this Report, there
is ample evidence that members of many of these agencies have been active in
Canada . The intelligence agencies of Communist countries remain the most
significant threat of this kind in Canada today . There is every indication that
these agencies will continue their efforts in Canada in the foreseeable future .
But there are many other countries whose secret intelligence activities pose a
threat to Canadian democracy and sovereignty, now and in the future . Several
Middle Eastern countries, for example, have developed aggressive foreign
intelligence agencies and we have reviewed evidence of their activities in
Canada . Furthermore, it would be naïve to believe that our sister democracies
and military allies would never in the future attempt to pursue their economic
or political interests in Canada through their well-funded and highly professional secret intelligence agencies . In a world of increasingly scarce energy
resources and tough economic competition it is essential that Canada have a
capacity to detect the efforts of any country to advance its interests in Canada
by clandestine means .
7. In many instances the objectives of foreign `intelligence' agencies embrace
much more than collecting intelligence . They include a wide range of efforts to
promote their own country's interests in Canada by means that go well beyon d
414
�acceptable lobbying and diplomatic representation . Such activities have taken
several forms . An example is trying to manipulate the political leadership of an
ethnic community in Canada by threatening reprisals against relatives in the
country of origin . Another is compromising a politician or government official
so that under threat of blackmail he acts as an agent of influence for a foreign
country . Yet another is cultivating a friendship within our scientific community
which leads by imperceptible steps from obtaining open scientific information
to obtaining information that could be used to damage Canada's competitive
position in international trade . The protection of our citizens, the trust of our
allies and, above all, our capacity for self-government, require that we make an
effort in Canada to ensure that the government is well-informed about the
operations in Canada of all foreign intelligence agencies . Canada's sovereignty
as a nation would, we believe, be seriously undermined if thé secret intelligence
agencies of the world had reason to believe that they had, as it were, a free ride
in Canada and could operate here without any fear of detection .
8 . Information about foreign intelligence activities is needed in a number of
contexts . There is, of course, the law enforcement context, in which information about a foreign agent's preparations to commit'espionage or sabotage or
actual acts of espionage or sabotage may be used by law enforcement agencies
for prosecutorial purposes . But if Canada's security is êffectively protected,
situations of this kind should be exceptional . The aim should be to have
advance intelligence which will enable the government to take preventive
measures . It should be borne in mind that foreign intelligence agents very often
operate under cover of diplomatic status and because of such status are
normally not prosecuted . Those responsible for Canada's international relations
need timely and well-informed advice about the secret intelligence proclivities
of foreign diplomats, preferably before they are granted diplomatic visas to
enter Canada and certainly after they are granted such visas . Numerous other
examples of the need for information about foreign intelligence activities can
be cited . It is sometimes necessary to warn Canadians travelling abroad about
recruitment techniques employed by foreign intelligence agencies, to advise
Canadian businessmen about the interest of foreign intelligence agencies in
acquiring Canadian technology for their country, and to inform departments of
government about the technological capacity of foreign intelligence agencies to
intercept communications and gain access to protected information . All of
these contexts are well outside regular law enforcement responsibilities .
9 . The second category of activity about which security intelligence is needed
concerns those political acts which, while not amounting to full-scale rebellion
or revolution, involve the use or threat of violence to influence the political
process . The modern term for activity of this kind is terrorism . Although
terrorism is by no means a new phenomenon, it has assumed dimensions which
pose a serious threat to Canada's internal security . To begin with, there has
been a significant increase in the international dimension of terrorism . Modern
means of communication and transportation have shrunk the world, politically
speaking . For example, a group whose terrorist activity is directed at changing
political conditions in the Middle East or Latin America may secure financial
backing from an African, European or Caribbean country and stage a terroris t
415
�act at an international event hosted by Canada . Mass media have increased the
impact which a very small group of fanatics, through a symbolic act, of
violence, can hope to make on public opinion and government decision-making .
The leverage which terrorists can exert increases with the availability of means
of mass destruction, including nuclear and bacteriological devices . Although we
do not know whether any terrorist group today has the capability of making a
nuclear bomb, we do know that the increase in nuclear facilities and traffic in
fissionable material will increase the opportunities for this drastic form of
political blackmail in the future .
10 . We should stress that it is the political form of terrorism with which
security intelligence is primarily concerned . Threats or acts of violence by
persons with no political motive, while of great concern to those responsible for
the security of life and property in Canadian communities, do not threaten to
subvert Canada's democratic process of government or infringe on its national
sovereignty . But threats of violence designed to force a municipal, provincial or
federal government to change its policies are a serious violation of the
Canadian system of democratic government . Similarly, politically motivated
attacks on repJesentatives of foreign countries visiting Canada or on the
embassies or consulates of foreign countries in Canada reduce Canada's
capacity to participate responsibly in the community of nations .
11 . Acts of political terrorism, when there is reason to believe they are about
to occur or after they occur, are properly the concern of law enforcement
agencies . But governments and police forces in Canada should have advance
intelligence. Immigration authorities, for example, should have information
about international terrorists to be able to identify them when they apply for
entry to Canada . When international events such as the Habitat Conference,
the Olympic Games or the Commonwealth Games are staged in Canada it is
essential to have up-to-date assessments of terrorist techniques and possible
sources of attack . In crisis situations such as hijackings of aircraft or kidnappings, intelligence is needed on the character and methods of terrorists to guide
those who are dealing with the situation . Furthermore, Canada, as a signatory
to several international conventions concerning international cooperation in
combatting terrorism (most recently the Bonn convention of 1978), is obliged
to contribute to the international pool of intelligence about terrorists .
12 . The third category of activity about which Canada should have security
intelligence is domestic subversion . This term must be very carefully defined . If
it is used loosely so as to embrace the legitimate political dissent which is the
life blood of a vibrant liberal democracy, the gathering and dissemination of
security intelligence will impair rather than secure Canadian democracy .
13. The key element in the subversive activity which is a proper subject of
security intelligence activity is the attempt to undermine or attack through
violence or unlawful means, the basic values, processes, and structures of
democratic government in Canada . Using legal means to advôcate radical
change in social practices or economic relationships, or in the Canadian
Constitution, must not be considered a subversive activity . Strong dissent from`
the status quo is not a category of activity about which security intelligenc e
416
�should be collected ; nor is the planning and carrying out of political demonstrations and processions which, although they may involve violations of local
by-laws and confrontations with law enforcement officials, are not aimed at
destroying fundamental elements of Canadian democracy . However, a group's
activities are subversive if it aims at preventing other Canadians from enjoying
such democratic rights as the right to express publicly and disseminate political
opinion or the right to assemble peacefully for political purposes, or if its
activities are directed towards destroying the process of democratic elections,
the functioning of parliamentary institutions, adjudication by independent
courts of law, or the peaceful negotiation of constitutional differences . Advance
intelligence about such activities should be available to governments and to
police forces .
14. Fortunately, in Canadian history political organizations on the extreme
left or the extreme right have not posed a significant threat to Canadian
democracy. In recent years, there has been a splintering and factionalization of
groups committed to various versions of Marxism and Leninism . Most of these
groups are small and appear to have no viable programmes for carrying but
their anti-democratic objectives . While such groups may obtain a good deal of
publicity for their totalitarian philosophies, they have not succeeded in attracting the allegiance of significant numbers of Canadians . On the extreme right,
there has been an even more substantial decline in the significance of Nazi- or
Fascist-type groups since pre-World War II days . Their activity in Canada
today consists mostly of racist propaganda and local vandalism - activities
which can, for the most part, be effectively dealt with by local police .
15 . Although anti-democratic groups on the extreme right and left do not at
present pose a significant threat to Canadian democracy, there is a need to
keep track of their strength and of their public espousal of anti-democratic
political programmes . It is also essential to detect attempts by foreign powers
to use such organizations for foreign intelligence purposes . Canadians should
not forget the evidence reported by the Taschereau-Kellock Royal Commission
in 1946 as to the way in which the Soviet Union recruited 'Canadian espionage
agents through the Labour Progressive Party . Security intelligence about
members of organizations committed to anti-democratic ideologies is also
needed in the security clearance context . Immigration and citizenship âuthorities, as well as government departments filling positions involving access to
classified information, require advice about persons who belong to such organizations - especially those whose membership is covert .
1 6 . For purposes of analysis we have separated the kinds of activities about
which security intelligence is necessary into three distinct categoriés . In' fact
there may be considerable overlap amongst these categories . A foreign intelligence agency, for instance, has been known to provide support for terrorist
groups within Canada, and Canadian political organizations committed to
anti-democratic ideologies have been supportive of foreign espionage activity
and acts of political violence in Canada . The common element in these three
categories is that each undermines Canada's capacity for democratic self-government . That is why Canada, and indeed any prudent state in today's world,
needs advance security intelligence .
417
�Alternatives to a security intelligence agenc y
17. We now turn to the second part of our basic question : given that Canada
needs security intelligence, is there a need at the federal level for a security
intelligence agency which specializes in providing security 'intelligence? This
question is best answered by considering the principal alternatives .
18 . One alternative is to leave it to those government departments which need
advice on security threats to gather the intelligence about such threats themselves . Federal and provincial immigration authorities might collect intelligence about the possible threat to Canada's internal security of applicants for
immigration visas, the Department of External Affairs would be responsible for
keeping track of the activities of foreign intelligence agents in Canada, the
Canadian Armed Forces would collect what intelligence they need about
internal threats to defence bases, government departments filling Public Service positions requiring access by the employee to secret information would
secure their own information about the applicant's membership in subversive
political organizations, and so on . We think this alternative would be highly
impractical . It would entail the proliferation of a number of investigative
agencies, each of which would have to develop the expertise required to detect
the often very secretive and professional tactics of foreign intelligence agencies
or to penetrate the tight security maintained by terrorist cells . This proliferation of security intelligence agencies would also have the effect of depriving
Canada of a central agency for carrying out international liaison, to which
foreign intelligence agencies might entrust intelligence pertaining to the internal security of Canada . Besides reducing effectiveness in intelligence gathering,
this alternative would increase problems of accountability and control of
intrusive intelligence collection activitiés .
19. The other alternative which is more frequently urged is to blend security
intelligence responsibilities into the regular work of national, provincial and
municipal police forces . In discussing this alternative we should make it clear
that we are not considering here whether a security intelligence agency should
take the form of a special division of a police force. We now have a security
intelligence agency at the federal level organized as a special division of our
national police force - namely the R .C .M .P. Security Service . Later we shall
have much to say about whether this organizational structure should be
maintained or whether the Security Service should be separated from the
R .C .M .P . Here we are concerned with the more elementary and radical
possibility of doing without a security intelligence agency altogether, and
relying on regular police activity to provide at least the raw information upon
which security intelligence is based .
20. We think it would be a serious mistake to adopt this alternative in
Canada . Such an approach completely ignores fundamental differences between most police work and security intelligence responsibilities . These differences have led over the years to an increasing specialization of personnel and
organizational distinctiveness of the part of the R .C .M .P. devoted to security
intelligence work . The main product of security intelligence work takes the
form of advice to both government and regular police forces . The ingredients o f
418
�this advice are twofold : first, the raw information obtained through investigations, and second, an analysis of the information based on an assessment of its
significance in both a national and international context . The basic stages of
the intelligence cycle - the selection of targets, the collection of information,
its analysis and the writing of intelligence reports - require a combination of
specialized investigative and intellectual skills that are not found in regular
police forces .
21 . The combination of investigative and analytical skills is an essential
feature of a security intelligence agency . It would, we believe, be a serious
mistake to assign the investigative and analytical roles to two different
agencies . Analysis is required in the investigative process if the subjects of
investigations are to be selected intelligently and the behaviour of what is
observed is to be intelligently reported . In addition to the analytical and
research capacity of the security intelligence agency, there is a need for
government to have an analytical capacity independent of the agency to receive
its reports, to integrate these reports with information obtained from other
departments and to ensure that the legitimate intelligence needs of government
departménts are being met . But such a second level analytical bureau cannot
be a substitute for research and analytical strength in the security intelligence
agency itself.
22 . Also, we must stress the extent to which security intelligence work must
be directed by political judgment . The political judgment must be sensitive not
only to the nature of security threats but also to Canada's international
relations and to the civil liberties of Canadians . For instance, decisions which
concern the investigation of foreign diplomats in Canada, or assessments of
security risks associated with political refugees, or the choice of countries with
which it is appropriate to trade intelligence, must all take Canadian foreign
policies into consideration . Those involved in these decisions must have close
and effective working relationships with the Department of External Affairs
and the Canadian Employment and Immigration Commission - relationships
which would be much more difficult to maintain if this work were distributed
amongst Canadian police forces . In the area of domestic subversion, we have
already stressed the need to confine security intelligence collection to a very
carefully defined category of political behaviour which constitutes a genuine
threat to the democratic process in Canada . The protection of civil liberties
requires that the collection of intelligence in this area, particularly when
intrusive techniques are involved, be subject to a thorough system of controls
and independent review . The effectiveness of the system of controls and review
(which we will be recommending later in this part of our Report) would be very
much reduced if this function were carried out by a number of police forces .
23. Another characteristic of security intelligence work which makes it
inappropriate for regular police forces is the long-term nature of many security
threats. Espionage networks and terrorist support systems, for instance, may
develop slowly over a long period of time, during which there is no evidence of
a probable crime . It is unlikely that regular police forces in Canada, local or
national, would deploy the resources required to keep such developments under
surveillance for extended periods of time . We think the security of Canad a
419
�would be ill-served if there were no surveillance of these developments until a
crime were about to occur or had occurred, since it would then be too easy for
foreign intelligence agencies and terrorist organizations to establish a firm
footing in Canada .
24. Finally, while we are convinced that national security is not an exclusively
federal responsibility, we are equally convinced that there is a need for a strong
security intelligence agency at the federal level of government in Canada .
Certainly the provinces and their police forces have an important role to play in
protecting what we have defined as the security of Canada . Provinces are
concerned about securing the democratic processes of municipal and provincial
government . They have a vital stake in the protection of installations such as
nuclear power stations and a responsibility for protecting visiting representatives of foreign countries . When activities threatening the security of Canada
reach the point of actual crime, for instance when terrorist acts occur,
provincial and municipal police forces have the leading role to play in responding to the crime . In these and many other areas of security concern there is a
very great need for effective provincial participation in protecting national
security . But provincial contributions to Canada's internal security, however
essential, cannot remove the need for an effective security intelligence agency
at the federal level .
25 . It is difficult to think of a serious threat to the security of Canada that
does not have both national and international dimensions . This is certainly true
of politically motivated terrorist organizations whose agents or supporters have
been active in Canada and of organizations committed to the use of violence to
change our system of government . Clandestine activities of foreign intelligence
agencies are directed by foreign powers against Canada as a nation . The
organization with the prime responsibility for collecting intelligence about such
activities must operate across Canada on a national basis and have access to
international sources .of information .
.
26. It is important to stress the need for, and problems associated with,
obtaining information about security threats from foreign sources . Many of the
activities which threaten Canada's internal security have their origin in foreign
countriés . Canada cannot afford to be cut off from international information
about threats to its security . Such information is not easily obtained . Canada
requires a national security intelligence agency which is sufficiently respected
internationally to obtain from the intelligence agencies of foreign countries
such security intelligence pertinent to Canadian interests as may be in their
possession . Without the ready co-operation of such agencies and their willingness to be forthcoming with such intelligence, the ability to protect Canada's
internal security would be hobbled . Because of the sensitivity of such intelligence, foreign agencies would be unwilling to pass it to a proliferation of
Canadian agencies . It is also essential that Canada's security intelligence
agency be sufficiently accountable to government to ensure that the arrangements it enters into to obtain information from foreign intelligence agencies are
in accord with Canada's international policies, and adequately protect the
rights and interests of Canadian citizens .
420
�27. Thus, we conclude, for all of the reasons advanced above, that it is
necessary to maintain a security intelligence agency at the federal level of
government in Canada . A national security intelligence agency must be a
central element in Canada's security plan for the future .
B. ESSENTIAL CHARACTERISTICS OF A
SECURITY INTELLIGENCE SYSTEM
28. Before we embark on a detailed discussion of each part of our proposed
security plan for the future, we will provide a brief ove rv iew of the entire plan .
The elements of the plan interlock and the merits of each cannot be assessed in
isolation . For instance, whether or not to assign certain tasks to a security
intelligence agency depends in part on the qualities of its personnel, just as the
decision to give the agency certain investigative powers depends on the controls
over the use of such powers . In developing our proposals we have tried to
provide,for a coherent system of laws, policies and procedures in which the
merit of each part can best be judged by its contribution to the whole ., Thus, we
think it usefûl to set out at the beginning a brief survey of our proposed system .
29. Our conception of the functions of a Canadian security intelligence
organization follows logically from our analysis of the need for a security
intelligence agency at the federal level in Canada . Its basic functions should be
to obtain information about threats to the security of Canada, assess and
analyze that information and report intelligence about the threats to~appropriate government and police authorities . More specifically, the threats about
which it should collect and report intelligence are those which arise from the
clandestine activities of foreign intelligence agencies in Canada, from international and domestic terrorist groups, and from organizations whose objective it
is to destroy Canadian democracy . The primary functions of the security
intelligence agency recommended are the collection and reporting of intelligence . The agency's purpose is to provide those with executive responsibilities
- police forces or government departments - with advance intelligence about
threats to security, rather than to enforce security measures by executive
actions of its own .
30 . The intelligence collected by the security intelligence agency must combiné information obtained from relatively open sources with information that
can be obtained only by covert and undercover techniques . It should be able to
make good use of the best sources of public information available on the
international and national contexts of security threats . It should not see itself
as an investigative agency which attaches significance only to information
obtained through secret means . But because the most serious immediate
threats to Canada's security, especially those stemming from foreign intelligence and terrorist activities, are carried on in a highly secretive fashion, the
security intelligence agency must be able to use, under proper controls,
techniques thât will enable it to obtain information about secret activities .
These techniques should include surreptitious physical surveillance, secret
informants, various forms of aural and visual surveillance, the interception of
mail, the surreptitious search of private premises and access to confidentia l
421
�personal information in government files . All of the security intelligence
agency's methods of intelligence collection must be provided for by law and
subject to effective mechanisms of control and review .
31 . The security intelligence agency should rely primarily on liaison with
foreign intelligence agencies for obtaining information about secret activities
abroad which threaten Canada's security . For this purpose the agency should
be permitted to enter into intelligence-sharing arrangements with foreign
agencies . But these arrangements must be subject to thorough government
scrutiny to ensure that they are consistent with Canada's international policies
and democratic values . On rare occasions, in order to obtain information
important for Canada's security, it may be necessary for the security intelligence agency to collect information outside Canada through its own sources .
Where this is essential, the agency should be permitted to function abroad
subject to a system of government control which takes into account both
Canada's security needs and international policies . There is a need for strict
limitations and controls on these activities . We discuss them in Chapter 7 of
this Part . '
32 . To fulfill its role effectively Canada's security intelligence agency will
need strength in both investigation and analysis . The judgment and skill
involved in deciding which subjects should be investigated, and in assessing the
significance of information and reporting it in a useful way to government,
require personnel recruited from diverse backgrounds . The training and continuing education of the personnel of the security organization must emphasize
an understanding of, and loyalty to, the democratic system which it is the aim
of the security organization to secure, as well as a firm grounding in the craft
of counter-intelligence and the skills of analysis . The personnel of the security
intelligence agency must not be split into first-class and second-class citizens :
analytical strength must be possessed by its intelligence officers at all levels of
the organization, and must not be a specialty of a small, isolated group .
33 . Retaining and melding such personnel into an effective team will require
management policies which emphasize collegiality rather than hierarchy, and
are designed to establish an internal environment in which respect for legality
and propriety is a governing norm . Well-informed but independent legal advice
must be easily accessible . The organization must have an effective system of
internal security and the capacity to detect and prevent penetration attempts
by hostile agencies . To obtain the desirable diversity of .outlook and the range
of talent, senior management should include persons with experience in various
sectors of private and public life . Given the organization's responsibility to
provide timely and useful advice to government, its members must be wellequipped to deal with government, and adept at interpreting its intelligence
needs . At the same time they must have a sufficient understanding of our
constitutional system to be able to recognize and resist improper government
direction .
34. An organization with the personnel, management and relationship to
government which we think are desirable for an excellent security intelligence
service is not, in our view, likely to be developed and maintained within th e
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�R .C .M .P . Therefore we shall be recommending that the security intelligence
agency be separated from the R .C .M .P . but kept under the direction of the
same Minister, the Solicitor General of Canada, who is responsible for the
R .C .M .P . The Canadian security intelligence agency, like similar organizations
in Australia, New Zealand and the United Kingdom, should not have police
powers . When it determines that its investigations will lead to arrests and
prosecutions it should turn to the police and prosecutorial authorities for
action . Thus effective liaison must be maintained between the security intelligence agency and police forces, both national and local, to facilitate cooperation and avoid duplication .
35. The agency should be established by an Act of Parliament . That Act
should define the organization's mandate, its basic functions, its powers and
the conditions under which they may be used, and its organizational structure .
It should also provide for its direction by government and for independent
review of its activities . The statutory definition of its mandate should define the
types of activity constituting threats to the security of Canada to which the
intelligence collection work of the agency must be confined . There must be no
undisclosed additions to this mandate by the agency itself or by the executive
branch of government, whether such additions be inadvertent or deliberate .
36 . Security screening programmes for Public Service employment, immigration and citizenship should not assign intelligence collection tasks to the
security intelligence agency which may be outside its statutory mandâte . Thus,
it is important to ensure that the definition of threats to the security of Canada
in the laws and administrative directives governing these programmes is
consistent with the definition of threats to the security of Canada in the statute
governing the security agency . Further, the security screening programmes
should be more carefully managed and monitored so that they are confined to
areas where they are really necessary and to ensure that they are effective in
those areas . Poor administration of security screening programmes will have
the undesirable consequence of unnecessarily expanding the scope of security
service investigations into the personal backgrounds of individuals .
37 . In addition to its role in providing security intelligence about individuals
for security clearances, the agency should also have the function of providing
advice to government departments and police forces responsible for maintaining physical security . This means, among other things, that as a source of
accurate and timely intelligence on activities threatening the security of
Canada the agency should play an important role in protective security
programmes for the protection of vital points and the protection of V .I .P .s . In
emergency situations, involving foreign military threats to Canada or grave
political violence, the agency must also be an effective source of intelligence on
individuals or groups who threaten the internal security of the country . But it is
also essential that the procedures and laws which govern such emergencies
entail the minimum encroachment on civil liberties consistent with effective
security . For this purpose, we will be recommending amendments to the War
Measures Act and changes in the draft internal security regulations .
423
�38 . Overall responsibility for overseeing the implementation of the security
organization's statutory mandate should rest with the Prime Minister and the
Cabinet. It is the function of the Cabinet to establish the intelligence priorities
for the security intelligence agency and other departments or agencies of the
federal government which have intelligence collection responsibilities . Modifications in the system of interdepartmental committees centred on the Privy
Council Office are needed to assist the Cabinet in establishing security policy,
in coordinating intelligence collection activities, and in ensuring that intelligence which is collected is assessed and put to good use by government
departments .
39 . Ministerial direction of the security intelligence agency should be the
responsibility of the Solicitor General of Canada . The Solicitor General should
be responsible both for ensuring that the Cabinet's policies with respect to the
agency are carried out and for submitting proposals for new policies to
Cabinet . The Minister's responsibility for policy must extend to the policy of
operations . He must have knowledge of all investigative techniques and liaison
arrangements . Difficult or sensitive operational decisions must not be kept
from the Minister but, on the contrary, brought to him for decision and, if
necessary, taken by him in turn to the Prime Minister or Cabinet . To carry out
these responsibilities, Solicitors General must have the assistance of wellinformed senior officials who are not themselves members of the security
organization . Thus, the Deputy Solicitor General must have the full powers of
â Deputy Minister in relation to the agency.
40 . One of the Solicitor General's major responsibilities should be to establish
and maintain procedures for ensuring effective cooperation between federal,
provincial and municipal authorities with respect to national security matters .
Regular briefings of provincial attorneys general and solicitors general should
be arranged . The Solicitor General of Canada should in this forum seek the
agreement of the provincial governments to propose to the respective provincial
legislatures changes in provincial laws required to ensure that undercover
investigations essential for the security of Canada can be carried on without
violating provincial statutes .
41 . The security intelligence agency's determination of the subjects about
which it should collect information and make intelligence reports must be
guided by the intelligence priorities set by the Cabinet. The Cabinet's identification of general areas of interest and the security agency's choice of specific
`targets' must fall within the categories of activities which Parliament has
presented as proper subjects for the security agency's surveillance . The security
agency should be willing and able to ascertain the security implications of
many phenomena by using public sources of information . Decisions to use
investigative techniques which entail surreptitious methods, or methods which
invade individual privacy, should adjust the intrusiveness of the technique in
proportion to the danger of the threat, and the more intrusive the technique the
more senior should be the person or committee required to approve its use .
42 . A decision-making system, with special provision for emergency situations, must be established which ensures'that investigations involving the mos t
424
�intrusive techniques of investigation, deep cover human sources and undercover
agents, the interception of private communications and the surreptitious entry
and search of premises must be undertaken only after approval by the Director
General of the agency and the Solicitor General and on the basis of welldefined standards of necessity . There must also be provision for ensuring that
the legality of proposed investigations is reviewed by a member of the
Department of Justice and that the Department of External Affairs is consulted on investigations affecting foreigners or foreign missions in Canada . In
addition to ministerial approval, the use of certain aural and visual surveillance
techniques, mail checks, surreptitious entries of private premises and access to
confidential personal information in government files should require judicial
warrants . The role of the judge is to ensure that the standard set down by
statute for the use of these techniques has been met .
43 . The thoroughness of ministerial direction and control of security intelligence activities which our proposals call for raises the danger of improper
political or personal use of the security intelligence agency. Our democratic
system of government would be endangered if the `targets' of security investigations were selected or vetoed for partisan political reasons or for personal
reasons . To guard against this possibility, the Director General should have by
statute some security of tenure for his term of office, and he should have direct
access in urgent situations to the Prime Minister and to an independent review
body. Also, the leaders of parliamentary parties should be consulted on the
appointment of the Director General .
44 . A constant and thorough review of the efficacy, legality and propriety of
security intelligence operations must be carried out by the Director General
and senior management of the agency itself . It is especially important that
investigations be carried out for limited time periods and that a careful
assessment be made of an investigation's contribution to the security of
Canada . The Solicitor General should not authorize the extension . of an
investigation beyond a year, unless he is satisfied that it is likely to yield
essential security intelligence . The Prime Minister and Cabinet should also
receive, on no less thân an annual basis, a report of the agency's activities . This
report should indicate the extent to which the security intelligence agency has
met the government's security intelligence requirements and any problems it
has encountered . These reports should serve as a basis for the Cabinet's
reassessment of those requirements .
45 . Just as it is essential to maintain a thorough review of security intelligence activities on the executive side of government, it is also crucial to have
independent review, both parliamentary and non-parliamentary . The secrecy of
intelligence operations, their lack of exposure to judicial examination and
comment, the danger to civil liberties of excessive surveillance, and the record
of past wrong-doings, all point to the need for an effective review of security
operations by persons independent of the government of the day . For this
reason we will be recommending the establishment of an independent review
body with complete access to all of the security intelligence agency's records .
This body, which we suggest might be called the Advisory Council on Security
and Intelligence, would carry out a continuous ex post facto review of th e
425
�agency's activities, focussing on their legality and propriety . It would have no
executive powers but would report on an advisory basis to the Solicitor
General . It would also report to a joint standing committee of Parliament and,
at least annually, issue a public report . The Advisory Council on Security and
Intelligence should assist the Solicitor General in providing opportunities for
wider public discussion and study of security problems than has occurred in the
past .
46 . Parliament requires an enhanced capacity to scrutinize security and
intelligence activities . The necessarily secret nature of these activities makes it
impossible for Parliamentary scrutiny to be exercised effectively through any
mechanism other than a small committee whose members either include the
party leaders or are specially selected by them . This committee's effectiveness
will depend on its capacity to develop and maintain the confidence of all
parliamentary parties, as well as that of the government and the security
agency . The scope of the scrutiny exercised both by the Joint Parliamentary
Committee on Security and Intelligence and by the Advisory Council on
Security and Intelligence should extend to the activities of all those intelligence
collecting agencies and departments of the federal government whose activities
involve the use of covert techniques of investigation . If independent and
parliamentary review focusses solely on the security intelligence agency, there
is a danger that a government might, wittingly or unwittingly, circumvent this
scrutiny by assigning surveillance tasks to other agencies .
47 . In the field of security screening, where individual rights are directly
affected by government decisions based on security intelligence reports and the
individual does not have access to his security file, a review body is needed to
provide some assurance of fair and reasonable treatment . This body should be
independent of the government of the day . Because it will be dealing with
individual cases on an advisory basis it should operate as a tribunal and be
separate from the Advisory Council on Security and Intelligence . The scope of
the security tribunal's review should extend to security screening cases with
respect to Public Service employment, immigration and citizenship .
48. The paragraphs above describe what might be termed the bare essentials
of our security plan for the future . Every point, every proposal requires detailed
elaboration and reasoned defence . In what follows we will endeavour to provide
just that . But we urge that in assessing each of the detailed proposals which
follows there be kept in mind the security system as a whole and the extent to
which it can coherently meet both the requirements of security and the
requirements of democracy .
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�CHAPTER 3
THE SCOPE OF SECURITY INTELLIGENC E
INTRODUCTION
1 . The first task we face in defining the functions of a security intelligence
agency is to identify the categories of activity about which the agency should
be permitted to collect, analyze and report intelligence . The identification of
security threats which constitute the proper subjects or `targets' of security
intelligence operations provides one component of what might be called the
security agency's `mandate' . It is this aspect of the mandate which we deal with
in this chapter . In subsequent chapters we deal with two other elements of its
mandate, namely the methods it uses to collect intelligence and what it does
with the intelligence it collects .
A . A STATUTORY DEFINITION OF SECURITY
THREATS
2 . The current mandate of the R .C .M .P . Security Service is diffuse and
ambiguous . It is not clearly provided for in law . The security intelligence
functions of the R .C .M .P . are not explicitly and comprehensively set out in an
Act of Parliament, Order-in-Council or administrative directive . Over the years
security intelligence functions have been assigned to the R .C .M .P . by ministerial correspondence ( for example, in citizenship vetting) and by Cabinet
directive ( for example, Cabinet Directive 35 governing security screening in the
Public Serv ice) . Sometimes functions have been assigned by decisions of
committees of senior officials ( for instance, the Security Advisory Committee's
decision that the Security Service should provide information about the
separatist associations of persons applying for security clearance) . Functions
were also assumed by the Security Service when its members, on the basis of
general policy positions adopted by the government, inferred that they were to
carry out those functions (for example, disruptive tactics) .
3 . It was not until March 1975 that a Cabinet Directive entitled "The Role,
Tasks and Methods of the R .C .M .P . Security Se rv ice" was issued . This
Directive was far from comprehensive : it did not mention a number of the then
current functions-of the Security Service, some of which, for instance its role in
security clearance programmes, required the Security Service to collect information about activities not covered by the Directive. Similarly the methods and
powers used by the R.C .M .P . Security Service to investigate and counter
threats to security were not clearly and comprehensively set out in either law o r
427
�directive . It is our firm conviction that this situation should not be permitted to
continue . The functions of the security intelligence agency and the powers and
methods it may use in carrying out those functions must be explicitly,
coherently and comprehensively stated .
4. We believe that the definition, by several categories, of the activities about
which the agency should be authorized to collect, analyze and report intelligence should be established by Act of Parliament . Such a definition would not
refer to specific groups or activities . Its purpose would be to fix the boundaries
of security intelligence activities . We believe it is essential to set these
boundaries in legislation . This statutory definition of the limits of security
intelligence operations should express Parliament's will as to the kinds of
political activities it regards as threats to the security of Canada and therefore
as the proper subjects of security intelligence surveillance .
5 . Past experience has demonstrated the dangers involved in leaving the
definition of these limits to the discretion of the government or to the security
agency itself. In the past, as our examination in section B of this chapter will
show, neither the government nor the R .C .M .P . has had clear and consistent
policies on the proper limits of security intelligence investigations . As a result
R .C .M .P. surveillance on occasion went beyond the requirements of the
security of Canada . Of equal concern is the fact that on other occasions it may
have fallen short of what was required to meet Canada's security needs .
Therefore, we think that whether the security intelligence functions continue to
be the responsibility of the R .C .M .P . Security Service or are assigned to a
separate civilian agency, their proper limits should be defined by an Act of
Parliament .
6 . In proposing statutory limits on security intelligence surveillance, we must
acknowledge that when the security intelligence agency begins to collect
information on a subject it cannot always be expected to know, or to have
reason to believe, that a particular individual or group is in fact engaging in
one of those activities defined by Parliament to be a proper subject of security
intelligence surveillance . In the next chapter we shall consider and make
recommendations with respect to the full range of intelligence collection
techniques, from open sources, such as the media, books and public meetings,
interviews, casual sources, and reports from other agencies, to the more
intrusive techniques of physical surveillance, paid informants, undercover
agents, certain aural and visual surveillance techniques, surreptitious entry,
mail checks and access to confidential personal information in government
files . A basic principle in the system of controls we shall propose for the use of
these techniques is that the more the use of a technique encroaches on
individual privacy and freedom of political association and of speech, the
stronger the evidence should be of a significant threat to the security of
Canada . To use a shorthand phrase : the more intrusive the technique, the
higher should be the threshold . When the security intelligence agency begins to
take an interest in a subject through information obtained by collection
techniques at the least intrusive end of the spectrum, it need have only minimal
evidence on which to base its suspicion . Its interest might be triggered by
newspaper reports or a tip received from a police force or a foreign agency : al l
428
�that can be required initially is that the activity which the agency suspects an
individuâl or group may possibly be involved in is within the categories of
activity defined by Parliament to constitute threats to national security .
7 . The statutory definition of security threats should be designed to identify
at the most general level the activities which may be lawfully investigated by
the security . intelligence agency . Within these statutory limits the Cabinet
should be responsible for determining the principal areas of activity about
which the government requires intelligence . The Cabinet should establish
intelligence requirements, thus indicating the foreign and domestic threats
which are of greatest concern to it . While the security intelligence agency's
assessment of intelligence threats will be an important factor in the Cabinet's
determination of its intelligence requirements, the Cabinet should have the
fundamental responsibility for establishing these requirements . (In Part VIII of
this Report we shall make recommendations about the_ process of determining
intelligence requirements at the Cabinet level .) Within the general statutory
limits defined by , Parliament, and following the more specific designation of
areas of concern by the Cabinet, the security intelligence agency should
identify the particular individuals and groups of security interest .
8 . Thus we envisage a three-step process in discerning or identifying threats
to the security of Canada . . At the level of greatest generality, the Act
establishing the security intelligence agency should contain the legislative
framework within which all security operations are conducted, and should set
out the définitions of thrèats to the security of Canada . At a somewhat more
specific level, constituting the highest level of gôvernment direction of the
security agency, are the intelligence requirements of the Government of
Canada as determined from time to time by the Cabinet . Finally, at the most
specific level, are the decisions of the security intelligence agency to `target'
particular groups or individuals . When the latter decisions entail the use of the
more intrusive techniques of investigation, ministerial approval and, with
regard to certain techniques, judicial authorization should be obtained . We will
be setting out our proposals with regard to controls of these intrusive techniques in the next chapter .
9. The system we have dèscribéd above expresses our general expectation of
the roles to be played by Parliament, Ministers and the security intelligence
agency itself . The three stages of decision-making we have identified should
not be regarded' as water-tight compartments : there must be a,good deal of
interaction among those involved at the different levels . At the outset, this
system will no doubt require some adjustments before it functions in a manner
which effectively reconciles efficiency with the requirements of responsible
government .
10 . In recent years a number of western democracies have defined more
precisely the kinds of activities about which their security intelligence agencies
should collect and report information . Some have done this by Act of Parliament, notably Australia and New Zealand . Others have proceeded by way of
administrative guidelines issued by the Minister responsible for the security
agency (for example, Great Britain and the United States), or by an executiv e
429
�order of the government (for example, the Netherlands) or a Cabinet Directive, as in the case of Canada .
11 . In Canada, Cabinet Directive of March 27, 1975, on the "Role, Tasks
and Methods of the R .C .M .P . Security Service", lists six kinds of activities
which the Security Service is authorized to "discern, monitor, investigate,
deter, prevent or counter" . These are :
(i) espionage or sabotage;
(ii) foreign intelligence activities directed toward gathering intelligence
information relating to Canada ;
(iii) activities directed toward accomplishing governmental change
within Canada or elsewhere by force or violence or any criminal
means ;
(iv) activities by a foreign power directed toward actual or potential
attack or other hostile acts against Canada ;
(v) activities of a foreign or domestic group directed toward the
commission of terrorist acts in or against Canada ; or
(vi) the use or the encouragement of the use of force, violence or any
criminal means, or the creation or exploitation of civil disorder, for
the purpose of accomplishing any of the activities referred to above .
This list of `targettable' activities corresponds closely to the activities listed in
section 16(3) of the Official Secrets Act which came into effect on July 1,
1974 . That section defines "subversive activity" in relation to which the
interception and seizure of private communications may be authorized by the
Solicitor General of Canada . The 1975 Cabinet Directive adds the activities of
domestic terrorist groups in paragraph (v) and the activities leading to civil
disorder referred to in its sixth paragraph .
12 . We have studied the ways in which the 1975 Cabinet Directive and
section 16(3) of the Official Secrets Act have been interpreted . We have also
examined the definitions and guidelines developed by a number of other
democratic countries . On the basis of our examination of Canadian and foreign
experience and our consideration of Canada's needs we shall now identify the
activities about which a security intelligence agency should be authorized to
collect, analyze and report intelligence .
Espionage and sabotage
F
13 . One of the most important functions of a security intelligence agency is to
obtain information about efforts to conduct espionage and sabotage against
Canada . The emphasis in the agency's mandate on this subject should be to
detect activities that are preparatory to actual espionage or sabotage . Actual
acts of espionage and sabotage often occur when a foreign power has succeeded
in secretly obtaining the services of a government employee in a sensitive
position . Clearly, the security intelligence agency should try to detect these
recruitment activities at the earliest possible stage . Similarly, the security of
Canada requires the detection of foreign agents who may try to remain
undercover for many years with the objective of participating in espionage o r
430
�sabotage only in the event of hostilities . In the process of investigating
suspected foreign agents, the security intelligence agency may uncover actual
acts of espionage or sabotage in which case it may bring the matter to the
attention of appropriate law enforcement officials or, in the case of persons
with diplomatic immunity, to the attention of the Department of External
Affairs . But the principal objective of the agency should be to detect espionage
and sabotage efforts before offences occur .
14 . The words `espionage' and `sabotage' are not defined in either the 1975
Cabinet Directive or section 16(3) of the Official Secrets Act . We think that
where these words are used to define activities which may be investigated by
the security intelligence agency, they should be given the meaning which they
have under the statutes dealing with the offences of espionage and sabotage .
15 . The word `espionage' is not used in the Criminal Code, but section
46(2)(b) of the Criminal Code provides that :
Everyone commits treason who, in Canada . .
. .
(b) without lawful authority, communicates or makes available to an agent
of a state other than Canada, military or scientific information or any
sketch, plan, model, article, note or document of a military or scientific
character that he knows or ought to know may be used by that state
for a purpose prejudicial to the safety or defence of Canada .
Another statutory offence which is a form of spying is defined in section 3 of
the Official Secrets Act as follows :
3 . (1) Every person is guilty of an offence under this Act who for any
purpose prejudicial to the safety or interests of the state ,
(a ) approaches, inspects, passes over, or ,is,in the neighbourhood of, o r
enters any prohibited place ;
(b) makes any sketch, plan, model or note that is calculated to be or might
be or is intended to be directly or indirectly useful to a foreign power ;
or
(c) obtains, collects, records, or publishes, or communicates to any other
person any secret official code word, or password, or any sketch, plan,
model, article, or note, or other document or information that is
calculated to be or might be or is intended to be directly or indirectly
useful to a foreign power .
In our First Report we recommended that there be new legislation incorporating in a single enactment the offences now set out in section 3(l) of the Official
Secrets Act and section 42(2)(b) of the Criminal Code . We also recommended
that the offence of `harbouring' espionage agents be more carefully defined and
that possession of the tools of espionage, without lawful excuse, be made a
criminal offence . We think the implementation of these recommendations will
bring greater clarity and precision to the identification of activities falling
under this component of a security intelligence agency's mandate .
16. Similarly, in relation to sabotage we recommended in our First Report
elimination of the "prohibited place" provisions of the Official Secrets Act,
leaving the sabotage section of the Criminal Code to cover activities threaten-
431
�ing defence installations . The sabotage section of the Criminal Code is section
52 which makes it an offence to d o
a prohibited act for a purpose prejudicial t o
(a) the safety, security or defence of Canada, o r
(b) the safety or security of the naval, army or air forces of any state other
than Canada that are lawfully present in Canada .
Section 52(2) defines "prohibited act" as meaning
An act or omission tha t
(a) impairs the efficiency or impedes the working of any vessel, vehicle,
aircraft, machinery, apparatus or other thing, o r
(b) causes property, by .whomsoever it may be owned, to be lost, damaged
or destroyed .
It is in the sense of this definition in the Criminal Code rather than in any
colloquial or dictionary sense that the term "sabotage" should be understood
and used by a security intelligence agency .
Foreign Interferenc e
17 . Espionage and sabotage are not the only kinds of foreign directed
activities which should be monitored and investigated by a security intelligence
agency . Foreign governments and foreign political organizations may in a
clandestine manner try to interfere in Canadian political life . Programmes of
secret political interference by foreign intelligence agencies • are sometimes
referred to as "active measures" (a Russian term) or "covert action" (an
American term) . The latter was defined (with reference to U .S . foreign
intelligence agencies) by the Church Committee as :
. . .Clandestine activity designed to influence foreign governments, events,
organizations or persons in support of U .S . foreign policy conducted in such
a way that the involvement of the U .S . Government is not . apparent . In its
attempts directly to influence events it is distinguishable from the clandestine intelligence gathering - often referred to as espionage . '
As this definition makes clear, deception is an essential feature of "active
measures" or "covert action" . Diplomatic and military measures can be used
against open attempts by foreign powers to interfere in Canadian affairs . A
security intelligence agency is necessary to warn government of clandestine
programmes of foreign intervention .
18. Active measures of foreign interference are effected in many different
ways . Sometimes a member of an ethnic community is forced by a foreign
diplomat to support the government of the country from which the person
emigrated through threats of harm to family or friends who live in that
country . Covert interference may also take the form of secretly employing a
Canadian government official to support a foreign government's interests . Yet
' U .S . Senate, Final Report of the Select Committee to Study Government Operations
with Respect to Intelligence Activities, Book 1, U .S . Government Printing Office,
Washington, 1976, p . 131 .
432
�another variation would be the secret funding by a foreign government of a
political party, movement or group in Canada . Foreign powers may also use
covert means to obtain technological information from both the public and
private sectors . There is evidence on the public record that the carrying out of
active measures or covert actions is part of the mandate of foreign intelligence
agencies of a number of major powers, Communist and non-Communist . There
is no reason to believe that Canada has been or would be declared "off-limits"
for these activities .
19 . While we think it should be part of a security intelligence agency's
mandate to keep governments in Canada informed of these activities, we also
think it important that the agency should distinguish generally acceptable
diplomatic, commercial and cultural activities of representatives of foreign
powers in Canada from activity which constitutes an improper interference in
Canadian political life . The ability to make this distinction will depend to a
large extent on the agency's analytical capabilities and political understanding,
as well as on the assistance it receives from the Department of External
Affairs . In our First Report we said we would give consideration to the
establishment of a system requiring the registration of all agents of foreign
governments, thus making it an offence to operate as an unregistered agent, or
the enactment of a provision which would make it an offence to be the secret
agent of a foreign power . While proposals of this kind might provide a-firmer
legal basis for identifying foreign interference activities, for reasons which we
set out in Part IX, Chapter 3 of this Report, we have concluded that it would
not be wise to introduce either of these changes into Canadian law .
20 . To define the scope of the security intelligence operations in relation to
this kind of security threat we favour the language used in the Australian
Security Intelligence Organization Act of 1979 . Section 4 of that Act defines
"active measures of foreign intervention" as follows :
clandestine or deceptive action taken by or on behalf of a foreign power to
promote the interests of that power ;
This definition has the merit of identifying the two distinctive features of the
foreign interference which we consider to be a proper subject for security
intelligence surveillance : their covert nature and their purpose . It should be
noted that this definition would justify surveillance of covert acts of foreign
agents in Canada which may not be primarily directed against Canada but are
designed to promote the interests of a foreign power .
21 . We think the above definition used in the Australian Act is to be
preferred to the language now used in the 1975 Cabinet Directive and in
section 16(3) of the Official Secrets Act, in both of which the second and
fourth clauses read as follows :
(ii) foreign intelligence activities directed toward gathering intelligence
information relating to Canada ;
(iv) activities by a foreign power directed toward actual or potential
attack or other hostile acts against Canada .
22 . The first of these two clauses, clause (ii), is too narrow in one sense and
too broad in another . It is too narrow in that it might be interpreted a s
433
�referring only to intelligence collection activities of foreign powers in Canada
and to exclude political interference . It is too broad in that it would appear to
embrace the collection of intelligence about Canada by agents of foreign
powers by open and public means as well as by covert means .
23 . The second clause, clause (iv), strikes us as unnecessary . An early draft of
a 1978 Security Service discussion paper interpreting the 1975 Cabinet Directive referred to this paragraph as a`catch-all' designed to refer to "the wide
variety of `hostile acts' . . .only limited (by) the scope of the reader's imagination" . The final version of this paper, entitled A Discussion Paper on the
Interpretation of the Security Service Mandate, and dated October 17, 1978,
gave the following four examples of activities which might come under clause
(iv) :
(a) encouragement and active support for actions which would undermine
the unity of Canada including the secession of any Province ;
(b) an attack in Canada against a person or property of another country ;
(c) using Canada as a staging area for agent infiltration into another
country;
(d) infringement of Canadian sovereignty or integrity including, but not
restricted to, attempts by another country to maintain and exercise
control over its former citizens residing in Canada .
Example (a) refers to activities which, on the basis of our understanding of the
meaning of national security, should be of interest to the Security Service only
if they constitute what we have defined as active measures of foreign intervention, namely clandestine or deceptive action taken by or on behalf of a foreign
power to promote the interest of that power in Canada . In section B of this
chapter we point out that, in the past, confusion has arisen from equating in all
respects the two concepts of national security and national unity . Example (b)
refers to activities which should be under surveillance by the security intelligence agency only if they constitute acts leading to sabotage or international or
domestic terrorism (we will deal with these latter two concepts in the next
section below) . Otherwise such activities should be dealt with by the police .
Examples (c) and (d) should be of interest to the agency if they involve
espionage, foreign interference (as we have defined that term) or international
terrorism .
24. We think it unwise to include broad `catch-all' phrases in the security
intelligence agency's mandate . We are satisfied that the four kinds of threat to
the security of Canada which we shall recommend as the basis for the statutory
definition of the security agency's mandate will adequately cover those activities in relation to which Canada should have security intelligence and which
might have been brought under clauses (ii) and (iv) of the existing mandate .
Therefore we shall recommend removing clauses (ii) and (iv) from both the
mandate of Canada's security intelligence agency and from section 16(3) of the
Official Secrets Act.
25 . In interpreting references to "foreign power" in section 16(3) of the
Official Secrets Act and in the 1975 Cabinet Directive, some doubt has been
expressed as to whether a Commonwealth country should be considere d
434
�"foreign" . We think that the reference to foreign interference in the legislation
governing the security intelligence agency should extend to unacceptable
activities on behalf of Commonwealth countries, should such ever occur .
Political violence and terroris m
26. The democratic process in Canada requires that political objectives be
pursued through public discussion, legislative debate and lawful representation
of interests . The democratic process is jeopardized when groups or individuals
attempt to gain their political objective by threatening to carry out acts of
serious violence or actually carrying out such acts . As we have explained in
Chapter 1 of this part of the Report, the protection of the democratic process
should be the central purpose of Canada's security arrangements . Thus, we
believe that Canada's security intelligence agency should be empowered to
provide intelligence about any activities of an individual or group which involve
the threat or use of serious violence against persons or property for the purpose
of accomplishing political objectives .
27 . For more than a decade the most prominent form which this threat to
security has taken is terrorism . The political fanaticism and frustration which
engender terrorism are not, unfortunately, likely to disappear in the foreseeable
future . As we suggested earlier in this Report, modern means of transportation,
communication and destruction have increased the damage that a small group
of terrorists can inflict on a large country such as Canada . We should
re-emphasize here that the kind of terrorist acts which should be of concern to
the security intelligence agency are those which have political objectives . Acts
of violence for personal gain or by mentally disturbed persons which do not
threaten the democratic process of government should be of concern to law
enforcement agencies, not the security intelligence agency .
28 . The security of Canada requires the detection of activities of persons who .
belong to or support terrorist groups before there is evidence which would
support a criminal prosecution . Recent experience with terrorist groups has
shown that their success has often depended on their ability to maintain their
cover and security while operating in a modern community . Mr . Paul Wilkinson, an English author, has provided the following apt description of this
phenomenon and the intelligence needs it generates for the contemporary
liberal state:
. . . mass support is not a prerequisite for launching a terrorist campaign .
Indeed the archetypal terrorist organization is numerically small and based
on a structure of cells or firing groups, each consisting of three or four
individuals . . .
. . .The terrorists' small numbers and anonymity make them an extraordinarily difficult quarry for the police in modern cities, while the ready
availability of light portable arms and materials required for home-made
bombs makes it difficult to track down terrorist lines of supply . Yet once
the key members of a cell have been identified it is generally practicable to
round up other members . And on the basis of information gleaned from
interrogating a relatively small number of key terrorist operatives it is
possible to spread the net more effectively around the whole organization .
435
�A crucial requirement for defeating any political terrorist campaign therefore must be the development of high quality intelligence, for unless the
security authorities are fortunate enough to capture a terrorist red-handed
at the scene of the crime, it is only by sifting through comprehensive and
accurate intelligence data that the police have any hope of locating the
terrorists . It is all very well engaging in fine rhetoric about maximising
punishment and minimising rewards for terrorists . In order to make such a
hard line effective the government and security chiefs need to know a great
deal about the groups and individuals that are seeking rewards by terrorism, about their aims, political motivations and alignments, leadership,
individual members, logistic and financial resources and organizational
structures . ..
. .The primary objective of an efficient intelligence service must be to
.
prevent any insurgency or terrorism developing beyond the incipient stage .
Hence a high quality intelligence service is required long before the
insurgency surfaces . It is vital moreover, that such a service should have a
national remit - to avoid duplication and rivalry between area police
forces - and that it should be firmly under control of the civil authorities,
and hence democratically accountable . z
29. Accurate intelligence about terrorists is needed not only to enable the
government and police forces to take effective action against them but also to
avoid over-reacting to their threats . Assessments of the strength and location of
terrorist groups based on sound intelligence enable the government to cope with
a terrorist crisis by methods appropriate to the real rather than the imagined
dimensions of the threat . A small group of terrorists could realize a very great
victory for their undemocratic cause by frightening a government into adopting
measures which encroach on the civil liberties of citizens to a degree far in
excess of what may be necessary to deal with the actual threat .
30. The security agency's mandate should provide for the collection of
intelligence about the activities of terrorists in Canada (including activities in
preparation for and in support of terrorist acts) whether such activities are
directed against Canadians or Canadian governments or against foreigners or
foreign governments . In an era which has witnessed a startling expansion of
international terrorism, Canada must not become a haven for those planning to
use the methods of terrorism to gain their political ends in other countries . But
it is important to distinguish international groups secretly pursuing in Canada
terrorist objectives against foreign governments, from representatives of foreign
liberation or dissident groups who come to Canada to promote their cause
openly . This latter activity should be kept under surveillance by the security
intelligence agency only when there is reason to .suspect that it is accompanied
by clandestine activity or may lead to serious political violence in Canada .
Again we should emphasize that in distinguishing between these foreign groups
good judgment, sensitive to Canada's foreign policies and democratic ideals,
must be exercised .
31 . The need for Canada's security intelligence agency to obtain information
about foreign terrorist activities in Canada, whether or not directed agains t
2 Paul Wilkinson, Terrorism and The Liberal State, Toronto, Macmillan/MacLeanHunter, 1977, pp. 133-35 .
436
�Canada, arises not only from the requirements of national security but also
from Canada's .international obligations . Canada, as we mentioned earlier, is
party to a number of international conventions concerning the prevention of
terrorism .' For our purposes, the most pertinent of these is The Convention on
the Prevention and Punishment of Crimes Against Internationally Protected
Persons, Including Diplomatic Agents, which was adopted by consensus at the
General Assembly of the United Nations on December 14, 1973 : This convention covers the most 'serious terrorist crimes : murder, kidnâpping and violent
attacks or thréats of violent attacks upon the official premises, private accommodation or means of transportation of "an internationally protected person"
likely to endanger his or her person or liberty . Canada signed this convention in
1974 and passed implementing legislation to introduce a definition of "an
internationally protected person" into the Criminal Code ." Article 4 of the
Convention requires all contracting parties to cooperate in the prevention of
these terrorist crimes by
: (a) taking all practicable measures to prevént preparations in their rëspective territories for the commission of those crimes within or outside
their territories ;
(b) exchanging information and coordinating the taking of administrative
and other measures as appropriate to prevent the commission of those
crimes . '
Canada's security intelligence agency should have, the primary responsibility
for supplying Canada's contribution to the information referred to in paragraph (b) of this convention . It should be noted that paragraph (a) explicitly
commits contracting parties to do what they practically can to prevent these
serious terrorist acts from taking place outside their territories.
32. Section 16(3) of the Official Secrets Act and the 1975 Cabinet Directive
are both deficient in their . coverage of foreign terrorist activity . Section
16(3)(e) of the Official Secrets Act refers to :
activities of a foreign terrorist group directed toward the commission of
terrorist acts in or against Canada ;
Section 16(3), which provides the definition of "subversive activity" is governed by section 16(2) which- empowers the Solicitor General to issue warrants
for the interception or seizure of communications "for the prevention or
detection of subversive activity directed against Canada or detrimental to the
security of Canada" . The phrase "detrimental to the security of Canada" has
been interpréted by the Department of Justice as not extending to terrorist
activities in Canada directed towards carrying out terrorist acts in a foreign
country . The fifth paragraph of the 1975 Cabinet Directive extends th e
3 For an account of these conventions and Canada's participation in them see "Terrorism - the Canadian Perspective", by L .C . Green, in Y . Alexander (ed .) International Terrorism : National, Regional and Global Perspectives, New York, Praeger,
1976 .
° Statutes of Canada, 1974-75-76, ch .93, s .2(1) .
Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents, United Nations, 1974 .
437
�Security Service mandate to domestic as well as to foreign groups and there is
no clause limiting the Security Service's interest in terrorist acts to those which
in the narrowest sense are detrimental to Canada's security . Still, paragraph
(v) of the Cabinet Directive appears to be too narrow, as it refers only to the
commission of terrorist acts in Canada and not to activities directed towards
the commission of terrorist acts in foreign countries .
33 . The statutory definition of the limits of the security agency's intelligence
role should be designed to overcome these deficiencies and extend the agency's
mandate clearly to activities in Canada directed toward the commission of
terrorist acts in Canada or abroad against Canadians or foreigners .
34 . There are activities involving the use of acts of serious violence against
persons or property for the purpose of accomplishing political objectives which
would normally not be described as terrorist acts . For example, political
organizations which endeavour to use `goon squads' or other strong-arm tactics
to intimidate their political opponents or to break up peaceful political meetings or to turn peaceful assemblies into violent confrontations, pose a threat to
the democratic process and as such should be of concern to a security
intelligence agency . Or, to take another example, an organization that plans to
mobilize a large group to attack physically the officials or premises of a
government department in an attempt to change a particular policy also
threatens the democratic system of government . It would be wrong for the
security agency to treat the need for advance information about such activities
as authorization for the surveillance of every group which might be suspected
of initiating some act of vandalism against its political opponents . Only when
the activities pose a serious threat to the basic democratic processes of public
discussion and debate should they be the concern of the security intelligence
agency . The responsibility for dealing with such political violence when it
occurs rests primarily with locally based police forces . The security intelligence
agency's role should be confined to collecting intelligence about those who
appear to be organizing political violence as systematic strategy or on a very
large scale or who have international sources of support .
35 . The terms of the Security Service's existing mandate are poorly phrased
to cover the kind of political violence which we think should be within the
mandate of a security intelligence agency . Paragraph (iii) of the 1975 Cabinet
Directive refers t o
activities directed toward accomplishing governmental change within
Canada or elsewhere by force or violence or any criminal means ;
The ambiguous words "governmental change" have been interpreted by the
Security Service to include changing a government policy as well as overthrowing a government or our system of government . Thus this clause is wide enough
to cover the use of violence to attain political objectives falling short of
overthrowing the government or the entire democratic system . The words
"force" or "any criminal means" have the potential for expanding the security
agency's mandate too widely . Strikes and demonstrations, for instance,
designed to bring pressure to bear on government to change a policy, might be
considered to involve the use of "force" . Participants in popular assemblies ,
438
�public meetings, parades and demonstrations may be guilty of violating traffic
regulations, municipal by-laws and committing other minor offences . While
political activities of this kind may be of concern to peace officers at the local
or provincial level they should not be the concern of a national security
intelligence agency, unless there is some indication of clandestine foreign
interference or of deliberate attempts to turn peaceful demonstrations into
violent confrontations destroying the democratic process .
36 . The sixth paragraph of the 1975 Cabinet Directive is very broad and
would probably cover the political violence which we think is properly the
concern of the security intelligence agency, but it might also be interpreted to
cover a great deal more, much of which we think should not be within the
security agency's mandate . That paragraph reads as follows :
(vi) the use or the encouragement of the use of force, violence or any
criminal means, or the creation or exploitation of civil disorder, for
the purpose of accomplishing any of the activities referred to above ;
Earlier when we traced the development of the 1975 Cabinet Directive, we
pointed out that this clause was added as a`basket clause' to the list of
activities which constituted the definition of subversive activity in section 16(3)
of the Official Secrets Act . Its purpose was to enable the Security Service to
continue the full range of surveillance activities which it was then conducting, a
number of which, as we shall contend in section B of this chapter, are outside
the proper ambit of a security intelligence activity . We think that it is a serious
mistake to include any `basket' clause in the definition of the security intelligence agency's mandate : clauses should not be desigried primarily for the
purpose of accommodating the Security Service's present range of activity . The
general terms of the statutory mandate must be chosen as carefully as possible
to reflect what, as a matter of principle, Parliament believes should be
regarded as activity threatening the security of Canada .
37 . The one phrase in paragraph (vi) which appears to have been the most
significant addition to the activities covered by paragraphs (i) to (v) is "the
creation or exploitation of civil disorder" . While we agree that deliberate
attempts to turn peaceful demonstrations into violent confrontations for the
purpose of destroying the democratic process of government should be the
concern of the security intelligence agency, at the same time we think it is
dangerous to include in the mandate of the security intelligence agency any
words which might suggest it is authorized to collect intelligence about any
organization whose activities might lead to "civil disorder" .* Here we part
company with the Australian Security Intelligence Organization Act of 1979
which includes in its definition of domestic subversion the following :
(i) activities directed to promoting violence or hatred between different groups of persons in the Australian community so as to
endanger the peace, order or good government of the Commonwealth ;
In our view, dealing with disorderly assemblies and communal violence is
primarily a police responsibility . A mandate to investigate political activity
which may lead to civil disorder could justify spying on groups whose radical o r
439
�dissenting views may provoke opposing demonstrations . Surveillance of such
activity by the state's security agency may seriously interfere with the right to
criticize the government or the established social, political and economic order,
a right which, so long as it is exercised legally, is basic to the form of
democracy we value in Canada . Individuals and groups should not be spied
upon or have security files kept on them solely because they plan or participate
in political demonstrations to protest government policies or criticize other
groups in the community . If the security intelligence agency has reason to
suspect some persons taking part in such events of being secret agents of
foreign powers or persons who might try to turn a peaceful demonstration into
a violent confrontation in order to discredit the democratic process, it should
inform the appropriate government officials or the police force whose responsibility it is to maintain the peace at such demonstrations .
38 . The activities under the heading of political violence and terrorism about
which the security agency should gather intelligence are those directed towards
the use or threat of serious acts of violence against persons or property for the
purpose of achieving a political objective in Canada or in a foreign country . We
.emphasize that it is only if the violent acts threatened or carried out are serious
that they should be the concern of the security intelligence agency . The
objective of security must always be kept in view : the security of the democratic process . We regard activities directed toward political violence as being
serious only when they are significant enough to constitute a threat to the
effective functioning of the democratic process . Only such activities justify
surveillance by a security intelligence agency .
Revolutionary subversion
39 . In the preceding paragraphs we dealt with foreign and domestic terrorism
and other serious acts or threats of violence directed towards accomplishing
political objectives . There is one other category of political activity which could
be said to constitute a distinct threat to the security of Canada and should be
specifically provided for in the security intelligence agency's mandate . That is
the activity of political parties and movements which subscribe to ideologies
advocating the ultimate overthrow of the liberal democratic system of government but may not actually be involved in political violence . We refer to the
activities of such groups as "revolutionary subversion" for their basic aim goes
far beyond the influencing of a particular government policy to the eventual
replacing of our system of liberal democratic government by an authoritarian
government of the extreme right or left . Such subversion, if successful, would
truly be revolutionary .
40 . Fortunately, throughout Canada's history such revolutionary movements
have not posed a serious threat to Canadian democracy . The principal defence
against their growth has been the good judgment of the Canadian electorate .
With reference to one of these movements, in 1953, Mr . Justice Ivan Rand of
the Supreme Court of Canada, in upholding the right of Communists to serve
on the executive of labour unions held that one of the basic considerations
shaping legislative policy in Canada was tha t
440
�The dangers from the propagation of the Communist dogma lie essentially
in the receptivity of the environment . The Canadian social order rests on
the enlightened opinion and the reasonable satisfaction of the wants and
desires of the people as a whole . . 6.
We agree with the philosophy expressed in this dictum . So long as political
organizations which espouse totalitarian ideologies stick to the methods of
liberal democracy to promote their cause, they should not, simply by virtue of
their beliefs, be subject to intrusive investigations by the security intelligence
agency . However, through its security intelligence organization the government
should be able, by the use of non-intrusive techniques, to keep track of the
growth of such movements and understand the impact they are having on
Canadian democracy . On the other hand, we must stress that if there is reason
to believe that such an organization is involved in activities leading to espionage, sabotage, foreign interference, terrorism or serious political violence, then
it should be subject to more intrusive investigation by the security agency .
41 . Paragraphs (iii) and (vi) of the 1975 Cabinet Directive cover, among
many other things, political activity which is directed towards the ultimate
overthrow of liberal democratic government in Canada . But we think this
category of revolutionary subversion should be designated as a distinct category of activity in the statutory mandate of the security intelligence agency .
Bearing in mind what we say in the preceding paragraph, individuals or groups
whose activities fall only under this category should not be subject to intrusive
investigations by the security intelligence agency .
WE RECOMMEND THAT legislation establishing Canada's security
intelligence agency designate the general categories of activity constituting
threats to the security of Cànada in relation to which the security intelligence agency is authorized to collect, analyze and report intelligence .
(1)
WE RECOMMEND THAT the categories of activity to be so designated
be as follows:
(a) activities directed to or in support of the commission of acts of
espionage or sabotage (espionage and sabotage to be given the meaning of the offences defined in sections 46(2)(b) and 52 of the Criminal
Code and section 3 of the Official Secrets Act) ;
(b) foreign interference, meaning clandestine or deceptive action taken by
or on behalf of any foreign ( including Commonwealth) power in
Canada to promote the interests of a foreign power ;
(c) political violence and terrorism, meaning activities in Canada directed
towards or in support of the threat or use of acts of serious violence
against persons or property for the purpose of achieving a political
objective in Canada or in a foreign country ;
(d) revolutionary subversion, meaning activities directed towards or
intended ultimately to lead to the destruction or overthrow of the
democratic system of government in Canada .
(2 )
b Smith and Rhuland Ltd . v . The Queen [ I 953j 2 S .C .R . 99 .
441
�WE RECOMMEND THAT, for category ( d), revolutionary subversion,
only non-intrusive techniques be used to collect information about
individuals or groups whose known and suspected activities are confined to
this category .
(3)
42 . We recognize that the definitions of statutory boundaries of security
intelligence activities proposed above are cast in very general terms . The
meaning which these terms have in practice will depend in large measure on
how théy are interpreted by members of the security intelligence agency's
senior management, government officials and Ministers . That is why we shall
lay great emphasis on the quality of the personnel who lead the security agency
and carry out its responsibilities . The members of the agency must not see the
general statutory definitions of the agency's mandate as something that may be
stretched to cover what they personally believe are threats to Canada's
security . They must understand and accept the purpose for which the statutory
definition is designed . The statutory definitions must also serve as the framework for government direction and review of the agency's functioning .
The need for a limiting clause
43 . In addition to positive statutory standards to define what the security
intelligence agency may do, we think it would be wise to include in the statute
establishing the security intelligence agency a clause indicating what it clearly
must not do . For example, section 4(2)(b) of the Act governing New Zealand's
Security Intelligence Service states that it shall not be a function of the
Security Intelligence Servic e
To institute surveillance of any person or class of persons by reason only of
his or their involvement in lawful protest or dissent . '
The Directive issued by the Secretary of State for the Home Department (Sir
David Maxwell Fyfe) in 1952 to the Director General of the Security Service,
which remains to this day the fundamental public statement on the role of
Britain's security intelligence organization, contains clauses designed to restrict
the Security Service's work to what is necessary for the purposes of national
security . The Directive first defines the Security Service's -purpose in the
following terms :
2. The Security Service is part of the Defence Forces of the country . Its
task is the Defence of the Realm as a whole, from external and internal
dangers arising from attempts at espionage and sabotage, or from
actions of persons and organizations whether directed from within or
without the country, which may be judged to be subversive of the State .
It then adds these limiting clauses :
3 . You will take special care to see that the work of the Security Service is
strictly limited to what is necessary for the purpose of this task .
4 . It is essential that the Security Service should be kept absolutely free
from any political bias or influence and nothing should be done that
might lend colour to any suggestion that it is concerned with the
' New Zealand Security Intelligence Service Amendment Act (1977), s.4(2)(b) .
442
�interests of any particular section of the community, or with any other
matter than the Defence of the Realm as a whole .
5 . No enquiry is to be carried out on behalf of any government department
unless you are satisfied that an important interest bearing on the
Defence of the Realm, as defined in paragraph 2, is at stake . 8
44 . Nowhere in the various strands of authority to which the R .C .M .P .
Security Service looks for a definition of its functions is there any statement of
the need to limit security intelligence investigations to what is strictly necessary
for the security of Canada . The 1975 Cabinet Directive does not contain any
statement which may be interpreted as providing a brake or rein on security
intelligence activities . Director General Dare's letter of May 22, 1975, explaining the significance of the Cabinet Directive to senior officers of the Security
Service emphasized the expansive nature of the Cabinet's mandate and the
lack of constraint, as in the following passage :
Being granted a broad intelligence base and not being constrained by either
ideological or criminal considerations alone, we are now free to respond to
current and rapidly changing factors affecting National Security .
(Vol . 141, pp . 21761-63 ; Ex . M-135 .)
Nowhere in the letter is there a reminder to senior officers that there is need
for constraint in the exercise of the powers conferred .
45. At the beginning of this part of our Report, in defining the fundamental
principles on which Canada's security system should be based, we emphasized
the need to ensure that the requirements of security are compatible with the
requirements of democracy . Both the government which directs the security
agency and the agency itself must constantly keep this fundamental precept in
mind. As Rebecca West wrote :
. .. if we do not keep before us the necessity for uniting care for security
with determination to preserve our liberties, we may lose our cause because
we have fought too hard . Our task is equivalent to walking on a tightrope
over an abyss .9
We think a statutory clause stating the need to restrict the security intelligence
activities to what is strictly necessary for the security of Canada would make it
more likely that those who direct and carry out security work will keep in mind
the danger to liberty which can result from an overly expansive interpretation
of the security intelligence agency's mandate . Such a clause should combine at
least one part of the British Home Secretary's Directive with the restriction
contained in the New Zealand Security Intelligence Service Act .
WE RECOMMEND THAT the legislation establishing Canada's security
intelligence agency contain a clause indicating that the agency's work
should be limited to what is strictly necessary for the purpose of protecting
the security of Canada and that the security intelligence agency should not
investigate any person or group solely on the basis of that person's or
group's participatiôn in lawful advocacy, protest or dissent .
(4 )
I Quoted in Cmnd 2152, paragraph 238 .
9 Rebecca West, The New Meaning of Treason, New York, Compass Books, 1964, p.
370 .
443
�The need jor coherence and consistency
46. The tasks assigned by government to a security intelligence agency must
not require it to collect intelligence on matters which are outside its statutory
mandate . As we showed in Part II, Chapter 2, government direction of the
security intelligence agency in the past lacked consistency and coherence in this
regard . A particularly glaring example of inconsistency, which we outlined in
that chapter, was the incompatibility between the instructions given with
regard to reporting on "separatist sympathies, associations, and activities" in
Public Service Security Screening10 and the mandate given in the Cabinet
Directive of March 27, 1975 .
47 . In Part VII of this Report, which deals with the security screening work
of the security intelligence agency, we shall review the criteria on which
decisions to grant security clearances are based . These criteria might be more
specific or limited than the general categories which define the statutory limit
of security intelligence, but they must not be wider than these definitions nor
refer to subjects which cannot be brought under these definitions . Similarly it
will be essential to ensure that the definitions of subversive activity or the
security of Canada, in legislation such as section 16 of the Official Secrets Act
providing special powers (or exemptions) for security purposes, are consistent
with the definition of threats to the security of Canada in legislation establishing the security intelligence agency .
WE RECOMMEND THAT all intelligence collection tasks assigned to
the security intelligence agency by the government be consistent with the
statutory definition of the security intelligence agency's mandate and that
all legislation and regulations providing special powers or exemptions for
security purposes be consistent with the definition of threats to the security
of Canada in the legislation establishing the security intelligence agency .
(5 )
The need for flexibility
48. The definitions we have proposed for the security intelligence agency's
statutory mandate are cast in quite general terms and should, we think, cover
all the specific activities in relation to which Canada may in the foreseeable
future require security intelligence . Still, it may be argued that there may be
types of activity which we have not anticipated which might pose a serious
threat to Canada's security in the future but which would be outside the
statutory mandate of the security intelligence agency and outside the scope of
criminal investigation agencies . If some new threat to the security of Canada
developed which appeared to fall outside the statutory mandate, but which the
government believed urgently required investigation by the security agency,
there might be difficulty in obtaining quickly enough the statutory amendment
needed to provide authorization for the surveillance . There is the danger that
the public addition of words to cover the new situation would expose the
interest of the agency in the proposed target . Even though we may find it
impossible now to give an example of such an eventuality, should the scope o f
10 Paraphrased in Vol . 160, p . 24427 . Sec Ex . M-135 .
444
�our national security legislation be bound by our limited knowledge of the
future? Or should we avoid trying to legislate for what is presently inconceivable and leave it to future generations of legislators to modify Parliament's
identification of the classes of activity about which Canada requires security
intelligence ?
49 . We have concluded that, on balance, it would be best to include an
emergency provision in the security intelligence âgency's statutory mandate
empowering the government by Order-in-Council to extend the security intelligence agency's mandate to an activity which in the government's view constitutes a serious threat to the security of Canada but which is not included in the
general categories of activity listed in the agency's statutory mandate . If the
statute contains a provision of this kind it should require that the Special
Parliamentary Committee on Security and Intelligence be notified on a confidential basis when the Order-in-Council is passed and that within 60 days of its
passage such an Order require for its continuation approval by an affirmative
resolution of both Houses of Parliament .
WE RECOMMEND THAT there be a provision to extend by Order-inCouncil in emergency circumstances the mandate of the security intelligence agency to a category of activity not included in the agency's
statutory mandate, providing that the Joint Parliamentary Committee on
Security and Intelligence is notified on a confidential basis when the
Order-in-Council is passed and that within 60 days of its passage the
Order-in-Council is approved by an affirmative resolution of both Houses
of Parliament .
(6 )
B . DISTINGUISHING DISSENT FROM SUBVERSION :
LESSONS FROM THE PAS T
50. In the remaining sections of this chapter we review some of the policies
and practices which have governed the counter-subversive activities of the
R .C .M .P . Security Service. In the decades since World War II, and especially
in the 1960s and early 1970s, Security Service surveillance of domestic
`subversion' expanded considerably . Often individuals and groups were investigated who were not involved in espionage, foreign interference or terrorism, or
any form of political violence . It is in this area of domestic subversion that
improper targetting is most likely to encroach on legitimate dissent . Our
objective in reviewing this past activity of the Security Service as part of our
proposed Plan For the Future is not primarily to judge past policies although some judgments must be made - but rather to learn from them and
to indicate how these controversial areas would be treated under our recommendations concerning the proper scope of security intelligence surveillance . In
keeping with this objective, we shall make no further recommendations in this
chapter . Where recommendations appear to be called for, they will be included
in a more complete discussion in other parts of our Report .
51 . The most important lesson to emerge from a review of counter-subversion
activities is that security intelligence activities must be subject to well-defined ,
445
�clearly communicated government policies . In the past the Security Service
was left without guidance or else was given too much discretion in determining
appropriate targets or subjects of investigation . In large part, the lack of a clear
legislative mandate and of continuing supervision by government of security
intelligence activities left the Service on its own to make important policy
decisions often involving sophisticated political judgment . At times, either
through misinterpreting the position of government or perhaps just acting
cautiously, the Security Service failed to respond adequately to Canada's
security needs ; at other times we think there was an excess of zeal .
52 . When Cabinet did give attention to security matters, as with R .C .M .P .
operations on university campuses and the coverage of separatism in Quebec,
its directives were not always clear, or else were not accurately transmitted by
the Security Service to members in the field . Throughout, there have been
problems of communication between the Security Service and government,
heightened no doubt by the need for secrecy and by the lack of formal and
effective institutions of supervision and control . Much has depended on the
close but uncertain relationships between senior officers of the Security Service
and various Commissioners of the R .C .M .P ., senior civil servants and Ministers . The result has been that in determining broad operational policy the
Security Service has often taken its own counsel and functioned in isolation
from the other organs of government .
53 . There will always be isolation in security work . To the limited extent that
investigators and analysts talk about their work they do so only with colleagues
in the security community . Their perceptions are therefore likely to become
somewhat conformist and cautious . This makes it all the more important in a
free society for major policy decisions on investigations to be made with the full
and active involvement of Ministers and senior officials . But as some of the
cases that we review in this chapter illustrate, the involvement of Ministers and
senior officials is not enough to ensure legal and proper behaviour in an area of
government shrouded in secrecy . Thus, we shall recommend in later chapters of
this Report the establishment of a parliamentary committee and an independent review agency to scrutinize security intelligence activities . In addition, we
shall propose the involvement of the judiciary in authorizing the use of certain
particularly intrusive investigative techniques .
54 . In reviewing the past we readily acknowledge the benefits of hindsight .
Second guessing is far easier than making decisions on complex matters,
especially when such decisions are made under great time pressures with little
or no direction from government . We should also note that we are examining
policies developed for the most part in the 1960s and early 1970s . This was a
period of some turbulence in Canada in contrast to the present, which, from a
security perspective, is a relatively placid time in our history . This marked
change in the level of social conflict adds to the difficulties of being fair and
balanced in our assessment of the past .
55 . Another factor to keep in mind when reading this chapter is that these
events were not unique to Canada . Book III of the Final Report of the Select
Committee to Study Governmental Operations with Respect to Intelligenc e
446
�Activities" (commonly referred to as the Church Committee's Report) contains close to 1000 pages of evidence of questionable activities of the FBI, CIA,
and other United States intelligence agencies in the area of counter-subversion
during the 1960s and early 1970s . Acting Justice White's report on Special
Branch Security Records1z completed in 1977 in the State of South Australia
also covers topics similar to those dealt with in this chapter . While the
activities of security agencies in other liberal democracies are, with few
exceptions, not a matter of public record, we would be surprised if these
countries were completely immune from the kind of excesses recorded in this
chapter . That at least some of the Security Service's sister agencies were
engaged in similar activities does not excuse what happened in Canada, but it
does increase our understanding of why improprieties and illegalities occurred .
In the secret and closely knit world of security intelligence, the perspectives
and activities of sister agencies must have had some influence on the Security
Service, especially in a situation where little direction was forthcoming from
government .
56. We are under no illusions about the ease of drawing a clear line between
dissent and subversion . For those responsible for making targetting decisions
about domestic groups and individuals, the task is akin to distinguishing
between subtle shadings of grey . There are few `blacks' and `whites' in this
business . Thus, while it is appropriate for a security intelligence agency to
investigate individuals suspected of planning political violence, or acts of
foreign interference, it is not nearly so obvious what the agency should do in
the case of individuals who merely advocate the use of violence . Moreover, once
an investigation is launched, there is the question of how the investigation
should proceed with regard to the legitimate organizations to which the
individual under investigation belongs . Given the difficult and continuing
nature of this dilemma, we believe that those within the security intelligence
agency must exhibit great care and sensitivity in making targetting decisions,
that others outside the agency, including Ministers, should be involved in these
decisions, and that there be some mechanism for ex post facto review so that
the agency and the government will continually learn from the past .
57 . Having made these preliminary observations let us turn to the lessons of
the past . We shall discuss a number of topics which relate to surveillance
policies regarding domestic subversion : separatism and national unity, surveillance on university campuses, the Extra Parliamentary Opposition, political
parties, labour unions, blacks, Indians and right wing groups . It must be
emphasized that these subjects do not constitute a comprehensive description,
or even a profile, of the work of the Security Service . There has been no
attempt to provide examples of counter-espionage, international terrorism or
the surveillance of Communist or other groups whose avowed objective is th e
" U .S . Senate, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Book III, U .S . Government Printing
Office, Washington, 1976 .
1z Special Branch Security Records, an Initial Report to the Premier of South Australia, Mr . Acting Justice White, Adelaide, 1977 .
447
�ultimate overthrow of our democratic system . Generally speaking, the Security
Service experienced fewer difficulties in understanding and implementing its
role in connection with espionage, foreign interference and international
terrorism .
58. . In discussing these topics, we shall tend to treat them as if they were in
distinct pigeonholes . Of course, some subjects are unrelated . However, in the
early '70s the Security Service's perception that Communists and Marxists
were adopting new techniques, outside the Communist Party, to infiltrate a
variety of institutions (including governments, universities, ethnic movements
and a political party) resulted in a concerted effort to investigate the extent of
such penetration of "key sectors" of society . Impetus for this development also
came from the rising tide of student violence in this country, the United States
and Europe, and the emergence of philosophies that preached violent assault on
the established order . In 1970 the Director General of the Security Service
predicted (wrongly, as it turned out) a decade of increasing disorder, and so
advised the government . Consequently, throughout Canada - and totally
unrelated to the separatist concern - the Security Service perceived the future
as requiring an intensified level of investigation in order that government and
police forces would not be caught unawares in the event of serious outbreaks of
violence for political purposes. The Security Service terminated the "key
sectors" programme in 1977 after a long internal review of the value of the
programme .
(a) Separatism and national unity
59. Since the early 1960s one of the most difficult policy questions relating to
the R .C .M .P . Security Service has been the proper definition of its role with
respect to Quebec separatism and the national unity issue . It is an urgent
question for Canadian democracy and Canadian security and it is still unanswered . Too broad a role can endanger Canadian democracy by undermining
constitutional methods of settling the future of the Canadian federation . A role
which is too narrow can deprive the federal government, as well as provincial
governments and local police forces, of timely and useful intelligence about
threats of violent political action .
60. The record of policy-making on this issue reveals a great deal of vagueness, confusion and ambiguity in both government direction and the Security
Service's response to that direction . The story of the R .C .M .P .'s role in this
area provides one of the best illustrations of the need for a clear definition of
the role of the security intelligence agency - one which is understood and
accepted by Parliament and the Canadian people .
61 . The historical record can be divided into four distinct periods :
1 . 1963-67 : when the focus of R .C .M .P . security intelligence collection was
strictly on terrorist elements in the separatist movement .
2 . 1967-75 : when R .C .M .P . security intelligence collection activities .
expanded to include open and democratic separatist parties and groups .
3 . 1975-76 : when confusion resulted from conflicting government directions on general surveillance and security screening .
448
�4 . 1976-78 : when there were efforts to clarify or redefine the Security
Service's role with respect to separatism .
62 . In examining this historical record our focus is exclusively on policy
rather than on actual operations in the field . A later Report will contain our
findings as to some R .C .M .P . practices not authorized or provided for by law in
gathering intelligence about and countering separatism in Quebec . The basic
policy question of concern to us here is the extent to which separatism and any
other attempts to bring about fundamental changes :in Canada's Constitution
have been, and ought to be, subject to the surveillance of a security intelligence
agency .
.1963-67: focus on terrorism
63 . In the early and mid-1960s the Security Service understood that its basic
role in relation to separatism was to collect information about separatists who
used violent or terrorist methods to gain their ends . Assistant Commissioner
Bordeleau, the Director of Security and Intelligence, writing to the officer in
charge of the Quebec Division in October, 1963, explained that :
It is fundamental in defining the extent of our interest in the movement to
accept that there is nothing intrinsically illegal about it (i .e . separatism),
nor should the "separatists", "independentists" etc . come under police
investigation provided they confine themselves to constitutional methods .
64 . F .L .Q . bombings were beginning to occur . The R .C .M .P.'s main security
intelligence task was to penetrate the terrorist elements of the separatist
movement. Assistant Commissioner Bordeleau said that the biggest obstacle in
performing this task was that "most F.L .Q . activities were taking place
amongst university students and teachers, who are presently practically
immune from investigation" . This understanding of government policy with
regard to university surveillance differed from that of certain Ministers and
their officials . Moreover, the R .C .M .P . made little effort to have changed what
it believed to be an overly restrictive policy . As a result, there may have been a
failure to carry out investigations of F .L .Q . terrorism - investigations which
might have prevented some of the serious terrorist attacks before and during
1970 . This episode is an indication of how the security of Canada may suffer
when communications between a security intelligence agency and the rest of
government are poor . (We discuss the question of investigations at educational
institutions in more detail later in this chapter . )
65 . The only other policy problem which arose during this period was that of
providing security clearance reports on gôvernment employees who were
members of open, legal, democratic separatist groups . Departments were
beginning to request such information about employees and applicants . The
Security Panel had a lengthy discussion of this matter on September 23, 1964 .
There was some support at that meeting for confining screening reports to
information about participation in separatist activities of an illegal and terrorist nature . But the view prevailed, according to the minutes of the meeting, that
the R .C .M .P . should include in their reports to Departments the fact of
membership in open separatist organizations together with the "detailed
information concerning length of attendance, the degree of involvement, an d
449
�other pertinent information as was available" . Also according to the minutes,
the decision of that Panel was to be referred to the Cabinet Committee on
Security and Intelligence for its consideration . We have found no record of
Cabinet Committee consideration of this matter, except several years later .
66. The Security Panel's decision raises a crucial question which was not
discussed at its meeting : how was information about membership, degree of
involvement and other aspects of open separatist organizations to be `available'
to the R .C .M .P .? Failure to face this question created ambiguity as to the
Security and Intelligence Directorate's role in collecting intelligence about
open separatist organizations . Was it to begin collecting information by
reading the newspapers or by developing sources? Was it simply to sit back and
wait for someone to drop relevant information into its lap? When intelligence
agencies are told by senior members of the government to report certain
information "if it is available", there isa danger that_ they will treat such
direction as an instruction to collect as well as to report .
67 . In any event, the security screening branch of the Security and Intelligence Directorate began reporting "separatist information" to Departments in
April 1965 . The R .C .M .P . and the Assistant Secretary to the Cabinet for
Security worked out an arrangement whereby information was to be reported if
it fell into one of the following three categories:
(1) subject or a relative of the subject participates in or is connected with
"separatist/terrorist activities or movement "
(2) subject is an active participant or member of a Separatist movement
(3) subject has a relative who is an executive member of a Separatist
movement .
Some of the people who would come within these categories - namely, those
whose only separatist activity was of the open, democratic kind - clearly did
not fall within the categories of persons set out in the Cabinet Directive
governing security screening ." Thus the Security Panel's direction, the vagueness of which was graphically symbolized by the use of an ambiguous oblique
in the phrase "separatist/terrorist activities", and the R .C .M .P .'s response to
it, raise the question of whether the Force was involved in the reporting (and
possibly the collection) of information in areas not authorized by the Cabinet .
(We have discussed this matter in Part III, Chapter 11 . )
1967-75 : expansive coverage of separatis m
68 . In 1967 there was a decisive change in the federal government's perception of the separatist threat . It was now not only a security threat, it was a
serious political threat . The federal government was concerned not only about
threats of political violence but also with the political support the separatist
movement was attracting from the Quebec electorate . Politicians and officials
involved in government decision-making naturally and quite properly should b e
"See Part VII, Chapter 1 for that section of Cabinet Directive 35 which sets out the
categories of persons who are to be denied a security clearance on "disloyalty"
grounds .
450
�concerned with both the political and security dimensions of a political
movement as important as Quebec separatism, but it is quite another matter to
use a security intelligence agency to gather information about not only its
security dimensions but its political dimensions . The central characteristic of
this period is a vague intermingling of political and security concerns in
government direction of the Security Service, and, not surprisingly, in the
Security Service's response to that direction .
69. On August 14, 1967, at Prime Minister Pearson's direction, the Security
Panel met to discuss ways and means of increasing the intelligence on
separatism available to the government . According to Deputy Commissioner
Kelly's record of this meeting, separatism was identified as a greater danger
than Communist activities . Three overlapping concerns were identified : terrorists, constitutional separatism and foreign involvement . Mr . Kelly reported that
"the general tone" of the meeting indicated that the R .C .M .P . were expected
at this time to know more than it did about what was going on in the Province
of Quebec in relation to Separatism .
70. This meeting was a critical turning point in the broadening of the
R .C .M .P.'s security intelligence coverage of separatism . In his testimony Mr .
Starnes stated that :
. . . there is no doubt that if the government had not wished to have
separatism dealt with by the Security Service in the way in which they dealt
with it, there is no question that the Security Service would not have done
it, in its wildest dreams, there is no way the Security Service on its own
would undertake that kind of investigation .
(Vol . 100, p . 15938 . )
Mr . Starnes admitted that the government never made "any declaration that
the separatist movement was subversive" (Vol . 100, pp . 15935-6) . Still he
insisted that the Security Service had a broad mandate from government to
investigate separatism as a whole, not simply its terrorist or violent elements,
and traced that mandate back to "when they first started their discussions of
this matter . .. in 1967, and the continuum from that time through to the early
'70s was quite clear and it is established" (Vol . 100, p . 15939) .
71 . The government's vague broadening of the R .C .M .P .'s mandate for
collecting information about separatism caused senior R .C .M .P . officers to be
extremely concerned about the political consequences such a broadening might
have for the Force . This concern is clearly reflected in the records of meetings
held within the R .C .M .P. in August 1967 . Security intelligence officers in the
R .C .M .P. regarded such an expanded mandate as outside the role of a
"defensive service" . Intelligence requirements would, among other things,
require forms of surveillance within Canada and the collection of intelligence
outside Canada which, they thought, would be work appropriate to an offensive
intelligence agency. These senior R .C .M .P . officers were very worried about
the political consequences if surveillance of this kind were publicly exposed and
considered that the Force should not enter into this new area without new
terms of reference . There was some discussion of the merits of setting up a
separate agency under Privy Council Office auspices for this intelligence task ,
451
�so that the R .C .M .P . would not bear the brunt of any potential political
criticism .
72. Despite these qualms and the desire for clear government authorization,
the R .C .M.P .'s Security and Intelligence Directorate expanded its coverage of
Quebec separatism to include "constitutional separatism" and "foreign intervention" . This was done without a written authorization from the government .
Instructions sent on November 1, 1968, by a senior officer in the Security and
Intelligence Directorate to the officer commanding the Quebec and Montreal
security intelligence subdivisions indicate the extent to which the R .C .M .P. was
endeavouring to expand its surveillance of separatism . These instructions were
issued at the time when the Ralliement pour L'indépendence Nationale
(R .I .N .) was breaking up and a large segment of it was merging with René
Levesque's Mouvement Souveraineté Association to form the Parti Québecois .
Intelligence was to be collected within the P .Q . The instructions made it clear
that two kinds of information were wanted :
(a) An Intelligence interest : we seek information on the identity, attitudes
and potential of executive and other significantly important members
of the Parti Québecois as part of an attempt to assess and anticipate
potential and future course (sic) of the Party . We are also interested in
both open and closed information as to the Party's strategy and tactics,
financial condition, membership quantity and quality, relations with
other political parties and pressure groups (such as trade unions and
media of information) and on any existing or future relationships with
foreign countries or subversive groups such as Communist or Trotskyist
parties and so on .
(b) A Police interest : we must continue to seek to identify and maintain a
continuing study of those individuals in the Parti Québecois who
advocate subversive or illegal courses of action or who are members of
or sympathizers with outside groups which do so .
73 . Information of the first type - the "Intelligence Interest" - is clearly
information that goes beyond purely security matters and into the realm of
politics . The closest the R .C .M .P. seems to have come to obtaining an explicit
mandate from the Cabinet for the collection of this type of information was at
the meeting of the Cabinet Committee on Security and Intelligence held on
December 19, 1969 . According to Commissioner Higgitt's notes of that
meeting, one of the Committee's recommendations included the following :
R .C .M .P . asked to provide a detailed report on the present state of
separatism in Quebec in terms of organization, numbers involved, organizational inter-relationship, apparent strategy and tactics and outside
influence .
74. The blending together of political and security purposes can be seen in
subsequent targetting directions issued by the Security Service . In September
1970, when "G" Branch was being established in "C" Division ( i .e . the Quebec
Division) to focus on Quebec separatism, the Director General, Mr . Starnes,
wrote to the officer in command of the security intelligence units in "C"
Division, attaching terms of reference for "G" Branch . These terms of reference set out the following objectives for the branch :
452
�To be as fully informed as possible on :
- all Separatist/Terrorist activities in the Province of Quebe c
- all activities by foreign powers which may affect the position of Quebec
in Confederation
- all àctivities by subversive organizations which touch on the Quebec
problem
- developments of a subversive nature among the French speaking popu
.
-lationfherpvcs
The terms of reference went on to give sweeping instructions with regard to
separatism :
In order to obtain adequate information regarding Separatist activities,
"G" Branch must develop sources in all organizations and among all
persons supporting the separation of Quebec from Canada . . .
Clearly, the Parti Québecois, because it has attracted so many persons who
are prepared to go to great lengths to achieve a separate Quebec, must be
regarded as a prime target . Investigation of the P .Q ., of course, has as its
main purpose the achievements of a better insight into those activities
within the party which clearly are subversive and have as their aim the
break-up of confederation . In particular "G" Branch should build up an
intimate knowledge of the party, its structure, its finances, its aims and
those responsible for its direction . Among other things such knowledge is
necessary in order to identify those elements in the party who may attempt
to subvert it to the achievement of a separate Quebec by any means,
including the use of force and terroristic acts . In addition the Branch should
develop information regarding individuals or groups of individuals within
other political parties. who seek a separate Quebec by any means .
Mr . Starnes' covering letter stated that "the resources available to us in "C"
Division will have to be utilized to the full if the government's priority of
maintaining national unity is to be aggressively pursued . "
75 . , The instructions quoted above show how easy it was at this time for
members of the Security Service, including Mr . Starnes, to consider that any
attempts to "break up Confederation" . by democratic or any other means
constituted a security threat warrantingsurveillance and investigation by the
R .C .M .P .'s security intelligence branch . In his testimony, Mr . Starnes said that
the Prime Minister congratulated him on a brief he had prepared in 1970 for
the Interdepartmental Committee on Law and Order analyzing Separatist
activities - a brief which included a section on the Parti Québecois . He
testified that :
. . . we were not targetting the Parti Québecois as such, and we were very
careful not to do so.
But we were concerned with some of the elements .which are described
in the Royal Commission Report, which would be : foreign involvement,
subversive activities, terrorist activities, infiltration of the Parti Québecois
by some of the elements .
(Vol . 100, pp. 15951-2 . )
His testimony that there was a narrow focus and purpose of Security Service
surveillance of the P .Q ., limitéd strictly to'côncerns of security, is difficult t o
453
�reconcile with the broad references to political concerns about the future of
Confederation found in his instructions to "G" Branch, quoted above . Nor is it
easy to reconcile his testimony with the activities of the Security Service
throughout most of the 1970s in collecting intelligence about the Quebec
Liberal Government and the Parti Québecois .
76. Two further developments in the early 1970s accentuated the tendency to
merge political and security interests in the Security Service's coverage of
separatism . The first was a decision made by the Security Advisory Committee
in 1972 which, in effect, formalized the arrangement made nearly eight years
earlier with respect to reporting separatist information for security clearance
purposes . At a meeting on November 14, 1972, the Committee noted that with
respect to "information relating to separatism" :
neither Cabinet Directive 35 nor the security policy statements made by
Prime Minister Pearson and Justice Minister Chevrier in 1963 provided
authority for Security Service reporting of information in this area, in
relation to screening public servants .
The Committee took cognizance of the fact that despite the lack of explicit
Cabinet authorization the Security Service had been reporting information on
a person's involvement in the separatist movement directly to the Privy Council
Office, which would in turn consult with the Departments on the weight to be
given such information in the security clearance process .
77. A month later, the Security Advisory Committee resolved this matter, at
least to its own satisfaction . The Security Service was now to report information on a person's links with separatism directly to departments . But the Privy
Council Office was to be consulted before any decision was taken to deny
clearance on the basis of such information . The scope of Security Service
information on separatist links was defined as follows :
Separatist sympathies, associations and activities on the part of the subject
will be reported as will significant separatist information on relatives and
associates .1 d
This decision was circulated to Deputy Ministers and heads of agencies on
December 15, 1972 in a memorandum signed by the Secretary to the Security
Advisory Committee . There is no indication that it was considered by the
Interdepartmental or Cabinet Committees on Security and Intelligence . Once
again there is no indication that the implications of this decision for the
R .C .M .P . Security Service's programme of collecting information were considered . Again there was no conscious recognition of the connection between
government direction to report information and a security intelligence agency's
mandate to collect it .
78 . The second development occurred late in 1974, when the Security Service
re-adjusted and clarified its policy with regard to surveillance of the Parti
Québecois . This reconsideration was prompted by the emergence of the P.Q . as
a major political party in the Province of Quebec and a serious contender fo r
" All but the last nine words of this sentence were discussed in evidence publicly : Vol .
141, p . 21672 .
454
�power . Thus Security Service targetting of the P .Q . now entailed surveillance
and investigation of a democratic political party which was in the mainstream
of provincial politics and might in the foreseeable future win an election and
form a provincial government . The political implications of targetting, which
had always worried the Force, were now more apparent than ever . Nonetheless,
the new policy adopted by the Security Service called for sufficient surveillance
of the P .Q . to determine how influential it was becoming in key sectors of
Quebec society and whether or not the Party was receiving assistance from
foreign countries . Thus, this new policy explicitly rejected the recommendation
of the Royal Commission on Security whose recommendation on security
intelligence surveillance of separatists had been as follows :
Separatism in Quebec, if it commits no illegalities and appears to seek its
ends by legal and democratic means, must be regarded as a political
movement, to be dealt with in a political rather than a security context .
However, if there is any evidence of an intention to engage in . subversive or
seditious activities, or if there is any suggestion of foreign influence, it
seems to us inescapable that the federal government has a,clear duty to take
such security measures as are necessary to protect the integrity of the
federation . At the very least it must take adequate steps to inform itself of
any such threats, and to collect full information about the intentions and
capabilities of individuals or movements whose object is to destroy the
federation by subversive or seditious methods . "
The rationale for security surveillance of the Parti Québecois was based on the
P .Q .'s objective of breaking up the Canadian federation ; the Security Service
decided that it should analyze "the forces actively working at destroying the
unity of the country", so that the Security Service could become "a meaningful
depository of this data which the Government could rely upon before taking
decisions affecting national unity" . This policy was approved by the Director
General, Mr . Dare, on June 3, 1974 . The operational implications of the policy
were summarized in an internal Security Service memorandum as follows :
- No coverage of electoral activities .
- No collecting of membership lists .
- Selective clippings only.
- Minimal investigation of financial resources .
- Monthly analytical review of :
(a) Influence of newspaper "Le Jour" .
(b) P .Q ./labour unions relationship .
(c) P.Q . activities within politicized pressure groups .
- Investigate leads of foreign interference tied in with P .Q .
- Isolate radical elements operating under P .Q . cover .
- Investigate leaks of privileged information belonging to federal
government .
- Tightening of security concerning the reporting of investigations of P .Q .
activities .
15 Report of Royal Commission on Security, 1969, para . 21 .
455
�- No discussion of our policy on P .Q . with Q .P .F. and S .P .C .U .M . [i .e .
with the Quebec Provincial Police and the Montreal Urban Community
Police Force] .
- Initiation of discussion with P .S .P .B . [i .e . Police and Security Policy
Branch in Solicitor General's Department] to formalize above mentioned coverage .
79 . It is important to note that Mr . Dare approved all of these recommendations except the proposal to discuss the matter with the Solicitor General's
Department . The Director General gave the following reasons for not seeking
explicit approval for this policy from the Minister :
Firstly, the information gathered will be made available to the government
by a report to the Minister as required from time to time . Secondly, the
Prime Minister has expressed to me and my predecessor his concern
regarding separatism and I have the responsibility to report to both he [sic]
and the Minister any major events-or trends . We must-all realize that-the-unity of our country is vital to the federal government .
80 . Thus this period ends with the adoption of a formal policy by the Security
Service on its coverage of separatism in Quebec . Apparently this policy was not
submitted for approval to the Minister responsible for the Security Service nor
to the Cabinet . It was a policy which in effect rejected the recommendations of
the Royal Commission on Security . Finally, it was a policy which did not
differentiate between the political and the security aspects of the P .Q . or of
separatism . Indeed the tone of the policy statement and Mr . Dare's letter of
approval indicate how difficult it was for members of the Security Service and,
indeed, senior officials and Ministers, to adopt the approach recommended by
the Royal Commission and to differentiate between the political and security
implications of Quebec separatism .
1975-76: attempts to develop policy
81 . In 1975 the government, at the Cabinet level, finally began to make
policy with regard to the Security Service surveillance of the P .Q . and
separatism . But policy was developed and enunciated in a manner which
resulted in great confusion for the R .C .M .P .'s Security Service and for the
public, and perhaps even for the policy-makers themselves . The heart of the
confusion was and is the relationship between the direction the government
gave the Security Service with respect to investigation of separatism generally,
and the direction it had earlier given the Security Service concerning security
clearances . Our perception is that at the time the March 1975 mandate was
established the government did not consider that relationship and the Security
Service did not bring the relationship to the attention of the government . The
failure of the Security Service to do so was probably due to its lack of
appreciation of the significance of the relationship .
82 . The problem began in March 1975, when the Cabinet approved the
Security Service's "mandate" in the form of a Cabinet Directive which we
discussed in some detail earlier in this chapter . One interpretation of the
mandate might be that the authorization given to the Security Service to
investigate separatism and the Parti Québecois had been considerably reduced .
456
�Thus, both the wide coverage approved by Mr . Dare in June 1974 and the
collection of information about "separatist sympathies, associations and activities" which the Security Panel had formally authorized in 1972, might be
precluded by the 1975 mandate . However, it was possible to read the mandate
otherwise ; there is evidence that the Cabinét may have expected paragraph (f)
of the mandate to allow the monitoring of the activities of separatists . This
interpretation, which may be justified by Mr . Dare's knowledge of the background of the Cabinet's decision, was stated in the following paragraph of his
letter of May 22, 1975, in which he communicated the terms of the Cabinet
Directive to all branches of the Security Service .
In seeking new guidelines, the R .C .M .P. Security Service did not
attempt to fundamentally alter our current activities - the collection of
intelligence relating to espionage, sabôtage, subversion and terrorism rather we sought to formalize guidelines which Government had already
recognized in a general way . Due to the fluid nature of national and
international events, we will continue to monitor traditional areas of interest
- such as Communists, Trotskyists, Maoists, separatists, black revolutionaries, native extremists, right-wing extremists and revolutionaries from
other countries resident in Canada - although in many of these areas we
may shift from aggressive collection to a passive monitoring role . Being
granted a broad intelligence collection base and not being constrained by
either ideological or criminal considerations alone, we are now free to
respond to current and rapidly changing factors affecting National
Security .
.
(Our emphasis . )
83 . However, on June 9, 1975, Mr . Dare wrote to the officers in charge of the
Ottawa and Quebec area commands of the Security Service with reference to
his earlier approval in June 1974, of policy concerning coverage of separatism
in Quebec . In his letter he said :
Recently I met with the Prime Minister of Canada, Mr . Pierre Elliot
[sic] Trudeau, and we discussed the criteria used to investigate the Parti
Québecois and its members . The Prime Minister stated that the Security
Service of the R .C .M .P . does not have a mandate to conduct these enquiries
unless they fall within Items A to F of our Role, Tasks and Methods of the
R .C .M .P . Security Service .
Therefore, will you please ensure that all enquiries being conducted on
the Parti Québecois and its members cease unless they fall within Items A
to F of the Role, Tasks and Methods of the R .C .M .P. Security Service .
As we shall see, nearly a year later, when an opposition member in the House
of Commons raised the matter, Mr . Trudeau and Mr . Allmand stated that the
"recent meeting" referred to by Mr . Dare had been the March 1975 meeting of
the Cabinet Committee on Security and Intelligence when it agreed to the
general mandate of the Security Service .
84. On June 13, 1975, Mr . Dare wrote to Mr . Bourne, Chairman of the
Security Advisory Committee that the Prime Minister's guidelines "restricting
the Security Service's enquiries with regard to the Parti Québecois" may
conflict with the 1972 Security Panel's requirement concerning the reporting of
information about separatist sympathies, associations and memberships fo r
457
�security screening purposes . He asked that the Security Advisory Committee
consider this matter at its next meeting . Despite at least this one documentéd
attempt, Mr . Dare did not get the matter resolved by the government
committees .
85 . By February 1, 1976, the Security Service considered that its information
on separatists was out of date, and that the Security Service was unable to
provide accurate assessments of current activities and was providing incomplete
and possibly erroneous assessments and information to departments . Consequently, Mr . Dare wrote to Mr . Bourne to inform him that the Security Se rv ice
could not be expected to provide the type of information Deputy Ministers and
heads of agencies required for security screening purposes . On May 5, 1976, a
newspaper article quoted from Mr . Dare's letter of February 1, 1976 under the
banner heading : TRUDEAU HALTS SCREENING OF CIVIL SERVICE
SEPARATISTS . On May 5, 1976, Mr . Erik Nielsen, M .P ., questioned Prime
Minister Trudeau in the House of Commons about the leaked letter . The focus
of his questions concerned the possible impropriety of the Prime Minister's
personally having issued guidelines to the R .C .M .P . Mr . Trudeau replied :
There were no guidelines issued by me or any interference by me . There is a
cabinet committee on security and intelligence which oversees the operation
of government agents in the area of security and intelligence . Certain
conclusions were reached which were communicated to the police . They
were not communicated by me personally or under my name . They were the
object of a cabinet decision .1 6
86 . The next day the Solicitor General, Mr . Allmand, reported to the House
of Commons that what Mr . Dare referred to as guidelines was actually the
Cabinet decision (of March 27, 1975) with regard to the mandate of the
Security Service . This decision, Mr . Allmand said, was based on a submission
he himself had presented to Cabinet and among other things it :
. . . con fi rmed that the R .C .M .P . should not survey legitimate political
parties per se, but of course individuals in all political parties should be
subject to surveillance if they are suspect with regard to criminal activities,
subversion, violence or anything like that .
He said that these guidelines dealt with general operations only and not with
security screening . He also stated that :
. . . the decision General Dare was talking about, the cabinet decision, was a
decision of the cabinet as a whole and the cabinet committee as a whole and
was not the result of any private meeting between General Dare and the
Prime Minister . "
87 . On May 11, 1976, in the House of Commons, Prime Minister Trudeau
gave the following explanation of Mr . Dare's mistake in having referred to the
Cabinet's general directive as if it had been a personal instruction from the
Prime Minister to restrict surveillance of the Parti Québecois :
The mistake probably arises from the fact that as a member of that cabinet
committee, 1 did of course participate . I do not mind admitting I was one o f
16 House of Commons, Deba t es, May 5, 1976, p . 13193 .
"/bid., May 6, 1976, p . 13224 .
458
�those who would argue that a democratic political party should not be
under systematic surveillance by the RCMP .
Mr . Trudeau went on to explain his general position on Security Service
surveillance of political parties :
My opinion on that, which was expressed in cabinet, is certainly protected
by the usage concerning cabinet secrecy, but I do not mind repeating it
here . It is my view and the view of the government that if the party is legal,
it should not be under surveillance systematically by the Royal Canadian
Mounted Police or any other police . I hope that is the view of the other side
of the House .
Finally Mr . Trudeau told the House that Mr . Dare was incorrect in drawing an
inference regarding security screening from the Cabinet Directive . That mistake he explained was the following :
This inference ; that because the party is not under surveillance the government does not want to have security clearance on everyone who occupies a
sensitive position in the federal government, is wrong .1 e
88 . Material in R .C .M .P . files confirms that Ministers, during the meeting of
the Cabinet Committee on Security and Intelligence on March 20, 1975, did
indeed discuss the question of Security Service surveillance of democratic
political parties . An excerpt from a memorandum written by Mr . Gordon
Robertson, Secretary to the Cabinet, to Prime Minister Trudeau on April 1,
1976 is as follows :
At a meeting on 20 March, 1975, the Cabinet Committee on Security and
Intelligence considered a memorandum of the Solicitor General on the role,
tasks and methods of the R .C .M .P . Security Service . The Cabinet Committee agreed to (and the Cabinet confirmed) the Solicitor General's recommendation that the Security Service be authorized to monitor and investigate individuals and groups in Canada when there are reasonable grounds
to believe they may be engaged in, or plânning to engage in, a number of
specified categories of activities, including espionage, sabotage, terrorist
acts and change of government by force or violence . The decision was in
general terms, and made no reference to the Parti Quebecois or any other
specific group and the categories did not include the activities or goals of
the Parti Quebecois . However, you may recall that, during the meeting,
Ministers discussed at some length the relation between the proposed role of
the Security Service and a legal organization which advocated fundamental
change (e .g . dissolution of a federation) by peaceful democratic means .
There was a general consensus that in such cases, Security Service surveillance should occur only when it seemed justified in the light of the approved
categories .
There is contradictory evidence as to whether, in addition, a "private meeting"
between Mr . Dare and Mr . Trudeau occurred to discuss this matter : On the
one hand, Mr . Dare testified that, when he referred in his letter of June 9,
1975, to a meeting with the Prime Minister, he did not mean that there had
been a private meeting between himself and the Prime Minister . Rather, he
stated that he received instructions regarding surveillance of the P .Q . at a
1e Ibid ., May 11, 1976, p . 13389 .
459
�meeting of officials and ministers, at which the Prime Minister was present .
This meeting took place " . . towards the end of May or very early June", 1975
.
(Vol . C89, p. 12252) . It is not clear from his testimony whether this meeting
was "the fringe of a Cabinet meeting", a formal meeting of the Cabinet
Committee on Security and Intelligence, or a meeting held just prior to a
formal Cabinet Committee meeting (Vol . C89, pp . 12252-53 ; Vol . C90A, p .
12431 and 12434) . On the other hand, Mr . Gordon Robertson testified that he
had " . . no recollection of any Cabinet Committee meeting of the kind that
.
Mr . Dare is apparently referring to" (Vol . C116, p . 15001), nor did he recall
". . . a meeting at which people stayed behind in order to have a subsequent
private discussion" (Vol . C116, p . 15003) . Rather he was under the impression
that " . . .the discussion was in a meeting in the Prime Minister's office and was
a private meeting" (Vol : C116, p . 15002) .
89. On May 18, 1976, the Cabinet Committee on Security and Intelligence
met and agreed upon the security screening implications of the March 27, 1975
Cabinet decision . The Committee's decision was confirmed by the full Cabinet
on May 27, 1976 . It was as follows :
Security screening: implications of Cabinet decision of March 27, 1975
The Committee agreed that the Cabinet decision of March 27, 1975
(166-75RD) was not intended to alter the policy of the government with
respect to the screening of persons for appointment to sensitive positions in
the Public Service, namely that :
(a) information that a candidate for appointment to a sensitive position in
the public service, or a person already in such a position, is a separatist
or a supporter of the Parti Québecois, is relevant to national security
and is to be brought to the attention of the appropriate authorities if it
is available ; an d
(b) the weight to be given to such information will be for consideration by
such authorities, taking into account all relevant circumstances, including the sources and apparent authenticity of the information and the
sensitivity of the position . "
The Cabinet Committee did not explain how information about a person's
separatist leanings or associations was to be available if the Security Service
could not systematically collect such information .
90. As a result, on February 8, 1977, instructions were sent by Security
Service Headquarters to the officers in charge of the Security Service's Ottawa
and Montreal divisions explaining that the Cabinet had directed that inquiries
could be made concerning "separatists and supporters of the Parti Québecois" .
Mr. Dare's testimony gave additional insights into Security Service policy for
carrying out these enquiries . For example, he testified as follows regarding
field investigations for security screening purposes :
Q. Would I not be correct that under the directives given . .. that when the
inquiry was made of the neighbour one of the questions to be asked
would be "Is X a separatist, to your knowledge? "
19 The contents of paragraph (a) were stated in evidence publicly : Vol . 141, p . 21676 .
460
�A . It could-well be, Mr . Chairman, yes .
Q . Would a further question also not be "Is X a supporter of the Parti
Québecois? "
A . Well, I suppose it could be, Mr . Chairrnan, but I think we are touching
on - yes, it could Mr . Chairman .
(VoI .C90A, p .12383 )
Mr . Dare also testified that except for one brief period between February 8,
1977 and April 12, 1977, Security Service policy has been .to obtain information about separatism in Quebec for security screening purposes from existing
sources and files . Thus, the Security Service . appears not to have been
cultivating new sources for this purpose (VoI .C90A, pp .12367-12372) . According to Mr . Dare, the Security Service, for security clearance purposes regarding separatists, also relied on "spin-off" information - that is information
collected accidentally in the course of another investigation (Vol .C-89,
p .12278) .
91 . That is the end of the chronology of a confusing situation . The testimony
of Mr . Gordon Robertson, who was the senior government official dealing with
security matters from 1963 to 1977 (Vol . C 107, pp .13850-1), reveals that . this
confusion was not the result of the ignorance of Ministers and senior officials
about the difficulties that their instructions posed for the Security Service :
Q. So, you were familiar with the dilemma that the Security Service felt in
attempting to respond to the government's request for more information
about separatists and terrorists and the fact that some of these elements
or individuals could be regrouped in a political party which was not
subject to or not supposed to be subject to surveillance? ,
A . Oh, I knew it . I understood it. I had great sympathy with the problem . I
think that the Ministers who were connected with it, .like the Prime
Minister, also understood the terrible difficulty of the problem .
(Vol .Cl07, p .14057 . )
But Mr . Robertson's testimony also reveals that, according to him, instructions
to collect information on separatists were premised on a policy established as
early as 1964 that "democratic parties" were not subject to surveillance .
Consider the following testimony of Mr . Robertson :
Q . The Prime Minister on . ..May l lth, 1976 issued this statement in the
House of Commons :
It is my view and the view of the Government that if the party is
legal it should not be under surveillance systematically by the
Royal Canadian Mounted Police or any other police . I hope that is
the view of the other side of the House .
Is this the policy that you understood having been in force from 196$ on
through the various governments that were in office at the time ?
A . It is .
Q . Is it also an accurate statement to say that at least from 1964, as we
have seen through various periods, that there was pressure or direction
given to the R .C .M .P . for them to collect as much information as they
could, to keep the Government informed (a) of separatists and (b) of
the individuals who may want to apply for Civil Servant jobs ?
461
�A . That's correct, I think, subject to two points I would make : number one,
the point you just finished making, the Parti Québecois and the other
democratic parties were not subject to surveillance . So that there was
always a qualification on that . The second point, I made earlier, that
the R .C .M .P . were not to be limited by their own specific information,
but should use all the information that was available from all sources,
to try to get the maximum information possible, brought together . So
that it was not just a matter for them to do alone by normal security
methods . It was a bigger problem than that and there were more
sources of information .
(Vol . C 107, pp . 14091-3 . )
92 . The testimony of Mr. Robertson quoted above leads us to the following
observations . First, it was not until 1976 that the instructions given the
Security Service concerning the separatism movement in Quebec explicitly
contained the qualification that the Parti Québecois and other democratic
parties were not subject to surveillance . As we have seen, there was great
confusion within the Security Service on this point for over a decade . Second,
Mr . Robertson's point that the Security Service was to use other sources of
information and not rely solely on "normal security methods" must be viewed
in the light of other remarks he made during his testimony . For example, Mr .
Robertson told us that as early as 1970, Ministers and senior officials realized
that the Security Service was weak in gathering and analyzing information
from open sources (Vol . C107, pp . 14093-5) . Finally, we should note that
Ministers and senior officials, despite their realization of the "terrible difficulty
of the problem" faced by the Security Service in responding to requests for
information on separatists, had effectively insulated themselves from any
knowledge of how the Security Service was in fact dealing with this problem on
a day-to-day basis . Consider the following excerpt from Mr . Robertson's
testimony .
"
Q.
. . in order to bring you a policy or present to you a policy problem
.
which could lead to a recommendation or changing of some legislation,
were you not exposed to explanations as to the operations themselves, in
a general way ?
A . In a general way, if it would be something that would be relevant to a
decision, that could be . Never about a specific case . And I think that in
case the distinction seems artificial or tight, I think I should make the
point that there was a very strict principle that was applied, and I hope
is still applied, in security work, which was called "the need-to-know"
principle ; and if a person didn't need to know, he shouldn't ask and he
shouldn't be told . And this was in order to maintain as tight security
and information as possible . So that I was never told about a specific
case and I never asked about a specific case .
(Vol . C107, p . 13854 . )
93 . A measure of the confusion within the ranks of the Security Service as to
what the government expected with regard to its collecting information about
separatism in Quebec is provided by the following extract from an R .C .M .P.
audit report of the Security Screening Branch, written in 1978 :
Although the most recent "H .Q ." Policy statement clearly requires enquiries to be conducted to develop information reflecting on the loyalty an d
462
�reliability of an applicant or employee, "including support of the separatist
cause", this policy is not being adhered to by all field commanders and
investigators . Most investigators are mindful of the relevancy of separatist
activity to an applicant's security status when enquiring into that individual's loyalty, but there is no concerted effort to enquire into separatist or
Parti Québecois support . The expression "if it is available" was never
clarified by C .C .S .I . and the resultant "H .Q." efforts to interpret it have
created confusion, particularly when "H .Q ." .policy does not appear to
coincide with the Prime Minister's public statements to the effect that the
Security Service does not investigate the Parti Québecois .
This also illustrates the failure of the government's interdepartmental committee system for security and intelligence to resolve such problems .
1976-78: the search for a clearer mandate
94 . Following the victory of the Parti Québecois in the Quebec provincial
election on November 15, 1976, the Security Service re-evaluated its security
intelligence role with respect to separatism . In December, Mr . Dare wrote to
both Mr . Bourne and Mr . Robertson (the latter in his capacity of Chairman of
the Interdepartmental Committee on Security and Intelligence) indicating that
it was the intention of the Security Service to play the following role :
(a) adopt and maintain a low profile in discharging our mandate within
Quebec ;
(b) enhance our intelligence collection and monitoring capability in the
province particularly with respect to [foreign interference, increasing
tension among minorities, terrorist and'revolutionary power bases in
Quebec and penetration of the federal government by separatists who
may be trying to thwart moves by the government to keep Quebec in
Confederation] ;
(c) in accordance with our mandate continue to monitor closely the
activities of subversives within legitimate political parties, groups and
organizations ;
(d) maintain dialogue and liaison with appropriate provincial authorities
with the aim of preventing misunderstanding regarding the role of the
Security Service ;
(e) maintain and promote our long standing working relationship with
Quebec's provincial and municipal law enforcement agencies .
With respect to foreign interference, Mr . Dare explained that the Security
Service's concern was with those countries which adopt' "a semi-clandestine
posture in deference to federal sensitivities" . He also stated that with reference
to paragraph (d), he intended to meet privately and discreetly with two P .Q .
Cabinet Ministers to explain the Security Service's interest in ensuring that
"the democratic process is free to work, unhindered by criminal, subversive,
terrorist or espionage activities" .
95. Mr . Dare discussed these intentions on January 4, 1977 at a meeting
chaired by Mr . Robertson and attended by Commissioner Nadon, and Messrs .
Tassé, Bourne and Hall .20 This meeting approved the security intelligence
20 Mr. Hall was the Assistant Secretary to the Cabinet, Security, Intelligence and
Emergency Planning .
463
�programme which Mr . Dare had outlined . However, the members of the group
felt that the Security Service's mandate to collect this intelligence should be
clarified by a letter from the Prime Minister authorizing an interpretation of
the March 27, 1975 "guidelines" broad enough "to include activities by an
individual or group of a subversive as distinct from a normal political character
directed toward the fragmentation of the country or designed to undermine its
integrity" . This group of officials thought that a new special unit being set up
in the Federal-Provincial Relations Office (Mr . Tellier's group) might "ask the
Security Service to obtain information" . They also called for a watering-down
of the commitment to close liaison with the Quebec Government and police and
concluded that Mr . Dare "would reconsider" his intention to meet with Quebec
Ministers .
96. Senior officers of the Security Service subsequently worked out the
specific wording of "the interpretation" of the March 27, 1975 guidelines
which they hoped the Prime Minister would authorize . With some alterations
resulting from a meeting of Mr . Dare with Commissioner Nadon and Messrs .
Bourne and Tassé, the suggested interpretation was as follows :
1 . The Security Service will, consistent with approved Cabinet Guidelines
dated 27 March 1975, subparagraphs (c) and (d), investigate :
(a) individuals or groups who are suspected, on reasonable grounds ; of
engaging in or planning to engage in criminal, subversive, or other
activities aimed at effecting the secession of any constituent of the
Canadian federation ;
(b) accredited representatives or other agents of foreign governments, or
other foreign interests, fostering by any means the secession of any
constituent of the Canadian federation .
2 . To accomplish the foregoing, the Security Service will be required to :
(a) develop sources in the milieux relevant to 1(a) and (b) ;
(b) direct agents in these milieux relevant to I(a) and 1(b) ;
(c) employ such other Security Service investigative techniques as may be
necessary to obtain intelligence on persons mentioned in 1(a) and 1(b)
provided that, in all of the foregoing, the Security Service will operate
within the framework of the law and in accordance with government
policy .
It should be noted that the words "subversive" and "other" in 1(a) have a
considerable potential for expanding the March 27, 1975 guidelines .
97. The proposed interpretation of the March 27, 1975 guidelines did not
receive ministerial approval . Instead, officials in the Privy Council Office
drafted a letter which they proposed that Mr . Trudeau would send to Mr. Fox,
the Solicitor General . Of particular relevance is the following :
Clearly what was intended was that the Security Service should try to
inform itself of activities outside the normal political process which are
intended to be subversive of our system of government or of public order
even if they might not have the particular characterizations referred to in
[the clause in the 1975 mandate which reads "activities directed toward
accomplishing governmental change within Canada or elsewhere by force o r
464
�violence or any criminal means"] and to [sic] "hostile acts against Canada"
that are not necessarily motivated by a foreign power or carried through by
"attack" in the usual sense of military aggression .
Mr . Fox was asked his opinion of this draft letter . He expressed a desire for
much more specific authorization, but officials in his Department now raised a
number of considerations about the merits of "interpreting" the mandate in the
manner originally proposed by the Security Service and senior officials . They
drafted a letter addressed to a Privy Council Office official for Mr . Tassé's
signature raising the following questions :
Is it in fact a proper function of one element of a'national police force to
collect information about a provincial government? . .. For how long would
it be possible to keep this activity from public knowledge? In other words, is
the value of the information collected going to be worth the political
damage done to the Federal Government and the long-term damage which
will, probably be done to the R .C .M .P . by public disclosure of this activity . .
The R .C .M .P . cannot afford to become suspected of "political spying" .
This letter went on to suggest that the R .C .M .P . Security Service should hold
back on collecting intelligence with respect to Quebec separatism until Mr .
Tellier's group has identified "gaps in the information which is being collected
and reported about Quebec" .
98. The final chapter in the search for 'a new mandate for the R .C .M .P .
Security Service in relation to Quebec separatism was the Security Service's
submission of a discussion paper entitled "National Unity Intelligence
Requirements As Perceived By the R .C .M .P . Security Service" . This paper
was apparently requested by Mr . Gordon Robertson, who at the time was
Secretary to the Cabinet for Federal-Provincial Relations . Its purpose was to
advise senior government officials "on the optimum and appropriate role of the
R .C .M .P . Security Service relative to the information requirements of federal
policy-makers on national unity matters . "
99. The discussion paper set out . five options ranging from an expanded
mandate to use all techniques to collect information about virtually all aspects
of the Parti Québecois and the Quebec'Provincial Government, to research and
analysis of open information of those aspects of separatism that might fall
under the existing mandate . The paper did not recommend or reject any of the
options . It did point out the serious political implications of the most expansive
option, and considered that :
.
Enhanced collection should be supported by a public statement by the
Government to the effect that all Government resources will be dedicated to
the national unity question . Disclosure of enhanced R .C .M .P . Security
Service activity in the national unity field without such public support could
result in a harsh "backlash" against the R .C .M .P . (and the Fedéral)
presence and activities in Quebec .
The paper also pointed out that because the analysis and research of open
information would require "the acquisition of additional personnel with the
necessary skills", it "could perhaps be best performed by other departments
and agencies" .
465
�Conclusions
100. Throughout our analysis of Security Service policy with respect to
separatism we have made a distinction between the security and the political
dimensions of separatism . We have shown how neither the government nor the
Security Service consistently made this distinction in the past . We realize that
there are Canadians, we hope not many, who will refuse to make the distinction
in the future . But we think it is a distinction which can be made and which
must be made . We quote again from the Report of the Royal Commission on
Security in 1969 that :
Separatism in Quebec, if it commits no illegalities and appears to seek its
ends by legal and democratic means, must be regarded as a political
movement, to be dealt with in a political rather than a security context .2 1
We strongly endorse that position . Indeed we would extend it to all the parties
and political groups participating in the "national unity" debate . All should be
free to participate in discussions over the future of Canada and none should be
the target of investigation by the security intelligence agency so long as they
adhere to legal and democratic means of pursuing their aspirations .
101 . The reason we take this position and endorse it strongly is the grave
danger to the democratic and constitutional process of government in Canada
which we believe will result from a failure or refusal to accept this position . It
has been a constant theme of this Report that the heart of this nation's security
is its democratic process - it is that process above all which must be secured
from external attack and internal subversion . That democratic process is
threatened when governments or political parties at the federal or provincial
level use the methods of espionage to gain information about one another's
political intentions and capabilities . Targetting a security intelligence agency
against one's democratic political opponents can in itself become a threat to a
most fundamental dimension of the security of Canada .
102 . The principles which govern the security intelligence agency's surveillance of a separatist political party should be the same as apply to its
surveillance of all other political parties . They must be the principles expressed
in the Act of Parliament which establishes the agency's mandate . That Act of
Parliament, as we conceive it, will establish the kinds of activity which can be
the subject of surveillance by the agency . We have recommended that these
activities be confined to the four categories which we described in section A of
this chapter . No political party nor any group of party members should become
a subject of investigation by the security intelligence agency unless there is
some evidence to suggest that it or they may be participating in one or more of
these four kinds of activities . Further we have recommended that the Act
should prohibit the security intelligence agency from launching an investigation
of any person or group of persons solely because of their involvement in lawful
protest or dissent . That last principle would preclude the security intelligence
agency's investigating a group or a party solely because the group or party
wishes to bring about, by democratic and lawful means, changes in the
21 Report of the Royal Commission on Security, 1969, para . 21 .
466
�structure of the Canadian federation, including the separation of one or more
provinces .
103 . The historical record provides ample evidence of the need for strict
statutory rules with respect to the permissible limits of security intelligence
surveillance . This record also shows the danger of a security intelligence
agency or government officials developing their own interpretation of directives
from higher authorities without confirming the validity of those interpretations .
That is why our recommendations on government direction of a security
intelligence agency will insist upon the accountability of the security intelligence agency to the Minister responsible for the agency and the accountability
of that Minister to the Cabinet and to Parliament for the manner in which the
Parliamentary standards are interpreted . We will also be recommending an
independent review body to provide an additional check that surveillance by
the security intelligence agency does not exceed the limits established by
Parliament . In our view these controls and checks on security intelligence
activities are nowhere more necessary than in relation to surveillance of
members of a political party .
104 . It must be emphasized that the position we have taken on this issue does
not preclude the collection and analysis of open information by the, security
intelligence agency about democratic political parties or their members, including the Parti Québecois and its members . In this period of our history when
Canadians are engaged in a passionate debate about the future of Confederation, a security intelligence agency has an important role to play in collecting
and analyzing information from open sources to assess the likelihood of
political violence occurring and advising both the federal and provincial
governments of any threats it perceives to the use of democratic and constitutional methods of conducting and resolving this debate . The Security Service's
inability to provide analysis and advice of the highest quality is one of the
reasons why we will be recommending in this Report important changes in the
personnel and structure of the agency responsible for security intelligence .
105. The security intelligence agency may have evidence from public sources
or confidential private sources, justifying the use of more intrusive techniques
for gathering information about separatists (or anti-separatists) . In,the following chapter we shall recommend the standards of evidence that must be met to
justify the use of covert methods of information collection . At the very least,
proposals to make members of a democratic political party or a provincial or
municipal government the targets of covert investigative techniques must be
subject to these standards and the control mechanisms for applying them . But
there is a need for extra caution and consultation in using covert methods of
collecting information about the members of a democratic political party or of
a provincial or municipal government .
106. The question of foreign interference in the political activities associated
with the constitutional debate is a particularly difficult one . In the past the
R .C .M .P . Security Service has had great difficulty in distinguishing the kind of
foreign intervention which constitutes a significant security threat from that
which - although perhaps politically objectionable to many Canadians - i s
467
�not a security threat . In our discussion of this subject earlier in this chapter, we
emphasized that it is the clandestine or deceptive nature of active measures of
foreign intervention which marks them as properly subject to the surveillance
of a security intelligence agency . We .concede that it . may often be difficult in
particular circumstances to identify these measures . In doubtful cases the
Director General and senior officials of the security intelligence agency should
seek guidance from their Minister, the Department of External Affairs and the
Interdepartmental Committee on Security and Intelligence, and ultimately
from the Cabinet Committee on Security and Intelligence .
107. Finally, there is one source of confusion with respect to security intelli-,
gence activities in relation to separatism which must be removed - the conflict
between the mandate to conduct surveillance and the mandate to report
information for security clearance purposes . Earlier in this chapter we showed
the need for consistency and coherence . The criteria which define the kinds of
information the security intelligence agency must report on candidates for
security clearances must be consistent with the criteria set out in the Act of
Parliament which define exhaustively the activities about which the security
intelligence agency may collect information .
108. In, Part VII, Chapter 1 of this Report, we shall return to this question of
security screening and Quebec separatism . There we take the position that, in
performing its security screening responsibilities, a security intelligence agency
should not collect or report information about separatists who are pursuing
their cause in a legal and democratic fashion, and who, consequently, do not
fall within our proposed definition of a security threat . In short, we believe that
democratically committed separatists should not be regarded as a national
security problem . Thus, we consider it to be outside of our terms of reference to
recommend to the government whether or not such individuals should, be
barred from some, if not all, positions within the Federal Public Service . If the
government should decide to restrict these individuals from public service
employment, and further, if the government assigns an agency to collect and
report information about separatists for staffing purposes, then we strongly
urge that (a) this agency not be the security intelligence agency and (b) this
agency not have intrusive investigatory powers . We realize that an agency
without such powers will not likely identify covert separatists who seek public
service employment for questionable motives . Nonetheless, the history of the
last 15 years strongly suggests to us that the problems associated with covert
separatists in public service jobs are insignificant when compared to those
associated with active surveillance of a democratic party . Thus, the May 27,
1976 decision of the Cabinet, a decision which authorized the Security Service
to report separatist information if available, for security screening purposes,
should be rescinded .
(b) Members of Parliament, élection candidates, and surveillance of the
Waffl e
109. As we have stated several times in this chapter, it is essential that the
activities of a security intelligence agency not violate the basic principles and
practices of liberal democratic government . Adherence to this principle, how468
�ever, does not require exempting M .P :s or election candidates from the security
intelligence process . The conviction in 1947 of a Member of Parliament, Fred
Rose, for espionage demonstrated that M .P .s can perform acts damaging to
national security. In so far as investigating M .P .s or candidates is concerned, at
the very least the laws and •guidelines that we shall recommend in the following
chapter for the use of intrusive investigative techniques should be applied with
an extra degree of caution . There is a significant difference between the
investigation of `subversives' in a private club or ethnic organization, business
corporation or trade union, and the investigation of `subversives' in political
parties, especially those represented in Parliament and provincial .legislatures .
The competition of political parties in elections is fundamental to a democracy :
for the party in power to employ a security intelligence agency to spy on its
political opponents is a grave undertaking, and should be considered only where
there is evidence of a serious threat to the security of Canada as defined by
Parliament . In the past the Security Service and those directing it have not
been sufficiently .aware of the significance of such an undertaking, as testified
to by some of the Security Service's activities in relation to the Parti Québecois . Nowhere is there a stronger case for control of intrusive investigative
techniques, for the independent review of the use of such techniques, or for
accountability to Parliament through a committee representative of all parliamentary parties, than in security intelligence activities related to M .P .s and
candidates .
110 . We examined many of the Security Service files on persons who were
members of Parliament between 1974 and the election of May 22, 1979 . This
examination, together with information obtained through informal meetings
with Security Service personnel, reveal that there are . a number of reasons for
collecting and retaining information about Members of Parliament . We think
it worthwhile reviewing these reasons in order to give some indication of how
the general principle we have stated above should be applied and to consider a
number of policy issues that arise . In doing so we shall give some examples
described in such a way as to make it most unlikely that even the M .P.
concerned would be able to identify himself as the subject . The examples, of
course, are based entirely upon the Security Service records . We have not
necessarily included all of the information on each file . The Commission has
not attempted to test the accuracy of the information . The point is not whether
the information collected is true or worthwhile, but that it illustrates the
various reasons put forward by the R .C .M .P . for collecting information about
M .P.s . In the next chapter of our Report, we make several recommendations
about the kinds of information in general that a security intelligence agency
should and should not record .
111 . One important reason for keeping `security relevant information' on file
on M .P .s (or candidates) is that if their party forms the government, the Prime
Minister may wish to consider an M .P. for appointment to the Cabinet or as a
Parliamentary Secretary . We will consider below some of the issues which arise
in .determining what information is `security relevant', but there will unquestionably be cases in which the Security Service in its investigation of security
threats does come upon information that is clearly security relevant .
469
�Case l :
- an informer reported that the M .P . was a friend of a suspected agent of
a foreign country's intelligence service ;
- the M .P . was visited by a diplomat who was not a suspected intelligence
officer but was from another Communist country ;
- The M .P .'s name and address were found among the effects of a
diplomat from that country who was identified as being involved in
clandestine intelligence activities .
In our view the first and third items should be kept on file about any person
because it may well turn out to have operational significance in investigating
the activities of a foreign intelligence agency . It should not matter that the
person involved is a Member of Parliament . If the proposal which we develop
later in our Report is accepted, calling for a Joint Parliamentary Committee on
Security and Intelligence with access to important confidential information, the
case against protecting Members of Parliament from legitimate security intelligence investigations will be even stronger . The second item should be recorded
in only those cases (such as Case 1) where other information relating to a
potential security threat exists . Such an item should not be recorded if it stands
in isolation
112 . On the other hand, if there is no security relevant information about the
M .P ., there is no justification for opening a file . Take for example the following
case:
Case 2 :
- a file was opened when an M .P. was appointed Parliamentary Secretary
- there was no other information on the file .
In this case there was clearly no justification for opening the file .
113 . In a number of cases a file had been opened on a person before he
became a Member of Parliament . Here again, if the file was opened because
there was security relevant information on it, then it should certainly be
retained after the individual is elected to Parliament . Election to Parliament
should not in itself be a reason for destroying information which associates an
individual with a threat to security, but if, as is true with a fair number of these
files, the file was originally opened at a time when the person applied for
employment with the Public Service, it is unacceptable that the file be
maintained as an "M .P . file", unless there is additional security relevant
information on it .
114 . We turn now to the much more difficult question of what information is
sufficiently relevant to security to justify its being kept on file . Our guide here
must be the definition of targettable security threats which we have recommended earlier in this chapter for the statutory mandate of the security
intelligence agency . Although the issues we examine here are in the context of
M .P .s and candidates files, most of them apply to the retention of information
about persons who are not M .P .s or candidates .
470
�Files opened because of foreign travel and contacts with foreign diplomat s
115. In many files the information recorded was about travel to Communist
countries or contacts with Communist diplomats .
Case 3 :
- the file was opened on the M .P . when he called on an officer of the
Security Service with regard to a proposed visit to Canada of a certain
group of persons from a Communist country ;
- many persons who had emigrated to Canada from that country resided
in the M .P .'s city ;
- the M .P . and other M .P .s had visited the U .S .S .R .
Case 4 :
- the file was opened on an M .P . when he declined an invitation to a
Communist country's embassy reception ;
- he later became a Minister and his file records contacts with Soviet bloc
officials and visit's to several Communist countries on official business .
Case 'S:
- the file was opened on an M .P . because a woman had contacted a
Communist bloc embassy on behalf of the M .P . with regard to visas . for
constituents ;
- the M .P . had declined an invitation to a Cômmunist country's embassy
cocktail party .
Case 6 :
- a file was kept active because of the M .P .'s frequent attendance at
Soviet bloc embassy functions ;
- the file noted that "Our sole concern in this regard is that (the M .P .)
may be the target of an agent of in fl uence campaign on the part of the
Soviet bloc" .
These cases raise at least two questions : first, whether the security intelligence
agency should record apparently innocuous travel to Communist countries and
second, whether the security intelligence agency should record apparently
innocuous social or business contacts with Communist bloc embassies or
officials .
116. We think that very great caution should apply to the collection and use
of this foreign contact information . Our views on this point apply not only to
M .P .s and candidates but to all persons subject to security screening . The
Security Service has been known to collect systematically, information on all
persons who travelled to Communist bloc countries . If information about such
apparently innocuous contacts or travel is reported or is thought to be reported
in the security screening process, some Canadians will be deterred from having
perfectly acceptable, indeed entirely desirable, contacts with the Communist
world . If it is thought that one earns a "plus mark" for declining an invitation
to a reception at a Communist bloc embassy but a "minus mark" for accepting
an invitation, then our politicians and other citizens, if they wish to rise to
positions of responsibility in Canadian government, will be careful to avoid all
contact and communication with the Communist world and its representatives .
471
�We think this would be extremely detrimental to the opportunity of all
Canadians, including their political leaders, to acquire first hand knowledge of
the Communist world . No reasonable Canadian wants that result . Furthermore, we believe that it is a waste of resources for a security intelligence
agency to collect and record such innocuous information, without there being
additional reason for suspicion .
117 . In Part VII of this Report we consider in detail the entire security
screening process and make recommendations on the major policy issues . There
we recommend that an independent review tribunal be established to hear
appeals from those individuals whose careers have been or are suspected of
having been adversely affected by federal government screening procedures .
We envisage M .P.s having access to this tribunal which provides an important
protection against the misuse of information in the security clearance process .
The protection against the misuse of information about an M .P . who is being
considered for a security sensitive position in the Cabinet or Parliament must
also rest with the good judgment of his leader . The names of such M .P.s should
be given to the security intelligence agency . That agency should report only
information which indicates a significant association with an activity which
threatens Canada's security . This information should be reported only to the
Prime Minister or party leader .
118 . One further point should be noted about foreign contact information .
Nearly all of the information of this kind in the M .P .s' and candidates' files
relates to Communist bloc countries . Many other countries, of course, have
secret intelligence agencies, and none of them, so far as we can ascertain, has
declared Canada off-limits . We think that the security intelligence agency
should not be so preoccupied with the Communist threat as to neglect the
possibility that relationships between M .P .s and non-Communist countries may
also develop in a manner which threatens Canada's security . This points up the
need for balance and sophistication in the direction of the security intelligence
agency's targetting .
Files opened because of expression of political opinio n
119. In many files on M .P.s and candidates the information included opinions
expressed before or after being elected to Parliament :
Case 7 :
-'The file was opened on a person before he became an M .P ., when he
was opposed to certain policies of a foreign state ;
- after he became an M.P. the file was maintained because of the
possibility that certain organizations considered 'subversive' and certain
foreign governments might try to influence or use him, in which case
(according to the rationale expressed for maintaining the file) the
Security Service should be in a position to warn him of the possibility of
a compromise or of pitfalls .
Case 8:
- an M .P .'s file was opened because an article in a Communist Party
newspaper reported that speeches delivered by him recognized a need
for a grass-roots peace movement ;
472
�the file contains references to views expressed by leaders of the Communist Party as to whether the Communist Party should support, the
M .P . or run its own candidate against him ;
- the file contains the comment that "In spite of numerous references
made about [the M .P .] by [the Communist Party of Canada] people,
there is no firm indication of any affiliations or outward support by him
for the Party" . The note concluded that therefore "Little significance
is . . . placed on these references" ;
- the reason given for maintaining the file was "to monitor any new
information in the event investigation and/or interviews become
necessary" .
Case 9 :
- a file was originally opened on a person prior to his election to
Parliament when a security clearance was required . The report praised
his character ;
- later when he was elected to Parliament, the file was transferred to the
M .P . s category of files ;
- the next item on file records his public criticism of certain legislation ;
- several years later the continuance of the file was justified in part 'by
the fact that he supported "grass roots" .politics .
Case 10:
- a file was opened on an M .P . because a persori being interviewed by a
Security Service member in a proper counterespionage operation happened to mention in a quite unrelated way that the M .P . wanted to
launch a campaign to examine the activities of the R .C .M .P .
Case 11 :
a file was opened many years ago when the person was 'elected to a
municipal body ;
when he was elected to Parliament, his election was recorded as were
the'results for other candidates of certain of the political parties ;
several years later, after public statements of the M .P . had been
recorded on file, a review memo stated that his reputation was that he
was "anti-security and anti-R .C .M .P ." .
Case 12 :
- a file was opened on an M .P. because, after being interviewed by a
Security Service member to whom his name had been given as a
reference by a person who had applied for security clearance, the
R .C .M .P . officer reported that he considered the M .P . to be "somewhat
officious and abrupt" . The memo on file noted that the M .P.'s attitude
may have been due to the fact that the House of Commons was about
to meet and time was short . (The Security Service,member in question
advised us that he recorded his impression as it might alert someone
else in a future investigation . )
120 . In all of these cases (and there are others) we cannot see the security
relevance of the information, whether its eventual use is for security clearance
or operational purposes : Indeed the cases show that members of the Securit y
473
�Service have not understood the difference between legitimate political dissent,
which is essential to our democratic system, and such political advocacy or
action as would constitute a threat to the security of Canada . One mistake that
appears in a number of these files is the conclusion that because a person
supports a policy option in Canadian politics which is also supported by the
Communist Party of Canada, that person and the advocacy of the particular
policy option are threats to the security of Canada . It would be just as wrong to
categorize support for, say, capital punishment by a committee of Chiefs of
Police as possibly subversive because it is also the position favoured by a
violence-prone right-wing political group such as the Western Guard . The kind
of thinking reflected in these files shows both an anti-left bias in the judgment
of members of the Security Service and a tendency towards the worst kind of
`guilt by association' . Such files should be destroyed .
121 . Cases 11 and 12 illustrate a particularly dangerous tendency to open
files on persons who have done nothing more than take a special interest in the
Security Service . Here we are reminded of the fact that one category of
Security Service files is devoted to individuals who have criticized the Security
Service . We think it is wrong to collect and keep information on file solely
because a person has criticized or who is perceived to have criticized the
security intelligence agency or has been "somewhat officious and abrupt" with
one of its members . Files containing nothing more than information of this
kind should be destroyed . This is not to say that the security intelligence
agency should not collect information about the activities of foreign intelligence agencies or genuinely subversive groups which may be directed towards
destroying the effectiveness of the security intelligence agency .
122 . These files further illustrate our reasons for recommending that the
security intelligence agency must be staffed and led by persons capable of
better judgment than was shown in these cases . They also point to the
importance of having an independent review body (a proposal we will develop
in detail in Part VIII, Chapter 2) to review the agency's files periodically to
make sure there is a reasonable connection between the information in its files
and threats to the security of Canada as defined by Parliament .
Files opened because of associations with 'subversive' individuals or groups
123 . There are numerous ways in which M .P .s and candidates may be
associated with individuals or groups that are under investigation for security
reasons . We believe it is impossible to formulate precisely the kind of association that may justify opening a file, but two cases may illustrate situations on
either side of the line :
Case 13 :
- a file was opened on an M .P . because he had a contractual arrangement
with a person under investigation by the Security Service ;
- a year later the M .P . was considered for appointment as a Parliamentary Secretary . It was reported that he had no adverse record ;
- in 1978 the file was reviewed and destruction recommended .
474
�Case 14 :
- a file was opened on a man because it was reported that a woman
suspected of being a Communist had given the man's wife's name as a
reference for security screening purposes ;
- when the man was elected to Parliament, the file was tranferred to the
M .P . s category :
- when he was being considered for an appointment to a position where
he would have access to classified information, the Security Service
advised that there was "No Adverse Record" but went on to note that
he had attended a Soviet reception and that some years earlier his wife
had a friendship with a suspected member of the Communist Party of
Canada . (This was not based on the information which had caused the
file to be opened) .
124. In Case 13, assuming there was reason to believe that the person was
involved in an activity threatening the security of Canada, it was reasonable to
keep the information about his association, since it might turn out to be
important in the investigation . The information was not misused in the security
clearance process and it was reasonable to recommend in 1978 that the file be
destroyed . But in case 14 the association was too tenuous to justify opening a
file in the first instance, and the information, which was not relevant to
security, was not accurately reported when used in the security screening
process .
Files opened because of personal characteristics and behaviou r
125 . A number of files contain information, not about political beliefs or
associations, but about behaviour which, in the judgment of the Security
Service, is relevant to the likelihood that an M .P . might be threatened with
blackmail by a hostile foreign intelligence agency . Consider the following
cases :
Case 15:
- the sole reason for opening a file on an M .P . was that his name
appeared on a list, of "known or suspected homosexuals", prepared by
another police force .
Case 16:
- the sole reason for a file on an M .P . was a memo recording that an
informer of .unknown reliability had said that a second person had told
him that the M .P . was "gay" ;
- the security screening branch recommended that the file be retained
because although the information "is inconclusive and is now of little
significance .
.. it could be exploited by a foreign intelligence service" ;
- when the M .P . was being considered for appointment to a position
where he would have access to classified information, the Security
Service advised, in somewhat contradictory fashion, that he had "No
Adverse Record" but added "There is an unconfirmed report that he
may be homosexual" .
126 . We believe that some of the files we have examined should not have
been opened by the Security Service . We agree with Lord Denning, who, in his
475
�Report in 1963 on the circumstances leading to the resignation of the Secretary
of State for War, Mr . J .D . Profumo, made this important statement about the
relationship of the behaviour of prominent public figures to security :
All the rumours reported to me were to the effect that a Minister or person
prominent in public life had been guilty of immorality or discreditable
conduct of some kind or other. But it is not every piece of immorality or
discreditable conduct which can be said to be a "security risk" . In my
opinion immorality or discreditable conduct is only a security risk if it is
committed in such circumstances that it might expose the person concerned
to blâckmail or to undue pressures which might lead him to give away
secret information .22
Thus, in some cases, there was no evidence recorded on the file that the
behaviour of the M .P.s was in "such circumstances that it might expose the
person concerned to blackmail or to undue pressures" . Indeed, there was no
reliable evidence on either file that the conduct was even "immoral" or
"discreditable" .
127. In Part VII, Chapter 1, we shall return to the question of the circumstances in which the security intelligence agency should collect and report
information on the behaviour of Ministers and public servants . There we shall
argue that the agency should be interested in the so-called "reliability" (as
distinguished from "loyalty") dimension of security screening for the Public
Service in two instances : first, when the conduct relates directly to a security
threat as defined by Parliament (for example, a senior official having an affair
with a suspected foreign intelligence agent) ; and second, when the conduct
results in a significant risk of blackmail (for example, an official with access to
classified information, involved with a prostitute) . We think that these principles should apply to M .P .s and candidates . If they had been applied in the past,
some files would not have been opened .
Briefing M.P.s on security threats
128 . As we noted in a number of the cases we examined, the Security Service
often collects information on an M .P .'s contacts with Soviet bloc officials so
that it can warn the Member if there is reason to believe that these officials are
intelligence officers using their diplomatic status as a cover for clandestine
espionage or political intervention activities .
129. In principle, this type of warning or briefing is an acceptable kind of
`countering' activity . (We shall discuss the full range of countering activities in
Chapter 6 of Part V .) But the security intelligence agency's briefing of M .P .s
and candidates must be conducted on an open and candid basis . The M .P .s'
files indicate that there has been a conscious programme on the part of the
Security Service to use interviews with M .P .s arranged for one purpose (for
instance, because an M .P . has been named as a reference by a person applying
for a security clearance) as opportunities for conducting dialogues about the
activities of Communist bloc intelligence officers . In our view, members of the
security intelligence agency should approach the M .P .s with open and candi d
21 Cmnd . 2152, paragraph 294.
476
�explanations of why they wish to speak with them . We are confident that M .P .s
will understand and accept such open approaches, whereas to continue with
subterfuge can only, in the long run, undermine Parliamentary confidence in
the security intelligence agency .
Election candidates
130 . On April 25, 1978, a newspaper report based on an anonymous letter
sent to several newspapers (a copy of the letter was sent to this Commission)
quoted a document purporting to be "I" Directorate (an earlier name for the
Security Service) Policy Instructions dated Januar y 1, 1971, entitled "ELECTIONS - Federal, Provincial, Municipal Subversive and Separatist Activities
Within" . The Security Service does not retain discarded pages from its
manual . Consequently there can be no absolute confirmation that the policy as
of 1971 was as indicated in the document disseminated anonymously . However,
we are satisfied that it was quite probably genuine, as the content is, for all
practical purposes, the same as the policy which existed throughout most of the
1970s, and which has only recently been modified .
131 . The `election policy' of January . 1975 stated that field units were to
report on
All election candidates (federal, provincial and municipal) who are of
.
significant and continuing subversive interest . . regardless of their organizational affiliation, political orientation or geographic location . . . The term
'of subversive interest' will apply to candidates who run for office under the
banner of a known subversive or separatist group or is himself a known
subversive or separatist . These individuals should be the subject of a
Security Service file at the Division or H .Q .'s level . . .
Although "Election" files are of value to the security screening programme,
their main purpose is to gather statistical information for various briefs,
comparative analysis, and federal government requirements .
The information to be supplied included the percentage obtained by the
candidate of the total vote cast and the identity of the official agent . In the
case of a municipal election, the information was to include an assessment as to
"whether or not conditions are favourable with respect to subject being able to
exercise his/her political philosophy" . Other information expected to be submitted as being "of intelligence value" included the identity of persons giving
donations of amounts in excess of ten dollars to the candidate's campaign . A
group of officers, each in charge of an operational branch of the Security
Service, told us that they did not know what the words "federal government
requirements" meant . We view with great alarm the Security Service having
involved itself in the country's political process to this extent, even where no
security problem was evident .
132 . The direction given to the Security Service in May or June 1975 - that
it should not investigate separatists unless their activities bring them within .the
six categories of activities referred to in the Cabinet Directive of March 27,
1975, - did not seem to have had any effect on the `election policy' or the
manner in which it has been carried out . In other words, until recently, report s
477
�have been expected on any candidate who is `known' to be a separatist in the
sense that there is already a file on him .
133 . The current policy as expressed in the Security Service's operational
manual requires that area commander s
Within one month following federal, provincial and municipal elections
(including by-elections) submit to Headquarters a report outlining :
l . The percentage of votes obtained by each candidate on whom we have a
record of activity described in [the relevant sections of the 1975
mandate which relate to "subversion" . ]
2 . The impact on candidates created by groups or individuals on whom we
have a record of such activity .
3 . The impact on the results of the election created by groups or individuals on whom we have a record of [subversive] activity .
134 . This policy is an improvement on the January 1975 statement cited
above, provided that the 1975 mandate is not interpreted to include non-violent
separatists as security threats . Our concern with the current policy, therefore,
is not that it encourages improper acts so much as whether there is a genuine
need for a policy on elections . If an individual identified as a security threat
runs in an election, an analysis of that election should quite properly be made,
evaluated and put on file . If the individual is elected, then the security
intelligence agency should likely make an evaluation as to whether his new
position of power implies some increased ability to endanger the security of the
nation . We also believe that it is appropriate for a security intelligence agency
to analyze broad political trends in the country so that it has a context in which
to understand the significance of political activity which is genuinely subversive . Having said this, we see no need for a mechanical reporting process in
which each field commander sends reports to Headquarters after each election .
Such activity appears to us to be a poor use of security intelligence agency
resources .
Surveillance of political parties: the N.D .P .'s Waffle Group
135 . The Waffle came into being at the National Convention of the New
Democratic Party in October 1969, when a resolution was put forward by
Professor Mel Watkins and his supporters calling for an independent socialist
Canada . This resolution, which became known as the Waffle Manifesto, was
supported by the left wing of the Party but was defeated at the Convention .
Waffle supporters continued to work as a group within the N .D .P. until the
summer of 1972 when the Ontario Waffle Group was formally expelled from
the provincial party . The Waffle was non-violent and did not advocate the
overthrow of democratic government .
136. In November 1977, there were questions in the Ontario legislature about
an alleged investigation by the R .C .M .P. of the New Democratic Party during
the 1971-73 period . On December 9, 1977, the Honourable Roy McMurtry,
Attorney General of Ontario, after receiving a report from the Federal
Solicitor General and the R.C .M .P ., told the legislature that there had not
been any investigation into the activities of the New Democratic Party nor had
478
�any entries of N .D .P. premises or offices been committed by an agent or
members of the R .C .M .P . However, he was informed that the R .C .M .P . had
conducted an investigation into the activities of certain members of the Waffle
Grotip between 1970 and 1973 . In his statement to the Ontario Legislature,
Mr . McMurtry quoted from the R .C .M .P . report as to the reasons for the
investigation :
(a) When the Waffle group came into being, it invited persons outside the
N .D .P . to join its ranks . These persons included ex-members of the
Communist Party of Canada and members of the Canadian Trotskyists
movements . The leaders of the League for Socialist Action (Trotskyists), in fact directed their members to join the Waffle group .
(b) The R .C .M .P. investigation of certain members of the Waffle group
established that subversive elements penetrated the N .D .P . through the
Waffle in order to gain more respectability, credibility and influence .
Although the R .C .M .P . investigation concentrated on individuals of
security interest, inquiries were broadened sufficiently to put the
activities of these individuals in proper perspective . The investigation
was de-emphasized after the N .D .P . decided to rid itself of the Waffle .
The individuals of concern to the R .C .M .P., having lost the legitimacy
of membership in the N .D .P ., also lost interest in the Waffle . The
R .C .M .P. concern with these individuals was not reduced but any
concerns that the R .C .M .P . had that these subversive elements were
using the Waffle as a means of penetrating the N .D .P . and therefore as
a means of acquiring credibility and influence was [sic] accordingly
eliminated .
(c) During the period referred to in paragraph (b) above, the R .C .M .P .
concern with individuals in the Waffle was increased when it was found
that a Canadian news media person, closely associated with leading
people in the Waffle, was meeting clandestinely with Konstantin
Geyvandov, a Russian K .G .B . Intelligence Officer, who between
August 1968 and September 1973, operated in Canada as a Pravda
correspondent. The R .C .M .P . investigation confirmed that this Canadian provided reports to Geyvandov during these clandestine meetings
and on at least six occasions was paid money by Geyvandov . Amongst
other things, the Canadian was specifically asked by Geyvandov to
provide reports to him on the N .D .P . and the Waffle .
(d) The R .C .M .P . believed that Geyvandov's purpose in seeking such
reports was to assist the Russian K .G .B . Intelligence Service in deciding whether the Waffle group or any of its members were worthy of
further attention by the K .G .B .
(e) Geyvandov returned to the Soviet Union in September of 1973 . On
January 8, 1974 the U .S .S .R . Embassy in Ottawa was advised by the
Department of External Affairs that because of activities unrelated to
his work as a journalist, Geyvandov would not be permitted to return to
Canada .
(f) Consideration was given by the R .C .M .P. to the possibility of laying a
charge against this Canadian news media person but the conclusion
reached was that no charge could be laid .2 3
zJ Ontario, Debates, December 9, 1977 .
479
�137 . Our examination of R .C .M .P . counter-subversive policies over the past
decade has given us additional information on the R .C .M .P .'s interest in the
Waffle Group . First of all, it is useful to place R .C .M .P. activity with regard to
the Waffle in context . In the 1960s there was a shift of interest within the
Counter-Subversion Branch of "I" Directorate (now the Security Service)
away from the activities of Communist and front organizations to new political
groups and movements which were sympathetic to the use of force or violence
to achieve political purposes : student radicals of the New Left, domestic
terrorists and militant members of some ethnic organizations . In addition, the
Counter-Subversion Branch began to take an interest in the activities of a
significant number of radicals who were non-violent in nature . The officer in
charge of the Counter-Subversive Branch described some of the implications of
this shift of emphasis in graphic terms in a letter to field units in September
1972 . He noted that, in addition to the Communist Party and front groups,
subversive activity, as defined in Canada by the Security Service, fell into two
main divisions :
. . .The first division includes those individuals and organizations who constitute a violent revolutionary threat, such as Maoists, Trotskyists, violent
elements of the New Left, right wing extremists, Black Power advocates,
and terrorist-oriented organizations such as the F .L .Q . or urban guerrillas .
Intelligence coverage and counter-measures in these cases will entail
expanded human and technical source coverage, the initiation of legal
action through co-operation with police agencies and government departments such as Immigration, and any such other measures deemed necessary
by the Security Service to contain, defuse or neutralize the threat posed by
such individuals or groups . . .
The second primary division of interest includes essentially non-violent
elements whose major strategy, whether individually or collectively, is to
infiltrate or penetrate existing groups or institutions for the purpose of
promoting dissident or subversive influence aimed ultimately at promoting
revolutionary activity . Such elements are comprised of individuals or groups
in the New Left, those in Trade Union organizations, and those in Key
Sectors of society such as government, education, the mass media and
political parties . It is in these areas that an increased awareness and
consciousness of social change on the part of the Security Service will serve
to ameliorate situations which could become polarized, extreme, and thus
potential threats .
. .
138 . We find such a wide definition of subversion dangerous and unacceptable because it does not clearly distinguish radical dissent from genuine threats
to Canada's security . Under our definition of security threats developed earlier
in this chapter, a security intelligence agency would have no business instituting surveillance of any person or class of persons by reason only of his or their
involvement in lawful protest or dissent . Indeed, we have recommended that a
clause to this effect be included in the legislative mandate of the agency . Even
in the case of what we have called "revolutionary subversion", meaning
activities directed toward the destruction or overthrow of our liberal democratic system of government, a security intelligence agency should use only
non-intrusive means to collect information on such groups or individuals unless
there is some reason to suspect foreign interference, espionage, or politica l
480
�violence . The other ambiguous and potentially dangerous aspect of this definition of subversion lies in the phrase "Intelligence coverage and counter-measures in these cases will entail . . . any such other measures deemed necessary by
the Security Service to contain, defuse or neutralize the threat posed by such
individuals or groups" (our emphasis) . We are deeply disturbed by such an
attitude, especially after hearing evidence on the Checkmate operations and
other countering activities of the Security Service . We shall have more to say
on countering operations in Chapter 5 of this part of our Report .
139. Given the context, then, in which the counter-subversion branch was
operating, it is not surprising that the Security Service's interests in the Waffle
were broader than those described in Mr . McMurtry's statement . Below is a
portion of a memorandum to Divisions dated December 29, 1970 from the
counter-subversion branch :
We are obviously not interested in the normal activity of any legitimate
political party as such, however, we do have a responsibility to investigate
information of a potentially subversive or espionage nature within such
parties . Because of its socialist nature, the NDP has always attracted
subversive and radical elements in society . However, it has become increasingly apparent that these elements are now polarizing around the Waffle
Group in even greater numbers, particularly in view of the willingness of
the Waffle leadership to accept dissident Communists, Trotskyists and
"leftists" generally in an attempt to unite the "left" . Consequently, the
Waffle Group is of particular interest due to the number of persons of
subversive interest involved, especially on the National Leadership Committee and the National Steering Committee . As will be noted in the attachment, only ten of a total 32 individuals were elected to the Steering
Committee at the Waffle National Convention . We are extremely interested in learning the identity of the remaining 22 individuals who were to be
chosen as follows ; two from the National Leadership Committee and 20
from the various provinces . We are also interested in the objectives of the
Waffle as a group, and, together with such information as outlined in the
following points, this may serve as a guideline for the submission of reports
on the file "New Left Activities in Political Parties" ;
(a) Penetration by individuals and/or groups of a subversive nature ; their
aims and objectives in relation to the political party . To include
information on executive positions held by such persons .
(b) The influence which individuals of subversive interest exert over other
party members .
(c) Resolutions put forward for party policy by individuals of subversive
interest .
(d) Recruitment activities within political parties by individuals of subversive interest .
140. In 1972, the Security Service's interest in the Waffle was premised on
an additional reason - the Waffle's "extreme left posture" . As well, the
phrase "objectives of the Waffle as a group", quoted in the memorandum
above, was more clearly defined as "National aims, strategies and planned
tactics of the Waffle leadership", especially those which were not publi c
481
�knowledge . Consider the following excerpt from a memorandum from the
Counter-Subversion Branch, dated February 25, 1972 :
With respect to political parties, the area of primary (almost exclusive)
concern at present is the N .D .P . Waffle Group . Although Security Service
general interest in Waffle has been mentioned in previous correspondence
to the field, we have tended to avoid delineating specific areas of interest
with the result that reporting often-times deals with largely innocuous
matters, much of it available through the mass media and other overt
sources . It is hoped that human source coverage of Waffle will be reserved
for more penetrating insight and analysis .
Commencing from the premise that our interest in the movement is made
obvious by the extreme left posture it has adopted, and because so many
persons of interest to us have gravitated towards its ranks, it does not follow
that we are interested in all that the Waffle Group does . That should
eliminate one of the first apparent misconceptions and underline the need
for greater selectivity in reporting information to H .Q .
By way of broad parameters, we are interested in determining National
aims, strategies and planned tactics of the Waffle leadership, especially
when insights we develop go beyond their open, public announcements .
That is, do they have designs which exceed their publicly declared aims
and, if so, by what means (strategies) do they hope to attain them and,
where possible, some estimate of their probability of success in effecting
those ends would certainly place areas of concern in a more balanced
perspective . Until these major, national questions are resolved, there hardly
seems any point in reporting about grass roots activity, local Waffle
councils, attendance at meetings, membership below executive, etc .
141 . Contained in this memo is a good illustration of the Security Service's
inability to distinguish radical dissent from threats to national security . A
non-violent political group's "extreme left posture" should provide no rationale
whatsoever for a security intelligence agency to use intrusive intelligence-gathering techniques to collect information about the group's activities and intentions . Moreover, it is even more objectionable when such à' rationale is used to
justify the collection of information about an element of a legitimate political
party which is in opposition to the party in power .
142. A final point of interest concerning the Waffle was that the Security
Service kept the Solicitor General informed of their interest in this group . A
brief on the Waffle was forwarded to the Solicitor General, Mr . Goyer, and to
the Privy Council Office with a letter dated March 5, 1971 . The letter noted :
Attached for your information is a secret paper prepared by the Security
Service on the Waffle group of the New Democratic Party. The growing
interest and participation of subversives and radical elements within this
group since mid 1969, prompted the preparation of this material which has
been gathered through our normal intelligence role, and not through any
investigation of a particular political party .
At present the Waffle is of interest from a security point of view and is
rapidly becoming a faction within a political party around which radicals
may polarize and subsequently be a viable political force in the N .D .P .
482
�The delicate position of the government in matters relating to another
political party is appreciated, however, I feel you should be kept informed
of these developments .
143. The brief described how the Waffle came into being, its leadership, its
objectives, the support of the Waffle for the separatist movement in Quebec,
and the influence of Communist and Trotskyist radicals in the group . The brief
concluded :
The prime aim of the Waffle group within the N .D .P. is the establishment
of an independent socialist Canada to be achieved through the existing
structure of the New Democratic Party . The Wafflé Group hope to change
the N .D .P. from within and radicalize the N .D .P . socialist policies .
Considering the Waffle Group as a whole, it is felt that they will be a viable
political force within the N .D .P . In its present relatively infant form, the
Waffle Group is rapidly becoming a melting pot for. radicals of all "Left"
groups as well as for dissident members of the Communist Party of Canada .
Attached to the brief were notes on some individual members of the Waffle
who apparently were of particular interest because they had contacts with
Communist or Trotskyist front organizations . We believe that it is unnecessary
and indeed undesirable to provide the Solicitor General with detailed information on individuals who are in any political party, unless of course, the
information indicates that the activities of such persons are likely to threaten
the security of Canada, or the investigation has reached a stage where specific
action, such as a request for a warrant or the laying of a criminal charge
against such individuals, is being considered . A security intelligence agency
must exhibit extreme care when circulating information about individuals . In
Chapter 5 of this Part, we shall be recommending the establishment of
guidelines which would state explicitly the conditions under which such
information should be distributed .
144 . To complete our review of the surveillance of the Waffle Group by the
Security Service we turn to the matter of the KGB intelligence officer
mentioned by Mr . McMurtry in his earlier quoted statement to the Ontario
legislature . It is both proper and necessary, in our view, for a security
intelligence agency to investigate the activities of known or suspected foreign
intelligence officers . Such investigations, however, should not extend to the
surveillance of an entire wing of a political party where there is no evidence (as
in the case of the Waffle) that it is engaged in espionage, political violence, or
clandestine interference in Canadian affairs on behalf of a foreign power .
145 . In conclusion, the Security Service's surveillance of the Waffle Group is
an illustration .of some of the major problems that have plagued Canada's
security intelligence function over the past decade : the lack of vigorous review
and monitoring of Security Service activities by government ; the lack of a
clearly defined mandate for the Security Service ; and insensitivity on the part
of the Security Service about what constitutes legitimate dissent in a liberal
democracy and about the dangers inherent in any surveillance of a non-violent
political party . All of these problems require attention if Canada is to avoid
future activities akin to the Security Service's investigations of the Waffle . As
we noted in our discussion earlier in this chapter on investigation of the P .Q .
483
�and surveillance of M .P .s, a security intelligence agency must exhibit extreme
caution and sensitivity in deciding to collect intelligence on those active in the
political arena . In the case of the Waffle, this care and sensitivity appears to
have been woefully lacking .
(c) Colleges and universities
146 . One policy issue that has received a good deal of attention from
Ministers and senior officials has been the conduct of security intelligence
investigations in relation to the students and faculty of universities and
colleges . For our purposes, the historical record here can be divided into three
distinct periods :
1 . 1961-1963 : when the federal government established policy with regard
to surveillance of universities and colleges ;
2 . 1964-1970 : when the R .C .M .P . interpreted and applied this policy ;
3 . 1970-1971 : when the government reviewed and refined its policy regarding surveillance of universities and colleges .
As in other sections of this chapter, our examination of this historical record is
focussed on policy, not on actual operations . Two important issues stand out in
this review of the past : first, the relationship of the R .C .M .P . to government in
the development and implementation of security surveillance policy ; and
second, ministerial control of the use of informers by the Security Service .
1961-1963 : the development of policy
147. During the 1950s the R .C .M .P . was preoccupied with the activities of
the Communist Party and front organizations and as part of this overall
programme Communist clubs and student organizations were closely monitored and a number of informants were developed . By 1960 the interest of the
R .C .M .P. had broadened to include the activities of many student and faculty
radicals .
148. Although student violence was not as serious a security threat in Canada
as it was in Western Europe, it was watched with considerable apprehension by
the R .C .M .P . security and intelligence staff . A handful of student activists
were suspected to be behind the first political bombings and thefts which broke
out in Montreal in 1963 . A few years later there were violent confrontations in
several Canadian universities . In 1968, students occupied the Administration
Building at Simon Fraser University in Burnaby, B .C ., and in 1969 students
took over and then destroyed the computer centre at Sir George Williams
University in Montreal . Many arrests were made as a result of these incidents .
Also, there was evidence that violence-prone separatists in Quebec had many
supporters in the universities and colleges .
149 . In 1961, the Minister of Justice, the Honourable E .D . Fulton, apparently reacting to unfavourable publicity about R .C .M .P . activities on campus,
gave verbal instructions to the Commissioner to suspend all investigations of
subversive activities on the campuses of universities and colleges until a review
of the subject could be completed . At the time, the only activities which th e
484
�R .C .M .P . deemed subversive were those of Communist organizations . Consequently, a directive issued by the R .C .M .P. on June 21, 1961, stated that all
investigations connected with "Communist penetration of universities and
colleges or similar institutions" were to be suspended for the time being with
the exception of reports from established human sources .
150 . Yet criticism of the R .C .M .P . continued . On December 14, 1962, the
Honourable Donald Fleming, Minister of Justice, stated in the House that the
R .C .M .P . was not developing sources on campus .24 On January 21, 1963, the
Parliamentary Secretary to the Minister of Justice stated in the House that the
R .C .M .P . was not interviewing students and faculty members about the
political views and activities of their colleagues .25 In June 1963, the Council of
the Canadian Association of University Teachers (C .A .U .T .) passed a resolution which criticized the R .C .M .P . and urged faculty members not to reply to
questions from the R .C .M .P . as to the opinions and activities of colleagues and
students.
151 . On July 31, 1963, representatives from the C .A .U .T . met with Prime
Minister Lester B . Pearson and the Honourable Lionel Chevrier, the Minister
of Justice, to urge the new government to review the security functions of the
R.C .M .P., in particular with respect to investigations carried out on university
campuses . The C .A .U .T . recommended that there should be no general surveillance of the university community, that investigations should not be instituted
by local officers on the basis of verbal information or press reports, that there
should be no recruitment of informers in classrooms, societies or clubs, and
that appropriate guidelines should be established for security clearance
investigations .
152 . A general review of security clearance procedures was undertaken by
government at this time and on October 25, 1963, Mr . Pearson reported to the
House on the policy changes that had been approved by Cabinet . (See Part
VII, Chapter 1, for details of these changes) .
153. On November 15, 1963, representatives of the C .A .U .T . and the National Federation of Canadian University Students met again with the Prime
Minister . After this meeting a formal statement was issued on behalf of the
Prime Minister, the C .A .U .T. and the President of the students' federation . It
stated in part :
There is at present no general R .C .M .P . surveillance of university campuses . The R .C .M .P . does, in the discharge (if its security responsibilities,
go to the universities as required for information on people seeking employment in the Public Service or where there are definite indications that
individuals may be involved in espionage or subversive activities .z b
As we shall see, this statement of policy has been reiterated by the Government
of Canada on several occasions since .
24 House of Commons, Debates, December 14, 1962, p . 2660 .
25 House of Commons, Debates, January 21, 1963, p . 2920 .
26 "R .C .M .P . Activities on University Campuses", C.A .U.T. Bulletin, Vol . 13, No . 2,
October 1964 .
485
�154. At this meeting, according to Security Service files, the C .A .U .T . was
advised that the Soviet Union did not hesitate to exploit university students for
espionage purposes and that all known instances of this were investigated .
There was also a detailed discussion on security clearance procedures since the
C .A .U .T. felt that R .C .M .P . members were inept in the way they conducted
investigations on campus and, in particular, that the R .C .M .P . lacked sophistication and frequently acted on the basis of rumour and unconfirmed verbal
reports . Commissioner McClellan, who was also present at this meeting, was
asked whether faculty and staff or students were being asked to serve as
informers with respect to the opinions and activities of the members of the
university community . He replied (according to the R .C .M .P . record of the
meeting) ;
Since 1961 the R .C .M .P. has not made this kind of inquiry on a university
campus . It should be remembered that it is the information that is obtained
off campus that often relates to activity on the campus .
. ..However, it cannot prevent university staff or even presidents of universities who are concerned with subversive activities in universities from going
to the R .C .M .P . with information .
Commissioner McClellan also stated that there is "no interest in anyone's
opinions or beliefs in a university except where in the field of subversion it is
translated into action" . The R .C .M .P . record indicates that he went on to note :
The R .C .M .P . has operated in the field of subversion for over 40 years and
are in a position to know how ideological subversion is translated into
positive action . It does feel competent to differentiate between the radical
and the conspirator .
155. Headquarters advised divisions, by letter dated December 24, 1963, of
the meeting with the C .A .U .T . This letter did not recite Mr . Pearson's policy
statement verbatim but stated that at the meeting absolute assurance had been
given that there was no general security surveillance of universities or of any
university organizations as such . Furthermore this letter noted the assurances
.
given the C .A .U .T . that it was not the policy of the R .C .M .P . to " . . permit an
investigating officer to ask members of the university body, staff and/or
students, to keep a general lookout for suspicious or subversive opinions or
activities in university affairs" . From the R .C .M .P .'s perspective Mr . Pearson's
policy statement was consistent with the policy established by Mr . Fulton in
1961, a policy which virtually curtailed all R .C .M .P . investigative activity on
campus with the exception of security screening inquiries .
1963-1970: interpreting and applying the policy
156 . The evidence from the R .C .M .P . policy files in this period indicates that
the Force believed it was unduly restricted in conducting investigations on
campus, even in regard to terrorism . Thus, in Quebec, with the emergence of
separatist violence, there was little effort to recruit new sources on campuses
and there was no technical surveillance . In a letter dated July 8, 1968, to the
Royal Commission on Security, a senior officer in the Security and Intelligence
486
�Directorate noted that the R .C .M .P . had not been able to employ on campuses
investigative procedures used prior to 1961 :
It is emphasized, however, that we continued to make use of already
established sources of information, but we did not actively seek new ones .
The situation remains roughly the same at present except that we are now,
in fact, very cautiously endeavouring to develop a few additional sources of
high reliability so that we may be in a position to continue to be informed of
certain campus activities of the subversive element . However, we are not
making any of these approaches on university campuses.
157 : In its brief to the Royal Commission on Security in 1967, the C .A .U .T .
provided confirming evidence of this cautious approach being employed by the
R .C .M .P . The association observed that since 1963 no formal reports of
surveillance on university campuses had reached its national office .27 The
Royal Commission on Security said in its published report that Communist
subversive activitÿ in universities and trade unions was of special significance,
but did not discuss this aspect of the matter further . In the unabridgéd version
of its Report, however, the Royal Commission noted :
More generally, however, it is clear that as a result of government instructions originating in 1961 the security authorities do not operate as effectively in universities as they do in other areas .
158. Despite the Force's belief that the surveillance policy regarding universities was overly restrictive, we found no evidence of any serious attempt by the
R .C .M .P . to have this policy reviewed by government until 1969 . There is
evidence, however, that the Security and Intelligence Directorate attempted to
circumvent the policy. It developed a programme of accelerated `security
clearance' interviews with university faculty members with the objective of
developing friendly contacts who might volunteer useful information in the
future . We cannot condone the use of security clearance interviews as pretexts
for developing informers even though such informers may be unpaid and may
only volunteer information . If the R .C .M .P. considered that the Fulton policy
(if it was ever really intended to apply for more than a year or so) was unduly
restrictive, the remedy was to present the problem to government and have the
policy changed . We have discussed this use of pretext interviews in more detail
in Part 111, Chapter 11 .
1970-1971 : review and refinement of government policy
159. After the October Crisis, senior officials in government were of the view
that the restrictions on R .C .M .P . operations on university campuses should be
relaxed . There was evidence that a significant number of terrorist sympathizers
in Quebec appeared to be employed in the field of education . The question was
discussed at meetings of the Law and Order Committee and the Cabinet
Committee on Priorities and Planning in November 1970 . In December 1970,
the question was placed before Cabinet, supported by a memorandum on
"Academe and Subversion" prepared by the R .C .M .P . which recommended :
(a) that the Security Service be freed from the current restrictions governing its investigations of subversive activities at educational institutions .
27 C .A .U .T . brief to the Royal Commission on Security, p . 28 .
487
�(b) that before such investigations are resumed, careful plans be made for
making public the change in policy and the need for it ; possibly to include
consultations with organizations like the C .A .U .T.
Cabinet, at its meeting of December 23, 1970, agreed that the Security Se rv ice
be freed from "current restrictions" provided no undertaking had been given in
the past to consult with the C .A .U .T . in the event of a change in policy . The
decision was not communicated to the C .A .U .T .
160 . This Cabinet decision, cast as it was in general terms, seems to have
been regarded by some members of the Security Service as overturning the
1963 Pearson policy . The new Solicitor General, Mr . Goyer, who was sworn in
on December 20, 1970, did not view the matter in this light and as a result of
his initiative the question was referred back to Cabinet, which approved the
following explicit statement of policy at its meeting of September 30, 1971 :
(a) -that - the following statement ;-which - was-agreed to by the Canadian
Association of University Teachers in 1963, is confirmed as a statement of government policy regarding the activities of the R .C .M .P . on
university campuses :
"There is at present no general R .C .M .P . surveillance of university
campuses . The R .C .M .P . does, in the discharge of its security
responsibilities, go to the universities as required for information on
people seeking employment in the public service or where there are
definite indications that individuals may be involved in espionage or
subversive activities . "
(b) that no informers or listening devices will be used on university
campuses except where the Solicitor General has cause to believe that
something specific is happening beyond the general free flow of ideas
on university campuses ;
(c) that the current restrictions placed on the activities on university
campuses of the R .C .M .P . Security Service, either written or verbal,
which differ from the policy statement in (a) above be lifted forthwith ;
(d) that the Solicitor General is authorized to inform the Canadian
Association of University Teachers that the policy agreed to in 1963
has not been changed ;
(e) that the Solicitor General make clear to representatives of the Association that while there is no policy of general surveillance on university
campuses or elsewhere, the university campus would not be regarded
differently from any other Canadian institutions where espionage and
subversive activities were involved ; an d
(f) that the Cabinet decision entitled
"Academe and Subversion" of
December 23, 1970, be modified accordingly .
Mr . Goyer met with the C .A .U .T . on October 13, 1971 and confirmed that the
1963 policy statement was still in force . In a letter to the C .A .U .T . dated
November 24, 1971, the Solicitor General added that the "university campus
would not be regarded differently from any other Canadian institution when
espionage and subversive activities were involved" .
161 . Mr . Starnes was concerned that there would be great difficulties if the
Solicitor General were required to give personal approval to operations o n
488
�campus and discussed the question with Mr . Goyer and Mr . Bourne during the
ensuing weeks . On December 13, 1971, the Sôlicitor General wrote to Commissioner Higgitt, giving his instructions as to what was required by paragraph (b)
of the Cabinet decision .
This decision means that if in the judgment of the Director Genéral,
R .C .M .P. Security Service, there is a specific requirement to use informers
or listening devices as investigative aids on university campuses where there
are indications that individuals may be involved in espionage or subversive
.
activities, then the Solicitor General must agree to the requirement before
the use of these investigative aids is authorized .
Accordingly, I would expect to receive from the Director General R .C .M .P .
Security Service a memorandum justifying the use of these investigativé
aids in a specific situation at a university campus on which I would note my
authorization .
In cases of emergency where operational necessity made it impractical or
even impossible to obtain the Solicitor General's approval on time, then the
Director General R .C .M .P . Security Service may authorize the use of these
investigative aids and then report to me within 48 hours of the time of
authorization the full circumstances of the urgent situation .
I should make it clear that I do not expect this procedure to apply to those
who volunteer information to the Security Service about activities on
university campuses and are not paid for the information they provide . My
authorization will be required, however, as stated above, for the use of paid
informants as investigative aids .
Since the matter of R .C .M .P. activities on university campuses has
remained unsettled for a considerable length of time, I would be pleased to
discuss with you your proposed instructions to the Force as soon as possible .
162 . The Security Service carried out a survey to identify for approval by the
Solicitor General those paid informants who were committed to inquiries on
university campuses . (In 1972 there appear to have only been five such cases .)
The Solicitor General was also advised that, there were no listening devices of
any kind deployed on university or college campuses . The Director General
then informed the Minister that there were other sources who went on campus
from time to time but that it was presumed they were not covered by the
Cabinet Directive .
2 . Beyond the category of those paid informants whose campus activity
now requires ministerial authorization, I wish to draw to your attention
those Security Service sources who, although their prime responsibilities lie
elsewhere, do go onto the college and university campuses from time to
time . Often, they are sent there by the organizations which they have
infiltrated . An example of this type of person would be a paid agent who
attends a function [of the targetted group] taking place within the university precincts and who later submits a report on the proceedings which
transpired . Since the area of operations of these informants is only marginally related to campus activities in general, I have understood your correspondence and the Cabinet directive as not necessitating your prior approval for their actions . I hope you will concur that this assessment accurately
reflects the full scope of the Cabinet's instructions .
489
�We note that this seems to be a somewhat unwarranted interpretation of the
Cabinet decision, even though it was accepted by the Minister . The Cabinet
Directive states simply "that no informers or listening devices will be used on
university campuses . ." without the authorization of the Solicitor General . The
.
same observation applies to Mr . Goyer's interpretation in his letter of December 13, 1971, referred to above, that his authorization was not necessary in the
case of unpaid informers . ( It is worth noting that the Senior Executive
Committee of the R .C .M .P ., in late 1979, decided that as a matter of policy,
ministerial authorization should be sought for the use of all informers on
university campuses, whether paid or not . On June 30, 1980, the Commissioner
wrote to the Solicitor General informing him of this internal decision and
suggesting that the matter be reviewed by Cabinet) .
163 . Following this exchange of correspondence between Mr. Goyer and the
R .C .M .P ., Mr . Starnes sent a memorandum to Divisions which interpreted the
Cabinet Directive along the lines of Mr . Goyer's letter quoted above. In
forwarding these instructions to the field, Mr . Starnes, stated as follows:
The enclosed memorandum has been seen and approved by the Solicitor
General .
A first reading of the document may give you the impression that the
effect of this new directive is to make little difference in the restrictions on
Security Service investigations at universities which have existed since
1963 . Though one might wish for a far freer policy in this regard, I feel that
any disadvantages inherent in this policy directive are more than off-set by
the fact that it is the first unequivocal statement we have had in many years
covering our role in this area .
Accordingly, I wish to emphasize that this directive does not mean that
the Security Service will abandon its interest in subversive or espionage
activities which occur within the confines of Canadian colleges or universities . On the contrary, now that there is a well-defined channel by which we
can acquire complete authority for our presence on the campuses, I expect
Division Security Service officers to intensify or maintain, as the situation
warrants, our coverage of the university milieu .
164 . What seems clear from our review of this period is that the R .C .M .P .
felt hampered by restrictions imposed by the Minister of Justice in 1961 and by
the Prime Minister in 1963, but that it chose to live with the restrictions rather
than place the question before the government for clarification . Furthermore, it
then circumvented what it thought to be the policy by using security screening
interviews as pretexts for recruiting `voluntary' sources on university campuses .
165 . From the government's point of view, its policy on university investigations has not changed since 1963 . In fact, in a letter dated January 23, 1978 to
the C .A .U .T ., Prime Minister Trudeau reiterated Mr . Pearson's 1963 statement and, indeed, extended it to apply not only to the R .C .M .P . but also to "all
government security forces" . (The C .A .U .T . had referred in earlier correspondence to an allegation that the Department of National Defence had been
involved in a surveillance operation at the University of Ottawa in 1969 and
1970 .) In his letter the Prime Minister added :
I think it is important to add that, in the extremely difficult area of security
operations, no person in Canada can be regarded as immune from observa-
490
�tion or surveillance if there are reasonable grounds for believing that the
person is, or has been, engaged in subversive activities . This is a point I
made recently to the Leader of the Opposition in relation to a question
concerning surveillance of Members of Parliament .28
Clearly, Mr . Trudeau's interpretation of Mr . Pearson's policy statement was
not the same as that adopted by the Force throughout most of the 1960s . The
R .C .M .P. believed that it was precluded from conducting virtually any investigation on campus .
166 . The current policy regarding Security Service surveillance of universities
and colleges appears sensible to us . The main reason for limiting the activities
of the security intelligence agency on university campuses is that excessive
surveillance will have a chilling effect on the freedom of discussion and debate
which is an essential characteristic of the liberal university . Students and
faculty must feel free to express all-kinds of ideas without any fear that their
views may be recorded in reports by the security intelligence agency to
government . On the other hand, we agree with Prime Minister Trudeau's
observation, quoted above, to the effect that no person in Canada should be
regarded as immune from surveillance if there are reasonable grounds for
believing that the person is participating in subversive activities, so long as
"subversive activities" are defined according to the definition we have proposed
in section A of this chapter . University and college campuses, as well as other
valued institutions in our society, should not be treated as sanctuaries in which
terrorists or secret agents of foreign powers can operate free from surveillance
by the security intelligence agency . A security intelligence agency, however,
should be concerned with only those acts of political violence on campuses that
pose a serious threat to the democratic order . Most attempts by violence-prone
groups to interrupt the process of rational discussion on campus appear not to
fall in this category and should be handled by local police .
167. In addition to agreeing with the current policy regarding universities and
colleges, we also concur with the requirement that ministerial approval should
be obtained before using developed human sources (as described in the next
chapter) on campuses . We say this primarily because of the dangers that an
indiscriminate use of informers can pose to valued freedoms within a liberal
democratic society . As one American author states :
. .. the impact of covert informant surveillance on an American citizen's
sense of privacy is probably greater than the effect of an overt police
contact . The fear of unknown, secret surveillance was one of the main
reasons for the establishment of judicial warrant and probable cause
requirements for electronic surveillance . Hence, the Church committee
placed the use of informants in the category of "intrusive techniques,"
along with mail opening, surreptitious entries, and electronic surveillance . It
found "that their very nature makes them a threat to the personal privacy
and constitutionally protected activities of both the targets and of persons
who communicate with or associate with the targets ." One legal expert has
compared "police spies" and electronic surveillance this way : "The onl y
28 As cited in the C .A .U .T . brief to this Commission, Appendix 18 .
491
�difference is that under electronic surveillance you are afraid to talk to
anybody in your office or over the phone, while under a spy system you are
afraid to talk to anybody at all ."2 9
We shall have much more to say about the use and control of informers both in
this chapter and the one which follows . In Part III, Chapter 9 we have already
outlined some of the legal and policy issues relevant to this area of security
intelligence and police work .
168 . We wish to make one final comment about this historical review of
policy with regard to universities . This episode reveals a pattern of poor
communications existing between the government and the R .C .M .P . In our
view, this pattern of poor communications, which we observed in the previous
section on Quebec separatism and which will be evident in other sections of this
chapter, is due in part to a lack of understanding, both in government and the
R .C .M .P ., of the proper role that Ministers and government officials should
play in security intelligence . This lack of understanding in turn has led to
poorly developed and under-utilized structures in government to handle security matters . We believe that when Prime Ministers, Cabinets or Ministers
`make policy' on operational matters, it is imperative that those responsible for
carrying out the policy report to the responsible Minister as to how the policy is
being interpreted and applied . The Minister should require the security intelligence agency to send him all interpretative bulletins and letters relating to the
policy .
(d) Labour unions
169 . It is clear that many prominent union members are convinced that the
R .C .M .P . has a distorted perception of labour, that its surveillance of the
labour movement has been excessive and that, at times, the R .C .M .P . has
served as a tool of management . Here, for example, is an excerpt from the brief
submitted to us by the Canadian Labour Congress :
The Canadian Labour Congress has, on occasion, had reason to suspect that
the R .C .M .P . attempted to infiltrate legitimate trade unions and has, at
times, employed disruptive tactics in strike situations . . . We suggest the
R .C .M .P . suffers from tunnel vision in its efforts to assess the roles of
legitimate trade unions in this country . The result of this is that the force is
overzealous in creating files on any union member whose activities are
perceived by the R .C .M .P . as subversive . Too often, the right to dissent,
when exercised, is construed as a subversive act .
The C .L .C . brief asked us t o
. . . explore the degree of surveillance to which trade unions are subjected,
the reasons for that surveillance and determine whether the justification for
such surveillance as perceived by the military or the R .C .M .P ., is real or
imagined .
170 . In this section, we deal with the policy of the Security Service on the
scope of surveillance of labour unions . However we do not deal here with the
methods which were employed nor do we deal with the activities in this area o n
29 John T . Elliff, The Reform of FBI Intelligence Operations, Princeton, N .J ., Princeton
University Press, 1979, p . 122.
492
�the part 'of the criminal investigation side of the Force . We should add that in
our third Report, we shall deal with certain specific allegations of R .C .M .P.
illegalities or misconduct with regard to labour unions .
171 . The interest of the Security Service in the Canadian labour movement
has deep roots . Indeed, in the years immediately following World War I the
major preoccupation of the intelligence side of the Force was with politically
motivated violence in labour unions . In 1918 a proclamation was issued by
government, under the authority of the War Measures Act, which declared
illegal a number of anarchist and Communist labour organizations, such as the
Industrial 'Workers of the World and the Workers International Industrial
Union . During the inter-war years regular reports on strikes and labour
violence were submitted by the field to Headquarters . Frequently, the
R .C .M .P . was called in to respond to industrial unrest, most notably during the
Winnipeg general strike of 1919, an event which blackened the image of the
Force in the eyes of labour for years to come .
172. After World War 11 the policy of submitting routine reports on strikes
and labour unrest was changed . Field investigators were directed to report only
on those situations which indicated subversive activity or a likelihood that the
R .C .M .P . would be called in to restore order. Subversive activity in the
immediate post-war period was equated by the Security Service with Communist control or domination of unions or locals . In October 1960, as a result of a
request for information from the Joint Intelligence Bureau (now called the
Bureau of Economic Intelligence in the Department of External Affairs),
Headquarters also directed divisions to report on industrial disputes in which a
slow-down of production, or a strike, was likely to occur . Divisions were
advised that Headquarters was "mainly concerned with Communist-inspired
disputes which could have an adverse effect on the Canadian economy" .
173. The policy of the Security Service with respect to labour unions has not
changed significantly over the past two decades : the Seçurity Service claims to
be concerned with subversive activity within trade unions, not with the
activities of unions generally . For the most part, it has equated subversion with
membership in a Communist or Marxist political organization . Thus, a March
1970 policy directive stated :
2 . Our interest in the labour field is generally confined to establishing the
extent and effectiveness of subversive infiltration and domination of any
labour union or organization .
3 . Reports should be submitted when :
(a) There is any change in the executive which would place or remove a
subversive to/from a position of influence either by election or
appointment .
(b) There is information to indicate the union is receiving support or
direction from any subversive organization .
(c) Information indicates financial or moral support by a union to any
subversive organization .
(d) Information indicates an active subversive caucus . or group exists
within the union .
493
�174 . In the 1970s, the Security Service continued to investigate the penetration of the trade union movement by Communists . The Security Service also
investigated the presence of criminal elements in certain unions, particularly in
the construction industry in Quebec . Here is how one senior officer in the
Security Service, in a letter to the division dated February 23, 1977, described
the objectives of the Service in relation to labour :
Identify and monitor the degree of penetration and/or the effectiveness of
infiltration and domination of any labour organization by subversives,
criminals or persons/groups intent on creating civil disorder or conducting
activities aimed at disrupting or overthrowing the democratic process of
Government ; and, recommending preventive or remedial action .
175 . Under the mandate we are proposing for the security intelligence
agency, these objectives would require substantial modification . (Indeed, we
believe that some of these objectives lie outside of the Security Service's
current mandate .) Thus, under our proposals, it would not be enough to justify
the use of intrusive investigative techniques against a member of a labour
union solely on the grounds that he is a Communist or a Marxist . Rather, the
agency would require some indication of activities related to espionage, sabotage, foreign interference, or serious political violence before it could use paid
informers, electronic surveillance or similar intrusive means for collecting
information about this person . Consequently, a Communist's becoming a
member of a union executive would not be grounds for launching such an
investigation . Nor would a union's receipt of financial support from a domestic
Communist organization necessarily justify close attention by the security
intelligence agency . In addition, "criminals or persons/groups intent on creating civil disorder" would not per se fall within our proposed mandate, nor
would all activities "aimed at disrupting . .. the democratic process" . Such a
broad category might be thought to contain numerous activities - for example, a prolonged Public Service strike or a non-violent occupation of a
government building - which a security intelligence agency should have no
business investigating . Finally "recommending preventive or remedial action"
is far too ambiguous for our liking . It might be used to justify "dirty tricks" or
other questionable countering activities which we believe a security intelligence
agency should not be authorized to undertake . We should add that even when
there are sufficient grounds for launching an investigation of a union, the
security intelligence agency must exercise caution so as to collect and report
only security relevant information .
Criminal activity in labour unions
176 . In the course of reporting on strikes and other labour disturbances, the
Security Service often played a dual role . It covered the activities of persons
considered to be subversive and it reported, usually to the C .I .B . side of the
Force and sometimes to local police forces, on criminal activities that came to
its attention . The reporting on crime within unions was, in a sense, a 'spin off'
of regular security investigative work . The extent to which the Security Service
should let itself become involved with the detection of crime and violence in
unions has been debated extensively within the agency during the last few
years .
494
�177 . Justification for the surveillance by the Security Service of a trade union
organization in 1972 was based on the presence of serious criminal elements in
construction unions . A Security Service brief prepared in 1979 described the
shift in interest which had occurred within the Security Service :
2 . Our interests in the [trade union organization] have been to determine
the number and degree of influence by subversives within the organization .
It was established that from 1959 to 1964 the [union] was infiltrated by
subversives to a minor degree . In 1965, there were seventeen (17) subversives at the [union] convention, however, in 1968 this number was reduced to
six (6) delegates .
3 . During the period 1968 to 1972, the [union] was infiltrated with numerous
subversives, however, their influence was of no consequence due to the fact
that once their communist ideology became apparent, the general congress
of the [union] took steps to have them removed from office at the next
general election .
4 . With the advent in 1972 of . . . , the Security Service began monitoring
the union from a criminal perspective . The major threat to National
Security was perceived as control by criminal elements of the . . . industry . . .
The Service began collecting criminal intelligence and supplied it to the
police force with local criminal jurisdiction for investigation and ultimate
prosecution . As more and more criminal activity was exposed . . [the
.
provincial government set up a commission of inquiry] . [As a result of this
commission] the key members of the . . . unions responsible for the violence
on picket lines, goon squads and shylocking were publicly identified
and removed from any executive position within the unions . At the same
time, various unions were placed under trusteeship.
178. The mandate approved by the Cabinet in March 1975 referred to
"activities directed toward accomplishing governmental change . . . byl.force or
violence or any criminal means" . As we have noted the Director General, in
sending copies of the mandate to his area commanders, interpreted this broadly
to mean that "the use of crime or violence to accomplish any form of change
(not merely the overthrow of the federal or provincial governments as provided
for in the treason provisions of the Criminal Code) will also warrant attention" .
And in a meeting on May 22, 1975, the Director General told his staff that the
Security Service should keep abreast of activitie s
which may give rise to violence and civil disorder in the labour sector be it
for political/subversive reasons or be it for other reasons .
This statement left many questions unanswered and the matter was discussed
again in a Security Service staff paper prepared later in the year :
When criminal elements are able through their influence in unions to
pressure governments to act in a manner favourable to them, it could be
construed as falling within our mandate .
If it is agreed that this is the case, how do we proceed and how far do we
go? We would be clearly encroaching on or at least overlapping with our
own law enforcement arm as well as those of other police forces . There is a
definite possibility that if we proceed unilaterally we would risk jeopardizing operations, and cause duplication of effort, confusion and bad relations .
Further, members of the Security Service by and large are not equippe d
495
�with the necessary police skills to deal with sophisticated criminals and
their conspiracies .
179 . In August 1979, the Labour Section of the Counter-Subversion Branch,
in an extensive brief, recommended that criminal activities in the labour
movement should not be investigated unless there were reasonable and probable grounds to believe that such activities could escalate to civil disorder .
Local law enforcement officers, however, should be informed of these criminal
activities, according to the brief . It would appear that the debate on this
question within the Security Service has not been satisfactorily resolved . The
brief to which we referred earlier, noted :
The criminal activity has abated somewhat, however, a review of our
source files reveals that the greatest bulk of them are still aimed at criminal
intelligence and have never been re-aligned to meet the security needs of
our Intelligence Requirements .
180. The failure to resolve this question within the Security Service is
puzzling . We cannot see any justification for allocating resources of a security
intelligence agency to the investigation of criminal activity, whether in unions
or in other sectors of the community, which is not related to threats to national
security . Such an allocation of resources is both inefficient and inappropriate .
In the context of relations between labour and the police it is one further area
of possible friction which should be avoided . Finally, we do not think the
Director General's broad interpretation of the mandate in this case can be
supported ; whatever was meant by "governmental change" it surely does not
extend to the coverage of criminal activity which occurs in labour unions and
which is unrelated to security .
Labour,disturbances of a national character
181 . Another question as to the mandate in relation to labour is the extent to
which the Security Service should report on labour disturbances of a national
character which, while they may not be criminally inspired, nevertheless have
the potential for the interruption of essential services and civil disorder .
Examples of such situations are the formation of a "common front", as
happened in Quebec in 1972, or a country-wide work stoppage in essential
services such as the air line pilots and traffic controllers strike .
182. The policy on such national labour disturbances is not clear . From time
to time reports have been sent to government on what were perceived as
potentially explosive situations . Briefs have also been prepared on "subversive
influences"-within certain unions .
183 . Under the mandate we have recommended for the security intelligence
agency, surveillance of labour unions would not be justified solely on the
grounds that a union's activity might lead to a major strike or even an
industrial strike involving civil disorder . The agency should keep itself well
informed through public sources about labour relations and union activities,
just as it should be well-informed about other institutions which may play an
important political role in Canada's economic life . But, under the policies we
have recommended, to justify investigative activity there would have to b e
496
�some indication that members of a union are using union activity as a means of
destroying the democratic system in Canada or clandestinely promoting the
interests of a foreign power or preparing or supporting espionage, sabotage,
terrorism or serious political violence . The vague references to `subversives'
within unions and "potentially explosive situations" are indicative of superficial
analysis which can lead to excessive surveillance of labour union activity, and
have led to it in the past .
184 . The security intelligence agency should take particular care in deciding
to investigate and report on activities relevant to its mandate within Public
Service unions . A zealous agency runs the risk of harming the collective
bargaining process between the government and Public Service unions . There
does not appear to be a clear written policy on the reporting of security
intelligence information regarding Public Service unions, and the arrangements
between the Security Service and the Department of 'Labour seems to have
evolved on a case by case basis . Recently, at .the r.equest of the Department of
Labour, circulation of such information outside the Security Service has been
terminated entirely . While we appreciate the caution being exercised here, we
believe that the security intelligence agency should continue to report information, albeit with great care, about security threats within Public Service unions .
No institution in this country should be regarded as a safe haven for those
involved in espionage, sabotage, foreign interference or serious political
violence .
Liaison programmes with labou r
185 . A comparatively recent development in the labour field was the implementation of an active public relations programme to improve the R .C .M .P .'s
relationship with labour . On the security side of the Force there has been a
willingness to attempt dialogue in appropriate situations in order to reduce
confrontation . Thus, in a letter to the field in September 1972, the officer in
charge of the Counter-subversion Branch suggested this strategy in relation to
non-violent dissident groups :
Forms of constructive encounters between the Security Service and moderately dissident groups or individuals could be both socially and operationally useful in defusing possible problem areas . Through a programme of
increased dialogue and contact with such persons, channels of communication could be established, resulting in several and various advantages and
opportunities . Through the judicious exploitation of such channels and
contacts, the Security Service might act as an intermediary between
dissidents and political and legal institutions, thus lessening the possibilities
of alienation and confrontation ; it would provide for better access to our
organization and increase our operational scope and credibility with these
elements ; and it would render such channels available for the employment
of counter-influence . Common interests on the part of dissidents might also
be exploited by the Security Service acting in concert with government
departments involvéd in youth and employment programmes and monetary
grants. Those individuals and 'groups who could not be approached in this
manner would continue to be monitored and dealt with as circumstances
warrant . Similar procedures will also be employed in circumstances an d
497
�areas such as those dealing with native Indian groups as they fit mainly into
the non-violent category, although in a different manner .
186 . In 1974, as the result of a general study involving all elements of the
R .C .M .P ., it was decided to launch a systematic programme to improve the
relationship between labour and the police . The objective of the Labour/Police
Liaison Programme was stated in the 1977 Security Service policy instruction
on labour in this way :
Participate with the enforcement personnel in establishing and maintaining
a labour-police liaison programme under the police-commun ity relations
concept ; and through attendance at labour conferences and conventions and
by dialogue with labour leaders, enhance our knowledge about the labour
movement as an interest area to be able to provide informed analysis
relative to the above stated objectives .
187 . Members of the Security Service attended labour conventions and
seminars, and briefings were arranged for labour leaders in collaboration with
the C .I .B . side of the Force . The provision of information to labour leaders on
the work of the Security Service and the C .I .B . was intended to reduce the risk
of confrontation and improve contacts . The Security Service usually took the
lead in arranging conferences and seminars because they were considered to
have better contacts with labour than did the C .I .B .
188 . The dialogue between police and labour had its problems . In several
provinces difficulties were encountered and in Quebec the programme never
got off the ground . In British Columbia, however, members of the R .C .M .P .
met with local labour councils throughout the province and the Security
Service felt that there was an interest among many labour leaders in expanding
the programme . However, in March 1979 a series of articles in a Vancouver
newspaper charged that the Security Service was involved in the labour liaison
programme . One article alleged that the Solicitor General, in response to a
reporter's inquiry, had stated that the only reason for the presence of the
Security Service would be to monitor subversive activities in unions . Although
the involvement of Security Service personnel in the programme was never
hidden, the publicity provoked union leaders in British Columbia to comment
that they would have nothing more to do with a programme in which the
Security Service was involved . In April 1979 the Security Service decided to
withdraw from the liaison programme entirely . Henceforth the programme
would be conducted by C .I .B . personnel .
189 . We do not think "constructive encounters" or "defusing programmes"
are an appropriate kind of activity for a security intelligence agency . In
Chapter 6 of this Part we advance our reasons for recommending that in the
future the security intelligence agency not be permitted to take part in
countering activities of this kind . Such liaison activities in the labour field are
very apt to be misused as occasions for trading information with private
employers about the alleged political proclivities of their employees . They may
also damage the security agency by exposing its members to undesirable
publicity .
190 . To conclude, the activities of the Security Service in the labour field
have followed a pattern similar to that which we have observed in othe r
498
�sections of this chapter . There has been far too little government direction and
review of the Security Service policies with regard to unions . Consequently, the
Security Service has had to define for itself the security threats facing Canada .
Using as a standard the mandate we are proposing in this chapter, we conclude
that the Security Service has been overzealous in investigating `subversive
elements' in the labour field . In part, this zealotry is a result of faulty
analytical and political judgment within the Security Service . But in the
absence of a clearly defined mandate, there is a natural tendency for a security
intelligence agency, no matter how good its analytical capabilities, to err on the
side of excessive intelligence-gathering, lest it be faulted by government for not
having intelligence when asked . Intelligence-gathering is not something that
can be simply turned on and off like a tap . This is another reason for the
importance of Parliament's establishing a coherent, comprehensive mandate
for security intelligence activities in this country .
191 . We should make one final point concerning the surveillance of labour
unions . As with universities, labour unions are valuable elements of a liberal
democratic society . We see no reason why the principle of requiring ministerial
approval for the use of developed sources on university campuses should not be
extended to labour unions and indeed to other valued institutions in our society .
The chilling effect that the indiscriminate use of informers can have on the free
flow of ideas within universities surely applies as well to other institutions,
including labour unions . In the chapter which follows, we shall make several
recommendations as to when a security intelligence agency should employ
informers and how it should proceed in obtaining ministerial approval for their
use .
(e) Right-wing group s
192. After World War II investigations into the whereabouts and activities of
German war criminals were conducted by R .C .M .P . security units . Such
persons were suspected of living under assumed identities and it was logical for
the R .C .M .P . to take on the investigations . In a sense, this task was an
extension of its responsibility for the internment of persons who were enemies
or members of organizations declared illegal under the War Measures Act .
There has been little activity in this area during recent years . In 1977 all files
on Nazi War Criminals were transferred to the Criminal Investigation Branch
of the Force .
193 . In the late 1960s Canada experienced the problem of political violence
by anti-Communist émigré groups, usually directed against Communist bloc
diplomatic missions or delegations . In February 1967, as a result of a number
of bombings at Yugoslav missions in Toronto and Ottawa, the Cabinet directed
that
the R .C .M .P . be authorized, and other police forces encouraged, to intensify their surveillance over, and penetration of, right-wing extremist organizations likely to commit terrorist acts ; and
the federal government make known its readiness to provide, on request,
guard protection to any diplomatic missions which had good reason to feel
in need of it .
499
�Following this directive, divisions were instructed to pay special attention to
émigré groups that were likely to commit hostile acts against diplomatic
missions or foreign visitors ; especially during Expo '67 . This has remained a
priority of the Counter-subversion Branch which made a number of organizational changes in the early 1970s to improve its coverage of terrorist-related
activities .
194. In the United States, and to a lesser extent in Canada, political groups
such as the Ku Klux Klan and the American Nazi Party have been active
during the past two decades . Although their efforts to achieve significant
political power in Canada have so far not been successful, they have been
involved in the dissemination of hate propaganda, vandalism and violent
confrontations . Violent terrorist elements have emerged on the fringes of such
groups .
195 . A number of home-grown right-wing groups with a potential for violence have been investigated by the Security Service . One such group was the
Western Guard Party which was active in Toronto in recent years . The
Western Guard Party, originally called the Edmund Burke Society, was
founded in Toronto in 1967 . Its members were anti-Communist and many also
had an anti-semitic and anti-black orientation . One of its members, Geza
Matrai, came to national attention when he attacked Premier Kosygin during
the latter's visit to Ottawa in October 1971 . There was evidence that the
Western Guard had established contacts with similar organizations in the
United States and was attempting to infiltrate the Ontario Social Credit Party .
Although the group never achieved any national following, the Security Service
believed that it was capable of political violence . In a brief prepared in 1973
the Security Service noted :
The Western Guard does not pose a threat to national security or to the
Government ; however, its propensity for aggravating potentially violent
situations could create problems in the area of law and order or, as
evidenced in the attack on Premier Kosygin, create an embarrassing
international incident .
196 . Reporting on the Western Guard began in 1967, shortly after its
formation had been announced in the Toronto press . Later, the Security
Service had feared that the Party was accumulating firearms and holding
shooting practices . During 1970 liaison with provincial police forces was
established and from then on the Metro Toronto Police and the Ontario
Provincial Police were informed of planned demonstrations and disruptive
activity by the Western Guard . By 1973 a more intensive investigation was
launched, and in May- 1975, the Security Service was able to recruit an
informer who joined the Party: During the later stages of the investigation, the
Security Service, in collaboration with the Metro Toronto Police, were able to
use this source to gather evidence for a criminal prosecution . Although the
policy of the Security Service is not to `surface' informers, it decided to do so in
this case and the informer testified at the criminal trial . We discuss the legal
and policy issues related to the handling of this informer in Part III, Chapter 9 .
197 . On February 1, 1978, after a three-month trial, Donald Andrews, one of
the leaders of the Western Guard Party, was found guilty of having explosiv e
500
�substances in his possession and of conspiracy to commit arson and public
mischief. Dawyd Zarytshansky, another member of the Western Guard Party,
was also found guilty of similar charges . Both were sentenced to prison . After
the trial, which was given much publicity, the influence of the Western Guard
Party declined .
198. Under the mandate which we have recommended, groups such as the
Western Guard Party, committed to race hatred and to an authoritarian
philosophy of government, would be a legitimate subject of interest for the
security intelligence agency . The agency should be knowledgeable about the
growth and significance of such movements in Canadian political life . However, the extent to which such a movement would become the target for
investigation using intrusive undercover techniques of investigation would
depend on whether there is evidence of activity in support of, or leading to,
espionage, sabotage, foreign interference, serious political violence or terrorism .
199. One matter that has been brought to our attention relates to the
investigation of groups alleged to be spreading defamatory statements about
prominent Canadians . The Security Service has been asked, from time to time,
to investigate individuals or groups responsible for spreading defamatory
information about Parliamentarians and persons in the Public Service of
Canada . Such statements are malicious gossip or, in extreme cases, false
information of the type brought to light in the United States in the Watergate
investigations . The question that arises is whether such a case properly falls
within the mandate of the security . intelligence agency . We believe that
scandalous stories about a Cabinet Minister or a .senior civil servant, even if
untrue, are hardly a matter of national security . Unless there is the possibility
of espionage through blackmail, we are of the view that such matters properly
fall within the jurisdiction of . the regular police, and the Director General
should decline to be of assistance . The same might be said in the case of a
request to investigate a group said to be engaged in criminal activities ; if the
organization does not appear to fall within the mandate of the agency, the
request should be declined .
200. No doubt the Director General is in a difficult position when'a senior
official makes a request for information which is outside the agency's mandate
to collect . In Part VI, Chapter 2, we shall discuss this problem in some detail,
and shall make recommendations to make it easier for the Director General to
refuse improper requests . Suffice it to say now that a request coming from a
Minister or a senior government official does not bring a matter within the
mandate of the agency . A security intelligence agency has a distinct role to
play in relation to government . It has special powers but it must exercise them
only in relation to security matters . It is important that it not permit itself, and
that it not be asked, to stray into areas which are properly'the province of the
policé or of the civil courts if defamatory statements have been made .
(f) Surveillance of Black Power and Indian groups
Surveillance of Black Power group s
201 . In the late 1960s the Security Service began to devote attention to the
possibility of political violence in black communities in Canada . For the mos t
501
�part this concern was a result of the Black Power movement in the United
States . As one senior officer in the Counter-subversion Branch noted in a letter
to an official in the Department of Manpower and Immigration in January,
1968 :
Those who concern us most are the individuals, known as "black nationalists" who knew "Black Power" as a means of maintaining obedience to an
extremist racist movement which advocates violence to enable coloured
communities to secure dominant political and social status . Although
numerically small, the influence of these black nationalists has been witnessed in Negro communities throughout the U .S .A . Their activities,
affiliations and connections in this country cannot be overlooked . We do not
look upon Black Power in any of its varied interpretations as an immediate
threat to the security of Canada, nor is it likely to assume major proportions in the politics of this country in the near future . Nevertheless, we
believe that should a large number of militant black nationalists gain
admission to Canada, they would eventually form a definite problem .
202 . The Counter-subversion Branch increased its investigations within black
communities following the destruction of the computer centre at Sir George
Williams University in February 1969, in which black students, most of them
from the Caribbean, were involved . Shortly after this incident, Deputy Commissioner Kelly was asked about Black Power militancy when he appeared
before the House of Commons Standing Committee on Justice and Legal
Affairs .
Mr . Alexander [M .P.] : Mr . Chairman, I noticed that the witness indicated
that they are studying Black Power . I understand that you are not studying
the culture or the economic aspects of Black Power but rather the militant
side of it . In that regard I would think that you are making some study of it
here in Canada .
Deputy Commissioner Kelly : That is right .
Mr . Alexander : To what extent have you found the existence of militant
Black Power in Canada and where is it concentrating ?
Deputy Commissioner Kelly : We think there is a direct relationship betw'een the Black Power movement in the United States and Canada . We
think that the Black Panther movement in the United States has a direct
contact with certain people in Canada . We know that the movement in the
United States is endeavouring to expand its relationship outside the United
States . Canada, being where it is geographically, is a natural . You may
recall that at the Hemispheric Conference last fall in Montreal the Black
Panther people came up and at one stage of this conference they actually
took over . It was only with some difficulty that the organizers got it back on
the rails . Then as a result of that these same people travelled to various
points in Canada, Halifax being one, and wherever they went they either
created trouble at the time or laid the basis for future trouble . We are very
concerned that this is going to increase and, in my mind, there is no doubt
that there will be more activity in due course .JO
30 House of Commons, Standing Committee on Justice and Legal Affairs, May 6, 1969,
pp. 890-891 .
502
�203 . On June 12, 1969, the Counter-subversion Branch at Headquarters
instructed field units to review the extent of their reporting on racial intelligence . Those at Headquarters believed that certain . individuals whom they
considered to be `militants' were entering Canada from the United States to
create dissension among the black and and native 'populations and that there
was a significant increase in racial tension across Canada . It was in connection
with the surveillance of individuals in the black community that Mr . Warren
Hart was recruited by the Security Service as an informer (Vol . 143, pp .2182130) . His testimony provides evidence that certain members of the black
community were intent on achieving political goals through violent means and
that, indeed, several of them committed criminal acts including the theft of
firearms (Vol . 143, pp .21952-3) . Despite these efforts, the threat of violence
from members of black communities in Canada declined by the early 1970s .
204 . We now consider how Security Service surveillance of black power
groups would have been affected by the mandate we are proposing in this
chapter . Under this proposed mandate, the Security Service would have been
justified in launching some investigations using intrusive intelligence-gathering
techniques, including the use of informers . For example, the Security Service
considered that the destruction of the Sir George Williams computer centre
was an act of serious political violence . Having said this, we have found some
evidence of a lack of sensitivity in distinguishing between dissent on the one
hand and activities aimed at violent confrontations, terrorist acts or violent
revolution on the other . In one paper written by the Security Service in 1972
entitled "Black Nationalism and Black Extremism in Canada" - a paper
which was widely distributed not only within the Security Service but also to
other federal government departments and to some foreign agencies - we find
this disturbing assessment :
Having become more conscious of their black identity, the danger is that
Canadian blacks of nationalist persuasion will become more tuned in on
themselves and become more willing to protest . The immigrant groups,
particularly, under the shock of exposure to a society where whites and
white values are predominant, will probably become increasingly resistant
to integration and assimilation and more likely to take offence at real or
imagined discrimination . (Our emphasis . )
Furthermore in this paper and indeed in some of the letters and memos we
have quoted above, we are concerned about the vague references to links
between foreign "militants" and blacks living in Canada . The Security Service
saw these links at times as posing a grave danger to Canada, and yet there is
very little analysis of the nature of these foreign "militants" and their
implications for Canada . Under the proposed mandate in this chapter, the
security intelligence agency should be concerned about these links only if there
is a threat of espionage, sabotage, foreign interference, terrorism or serious
political violence . It is not enough to refer vaguely to foreigners and describe
them in such loose language as "militants" .
Surveillance of the Indian movement in Canad a
205 . In 1973 the Security Service became interested in the danger of political
violence within the Indian community . The interest was generated in part b y
503
�the formation of the American Indian Movement (A .I .M .) in the United
States . A .I .M . came to public attention particularly after the confrontation at
Wounded Knee, South Dakota, in February 1973 . The R .C .M .P . also believed
that there were links between Black Power and native leaders both in Canada
and the United States .
206 . On August 30, 1973 a group of approximately 150 Indians took over the
offices of the Department of Indian Affairs and Northern Development in the
Centennial Tower Building in Ottawa . The building was occupied for 24 hours
and then was vacated in a peaceful manner ; however, a number of government
documents were stolen in the course of the occupation . More incidents followed . In October 1973, there was an outbreak of violence at the Caughnawaga Reserve near Montreal . In 1974, from July 22 until September 3,
Indians occupied Anicinabe Park in Kenora, Ontario . On August 11, a road
block was set up for one day across a provincial highway through the
Bonaparte Indian Reserve near Cache Creek, B .C. Finally, a group of native
activists formed a cross-country `caravan' to publicize their grievances . The
Indian Caravan arrived in Ottawa on September 29, 1974, and occupied an
abandoned building on Victoria Island, northwest of the Parliament Buildings .
This occupation lasted over the winter until March 1, 1975, when the building
was destroyed by fire .
207 . Violence marked several of these demonstrations . When the Indian
Caravan, accompanied by a number of non-Indian supporters, arrived at
Parliament Hill on September 30, 1974, a major confrontation with the
R .C .M .P . took place . Five demonstrators were charged and two were convicted
in connection with the incident .
208. In 1975 and 1976 there were further incidents, mostly in British
Columbia and Alberta, but acts designed to confront authorities were on the
wane . For example, in September 1976, Indian militants occupied the offices of
the Band Council on the Morley Reserve in Alberta, but the occupation was
short-lived and, in the opinion of the Security Service, local native leaders
appeared to be opposed to the occupation .
209 . Prior to 1973, the Security Service had few points of contact with native
groups . After the occupation of the Centennial Towers in Ottawa on August
30, 1973 - an event which took the R .C .M .P . by surprise - the Security
Service decided to devote additional resources to an investigation of Indians
advocating violence in order that government might be fully briefed and
forewarned of future confrontations . At this time the Security Service had
information that A .I .M . organizers were visiting reserves throughout Canada
and the situation was regarded as volatile . The following is an excerpt from a
letter from a senior officer in the Counter-subversion Branch to field units,
written in September, 1973 :
There is no domestic situation which currently equals the Indian movement
in terms of unpredictable volatility . The object of this programme is to
bring that situation under security control so that, as a minimum, the
element of surprise will not confront us again .
504
�210 . This initiative by the Security Service did not go unquestioned . For
example, the R .C .M .P. Division in British Columbia, which had a long history
of working with the native people, was concerned that much past work would
be jeopardized by the Security . Service recruiting informers . Work on the
mandate of the Security Service resulted in renewed internal questioning about
the investigation of native activities . Nevertheless, the Security Service continued its interest in the Indian Movement . By 1977, in a report which was
distributed to senior officers of the Departments of Indian Affairs and Northern Development, National Defence and the Solicitor General and to the Privy
Council Office on problem areas in the native community in Canada, the
Security Service described its role with regard to Indians as follows :
We interpret the role of the R .C .M .P . Security Service as one of monitoring
the tone and temper of the Native population in Canada for the purpose of
forewarning government and law enforcement agencies of impending disorder and conflict . Within this context, it is necessary to identify subversive
elements (foreign or domestic) striving to influence or manipulate Native•
grievances for ulterior motives . This programme is pursued through normal
investigative procedures and by establishing contacts and an ongoing dialogue with every relevant sector of the Native community . Although not
considered a part of our role, but resulting from this dialogue, we have been
consulted periodically by Native leaders to assist with specific issues which
appeared to be heading towards confrontation . In these instances, the
rapport already developed by our investigators contributed to neutralizing
hostilities .
211 . Under the mandate which we have proposed, the Security Service would
be able to investigate persons in the Indian community whose activities were
directed towards serious acts of violence to achieve a political objective . The
extent of involvement by a security intelligence agency should depend on the
seriousness of the problem . Violence on a'reserve, even though politically
motivated, cannot justify a massive involvement by the security intelligence
agency any more than can violence on the picket line . Very often the local
police will be better able to assess the situation than the security intelligence
agency . We should also note that under our proposed mandate, the security
intelligence agency would not be permitted to establish "ongoing dialogue"
with groups with the aim of "defusing" situations .
212 . Another example of Security Service involvement in the Indian movement was an investigation that was launched into the activities of the Indian
Brotherhood of the Northwest Territories (I .B .N .W .T .) . In 1975 the
I .B .N .W .T . published its manifesto, the Dene Declaration, proclaiming the
sovereignty of the Dene Nation over a large area of the N .W .T . The Security
Service had received reports of white `radicals' working with the Dene and
there were rumours that the Dene were being trained in the use of weapons and
the techniques of guerrilla warfare . After conducting qn . investigation the
Security Service reached the conclusion that the rumours of possible violence
among the Dene were largely unfounded . As noted in a letter forwarded to the
Department of the Solicitor General on June 20, 1978 :
The ensuing investigation has proven our apprehensions to be largely
unfounded . The I .B .N .W .T. is seeking special status for the Dene withi n
505
�confederation . The methods used in pursuit of this goal - extensive
lobbying and public relations campaigns - are completely legitimate . The
white advisors, although exerting considerable influence, never to our
knowledge, counselled violence or subversive activity ; they were, furthermore, dismissed by the I .B .N .W .T . in December 1977 . And with the
government's decision in favor of the Alcan route, the threat of pipeline
sabotage in the N .W .T . was removed . . .
I should point out that the Security Service now regards the Dene Nation
no differently that it does other legitimate native groups . We are interested
in these groups only to the extent that they are involved with persons or
groups who might attempt to exploit native grievances for subversive ends .
213. We think this is a reasonable conclusion to have reached, providing that
"subversive ends" are not interpreted to include land claims proposals that go
beyond current government policy or call for significant constitutional changes .
The fusing together of activities prejudicial to national security with activities
prejudicial to "national integrity" or "national unity" would point to a failure
to distinguish between those who are intent on destroying the democratic
system in Canada and those who seek major constitutional change within the
democratic system .
214. One incident that came to our attention adversely affected the relations
between the R .C .M .P . and the Indian community . At the time of the United
Nations Congress on Crime, which was held in Toronto in 1975, an unclassified working paper on terrorism, which had been prepared by the R .C .M .P . for
the Canadian delegation, found its way into the press . The paper contained a
few paragraphs on the Indian movement, including a sentence that characterized the "Red Power" movement in Canada as the "number one menace to
national stability" . This paper was not the responsibility of the Security Service
nor did it have any part in its preparation .
(g) The Extra Parliamentary Oppositio n
215 . In January 1977, it was reported in the news media that the Solicitor
General had written in June 1971, to his Cabinet colleagues with respect to
certain federal employees who were suspected of being supporters of the "Extra
Parliamentary Opposition" ( E.P .O .) and whose loyalty was put into question .
There were questions in the House about the circulation of a "blacklist" and
much public attention was given to the incident . Many of the facts, including
the text of the Solicitor General's letter, are already in the public domain .
216 . The phrase "Extra Parliamentary Opposition" needs explanation ." It
was first used in the 1960s by European writers to describe how the traditional
institutions of parliamentary democracy could be drastically reformed, if not
destroyed, by pressure from "counter or parallel institutions" representative of
"the masses" rather than the establishment . The Extra Parliamentary Opposi" A description of the philosophy of the Extra Parliamentary Opposition may be found
in The New Left in Canada, published in 1970 . See particularly the chapter by
Dimitrios J . Roussopoulos "Towards a Revolutionary Youth Movement and an Extra
Parliamentary Opposition in Canada".
506
�tion, as it was called, would be brought about through the development of
"counter institutions" in labour unions, community groups, schools and so
forth . There never was, in Canada or elsewhere, any group'or organization that
styled itself as the Extra Parliamentary Opposition ; the phrase was merely a
catchword for a philosophy of a certain type of change .
217 . The Security Service, in common with other security intelligence agencies in the West, began to study student radicals of the New Left in the mid
1960s . In Canada, after the Combined Universities Campaign for Nuclear
Disarmament had run its course, New Left study groups and committees
became established in many universities . In 1968 and 1969, as we have noted
earlier in this chapter, several violent confrontations took place at Canadian
universities and colleges . In other countries there were also violent incidents
involving students who battled police in the Federal Republic of Germany,
France, Mexico and elsewhere .
218 . The New Left was not regarded by the Security Service as a disciplined
organization but rather as an amorphous group of idealistic `revolutionary'
young people . It was feared by the Security Service that the movement would
find support at the grass roots level which could lead to violence and civil
disorder . From 1967 to 1973 surveillance of the New Left was an important
priority of the Security Service . A New Left desk, later a section, was
established in the Counter-subversion Branch to co-ordinate reporting and
analysis . In a few years the movement had run its course and by 1972 the
Security Service reached the conclusion that it no longer represented a threat
to the security of Canada . After 1973, reporting on the New Left was
abandoned .
219 . As we noted earlier in this chapter, during 1969 and 1970 the possible
penetration of New Left radicals into labour unions, community groups,
government and other key sectors of society was a matter of great interest and
concern to the Security Service . There was evidence that government grants to
certain community groups were being used for political purposes . Within
government itself a number of documents had been leaked to the press . The
Privy Council Office had asked the Security Service to investigate all such
thefts and leaks of documents and in the course of these investigations former
student activists fell under suspicion . The October Crisis heightened the
interest of government and the Security Service in the New Left movement .
The Strategic Operations Centre in the Privy Council Office, for example, had
referred to the influence of the New Left and the Extra Parliamentary
Opposition in its report to government in December 1970 .
220. The new Solicitor General, Mr . Goyer, was conscious of New Left
sympathizers in government service and it appears that he discussed the
question with the Director General of the Security Service early in 1971 . Mr .
Goyer in fact told us that he had asked the Security Service to prepare a report
on the E.P .O . phenomenon (Vol . 158, p . 24171) . At any rate, the Countersubversion Branch decided in January 1971, to prepare a report on the New
Left in government . The Security Service hoped that the report would alert
government to the E .P .O . problem and to the close links between some federa l
507
�employees and certain community organizations which were controlled by New
Left radicals .
221 . The paper prepared by the Security Service was entitled "The Changing
Nature of the Threat from The New Left - Extra Parliamentary Opposition,
Penetration of Government" . It was classified SECRET and CANADIAN
EYES ONLY . Although it had been revised and edited it was still a lengthy
document running to 32 pages . The paper described the concept of the Extra
Parliamentary Opposition in the following terms :
However in the context of the New Left, E .P .O . refers to the creation of
"counter" or "parallel" institutions which are opposed to, and seek the
destruction of, the existing social order . The strategy is to use these parallel
organizations to organize the poor and the dispossessed, the workers, and
the radical students, and to boycott the normal socio-political structure,
thus challenging and eroding the political legitimacy of duly elected Government in the eyes of the "oppressed" .
222. The paper pointed out that the central idea of the Extra Parliamentary
Opposition - the destruction of the parliamentary system - had been taken
up both by radicals who sought to bring about "creative disorder" and by those
advocating only moderate forms of political action . The paper described in
detail the activities of Praxis Corporation, a private research organization in
Toronto, which was founded in the late 1960s to support community groups
and promote a higher level of citizen participation in government . Praxis,
according to the paper, had come to be dominated by New Left activists and
had links with community action groups in Toronto and Montreal, with the
labour movement and with government agencies . Attempts by Praxis to secure
government funding had been supported by certain federal government
employees who were said to be sympathetic to the philosophy of the New Left .
(An allegation of a break-in at the Toronto office of Praxis will be dealt with in
a later Report . )
223. The paper prepared by the Security Service on the E .P .O . concluded by
describing the activities of a small group of New Left supporters who were
employed in federal departments or agencies . Some of these employees had
formed an organization, one of whose main objectives, according to the
Security Service, was to politicize tenants action groups in Ottawa . The paper
stated that members of the group were involved in passing official information
to persons outside the federal government and that some had used their
influence to recommend other New Left supporters for positions in government
service . Other federal government employees were alleged to have links with
the Praxis Corporation . Despite these allegations, the paper noted that "there
is as yet no direct evidence of manipulation of policy and decision-making
functions in the federal government" .
224 . Before proceeding with the chronology of events, we wish to make
several points about this E .P .O . paper . We consider it to be an inadequate
analysis, inflammatory in tone, and, at times, faulty in its logic . As with other
papers we have reviewed in writing this chapter, the E .P .O . paper demonstrated an insensitivity to the difference between a threat to Canada's security on
the one hand and legitimate dissent on the other . The careless use of language
508
�to create sinister impressions was one manifestation of this insensitivity . Thus,
certain individuals, when they joined or attempted to influence an organization,
were said to be "penetrating" it . When left-leaning people met, the group was
described as a "cell" . An individual attending a conference was said to be
"talent spotting" as he approached like-minded individuals . Another way in
which the paper failed to distinguish dissent from'threats to national security
was the implicit assumption of guilt by association . The logic of the paper was
built around the "radical" rhetoric of several individuals . Those with left
leanings who then come into contact with these individuals were assumed to be
part of a wider conspiracy to alter society radically . Related to all of these
shortcomings was the paper's failure to analyze the E .P.O . rhetoric carefully .
The assumption throughout the paper was that "E .P .O . equals subversive
activity" . The fundamental question of what types of E .P .O . activity, if any,
constituted threats to security was never addressed .
225 . The aspect of the E .P .O . matter which we find especially objectionable,
however, was the circulation outside of the Security Service of a paper which
names particular individuals and records many of their thoughts without any
reference to their planning or engaging in activity relating to terrorism or
serious political violence . Thus the paper was a prime example of the dangers
which a security intelligence agency can pose to two cherished values of our
society - the right of association and the right to privacy . In addition, by
making certain allegations about federal government employees, the Security
Service ran the risk of harming their careers .
226. In making these criticisms of the E .P .O . paper, we do not mean to imply
that a security intelligence agency should ignore a phenomenon like the New
Left or the E .P .O . Rather, we are arguing that to be both useful to government
and sensitive to liberal democratic principles, the agency must have a competent analytical capacity . Moreover the agency should not be left on its own to
make all-important judgments about when it is appropriate to use intrusive
investigative techniques to collect information about domestic groups . We shall
have more to say on both of these themes in subsequent chapters of this
Report .
227 . The E .P .O . paper was widely circulated within the Security Service
before being sent by Assistant Commissioner L .R . Parent to the Solicitor
General under cover of a three-page letter dated May 12, 1971 . After
describing the nature of the E .P .O . threat in general terms and the activities of
the Praxis Corporation, Mr . Parent concluded as follows :
Although the number of such contacts is relatively small, probably not in
excess of twenty-five, the picture presented is worrying, suggesting as it
does, a conscious, although perhaps not co-ordinated, attempt by various
persons to use the knowledge and the influence gained by their employment
with the federal government to further their own ends . Perhaps you will
wish to forward a copy of this paper to the Secretary of State for his
information and, as he sees fit, comment . Also you may consider it
advisable to have the Security Panel study the paper .
228 . After reviewing the E .P.O . matter with Mr . Robin Bourne, the Head of
the Security Planning and Research Group in his Department, the Solicito r
509
�General decided that letters should be sent to certain of his Cabinet colleagues
who had responsibility for the departments in which the persons mentioned in
the E .P .O . paper were employed . Thus a letter marked "Personal and Secret"
and dated June 15, 1971 was sent to five Cabinet Ministers . Attached to each
letter was a list of the names of 21 federal employees listed under seven
departments . The letter referred to the R .C .M .P . paper (which was not
enclosed) and used much the same language to describe the E .P .O . concept,
Praxis Corporation and the existence within government of a group of "campus
revolutionaries" . Mr . Goyer concluded :
Though the number [of E .P .O . supporters] within the Public Service is
small, probably not in excess of twenty-five, the picture presented is
worrying, suggesting as it does a conscious attempt by various persons to
use the knowledge and the influence gained by their employment with the
federal government to further their own ends . For this reason, I have
attached a list of those we suspect, of being engaged in or sympathetic to
E .P.O . activity in one way or another, with the recommendation that steps
be taken to ensure that these people have been fully briefed as to their
responsibilities for ensuring the security of government information and
that their activities be watched with more than normal care .
It is worth noting that the list of federal employees was prepared in the
Solicitor General's Department by the simple process of extracting from the
R.C .M .P. paper the names of all persons therein mentioned who were apparently in federal employment . There was no consultation with the Security
Service with respect to the letter or the list of names (Vol . 158, pp . 24132,
24138) .
229 . The letter was delivered to the addressees and copies were given to the
Privy Council Office and the Security Service . The letter was not sent to
Deputy Ministers or departmental security officers . Mr . Goyer told us that he
met the Prime Minister at the time and he had advised the Prime Minister of
his decision to send the letter to certain of his colleagues (Vol . 158, p : 24152) .
In 1977, after a copy of the letter found its way into the press, the Privy
Council Office made inquiries as to what had happened to the letters and what
action had been taken . The result of these inquiries was that, with only one
exception, the original letter could not be found on departmental files and there
was no record of any action having been taken by Ministers . Nor was the
matter followed up by Mr . Goyer in 1971 . He told us that in his view further
action was the responsibility of each Minister (Vol . 158, pp . 24165, 24170,
24172) . The matter was never discussed in the Security Panel although this
had been recommended by the Security Service .
230 . After questions were raised in the House in 1977, the Security Service
reviewed the status of the persons named in the attachment to Mr . Goyer's
letter . None of these persons was of any operational interest to the Security
Service . About half the persons in the list had received security clearances in
the normal way, while the remainder had either left government service or did
not require a security clearance in order to carry out their duties . A file review
disclosed that there was no activity on any individual files after 1972, with the
exception of correspondence relating to routine security clearance matters .
510
�231 . How would a matter similar to the E.P .O . affair have been handled by
the security intelligence system we are proposing? One important lesson that
we have drawn from this affair is the need for guidelines on the kinds of
information that a security intelligence agency can report to government . In
Chaptér 5 of this Part, we shall emphasize in particular the care required by
the agency in reporting information about individuals . Such individuals must
fall within the statutory definition of security threats . (There was no effort
made in the E .P .O . affair to assess the actual threat posed by each individual
mentioned in Mr. Goyer's letter .) Further, the information must be relevant to
the department receiving it . If these two principles are followed, a security
intelligence agency would not likely send the same information about 21
individuals to five different departments .
232. A second point concerns the role of Ministers and their deputies in
security matters related to public servants . Given that deputy ministers are
responsible for departmental security, a Minister should become invôlved in
only those matters concerning a member of his exempt staff ( i .e ., his personal
staff who are not part of the Public Service, but rather, are appointed by
Order-in-Council) . As well, the Minister should be briefed on a departmental
security matter if it is likely that he will be asked a question in Parliament
about the matter . With these exceptions, the Director General of the security
intelligence agency should communicate directly with the deputy minister on a
departmental security matter . In Part VII, Chapter 1 we shall recommend
procedures as to how a deputy minister should exercise his responsibilities
when an employee or prospective employee is alleged to be a security threat .
(In the E .P .O . affair, there appeared to be little action taken by those who
received Mr . Goyer's letter.) We shall also propose an appeal mechanism for
those who believe that their careers have been harmed by the government's
security screening process . Such an appeal mechanism was not available to
those individuals named in Mr . Goyer's letter .
233 . There is a further matter : the paper, without deletion except for the
removal of the classification CANADIAN EYES ONLY, was distributed by
the Security Service to four foreign intelligence agencies without consulting
either the Solicitor General or any of his officials (Vol . 158, pp . 24166 and
24143) . While the letter forwarding the paper contained the usual caveat that
the material was not to be used outside the foreign agency without permission
of the Security Service, we are of the view that it should have been circulated
only after the names of the Canadians who were under suspicion had been
deleted . We are also concerned that the Security Service, when it provides such
names, has no way of controlling the subsequent utilization of the information
by the foreign country . The security intelligence agency should exercise great
discretion in providing foreign agencies with the names of Canadians . Under
no circumstances should it provide the names of Canadians involved only in
domestic movements where there is no evidence of actual or planned political
violence, terrorism, espionage or foreign interference . We shall return to this
question in Chapter 7 of this Part .
511
�CHAPTER 4
INFORMATION COLLECTION METHOD S
1 . Because of the secrecy maintained by those who pose the most serious
threats to Canada's internal security, the security intelligence agency must be
authorized to employ a variety of investigative techniques to enable it to collect
information . The means available to it must range all the way from studying
open sources of research material and obtaining information from citizens,
police forces and government agencies ( foreign and domestic) to using much
more covert and intrusive methods that may involve the use of powers not
available under law to the ordinary citizen . In this chapter we review this wide
range of intelligence collection techniques and make recommendations as to
which should be available under law to the security intelligence agency and
what controls should govern their use .
A . BASIC PRINCIPLES
2 . The proposals set forth in this chapter on methods of investigation and
their control are based on five fundamental principles which we think it
important to state at the outset . They should underlie whatever system of
powers and controls may be used for intelligence-gathering in the future :
(a) The rule of law must be observed . We have insisted upon adherence to the
rule of law at several points earlier in this Report and we re-emphasize it
here . No technique of intelligence collection should be employed which
entails the violation of criminal law, other statutory law or civil law
(federal, provincial or municipal) . If for national security purposes it is
considered essential that the security intelligence agency use an investigative technique which involves the violation of law, then those responsible
for enacting laws - federal, provincial or municipal - must be persuaded
to change the law so that the use of the technique by the security
intelligence agency is made lawful .
(b) The investigative means used must be proportionate to the gravity of the
threat posed and the probability of its occurrence . In a liberal society,
which as a matter of principle wishes to minimize the intrusion of secret
state agencies into the private lives of its, çitizens and into the affairs of its
political organizations and private institutions, techniques of investigation
that penetrate areas of privacy should be used only when justified by the
severity and imminence of the threat to national security . This principle is
particularly important when groups may be subjected to security intelligence investigations although there is no evidence that they are about to
commit, or have committed, a criminal offence .
513
�(c) The need to use various investigative techniques must be weighed against
possible damage to civil liberties or to valuable social institutions . The
indiscriminate use of certain techniques of investigation by a security
intelligence agency, even though lawful, may do great damage to the fabric
of our liberal democracy . Spying on political organizations which are
critical of the status quo can have a chilling effect on freedom of
association and political dissent . Similarly, the widespread, indiscriminate
use as informants, of journalists, trade unionists, and professors, can do
grave damage to the effective functioning of a free press, free collective
bargaining, and freedom of intellectual inquiry .
(d) The more intrusive the technique, the higher the authority that should be
required to approve its use . The authorizing of security intelligence officers
to use various techniques of information collection must be carefully
structured . The least intrusive techniques should not require any prior
approval by senior authorities, but as the investigation of a group or
individual intensifies, the use of more covert and intrusive techniques
should require the approval of more senior officials . At the other end of the
spectrum, where the most intrusive techniques of all are involved, the
approval of authorities external to the agency itself should be required .
Where the agency is authorized by statute under strictly defined conditions
to use extraordinary techniques of investigation which would be a criminal
offence if used by an ordinary citizen, the judiciary should make the
authoritative determination as to whether the statutory conditions have
been met .
(e) Except in emergency circumstances, the least intrusive techniques of
information collection must be used before more intrusive techniques .
Situations may arise in which the only opportunity for obtaining information on a subject is through the application of one or more relatively
intrusive techniques . But the normal rule should be to use the least
intrusive techniques first .
B . CONTROLLING THE LEVEL OF INVESTIGATION
3. In 1977 the R .C .M .P . began to develop a new system for establishing more
control at the Headquarters level over Security Service investigations . The key
element in this control system was the Operational Priorities Review Committee (O .P .R .C .), a committee of senior Security Service officials, and a lawyer
from the Department of Justice assigned to the R .C .M .P . The terms of
reference of this Committee were finally approved by the Commissioner of the
R .C .M .P . in 1979 .' This system of controlling security intelligence investiga-
' Commissioner Simmonds referred to the role of this Committee in his statements to
the House of Commons Committee on Justice and Legal Affairs at in camera
meetings of the Committee on November 24 and November 29, 1977 . The O .P .R .C .'s
terms of reference are classified Secret . References to the role of the Committee can
be found in volumes of the record of the Commission's public hearings, e .g . in Vols .
127, 138 and 163 .
514
�tions had much in common with a system of controlling the F .B .I .'s domestic
security investigations introduced by the Attorney General of the United
States, Edward Levi, in 1976 . 1
4 . The F.B .I . system incorporates a four-fold classification of information
collection activities . First, maximum discretion is permitted at the field or desk
level in the collection of information from open sources or the receiving of
reports from public authorities or private citizens . At the next level, the system
permits active security investigations to be launched at the field level and
carried on for a limited period of time (90 days) using relatively less intrusive
techniques with no higher approval than that of the senior officer in a
particular regional office . The purpose of such a`preliminary investigation' is
to see if there is sufficient evidence to justify a full-scale investigation using
more intrusive techniques . The extension of the level of investigation beyond 90
days, requires Headquarters approval . At the third level are `limited investigations' involving the use of more intrusive techniques such as full-scale physical
surveillance and interviewing but not the full range of intelligence collection .
Investigations at this third level require the approval by the Special Agent in
Charge or F .B .I . Headquarters . Finally, the level of `full' investigation involves
the use of all legally available techniques, including undercover agents and the
interception of private communications . The F.B .I . requires Headquarters
approval for full investigations . In the F .B .I . system, the Attorney General or
his designate must be notified when full investigations are approved, and may
terminate a full investigation at any time ; the extension of a full investigation
beyond a year requires the written approval of the Department of Justice .
5. We think that an acceptable system forcontrolling information collection
by a security intelligence agency should distinguish three basic levels of
investigation : the first leaves discretion at the field or desk level without
requiring approval by senior management at Headquarters ; the second requires
approval by senior management of the agency ; the third requires approval by
the Minister responsible for the agency . The system we propose is based on this
three-level approach .
For an account of this system see John T . Elliff, The Reform of F.B.I. Intelligence
Operations, Princeton, N .J ., Princeton University Press, 1979 . The "Levi Guidelines"
are printed in Appendix I of this book . It is very important to note that this system of
control does not apply to counter-espionage or counter-intelligence operations of the
F.B .I . In December 1980, Attorney General Benjamin Civiletti issued guidelines
entitled "The Attorney General's Guidelines on Criminal Investigations of Individuals and Organizations" . These guidelines govern three types of investigations : general
crimes investigations, racketing enterprises investigations and domestic security
investigations . Part 111, which covers domestic security investigations, reads as
follows : "The Attorney General's Guidelines on Domestic Security Investigations
[the "Levy Guidelines"] promulgated in 1976, shall continue to govern such
investigations" .
515
�Level One : Information collection and investigation requiring only field level
approval
6. We think there must be ways in which members of the security intelligence
organization can collect information without being required to meet any
exacting evidentiary standard or to obtain the approval of higher authorities . It
would be unreasonable to require a security intelligence agency to have
"reasonable and probable grounds" before it can collect information about any
subject . It must start somewhere . For this reason we think it is incorrect to
apply, as the 1975 Cabinet Directive does, the same evidentiary standard
("reasonable and probable grounds to believe" that an individual or group
"may be engaged in or planning to engage in" an activity threatening the
security of Canada) to all means of collecting information . The security
intelligence agency should be authorized to initiate the collection of information both from_ open sources and through less intrusive techniques on a much
more speculative basis . Requiring the same evidentiary standard for all kinds
of information collection means either that the test will be ignored or that the
agency will be deprived of the opportunity of gathering the basic information
to determine whether or not it should employ the most intrusive investigative
techniques .
7 . At this level two types of information collection' can be distinguished :
information from open sources, and information of a more confidential kind
which is the beginning of an investigation . The first kind of information
includes public information from the news media, written publications, and
attendance at public meetings . With the exception of opening files on individuals, the security intelligence agency should be able to collect and analyze
information from any of these public sources so long as it relates to the
agency's basic function of providing intelligence about threats to the security of
Canada . The opening of files on individuals, even if the information comes
from public sources, should conform to principles or guidelines . We shall
elaborate on these shortly .
8. In the past the R .C .M .P . Security Service has not developed a sufficiently
strong capacity to draw upon such public sources or to integrate such information with information obtained from covert sources . We think that it is
essential for .an effective security intelligence agency to develop a strong
research capacity closely integrated with its investigative activities . The agency's research activities should provide understanding of the social, economic
and political context, national and international, within which threats to
Canada's internal security arise .
9 . The collection of information from open sources should be directed by a
planning process which reflects the intelligence priorities of the government . In
Part VIII we shall propose ways in which the Cabinet and interdepartmental
committees might improve their capacity to identify the government's intelligence requirements in all areas including security intelligence . The security
intelligence agency should not be simply a passive recipient of these intelligence requirements . Through its monitoring of public sources of information it
should alert the government to new sources of activity possibly threatening th e
516
�security of Canada, and it should be in a stronger position to analyze the extent
to which certain political movements, in some quarters alleged to be subversive,
are, on the contrary, contributing to the vitality and diversity of Canadian
democracy .
10 . The second kind of information which the members of a security intelligence agency should be able to collect at the field level without higher approval
is information which can be obtained without applying intrusive techniques of
investigation . Examples of sources of such information are :
- existing security intelligence agency records ;
- interviews with the subject of investigation ;
- information from other Canadian government agencies or police forces,
but not information given by individuals or groups to the government on
a confidential basis ;
- information volunteered by, but not solicited from, private individuals .
The purpose of this low level, preliminary investigation is to ascertain whether
there is sufficient evidence of conduct threatening the security of Canada to
justify a more active and intrusive investigation . Investigative activity confined
to these sources of information does not involve making inquiries about an
individual in a manner which could damage the individual's reputation or
interests . The information obtained from sources in government available at
this stage should not include information which citizens have given to the
government under conditions of confidence . We would also limit such information to that available from Canadian authorities because we think it important
that information received from foreign intelligence agencies should be assessed
at the Headquarters of the security intelligence agency before it is . used by the
agency in any way .
11 . A further source of confidential information which might be available at
this level of investigation is information received `accidentally' through intrusive techniques which have been authorized for the investigation of another
subject . The F .B .I . control system permits the use of existing human sources at
this stage but not existing technical sources (i .e . electronic eavesdropping) . We
are dealing here with one aspect of the so-called `spin-off or accidental
by-product phenomenon which will be discussed more fully in the next chapter .
It is possible, for instance, that an authorized full investigation of organization
A may yield in indicating that organization B may pose a serious
threat to security, but a full investigation of organization B using intrusive
techniques has not been authorized . In these circumstances, the system for
controlling the use of intrusive investigative techniques could in effect be
by-passed through exploiting this opportunity to use the incidental by-products
of these techniques . Members of the agency at the field or desk level should be
able to use this information in their preliminary appraisal of organization B but
the use of information obtained in this way must be recorded at Headquarters,
so as to facilitate the monitoring of the activity by the agency's senior
management and by the independent review body .
11A . We think the surreptious trailing of individuals by the security intelligence organization is sufficiently intrusive that even when it is done for the
limited purpose of "subject identification" if should be approved at Head517
�quaters by a member who is at a higher level of responsibility than the most
senior member in the field who is involved in the matter .
12 . The F .B .I . system, as we have noted, requires that extensions of monitoring or preliminary investigations beyond 90 days be approved at Headquarters .
We think that it is a sound practice, where confidential sources are being used,
to require Headquarters approval for the continuation of a preliminary investigation of an individual or group beyond a set period of time . It is important
that the senior management of the security organization continuously review
the results of preliminary investigations to ensure that the investigative
resources of the agency are properly and usefully deployed . The investigation
of individuals and groups even at this low level of investigation should not be
carried on indefinitely without reviewing the rationale for such investigations .
Implications for opening and maintaining file s
13 . There is a very widespread fear, both in Canada and in other western
democracies, of the dangers to citizens which could result from the improper
use of security files . Apprehension about the technical capability of the modern
state to look into every nook and cranny of its citizens' lives and to retain, for
unknown purposes, mountains of information about us all is reflected in the
oft-heard phrase "they must have a file on me" . Security intelligence agencies
contribute to this apprehension : they can, and sometimes do, collect information about a very large number of individuals . The R .C .M .P . Security Services,
maintains a name index which in December 1977 had 1,300,000 entries,
representing 800,000 files on individuals . Access to computer technology
greatly facilitates the ease with which information and opinions recorded in
these files can be retrieved and correlated . Information or opinions which at
the push of a button can be displayed or -recorded on a computer print-out can
just as readily be misused .
14 . We believe that controls are needed to prevent a security intelligence
agency from maintaining files on thousands of people who are not threats or
potential threats to the security of Canada . To say that the agency can collect
information regarding individuals as long as this information relates to the
agency's mandate is so vague and loose a rule as to justify almost any
collection programme . For example, as we shall describe in the chapter dealing
with security screening for the Public Service (Part VII, Chapter 1), the
Security Service has a long established programme for collecting information
on individuals in Canada who are homosexuals . This programme is based on
the premise that some homosexuals may be subject to blackmail should they
come to occupy positions with access to security relevant information . As a
second example, the Security Service has been known to open files on all
Canadians who travelled to Soviet bloc countries . This and similar programmes
involved the opening of files on many thousands of individuals who were not
perceived as even possible threats to Canada's security . Such information
collection programmes are far too indiscriminate and should never have been
established .
15. A variety of controls - some governing the opening and review of files,
others having to do with the reporting of information - are necessary . To
prevent the establishment of such programmes in future we consider first th e
518
�question . of opening a file . We believe that the security intelligence agency
should establish general principles or guidelines as to when it is proper to open
and maintain a file on a person . These guidelines should obviously not apply to
opening files on individuals for purely administrative reasons . Thus, there
should be no constraints on keeping files on agency employees or on various
businessmen, consultants, or others who might be providing some administrative service to the agency . Nor should these guidelines apply to keeping files on
the agency's human sources, whether voluntary or paid . With these exceptions,
the security intelligence agency should open and maintain a file on a person
only if at least one of the following three conditions is met :
(a) there is reason to suspect that the person has been, is, or will be
engaged in activities which Parliament has defined as threats to
Canada's security ;
(b) there is reason to suspect that the person who is or who soon will be in
a position with access to security classified information, may become
subject to blackmail or may become indiscreet or dishonest in such a
way as to endanger the security of Canada ;
(c) the person is the subject of an investigation by the security intelligence
agency for security screening purposes . (Once the investigation has
béen completed, the agency should not continue to add information to
these files unless the information relates to category (a) or (b) above . )
16 . All of these categories deserve further elaboration . Because the first
category relates directly to the mandate of the security intelligence agency,
there is, little doubt in our minds that the agency should be allowed to collect
information on individuals suspected of having a connection with a threat to
.security . The difficulty with this category lies in deciding what constitutes
"suspicion" of a link or potential link to a security threat . For example, we
believe that the agency should not collect information on all individuals who
take holidays in the Soviet Union or who subscribe to a Communist newspaper .
The link between such individuals and a threat to security is far too tenuous .
On the other hand, it is appropriate for the agency to collect information on
any individual who meets a suspected foreign intelligence officer in what
appears to be a clandestine manner . The definition of suspicion may also vary
depending upon the individual's position . Thus, the security intelligence agency
should not collect information about a public servant whose function does not
require a security clearance and who is on friendly terms in an open manner
with a Soviet bloc diplomat . But if, on the other hand, the public servant holds
a position with access to security classified information, such a relationship,
even on an open basis, could be of legitimate interest to the agency. While
there are complexities involved in interpreting the standard of evidence to
apply in this category, we should emphasize that it is a far less exacting
standard than the one we shall propose shortly to justify the use of intrusive
investigative techniques .
17. The second category would allow the agency to collect information on
those individuals (including public servants and M .P .s) who hold or are about
to hold a position with the federal government with access to security classified
information and whose behaviour is such that they may become dishonest o r
519
�indiscreet or likely targets for blackmail in a manner which would endanger
the security of Canada . As in the first category, there is the problem of what
constitutes grounds for suspicion . Under what conditions, for example, is a
person a likely target for blackmail? A second problem concerns whether or
not this category is too narrow . Why should the agency not be allowed to
collect information about illicit behaviour on the part of individuals who might
in future hold a position with access to security relevant information? We
acknowledge the risk in preventing the agency from collecting information on
such individuals . There is little doubt that some of this information might be
useful at some point in the future. But we believe that the risk of abuse in
collecting information on so broad a category of people - as demonstrated by
the Security Service's long standing programme of collecting information on
homosexuals - is far greater . The government would have no way of properly
defining what the agency should and should not collect . The result would likely
be a security intelligence agency which was intruding far too much into the
lives of Canadians .
18 . Under the third category, the agency would be allowed to retain information relating to an investigation it has undertaken in regard to a security
screening case concerning immigration, citizenship, or employment in the
Public Service . In conducting such an investigation, the agency may conclude
that the information about the individual is not relevant to security . (It may,
for example, investigate an allegation concerning an individual which turns out
to be false .) Nevertheless, the agency should be allowed to retain such
information because of the possibility of the same allegation recurring many
years after the original security screening investigation . The agency, once it has
opened such a file should not continue to feed information into it unless the
information relates to the first two categories noted above .
19 . In putting forward these principles to help determine when it is proper for
the security intelligence agency to open and maintain files on individuals, we
emphasize that these principles should not apply to groups, organizations or
movements which relate to or provide a context for the agency's mandate .
Thus, those within the agency should be allowed to collect material from public
sources on a wide range of topics including significant political trends or
movements . Some of this material will contain names of individuals - for
example, a newspaper article on the likely development of a new political party
in Canada . The agency should be able to keep such information so long as the
names of, and information about, individuals referred to in the material are not
fed into an information retrieval system, whether computerized or manual,
which is used for operational or security screening purposes . The agency will
obviously want to retrieve information about individuals from its administrative and source files or research files, but the storage and retrieval system
which relates to that material, should be distinct from the one used when
advising government about individuals whose activities relate directly to a
security threat .
20 . Another protection against misuse of the information should lie in the
conditions under which information can be reported to those who have the
power to use it in ways which may adversely affect individuals . The mos t
520
�important area of concern should be the security screening process, which may
result in an individual being adversely affected by a report from the security
intelligence agency . To meet concerns in this area we recommend, in . Part VII
of the Report, the establishment of a Security Appeals Tribunal, empowered to
review the case of any individual who suspects that he has been or or may have
been adversely affected by an inaccurate or unfair report . Also, later . in this
part of the Report we make recommendations as to the conditions under which
the security intelligence agency may report information to police or government authorities in Canada or abroad and recommendations that the agency be
prohibited from disseminating information about individuals to the media or
any non-governmental bodies, including private employers . An important
function of the independent review body which we shall propose (the Advisory
Council on Security and Intelligence) would be to audit security intelligence
operations to ensure compliance with these reporting rules .
21 . The senior management of the security intelligence agency should maintain a sound programme of file review to extract material which in no way
relates to the agency's mandate, or is no longer of use, so that it can be
destroyed . The R .C .M .P . Security Service has maintained such a programme
in recent years . Between January 1972 and June 1977, for instance ; while
501,000 new files were opened, 332,201 were destroyed . Of course, as the
destruction of the files relating to Operation Checkmate indicates there is a
potential for abuse in destroying as well as in opening files . We have encountered instances in which instructions have been given to destroy files in order to
obliterate any record of questionable activities . File destruction 'should not be
carried out in an ad hoc manner but according to a clearly established schedule
and based on criteria approved by the Minister responsible for the agency .
Level Two: Investigative activity requiring Headquarters approval but not
ministerial approva l
22 . An intermediate level of investigation, which does not employ the full
range of investigative techniques available to the security intelligence agency
but would go beyond the preliminary stage, involves the following :
- obtaining information from foreign agencies ;
- the use of "undeveloped casual sources"' and interviews with persons
about the subject of investigation ;
- physical surveillance ;
- confidential government biographical" information for the limited purpose of subject identification (subject to the limitations and controls we
recommend later) .
For an explanation of this term see Part III, Chapter 9, and paragraph 62 of this
chapter .
" For an explanation of the distinction between `biographical' and `personal' information see section H of this chapter .
521
�Decisions to apply this more active and intrusive kind of investigation to a
group, or to an individual who is not connected to a group which is already the
subject of an approved investigation, should be made at the Headquarters level
of the security intelligence agency . By Headquarters level we mean members at
Headquarters who are at a higher level of responsibility than the most senior
member in the field involved in the matter . Such decisions would normally be
made as the result of a preliminary (level one) investigation and would have
the objective of ascertaining whether there is sufficient evidence to justify a full
investigation . Headquarters approval of an intermediate investigation should
be for a limited time . We suggest a maximum of six months .
23. The composition of the body which approves decisions at Headquarters at
this stage should be a matter for the Director General and his senior management to determine ; but presumably the heads of the main operational-branches
would play a central role in the approval process . Decisions at this stage can
lead to one of three possible courses of action : termination of the investigation,
continuation of the intermediate level of investigation for another period of
time, or application for authorization of a full investigation . These are important targetting decisions and it is essential that they be made after a careful
review of investigative results by those in the organization best equipped to
analyze the results and best able to make responsible policy decisions .
24. We realize that there should be considerable flexibility in determining
which of the less intrusive techniques of investigation require Headquarters
approval and which do not . Therefore we recommend that this matter be
regulated by administrative guidelines rather than by statute . These guidelines
should be developed by the security intelligence agency and approved by the
Solicitor General . They should provide for emergency situations so that an
intelligence officer in the field can take advantage of important investigative
opportunities which would be lost if Headquarters approval was required . But
the guidelines should provide that, in such situations, Headquarters be notified
as soon as possible and not later than 48 hours after the use of the technique .
25 . While the security intelligence agency's use of the methods of collecting
information available to it in level one and level two investigations would not
require approval outside the agency itself, there should be an effective system
of ex post facto review of investigative activities at these levels . This system of
review should involve persons outside the agency itself and should include at
least the following :
(a) regular checks and audits by the independent review body (the Advisory Council on Security and Intelligence) ;
(b) periodic reports about the extent and distribution of activity at these
levels to the Deputy Solicitor General and Solicitor General ;
(c) a report of the extent and distribution of activity at these levels, at least
annually, to the Cabinet Committee on Security and Intelligence and
to the Parliamentary Committee on Security and Intelligence .
522
�Level Three : Investigative activity requiring approval by the Minister, and in
some cases authorization by a judge
26. Beyond the first two levels of investigation are what might be termed full
investigations. These are investigations which employ any of the following
methods :
(a) undercover members, human sources (beyond "undeveloped casual
sources") ;
(b) electronic surveillance (telecommunications intercepts, planting of
hidden microphones, intrusive visual surveillance by electronic means
and use of dial digit recorders) ;
(c) surreptitious entry to search or seize (for purposes other than electronic
surveillance) ;
(d) mail checks (examination of mail covers and opening mail) ;
(e) access to confidential personal information about individuals or groups
held by governments or private sources .
These techniques should be used by the security intelligence agency only to the
extent authorized by law. Later in this chapter we shall recommend changes in
the law to make these techniques available to the agency under proper
conditions and controls .
27 . We believe that decisions to subject an individual or the members of an
organization to any of the techniques listed above are so important, in terms of
both the effective deployment of the security agency's resources and the
potential impact on civil liberties, that they should be based on evidence that
meets a standard defined by statute . Except in emergency circumstances, such
decisions should be approved by the Solicitor General, as the Minister responsible for the agency . We should make it clear that the decisions we refer to
here are ônes that determine that evidence obtained through less intrusive
techniques of investigation justifies intensifying the general level of investigation to the most intrusive stage . Particular techniques of investigation may
require an additional level of authorization . For instance, under our recommendation the use of electronic surveillance, surreptitious entry or a mail check, or
access to certain kinds of confidential information, would require judicial
authorization .
28 . The procedure we envisage for initiating a full investigation of an
individual or group would involve three stages :
Stage 1 : Approval by a committee including senior management of the
security intelligence agency, and representatives of the Department of Justice and the Minister responsible for the agency .
Stage 2 : Approval by the Solicitor General .
Stage 3 : If the law requires a judicial warrant for the use of a technique
(e .g . electronic surveillance), authorization of the use of that
technique by a judge .
29 . A procedure for emergency situations should be provided for . It should be
possible for the Director General (or a person authorized in writing by th e
523
�Director General to act in his place) to initiate a full investigation for 49 hours,
without obtaining Stage I or Stage 2 approval . However, the Solicitor General's approval should have to be obtained within 48 hours . If it is not obtained,
the full investigation should have to be terminated . It is understood that, if the
Solicitor General is absent or otherwise incapacitated, the Acting Solicitor
General would be able to act in his place . The Director General should report
immediately to the Minister each emergency authorization which he grants .
This emergency procedure does not remove the necessity to obtain a warrant
authorizing those intrusive techniques which later in this chapter we recommend require a judge's warrant .
30 . The Committee at Stage 1 should include higher echelon personnel and
be broader in the interests it represents than is now the case with the Security
Service's Operational Priorities Review Committee . We think the Committee
should normally include the Director General of the agency . If he cannot
attend, he should be informed as soon as possible if the Committee approves
the initiation of a full investigation, for no such proposal should go forward for
ministerial approval unless it is supported by the Director General . The senior
legal adviser from the Department of Justice, whose position is fully described
in Part VI of this Report, should also be a member of the Committee . His
particular role should be to consider whether the proposed target of a full
investigation is within the statutory mandate of the agency and whether the
statutory standard for a full investigation has been met . The Committee should
also include a senior official from the Department of the Solicitor General to
ensure that a member of the Minister's staff who is not a member of the
agency is fully apprised of the factors which entered into the decision to launch
an intensive investigation . We think that the Assistant Deputy Solicitor
General who heads the Police and Security Branch in the Solicitor General's
Department would be the most appropriate person to perform this function .
The selection of the security intelligence officers for this Committee should be
left to the discretion of the Director General and his senior management team .
The main considerations should be the inclusion of members with operational
expertise in the area of investigation concerned and of senior officers with
policy-making rèsponsibilities .
31 . The Committee which reviews proposals for the initiation of full investigations should not reach its decisions by majority vote . As we have stated
above, no proposal to open a full investigation should be presented for
ministerial approval without the Director General's support . Moreover, if the
legal adviser believes that the subject of a proposed full investigation lies
outside the statutory mandate of the security agency and he is unable to
persuade the Committee of this, the question of its legality should be resolved
by the Deputy Attorney General . On the other hand, if the representative of
the Solicitor General's Department opposes a full investigation which the
Director General and his colleagues believe should be undertaken and to which
the legal adviser makes no objection, the Director General should put the
proposal to the Minister . The security intelligence agency should also consult
the Department of External Affairs before initiating a full investigatio n
524
�involving the use in Canada of certain investigative techniques directed at a
foreign government or a foreign national in Canada .
32. The ministerial approval called for in this procedure would entail a major
extension of direct ministerial involvement in controlling security intelligence
operations . At present under section 16 of the Official Secrets Act the use of
electronic surveillance for national security purposes requires the authorization
of the Solicitor General . There were some who questioned this requirement
when .it was introduced in 1974 on the grounds that it involved a Minister to an
inappropriate degree in the day-to-day operations of the Security Service . How
can we now justify expanding the scope of ministerial approval for security
intelligence investigations? Our justification for doing so is based on a number
of related points . We believe that in a . system of responsible government,
responsible Ministers should be accountable for the policies of the security
intelligence agency . Further, our examination of Security Service activity has
led us to the conclusion that many of the most important policy decisions
relative to the work of a security intelligence agency arise in the process of
assessing the degree of security threat and necessary countermeasures in
individual cases . A number of investigative techniques have a great potential
for invading privacy and impinging on civil liberties . In this class are the
planting of state-paid undercover agents in political organizations, as well . as
techniques that involve the exercise of extraordinary powers denied to ordinary
citizens, such as electronic surveillance, the opening of mail, surreptitious entry
and access to confidential information . The decision to subject an individual or
group to any or all of these techniques for national security purposes is a
decision with important policy implications which in our view ought to have the
approvat of a responsible Minister . Indeed, it is through his participation in
these decisions that the Minister responsible for a security intelligence agency
is most likely to have the `window' he needs into the agency's activities .
33 . Our proposals also include a check on ministerial power by requiring
judicial authorization of warrants to exercise the extraordinary powers of
electronic surveillance, surreptitious entry, mail checks and access to confidential government information . This proposal, it might be argued, suggests an
unacceptable extension of judicial authority into decisions which should be
reserved for responsible Ministers . We do not think so . Under our proposal, the
judiciary's role would be to determine whether or not a statutory standard
established by Parliament as a condition for exercising certain extraordinary
powers has been satisfied by the facts of a particular case . In normal situations
of public law, the judiciary is involved when the exercise of a power is
challenged after the fact . However, because of the secrecy inherent- in the
exercise of investigative powers by the security intelligence agency this practice
becomes unrealistic, because the person affected does not normally learn of the
use of this power and therefore cannot challenge its validity . Therefore we shall
recommend that judicial approval be sought as a p'rior condition to the use of
these powers . As we see it, the ministerial role with respect to these powers is to
make policy decisions . For example, the Minister must decide whether the
activities of a certain country's diplomats are sufficiently suspect and dangerous to risk the diplomatic repercussions of possible . exposure of security
525
�intelligence surveillance, or whether the activities of a violence-prone group
pose a sufficient threat to the country's democratic process to warrant deploying the full investigative resources of the security intelligence agency . It is
primarily questions of this kind which the Solicitor General must consider in
deciding whether to approve an application for a judicial warrant . He might
refuse to authorize an application even though convinced that it met the
statutory standard . The Solicitor General should by no means be indifferent as
to whether the legal requirements were satisfied by a proposed application : on
the contrary, he should not approve the application for a judicial warrant
unless satisfied that the legal requirements have been met . However, our
proposals give the judiciary, not the Minister (or his legal advisers), the final
decision whether the law is being properly applied . In our view this would
ensure the application of the rule of law to these aspects of security intelligence
operations and does not depart from the appropriate distribution of responsibilities between Ministers and judges .
34 . In the system we propose, at the same time that the Minister gives his
general approval to a proposal to initiate a full investigation he may also
approve a proposal to apply for a judicial warrant to use one or more particular
techniques . He might, however, not be asked for such approval or might
withhold it until other techniques not requiring a judicial warrant have been
used .
35 . We recognize that without some protective mechanism there is a danger
in this system of ministerial control . A Minister's denial of a request to initiate
a full investigation may be based on improper considerations such as the desire
to protect personal friends or partisan political supporters . Because of the
danger in this and other areas, we shall recommend that the Director General
must have direct access to the Prime Minister when he believes that the
security intelligence agency is subject to improper ministerial direction, and, in
extreme circumstances when in his view his concern is not dealt with adequately by the Prime Minister, to the independent review body .
36 . The approval of a full investigation should be subject to standards set out
in the statute governing the security intelligence agency . The statute should
provide that a full investigation may be undertaken if :
(a) there is evidence that makes it reasonable to believe that an individual or
group is participating in an activity which falls within the first three
categories of activity (i .e . espionage, foreign interference and political
violence) described as threats to the security of Canada in the statutory
mandate of the security intelligence agency ; an d
(b) the activity represents a present or probable threat to the security of
Canada of sufficiently serious proportions to justify encroachments on
individual privacy or actions which may adversely affect the exercise of
human rights and fundamental freedoms recognized and declared in Part I
of the Canadian Bill of Rights ; and
(c) less intrusive techniques of investigation are unlikely to succeed, or have
been tried and have been found to be inadequate to produce the information needed to conclude the investigation, or the urgency of the matter
makes it impractical to use other investigative techniques .
526
�37. Full investigations should be approved for a maximum of one year at a
time . The extension of a full investigation beyond its authorized duration
should be subject to an approval process similar to that required for the
initiation of a full investigation . Granted that security investigations must by
their very nature frequently be more long-term than criminal investigations,
nevertheless individuals and groups should not be subjected to indefinite
investigation by the state's security agency . That is why it is important to
review carefully the results of a full investigation to determine whether useful
information has been obtained from the techniques employed and whether
there is a basis for extending the full investigation for a further period .
38. When the new system of controls comes into force it is extremely
important that it be applied as quickly as possible to all existing Security
Service investigations which employ the techniques covered by a full investigation . This would involve an assessment . of the current investigative_activity of_
the Security Service in the light of new standards established by Parliament .
Such a review and assessment should be a top priority of the senior management of the new security intelligence agency and of the Solicitor General .
39. Besides the system of prior approval for full investigations recommended
above, there should be a system of ex post facto review of full investigations .
This system of review should have at least the following elements :
(a) regular checks and audits by the independent review body (i .e . the
Advisory Council on Security and Intelligence) ;
(b) a report at least annually to the Cabinet Committee on Security and
Intelligence and to the Parliamentary Committee on Security and
Intelligence of the range of full investigations and methods used .
WE RECOMMEND THAT a system for controlling the collection of
information by the security intelligence agency be established which.distinguishes three levels of investigation .
. (7)
WE RECOMMEND THAT investigations at the first two levels be
regulated by administrative guidelines developed by the security intelligence agency and approved by the Solicitor General :
(8)
WE RECOMMEND THAT the statute governing the security intelligence
agency require ministerial approval for full investigations, indicate the
techniques of collection that may be used in a full investigation and
stipulate that a full investigation be undertaken only i f
(a) there is evidence that makes it reasonable to believe that an individual
or group is participating in an activity which falls within categories of
activities ( a) to (c) identified, in the statute governing the security
intelligence agency, as threats to the security of Canada ; and
(b) the activity represents a present or probable threat to the security of
Canada of sufficiently serious proportions to justify encroachments on
individual privacy or actions which may adversely affect the exercise
of human rights and fundamental freedoms as recognized and declared
in Part I of the Canadian Bill of Rights; and
527
�(c) less intrusive techniques of investigation are unlikely to succeed, or
have been tried and have been found to be inadequate to produce the
information needed to conclude the investigation, or the urgency of the
matter makes it impractical to use other investigative techniques .
(9)
WE RECOMMEND THAT the security
intelligence agency and the
Solicitor General should move as quickly as possible to apply this system of
controls to all security intelligence investigations which are under way at
the time this new system of controls is introduçed .
(10)
WE RECOMMEND THAT, . with the exception of administrative and
source files, the security intelligence agency open and maintain a file on a
person only if at least one of the following three conditions is met :
(a) there is reason to suspect that the person has been, is, or will be,
engaged in activities which Parliament has defined as threats to
Canada's security ;
(b) there is reason to suspect that the person, who is, or who soon will be,
in a position with access to security classified information, may
become subject to blackmail or may become indiscreet or dishonest in
such a way as to endanger the security of Canada;
(c) the person is the subject of any investigation by the security intelligence agency for security screening purposes . (Once the investigation
has been completed, the agency should not continue to add information
to these files unless the information relates to category (a) or (b)
above .)
(>>)
WE RECOMMEND THAT the security intelligence agency and the
independent review body (the Advisory Council on Security and Intelligence) develop programmes for reviewing agency files on a regular basis to
ensure compliance with the general principles for opening and maintaining
files on individuals .
(12)
WE RECOMMEND THAT the storage and retrieval system for information on individuals whose activities are relevant to the security intelligence
agency's mandate be separate from those systems pertaining to administrative, source and research files .
(13)
WE RECOMMEND THAT .the security intelligence agency's flles, documents, tapes and other matter be erased or destroyed only according to
conditions and criteria set down in guidelines approved by the Solicitor
General.
(14 )
WE RECOMMEND THAT the security intelligence agency consult the
Department of Externat Affairs before initiating a full investigation involving the use in Canada of certain investigative techniques directed at a
foreign government or a foreign national in Canada .
(15 )
528
�40 . The fôregoing section of this chapter has dealt with the general system of
controlling the collection of information'by the security intelligence agency . It
was designed to encompass the use of all techniques, without regard to their
special legality . We now turn to those specific techniques which at present raise
legal difficulties and which, therefore, may require changes in the law . The
groundwork for this part of the chapter was laid in Part III where we analyzed
the legal issues raised by the investigative methods used by the R .C .M .P .
Security Service and indicated whether we thought that continued use of the
method in the future was justified . In what follôws we now set out the details of
the legal and policy changes which we think should be made with respect to
particular investigative techniques employed by a security intelligence agency .
. C . PHYSICAL SURVEILLANC E
41 . Physical surveillance techniques are used to collect information about the
movements, habits and contacts of persons by surreptitiously following them or
observing their premises . In Part III, Chapter 8 we described how this
technique had - been developed by the R .C .M .P . Security Service and the
general importance of physical surveillance operations, carried out to a large
extent in the Security Service by the highly specialized Watcher Service . There
is no doubt in our minds that expert physical surveillance must continue in the
future to be an investigative technique available to Canada's security intelligence agency .
42. Much physical surveillance of a person's public movements and contacts
is less intrusive than intercepting private communications or planting an
undercover agent within an organization and should, whenever appropriate, be
used before or instead of resorting to those more intrusive techniques . Still, we
regard physical surveillance, whether for the limited purpose of identification
or for other investigative purposes, as sufficiently intrusive to justify requiring
approval at Headquarters ( level two) . When publicly financed surveillance
teams, fully equipped and expertly trained, are directed to follow a person
surreptitiously, noting every movement and contact, there should be reasonable
grounds for believing that such a person, whether a citizen, a visitor or a
diplomat, poses a threat, even unwittingly, to national security .
43 . We think it would be wise, whenever practicable, for the security
intelligence agency to continue to use specialized teams, such as the Watcher
Service, for physical surveillance operations . Not only are such teams most
likely to have the skill necessary to overcome the security measures employed
by `hard' targets in the espionage and terrorist fields, but also they can be
better trained to minimize the risk of traffic accidents and other hazards
associated with physical surveillance work . In locations where it is not feasible
to use specialized teams, individuals who might be called upon to'engage in
surveillance work should continue to receive the most thorough training
possible .
529
�44. But more than a high standard of training and the maintenance of
specialized teams will be needed if physical surveillance is to be carried on in
the future on a satisfactory basis by our security intelligence agency . As we
reported in Part III, Chapter 8, physical surveillance for both security and
regular police investigations is very likely to involve a number of legal
violations . At the conclusion of that chapter we took the position that, even
though the legal violations resulting from physical surveillance operations may
often be regarded as "minor infractions" or "technical breaches" of "merely
regulatory laws", the continuation of physical surveillance without any changes
in the law endangers the rule of law, for it implies that our security agency or
police forces may in their institutional practices pick and choose the laws which
they will obey . We argued that to permit a national police force or security
intelligence agency to adopt a policy which entails systematic violations of
"minor" laws puts these organizations at the top of a slippery slope and
therefore that changes should be made in the law so that physical surveillance
may be carried on without jeopardizing the rule of law .
45. A possible alternative to legal amendments is the establishment of a
policy by attorneys general of not prosecuting surveillance team members who
contravene legislation in the course of their duties . We reject this alternative .
Such a policy would do nothing to resolve the dilemma of a government agency
maintaining a practice that systematically involves the commission of illegal
acts . Furthermore, a firm policy of non-prosecution might be rejected by the
courts as an improper fettering of the attorney general's prosecutorial discretion . Thus we think the only proper alternative is to make appropriate changes
in the relevant laws .
46. As was explained in Part III the laws which present difficulties in
physical surveillance operations fall broadly into three categories : "rules of the
road", the identification of persons and property, and trespass . Many of the
laws which are apt to be violated in these areas are provincial statutes or
municipal by-laws . One possible approach to these legal difficulties would be
the enactment of federal legislation to provide with respect to both federal and
provincial laws either a defence in defined circumstances or a procedure for
authorizing what otherwise would be proscribed . Such provisions could be
included in the legislation establishing the security intelligence agency . This
approach would have the advantage of immediately providing a uniform
legislative scheme across the country . However, we have serious doubts about
the constitutionality of such an approach . It is far from clear that `national
security' or `the security of Canada' (or, for that matter, `national policing')
constitutes a distinct subject matter of legislation over which the federal
parliament has an exclusive or paramount authority . Even if these legal doubts
can be set aside, we question the wisdom of unilateral action at the federal level
exempting a national security intelligence organization (or a national police
force) from provincial legislation . We think that unilateral federal action of
this kind would undermine the possibility of fostering the kind of federal-provincial co-operation which in our view is essential to an effective system of
national security in the Canadian federation . Moreover, we think it likely that
the legislative changes needed to reconcile physical surveillance activities wit h
530
�the rule of law may be needed just as much by provincial or municipal police
forces as by a national security intelligence agency . Therefore we recommend
the enactment of legislation by the Parliament of Canada to deal with breaches
of federal laws and that the provinces be asked to enact provincial legislation to
deal with violations of provincial and municipal laws .
The specific amendments
(a) Rules of the roa d
47. In Part III, Chapter 8 we reported that no evidence was before us to
suggest that Criminal Code offences relating to the operation of motor vehicles
have been committed or need to be committed by those engaged in physical
surveillance . Therefore our recommendations for specific legislative amendments in this area are confined to provincial driving offences and municipal
.
.
bÿ-lâw infr acticns .
48 . We think that provincial driving offences are best dealt with by the
enactment by provincial legislatures of a defence available to a defined class of
persons . Peace officers ( a term including the R .C .M .P., provincial and municipal police forces) would be within this class, as would any other person
designated (according to the function he performs) by provincial attorneys
general upon the advice of the federal Solicitor General . These designated
persons should include members of a security intelligence agency who regularly
perform surveillance functions or who may be called upon to perform such
functions . This statutory defence should be available only where a breach of
traffic legislation occurs in the course of the driver's otherwise lawful duties,
and the driver acts reasonably in all the circumstances, with due regard for the
safety of others . We believe that the inclusion of these conditions in the
legislation is necessary to ensure that the defences are not too broad . Section
3(4) of the New Brunswick Police Act' provides the following defence :
A member of the Royal Canadian Mounted Police or a member of a police
force shall not be convicted of a violation of any Provincial Statute if it is
made to appear to the judge before whom the complaint is heard that the
person charged with the offence committed the offence for the purpose of
obtaining evidence or in carrying out his lawful duties .
We consider that this formulation is too broad in its scope to be applied to a
security intelligence agency . Moreover, it lacks any requirement of necessity or
of reasonable conduct .
49 . At the same time as the recommended defence is introduced, a mechanism should be put in place which will both protect the defined class of person
from personal liability in the event of actionable damage to a third party and
provide an aggrieved third party with a means of recovering compensation in a
proper case . Such a mechanism would recognize that the object of the statutory
defence is not to deny redress to an innocent individual . On the other hand,
individuals carrying out surveillance responsibilities should not be personall y
s
New Brunswick Police Act, Stats . N .B . ch .P-9.2 (1977) .
531
�liable where damage ensues, caused by what would otherwise be a breach of
statute, provided that they act reasonably in the discharge of their otherwise
lawful duties and with due regard for the property and the safety of others . ,To
attach personal liability to such individuals would be unfair . We therefore
consider that the federal government should accept responsibility for compensation to aggrieved persons through the ordinary civil process in the . courts or
through an agency similar to provincial Criminal Injuries Compensation
Boards . The secrecy of the surveillance operation could be maintâined by the
use of in camera hearings in either case . The quantum of damages should in
any such case be determined with reference to the same principles which guide
the civil courts in such matters .
50 . Violations of municipal by-laws, primarily "non-moving" and pedestrian
violations, should also be dealt with in the same manner as provincial driving
offences by seeking provincial co-operation to amend Municipal Acts or other
relevant legislation .
(b) Laws governing the identification of persons and property
51 . - Legislation in this field exists both at the federal and provincial level .
Consequently, we recommend that both federal and provincial governments be
involved in amending their respective enactments . We would suggest that a
provision be added to relevant legislation to permit the Director General of the
security intelligence agency, or a senior officer designated in writing by the
Director General, to apply to the senior government official charged with the
administration of an enactment (e .g . the Superintendent of Motor Vehicles in
the case of highway traffic legislation) to obtain identification or registration
documents that will enable a surveillance operation to remain covert . The
application would be accompanied by a sworn statement that the documents
are reasonably necessary for the operation . Such identification should. be
deemed to comply with the requirements of the statute in question . For
example, a driver's licence which contains false information will nonetheless be
deemed to be a valid driver's licence, if it is applied for and granted pursuant to
this provision . In the provinces where they are necessary, provisions should also
be enacted to ensure that it shall not be an offence for an individual in defined
circumstances to hold two valid licences (e .g . one in the individual's true name,
and one in an assumed name) or to sign a specially obtained licence with other
than one's usual signature . A record of all applications for `false documentation' permits should be kept for periodic examination by the Solicitor General
of Canada and by the attorneys general or solicitors general of the provinces
where such applications are made .
52 . The requirement in some provinces that an individual register his proper
name upon entering a hotel can, we think, be safely relaxed in order to . permit
members conducting surveillance to register under a false name in the course
of an investigation . It is our understanding that these registration laws were
originally intended to allow the police to keep track of transients and to ensure
that guests would not defraud hotel owners . Neither of these objects is affected
by permitting members conducting surveillance to register under false names .
We feel that there is no need for prior authorization in this situation ; a
532
�statutory defence enacted at the provincial level is the appropriate mechanism .
The defence should be available to peace officers and other persons designated
by provincial attorneys general on the advice of the federal Solicitor General
who register in a hotel using a false name and address if they do so in good
faith and if the use of a false identity is necessary for the performance of their
lawful duties .
53 . The legislative schemes we recommend here will also remove the temptation on the part of members of the R .C .M .P . to resort to,violations of the
Criminal Code in order to obtain and use appropriate cover documentation .
Thus, where surveillance team members are supplied with documentation
through a legislated scheme, there will be no obtaining by a false pretence,
contrary to section 319 of the Criminal Code . Also, there will no longer be a
need for cover documentation to be manufactured by the R .C .M .P . themselves
for. individuals engaged in surveillance, and there will therefore be .no violations
of sections 324 and 326 of the Criminal Code, dealing with forging and
uttering forged documents . Similarly, there will be no need for members to
personate someone else at a qualifying examination in order to obtain appropriate documentation ; this resolves the problem, potential or actual, raised by
section 362 of the Criminal Code . In short, selective amendments at the
provincial level, to what some have termed "minor" or "regulatory" laws will,
with respect to these matters, eliminate the potential for violation of criminal
laws in order to protect the security of Canada .
(c) Laws relating to trespas s
54. An initially attractive solution to the trespass issue seems to lie in asking
the owner of the target's apartment building, for example, for permission to
enter the premises to search for the target's car . If such consent to enter is
obtained, no offence is committed . While most individuals likely will grant
permission to enter if the circumstances are explained to them, a real danger
exists that'the person's knowledge might eventually compromise the secrecy of
the surveillance ôperation .
55 . If entry into buildings and onto land is to be permitted for physical
surveillance teams, it is best done with the protection of legislation . We are
satisfied that the balance between property rights and the need for effective
security intelligence operations favours the amendment of trespass legislation
to permit entry onto land or into buildings (other than a house, or in the case of
an apartment building, inhabited rooms) in order, for example, to determine
the presence of an individual or of his vehicle or to plant tracking devices on
the vehicle . Amendments to legislation should apply to federal and provincial
police forces, as we have recommended in the section of this chapter dealing
with rules of the road .
56 . The legislation should be framed to provide a defence to a petty trespass
prosecution where the accused is a peace officer or a person designated by the
provincial attorney general and was engaged at the time of the entry in the
discharge of his otherwise lawful duties and acting with due regard for the
property rights of the owner . Furthermore, the trespass should be reasonably
533
�necessary in all the circumstances . While it is hard to conceive of circumstances in which damage would occur, civil remedies against the Crown for
damage occasioned in the course of such entries should continue to exist, as in
the case of damages arising from automobile accidents . Again, no liability
should be imposed on individual surveillance team members where they act in a
fashion that entitles them to rely on the proposed defence . The federal
government should compensate those individuals who suffer damages as a
result of a trespass by security intelligence surveillance team members . The
quantum of compensation should be assessed on the same basis as is the
practice in civil courts, whether or not the civil courts or some other tribunal
hear the complaint .
57 . The Criminal Code offences of mischief (section 387) and damage to
property (section 388) remain a problem . Increasingly effective methods of
counter-surveillance necessitate considerable ingenuity on the part of individuals engaged in surveillance . To this end, surveillance operations may involve
placing objects on a target vehicle . We accept the need for the use of such
techniques . Therefore, we must address the problems caused by these Criminal
Code offences . The only practicable solution we see is the enactment of a
defence that will protect designated individuals acting in the course of their
otherwise lawful duties, if they do no more damage or interfere no more with
the property than is reasonably necessary for the purposes of the operation . In
any event, the damage or interference should not be such as to create any
danger in the use of the property . Civil recovery should be permitted according
to principles similar to those enumerated in respect of rules of the road and
provincial trespass legislation . This defence seems at first very broad ; its ambit
can be restricted considerably by limiting the number of designated individuals
permitted to engage in such conduct .
WE RECOMMEND THAT, in order to make it possible for physical
surveillance operations to be carried out effectively by a security intelligence agency, changes be made in federal statutes and the co-operation of
the provinces be sought to make changes in provincial statutes as follows :
(1) Rules of the road
(a) A defence be included in provincial statutes governing rules of the road
for peace officers and persons designated by the Attorney General of
the Province on the advice of the Solicitor General of Canada ( "designated individuals") if such persons act
(i) reasonably in all the circumstances ,
(ii) with due regard for the property and personal safety of others, and
(iii) in the otherwise lawful_discharge of their duties ;
(b) a defence similar to that referred to in (1)(a) above be included in
relevant provincial legislation which authorizes municipal traffic
by-laws;
(c) there be enacted by each of the provinces and territories, a provision
for the protection of peace officers and designated individuals, saving
them harmless from personal liability in civil suits, if such persons act
(i) reasonably in all of the circumstances;
534
�(ii) with due regard for the property and personal safety of others; and,
(iii) in the otherwise lawful discharge of their duties ;
(d) the Government of Canada compensate those persons who, but for
recommendation (c) above would be entitled to recover damages in a
civil suit brought against a federally engaged-peace officer or designated individual in a cause of action arising by reason of acts done or
omissions occurring in the course of the work of such peace officer or
designated individual and on the principle that the quantum of compensation should be assessed on the same basis as is the practice in the
civil courts.
(2) False identification
(a) Provincial highway traffic legislation regulating the licensing and
identification of persons and property be amended to permit the
Director General or designated member of the security intelligence
agency (or a duly authorized member of a police force) to apply for
false identification to the senior government official charged with the
administration of the legislation. Provision be made to permit the
documents related to the application to be sealed and not to be opened
without court order . It is further recommended that such amendments
be made as may be necessary to remove all statutory restrictions on
the signing or holding of more than one piece of identification in each
case ;
(b) provincial hotel registration legislation be amended to make available
a defence to peace officers and designated individuals who register in
a hotel under a false name provided tha t
(i) they do so in good faith, and
(ii) the use of a false name is necessary for the performance of their
otherwise lawful duties .
(3) Trespass
(a) Provincial petty trespass statutes be amended to make available a
defence to peace officers and designated individuals who enter onto
private property other than private dwelling-houses or inhabited units
in multi-unit residences but including vehicles, providing tha t
(i) entry onto private property is reasonably necessary in the
circumstances;
(ii) they show due regard for the property rights of the owner ; and,
( iii) they act in the otherwise lawful discharge of their duties .
(b) sections 387(1)(a) and 387(1)(c) and 388(1) of the Criminal Code be
amended to make available a defence to peace officers and designated
individuals in order to allow the attachment of tracking devices to
vehicles, in order to assist in physical surveillance operatiôns, provided
that such person s
(i) act in the course of their otherwise lawful duties ,
(ii) do no more damage or interference with the property than is
reasonably necessary for the purposes of the operation ; in any
event, the damage or interference must not render the use of the
property dàngerous ;
(c) civil remedies be preserved for both trespass and the affixing of
devices in a manner similar to that recommended in respect of rules of
the road.
(16)
535
�D . UNDERCOVER OPERATIVE S
58 . The use of human sources and undercover members, collectively referred
to by us as "undercover operatives", is the most established method of
collecting information about threats to security . Despite the technological
revolution which has provided a variety of technical alternatives as a means of
penetrating secretive organizations, the undercover operative is likely to remain
an extremely important source of information to a security intelligence agency .
59 . An undercover operative can be a much more penetrating means of
collecting information than any technical device . A technical source - whether a hidden microphone, a telephone tap, or a long-distance viewing device is essentially a passive instrument which can record only what is said or done at
one particular place . In contrast, undercover operatives - human spies have frequently penetrated the innermost circles of groups, probed the intentions of their leading meinbérs, and a ctively attempted to thwart the groups by
supplying misleading information, sowing the seeds of distrust amongst their
members, or otherwise disrupting the groups .
60 . While there is no doubt that undercover operatives have certain advantages as sources of information, there is also no doubt that the use of these
individuals by a security intelligence agency involves a number of serious
hazards . Unlike information obtained from the mechanical recording of conversations, information, particularly from human sources (who, it will be
recalled, are not members of the Force) must be carefully assessed for its
reliability . Mechanical recording devices do not lie or exaggerate or distort ;
human sources can and do . The use of undercover operatives also involves the
security agency in directing individuals to deceive, indeed to betray, the
organizations which they penetrate . Frequent participation in the planning and
execution of deceitful and treacherous acts may have deleterious effects on the
moral character of the `handlers' of these operatives and the operatives
themselves . Undercover operatives may go far beyond gathering information .
They might endeavour to trap the group into carrying out incriminating actions
- become, in effect, agents provocateurs - or carry out the kinds of
disruptive tactics which have come under review by us . The agency which uses
undercover operatives is apt to incur serious and difficult responsibilities to
protect these individuals when they are exposed or have otherwise completed
their assignment .6 Also, there are, as we indicated in Chapter 9 of Part III, a
number of laws which have been violated by the use of undercover operatives .
The need for controls
61 . In the past, there has been far too little attention paid to the policy and
legal problems associated with the use of undercover operatives in securit y
6
For an examination of the policy issues arising from the use of informants in
national security investigations see the following : Christopher Felix, A Short Course
In The Secret War, New York, E.P. Dutton, 1963, esp . Ch . III ; Garry'T. Marx,
"Thoughts on a Neglected Category of Social Movement Participant ; the Agent
Provocateur and the Informant", American Journal of Sociology, Sept . 1974, pp.
402-442 ; Geoffrey Robertson, Reluctant Judas, London, Temple Smith, 1976 .
536
�intelligence (or, for that matter, in criminal) investigations . This is particularly
true of responsible Ministers . Guidelines concerning the use of undercover
operatives were developed by the Security Service but were not submitted to,
nor requested to be seen by, Solicitors General . Mr . Starnes, as Director
General of the Security Service, was unable to obtain a Cabinet decision on
how to resolve the dilemma of the apparent need of some undercover operatives
to commit offences in order to maintain their credibility with violence-prone
groups .' The policy issues associated with the use of undercover operatives are
too important to both the security of Canada and the quality of its democracy
to be left entirely to investigative agencies to resolve .
62 . In designing a system to control a security intelligence agency in the use
of undercover operatives, a distinction must be made between those who are
developed or induced to provide information and those who volunteer information or from whom information is obtained without the expectation that they
will become established sources of information about a particular subject of
investigative interest .8 In our view, the use of the former type of individual who
is induced by the promise of money or some favour or by political ideology, to
provide information to the state about his supposed political associates, or who
may be a member of the security intelligence organization temporarily living
an undercover existence as a member of a targetted organization, requires a
higher form of authorization and tighter method of control than the use of
sources on a voluntary or occasional basis . Hence in the system of controlling
the general level of investigation which we proposed above, ministerial authorization would be required for any investigations involving "developed human
sources" and members operating undercover .
63 . We realize that the distinction between `developed' and `undeveloped'
human sources will not always be easy to make . After all, the use of undercover
operatives involves human relationships whose essential characteristics are not
as self-evident as those of mechanical devices . Still, in the vast majority of
situations we think it should be reasonably clear whether or not a person is
being cultivated as a continuing long-term source of information about a
particular organization . But here again, we should note that, if the members of
the security organization have no understanding of or respect for the principle
at stake in distinguishing between the different types of undercover operatives
and in requiring a stricter method of controlling the most intrusive type, then
the system of control will be frequently by-passed .
64 . Evidence of growing concern about the risks inherent in the use of human
sources in particular is afforded by the fact that the governments of both Great
Britain and the United States have in recent years established administrative
guidelines governing the use of informants by investigative agencies . In England, the Home Office has issued an administrative circular on the subject9 an d
We deal with this matter in detail in a subsequent Réport .
e For , a description of the different types of informants used by the R .C .M .P . Security
Service, see Part III, Chapter 9, section A .
' Home Office Consolidated Circular to the Police on Crime and Kindred Matters .
537
�in the United States, Attorney General Levi established guidelines for the
F.B.I .'s use of informants .10 The latter are more pertinent to our concern in this
chapter as they pertain to the F .B .I .'s domestic security investigations whereas
the British directive pertains to criminal investigations . The introduction to the
F .B .I . guidelines states that "while it is proper for the F .B .I . to use informants
in appropriate investigations, it is imperative that special care be taken not only
to minimize their use but also to ensure that individual rights are not infringed
and that the government itself does not become a violator of the law" . In using
informants for authorized investigations the guidelines require the F .B .I . to
consider a number of factors, the first of which i s
The risk that use of an informant in a particular investigation or the
conduct of a particular informant may, contrary to instructions, violate
individual rights, intrude upon privileged communications, unlawfully
inhibit the free association of individuals or the expression of ideas, or
compromise io-any way the investigation or subsequent- prosecution . "
,
65. The tendency of undercover operatives to inhibit political association and
dissent is particularly great in security intelligence investigations where the
groups which are subject to investigation are, by definition, political . Excessive
planting of secret state operatives in political organizations could have, to use
the language of American Constitutional law, "a chilling effect" on the
exercise of freedom of speech and freedom of association in Canada .,' These
values, which are now recognized as fundamental human rights by the Canadian Bill of Rights and Bills of Rights adopted by several of the Provinces, may
in the future be entrenched in the Canadian Constitution . It is consonant with
a proper concern for the effect of the use of informants on fundamental
political rights that we have proposed to restrict "full" investigations, including
the use of developed human sources and members undercover, to situations
where there is reason to believe a group is participating in espionage, sabotage,
foreign interference, serious political violence or terrorism . Adoption of this
proposal would mean that undercover operations could not be targetted against
groups whose subversive activity went no further than the rhetorical and
written espousal of revolutionary ideas .
66. Given the very serious impact which the misuse of undercover operatives
can have on civil liberties and our principle that the more intrusive the
technique of information collection the higher should be the authority permitting its use, it might be asked why we are not recommending that judicial
authorization be required for the use of undercover operatives . We are
recommending a system of judicial warrants following approval by a committee
of senior officials and the Solicitor General for the use of electronic surveil10 Attorney General's Guidelines for F.B .I. Use of Informants in Domestic Security,
Organized Crime and Other Criminal Investigations, 1976, section 15 .
Ibid., section A(l) .
Some court decisions in the United States have held that the use of undercover agents
and informants in certain situations may violate the guarantees of free speech and
association in the First Amendment of the U .S . Constitution ; see, for example U.S . v .
White 120 Cal . Rptr . ( 1975) 94, 533 5 .2d 222 and Local 309 v . Gates, ( 1948), 75
F.Supp . 620 ( N .D . Ind .) .
538
�lance, surreptitious entry, mail opening, and access to personal information
beyond biographical information on government files . Why not also require
judicial warrants for the use of undercover operatives? We rejected a requirement of judicial warrants for the more intrusive type of operative for two
reasons . First, there is an unavoidable lack of precision in identifying those
individuals whose use requires the approval of higher authority and those
whose use does not . . As we have stated, obtaining information through under=
cover operatives involves human relationships whose defining characteristics
are more complex than those of mechanical devices . Second, we think that
requiring a judicial warrant for an investigative technique as subtle and
complex as the use of undercover operatives is apt to involve the judiciary too
closely in the investigative process . We note that Attorney General Levi
advanced a similar argument in explaining to a congressional committee in the
United States his decision not to require judicial warrants for the use of
-- informants in domestic security investigations : .
Extending the warrant requirement in this way would be a major step
towards an alteration in the basic nature of the criminal justice system in
America . .. It would be a step toward the inquisitional system in which
judges, and not members of the executive, actually control the investigation
of crimes . This is the system used in some European countries and
elsewhere, but our system of justice keeps the investigation and prosecution
of crime separate from the adjudication of criminal charges . The separation
is important to the neutrality of the judiciary, a neutrality which our system
takes pains to protect . . . We must ask ourselves whether the control of
human sources of information - which involves subtle, day-to-day judgments about credibility and personality - is something judges ought to be
asked to undertake . It would place an enormous responsibility upon courts
which either would be handled perfunctorily or, if handled with care, would
place tremendous burden of work on federal judges . "
The need for ministerial guidelines
67. In addition to the system of prior approval for the use of undercover
operatives which we have recommended in section B of this chapter, we think
that a set of guidelines approved by the Solicitor General should be developed
on important policy issues which arise in the use of undercover operatives . A
section of the R .C .M .P . Security Service Operations Manual deals with a
number of the subjects that should be covered in such guidelines, but the
manual itself has not been subject to ministerial approval . Once they are
approved the guidelines should be publicly disclosed, although they need not
contain information about operational techniques, the disclosure of which
would endanger the security of operations . They should express the principles
which govern the use of human sources and members undercover by the
security agency - principles which should be open to public scrutiny .
68 . Throughout this Report we have referred to various forms in which policy
direction is issued by the R .C .M .P . Words used by the R .C .M .P. to describe
13 Quoted in John T . Elliff, The Reform of F.B .I . Intelligence Operations, Princeton,
Princeton University Press, 1979, p . 126 .
539
�these different forms include "directives", "bulletins", "policy", "guidelines",
and "manuals" . Further, some of these words are, on different occasions, used
in different senses . The consequence appears to be that there is no clear and
consistent understanding by those who receive the policy direction as to their
obligation to comply with it . This was exemplified to us in the testimony of a
senior officer who told us that he regarded the then existing policy prohibiting
telephone tapping as a"guideline" but that he also considered it to be a
"policy" and "to some extent" a "binding rule" . On the other hand, according
to his testimony, even though he considered it as a "policy", there had to be
room for "discretion and the exercise of judgment" in the application of the
policy (Vol . 34, pp. 5506-9) . Another illustration of the problem arises in
Bulletin OM-82 . We discussed the contents of that bulletin in Part III,
Chapter 8 . That bulletin was issued by the Commissioner in 1980 to become a
part of the Operational Manual of the Force . It contained a statement that
"The following general guidelines must therefore be-adhered--to-in future'-'- .---T-heCommissioner has advised us that, notwithstanding his use of the imperative
word "must" in the bulletin, he did not intend it to be an "order", with the
exception of the part that indicated that all members are expected to comply
with provincial statutes and municipal bylaws in relation to traffic . He says
that the remainder of the bulletin is "only a guideline" . We are very concerned
about the uncertainty that apparently surrounds the meaning and effect of the
different words used by those promulgating policy direction . We think it
probable that members in the field have the same difficulty we have encountered in knowing how "binding" a "policy" or a "guideline" or a "bulletin" is,
and therefore in anticipating what the consequences may be if they do what the
document says should not be done or fail to do what the document says shall be
done . It is important that members receive more guidance than a simple
assurance that their conduct, if reasonable, will not be judged adversely . Of
equal importance to the members having a clear understanding of what the
consequence of a breach of policy direction will be is that there be a systematic
and critical scrutiny of the interpretation and practical application of the policy
directions which are issued . Such a review and scrutiny must take place both
within the police force and the security intelligence agency and also outside of
them . So that such review and scrutiny can be made outside, the Minister
responsible should be advised of all policy directions issued by the Commissioner of the R .C .M .P . or the Director General of the security intelligence agency
- whether they are called "policy", "guidelines", "directives", "bulletins", or
"manuals" . In this Report we frequently recommend that the Minister responsible for the security intelligence agency should issue guidelines to the agency .
We are conscious that the word "guidelines" may be used in several senses,
including a mandatory sense and a discretionary sense . It is important that
members of the agency know whether a guideline is mandatory or discretionary, that problems of interpretation in the field be drawn to the attention of the
management of the agency, and that the interpretation and application of the
guidelines be the subject of continuing scrutiny by the Minister, the Deputy
Minister, the Director General, and the Advisory Committee on Security and
Intelligence .
540
�69 . In the paragraphs that follow we discuss those matters relating to the use
of undercover operatives which have raised legal or policy issues in the past and
should be dealt with by administrative guidelines approved by the Solicitor
General and in some cases also by legislative amendment .
The use of deceit
70. The recruitment and use of undercover sources necessarily involve deceitful activities . Recruiting a member of a foreign intelligence agency or a
terrorist group to become a source of information for Canada's security
intelligence agency entails inducing an individual to commit an act of betrayal
and to deceive his present associates . Penetration of a group threatening
security by a member or agent of the security intelligence agency can be
accomplished only through falsifying the member's or agent's true identity and
purpose . While we recognize the inevitability of deceit in the tradecraft of a
security intelligence agency, we think there âré limits beyond which deceitful
activity must not be permitted to go . One limit, which we have already insisted
upon, is that the source's activities must be lawful . Another is that the security
intelligence agency must not deceive Ministers or senior government officials,
nor should it falsely allege that a Minister has given an undertaking to protect
or assist an informant . The ministerial guidelines on undercover operatives
should clearly identify the forms of deceit which are unacceptable .
Lawfulness of operative's activity
71 . Throughout this Report we have taken the position that there must be no
departures from the rule of law in the policies and practices of a security
intelligence agency . That principle should certainly be applied to the use of
undercover operatives - whether the individual is an undercover member of
the security agency or a person outside the organization acting as a source . We
do not think there should be a double standard of acceptable conduct . Ensuring
bôth the lawfulness and effectiveness of undercover operatives will, as we
indicated in Part III, Chapter 9, require some legislative amendments . First,
the need for false documentation to hide the true identity of the undercover
operative (normally a member undercover) will require changes in federal and
provincial laws similar to those proposed in relation to physical surveillance . In
addition to provisions in laws relating to motor vehicle registration, driver's
licences and hotel registration, provision should also be made where necessary
for obtaining false documentation in laws governing S .I .N . cards, passports,
birth certificates and education certificates . This would alleviate the need to
manufacture and obtain documentation in a manner that in the past has
resulted or may have resulted in violations of the Criminal Code : section 320
(obtaining by false pretences) ; sections 324 and 326 (forging and uttering
forged documents) ; section 335 (offences in relation to register) ; and, section
362 (personation at an examination) . Secondly, federal and provincial tax
legislation should be amended to permit security intelligence agency sources
not to declare as income payments received by them from the agency . We
arrived at this position after considering and rejecting the feasibility of a
system that would deduct tax payments from the payments to the source . (Fo r
541
�example, it would be next to impossible to determine accurately the rate at
which such payments should be taxed .) We think this legislative amendment is
needed to protect the identity of sources and to avoid a situation in which
members of the security intelligence agency advise paid sources not to declare
their payments as taxable income and thus conspire with their sources to break
the provisions of the Income Tax Act . Further, the government should ascertain whether there are other législative requirements governing employer and
employee relations which may relate to payment of human sources, compliance
with which would result in disclosing the identity of the source, and should seek
whatever amendments may be necessary to overcome these difficulties .
72 . A third area in which legislative reform is needed if sources are to be used
effectively and lawfully for security intelligence (or criminal intelligence)
purposes is section 383 of the Criminal Code which is concerned with secret
commissions . As our analysis in Part III, Chapter 9, pointed out, judicial
construction of this section necessitates an amendment to provide expressly
that neither an agent nor an employee commits an offence in providing
information about a principal or employer if this is done in the course of an
authorized security intelligence investigation . In addition to this legislative
change the guidelines governing the use of undercover operatives should
recognize the need to balance the damage to the relationship of trust between
employer and employee or principal and agent which use of a source may
entail, against the potential value of the information for the protection of
national security .
73 . There is one further change in the law to which we have given careful
consideration . That is whether there should be provision in law to allow
security intelligence agency undercover operatives to perform acts which would
otherwise be offences in order to establish or maintain their credibility with the
groups they are attempting to penetrate . The R .C.M .P . Security Service raised
this issue in relation to problems encountered in penetrating Quebec terrorist
groups in the late 1960s and early 1970s . As we reported in Part III, Chapter
9, we have reviewed the extent to which the operational branches currently
identify a need for undercover operatives to commit offences to maintain
credibility . While the current operational policies of the Security Service
prohibit instructing a source to commit an offence, they appear to leave the
door open for a source to become involved in a criminal offence by stating tha t
The D .D.G . [i .e . the Deputy Director General] has ruled that any degree of
source involvement in any premeditated criminal offence will be decided by
Headquarters on the events of each particular case . The support of the
A/Gs or other appropriate authority, will have a definite bearing on such
decisions .
74 . We consider that the existing policy is unsatisfactory . Premeditated
criminal offences by security intelligence undercover operatives must not be
permitted under any circumstances . We considered two possible changes in the
law which would provide greater leeway for security intelligence informants :
(I) A statutory defence for the commission of certain offences .
542
�(2) A system of prior approval whereby in clearly defined circumstances
and under appropriate controls an undercover operative of the security
agency could be authorized to carry out a range of acts which would
otherwise be offences .
We have concluded that there is not sufficient need to change the law in either
of these ways . In taking this position we acknowledge that there will likely be
situations in which sources or members of the security intelligence agency will
have to forfeit their credibility with targetted groups and their usefulness as
undercover operatives in order to avoid unlawful activity . This policy means
that the security intelligence agency's informants will not be able to penetrâte
cells of movements in which the commission of an offence is the passport to
admission, and will find it difficult, and in some cases may find it impossible, to
play any role in violence-prone groups . But neither our extensive review of
Security Service experience to date nor our speculation about future security
threats, especially the threat of terrorism, has convinced us that the `evil' to be
thwarted is great enough to justify the `evil' of secretly authorizing agents of
the government to carry out a range of activities which would otherwise
constitute criminal conduct, no matter how carefully and narrowly the criteria
are drawn . The fact that the magnitude or urgency of future threats to security
is unpredictable does not in our view justify stretching so ominously the leeway
available under law to the agents of national security . Our conviction that the
law should not be amended to expand the scope of lawful conduct by security
informants is strengthened by recognition of legal mechanisms already available . The common law defences of necessity or duress might be of assistance to
an operative in circumstances where the carrying out of an act which might
otherwise be an offence appears to be the only means of avoiding serious bodily
harm . Further, discretion in prosecuting and sentencing, as well as the prerogative power of mercy, may all be exercised in favour of a person whose criminal
conduct can be shown to have been carried out for the purpose of protecting
national security . The policy of the security intelligence agency should prohibit
civil wrongs, as it would other unlawful conduct, on the part of undercover
operatives . Nevertheless, there may be circumstances when such torts as we
examined in Part III, Chapter 9 - inducement to breach 'of contract and
invasion of privacy - may occur as the result of the activities of undercover
operatives . If that should happen, and if individuals, have suffered loss or
damage as a result, the Crown should make ex gratia payments to them to
compensate them .
75. The alternative to the position we have taken is to change the law so that
«nder certain circumstances undercover operatives of the security intelligence
agency could lawfully engage in conduct which would otherwise constitute
criminal activity . This alternative could take the form of a provision in the Act
governing the security intelligence agency whereby, under exceptional circumstances when the conduct is necessary to obtain information about a serious
threat to security, a Committee of Ministers could, in advance, authorize the
agency to permit certain of its members or sources to participate in conduct
which would otherwise constitute a criminal offence . Such a provision could
stipulate a limited range of permissible conduct that might well exclude eithe r
543
�bodily harm to persons or serious damage to property . The undercover operative of the security intelligence agency who engaged in such conduct would
then not be committing an offence so long as the conduct was properly
authorized and within the range of activity described in the Act . We have
rejected this alternative and opted for the status quo because we think such an
extension of investigative powers involves encroachment on civil liberty that
would be a more serious evil than the damage to security resulting from the
fact that the security intelligence agency lacks these powers . We realize that
the position we have taken involves a certain risk that threats to security will go
undetected . We also note that, in the United States, Guidelines governing
F .B .I . investigations signed by Attorney General Civiletti on' December 2,
198014 authorize "otherwise criminal" activity by F .B .I . informants under
specified circumstances and subject to a prescribed apprôval process . These
guidelines apply to both . the domestic security and criminal investigation
activities of the 'F:B .I .' Because of the risk to security which our approach
entails, we think that, if this approach were to be followed by the Gôvernment
of Canada, its consequences should be carefully reviewed by the government
and by the Special Parliamentary Committee on Security and Intelligence
within 5 years . This review should attempt to adduce whatever evidence there
is of damage to Canada's security resulting from the absence of any power on
the part of security intelligence agency informants to commit "otherwise
criminal" activity. This review should also examine as thoroughly as possible
the experience of the United States and other western democracies that have
adopted arrangements to authorize "otherwise criminal" activity by security
informants .
Reporting unlawful acts of undercover operative s
76. Despite the policies and clear instructions of the security agency, an
undercover operative might participate in criminal activity in the course of
carrying but an assignment for the agency . Or the human source might
participate in criminal activity unrelated to his work for the agency . Normally,
in either case, the agency should report whatever knowledge it hâs of criminal
activity to the law enforcement agency which has jurisdiction to investigate the
activity in question . However, there may be situations in which the agency
believes that the information an operative may obtain is of such importance to
the protection of national security that information about the source's criminal
activity should not immediately be turned over to law enforcement authôrities .
In situations of this kind where the requirements of law enforcement must be
balanced against the needs of national security, the security agency must not
be left on its own to determine which consideration should be given priority .
When the agency thinks that the withholding of information about unlawful
conduct of its sources is justified it should notify the Attorney General of
Canada, who should bé responsible for deciding whether or not the information
Attorney General's Guidelines on F.B.I. use of informants and confidential sources
(under the authority of the Attorney General as provided in 28 U .S.C . 509, 510, 533),
Office of Attorney General, Washington, D .C ., December 12, 1980 .
544
�should be turned over to the appropriate law enforcement authorities, according to arrangements we shall describe in Chapter 8 of this Part .
Disruptive activities by undercover operative s
77 . As we reported in Part III, the Security Service sometimes has used
undercover operatives as much for the purpose of disrupting or breaking up
organizations as for the purpose of collecting information about them . In
Chapter 6 of this part of our Report we shall set out our recommendations with
regard to this type of disruptive activity : here we should note that the main
recommendation we shall make - namely, that such activity should not be
permitted outside of counter-espionage and counter-intelligence operations should be incorporated in the guidelines governing the use of undercover
operatives . Another kind of activity closely related to attempts by operatives to
disrupt organizations consists of attempts to trap individuals in situations
which will lead to their prosecution by provoking or instigating their participation in criminal activity . Because such attempts at entrapment or the activities
of agents provocateurs are likely to occur more often in criminal investigations
directed towards obtaining evidence to support a prosecution than in security
intelligence investigations, we will deal with this problem in Part X, Chapter 5,
where we consider legal reforms related to the criminal investigation responsibilities of the R .C .M .P . But aside from any changes which may be made in
the Criminal Code to bar the use of evidence obtained in this way, the policy
guidelines governing the use of undercover operatives should prohibit these
individuals from instigating or encouraging unlawful conduct . Further, undercover operatives should be instructed to do what they can to influence groups
who may be planning acts of violence to adopt milder methods of protest .
Pretext interviews
78 . The security intelligence agency should not use the interviewing of a
candidate for security clearance as an occasion for recruiting that person as a
source. Such an abuse of the agency's security screening responsibilities is one
which is most likely to occur in immigration and citizenship screening . It can
have the unfortunate effect of making it appear to the applicant that he or she
must agree to become an established source of information to the security
agency as a condition for obtaining clearance . There may be circumstances in
which a person interviewed in the course of security clearance proceedings
appears to be an important source of information about a security,threat which
is currently under investigation . In those circumstances, if such a person is to
be used as a source, the approach to him for recruitment purposes should not
be made during the screening interview . The timing of the approach should be
such that there is no possibility that the person will feel that he is being coerced
into becoming a source . Preferably the approach should be made after the
security screening decision has been made and communicated to him .
Undercover operatives and the integrity of certain institution s
79 . There can be no doubt that the excessive or thoughtless use of security
intelligence sources in certain contexts can have a very adverse effect o n
545
�institutions which are vitally important to our liberal democratic society . The
current policy that requires ministerial approval for the use of paid sources who
are to be used by the Security Service to gather intelligence solely on a
university or college campus gives limited recognition to this point . Certainly
the free flow of ideas and the freedom of inquiry so essential to the institutions
of higher learning in a free society would be seriously threatened by the
widespread planting of undercover operatives in colleges and universities . But
colleges and universities are by no means unique in this respect . For example,
the ability of journalists to obtain information essential to the functioning of an
effective free press may be damaged if it is known or believed that journalists
are widely used as security intelligence sources . Or, to take another sector of
society, freedom of worship and religion may be adversely affected if priests or
other religious functionaries are frequently employed to spy . The problem here
is not only a source problem ; it is a problem with undercover members who
might seek to pose as teachers, journalists etc . The chilling effect is the same .
80 . The threat posed to the integrity of institutions by the use of undercover
intelligence agents has received considerable attention in the United States .
The Senate Select Committee to Study Governmental Operations with respect
to Intelligence Activities (the Church Committee) focussed attention on the
risks associated with the use of academics, members of the media and of
religious organizations as undercover informants . Draft legislation based on the
Church Committee Report contains provisions prohibiting the use of membership in religious, media or educational organizations as a cover for an officer of
an intelligence agency .15 In Canada, only academic institutions have been
specifically singled out in policy instruction as requiring particular sensitivity
and control in relation to the use of sources . Mr. Dare indicated in his evidence
before us that there is no policy with respect to other kinds of institutions
beyond "the good common sense of very seasoned people . .." (Vol . 318, p .
301693) .
$1 . In our view the list of valuable institutions whose effective functioning
may be adversely affected by the activities of undercover operatives extends far
beyond academic institutions, the media and religious organizations . Labour
unions and business corporations, cultural and ethnic organizations, for example, all of which play a valued role in our society, may also be adversely
affected . Therefore, we think the guidelines governing the use of undercover
operatives should reflect a general sensitivity to the damage which undercover
operatives may do to all legitimate social, economic and political institutions .
We think that sensitivity of this kind, exercised by security intelligence
operatives in carrying out such investigations governed by the system of
controls we have recommended, is preferable, as a basis for sound practice, to
rules developed for specific areas such as those which now govern Security
Service activity on university campuses . However, we acknowledge that the
sensitivity required will not likely exist unless the recruitment and training of
security intelligence officers are changed along the lines we shall recommend
later .
'S See National Intelligence Reorganization and Reform Act of 1978 - s .2525 (The
Huddleston Bill), s . 132 .
546
�82 . In calling for the security intelligence agency to exercise sensitivity to the
integrity of valued institutions in using undercover operatives, we should, at the
same time, recall a fundamental point we made in the earlier chapter on the
scope of security intelligence surveillance - namely that no sector of society
should be treated as immune to security intelligence investigations .
Confidential relationships
83 . The use of human sources by a security intelligence agency may encroach
upon confidential relationships in the private sector or between the citizen and
government . For instance, the agency may wish to obtain information from
lawyers or doctors about their clients or patients or from government officials
who have access to personal data of a confidential nature .
84 . As far as the private sector is concerned, as we reported in Part III, a
security intelligence agency will come up against a number of legal difficulties
when dealing with sources who are members of professional groups obliged to
respect the confidentiality of certain kinds of information . The law of contract
and tort may also create difficulties in the commercial sector . However, our
assessment of the security agency's need for information did not convince us
that the law needs to be amended (or clarified) to remove possible legal
barriers to the security intelligence agency's use of sources in the private sector .
There is one qualification we must make to this finding, pertaining to members
of the medical profession . In preparing this Report we anticipated not being
able to comment on such sources because we wished to wait until the report of
the Ontario Commission of Inquiry into the Confidentiality of Health
Information16 (the Krever Commission) was available . That report has just
recently become available and we have chosen to comment in one place on the
several respects in which it touches upon matters of concern to us . Those
comments are found in Annex I at the end of this Report .
85 . The position we have taken with regard to the use of sources in the
private sector who may be required by law not to provide certain kinds of
information means that the security intelligence agency must have the assistance of a well-qualified legal adviser . The security agency must not violate
legally protected confidential relationships in its use of sources . In determining
whether or not legal difficulties exist, the security agency must not be guided
by amateur and simplistic assessments of these difficulties . The law in this area
is complex and dynamic, and the need for experienced and highly qualified
legal advice is one of the reasons for our recommendation, in Part VI, for a
Legal Adviser .
86 . Turning now to the public sector, we think it is wrong for the security
intelligence agency to use undercover sources in government departments to
obtain confidential government information . The Security Service is now
legally barred from obtaining access to certain kinds of biographical and
personal information in federal government information banks which we thin k
16 Report of the Commission of Inquiry into the Confidentiality of Health Information,
Toronto, 1980 .
547
�it should have for authorized security investigations . In section H below,
dealing with access to confidential information, we shall recommend certain
changes in federal law to facilitate the access which we believe is required .
Section 8(2) of the government's proposed Privacy Act (Schedule II of Bill
C-43 which had its first reading on July 17, 1980) could permit access to
confidential personal information :
(e) to an investigative body specified in the regulations, on the written
request of the body, for the purpose of enforcing any law of Canada or
a province or carrying out a lawful investigation, if the request specifies
the purpose and describes the information disclosed ;
(I) for any purpose where, in the opinion of the head of the institution ,
(i) the public interest in disclosure clearly outweighs any invasion of
privacy that could result from the disclosure .
It should be noted that in relation to subsection (1), the R .C .M .P . is designated,
for purposes of the Act, as a "government institution" . The government's
proposed legislation on this subject would establish means of access for a
security intelligence agency to personal information held by federal government departments and agencies . Our own proposals set out a more exacting
system of control and review . This is the only way in which a security
intelligence agency should gain access to confidential personal information in
the possession of the federal government .
87 . The policy which we recommend as appropriate for obtaining information
frôm federal government departments and agencies should also apply to
ôbtàining information from provincial and municipal' governments . The security intelligence agency should not develop undercover sources within provincial or municipal governments as a means of obtaining access to information
held by these governments . In Part III, Chapter 9, we reviewed provincial laws
which govern access to information used in past operations by the Security
Service . With the exception of hospital and health insurance records, on which
we shall comment in Annex I, where we examine the relevant recommendations of the Krever Commission, we have concluded that there is no need to
seek the co-operation of the provinces in obtaining amendments to laws
protecting particular kinds of information . Nor do we think there is any need to
seek exemptions from secrecy provisions of general application . In most cases,
such as the civil servant's oath of secrecy, where government information is
protected by general secrecy provisions, there is a convention that a Minister or
head of department or agency has a discretionary power to disclose information . The proper course of conduct for a security intelligence agency which
wishes access to such information is to request it from the Minister or official
who is authorized to release the information .
88 . We realize that a policy of confining the security agency's access to
provincial or municipal government information to what can be obtained
lawfully through authorized channels of communication precludes `targetting'
a provincial government which is suspected of supporting or participating in
activity threatening the security of Canada . This would rule out, for instance,
using a member of a provincial government as a source of information abou t
548
�that,government's suspected involvement in clandestine foreign interference in
Canadian political life . As we pointed out in Part III, a municipal or provincial
official who `spies' on the government which employs him, may, among,other
things, violate section 111 of the Criminal Code which defines the,offence of
breach of trust by a public officer. But aside from legal prohibitions, we think
it bad policy in a federal state for one level of government to spy on the other.
While federal and provincial governments have had"serious differences, including differences about Canada's constitutional future, these differences have not
been about the fundamental importance of maintaining the democratic process
of government, the protection of which is the ultimate purpose of national
security arrangements . We think it would be unreasonably pessimistic to
foresee a change in 'that situation sufficient to justify amending the laws of
Canada to permit a national security intelligence agency' to use undercover
sources within provincial or municipal governments .
The distinctiveness of security intelligence sources
89 . We have found that the effectiveness of a security intelligence agency
may be adversely affected if in its treatment of long-term undercover sources it
is too closely influenced by attitudes that policemen usually have to "informers" . Policemen do not hold such persons in high regard . They tend to think of
informers in the drug world, for example, in much the same way as they do
criminals . Consequently a policeman finds it very difficult to understand that a
long-term agent in place, such as a member .of a political group who reports to
the Security Service regularly on the activities of the group, is a different kind
of person . He finds it hard to undertand that many such sources have originally
volunteered to help the R .C .M .P . not because of a prospect, of . payment of
money but because of their own concern that the activities of the group, or .of
some members of the group, are inimical to the interests of .Canada . He finds it
hard to understand that many such sources continue to lead their double life,
sometimes at continuing risk of personal danger, and frequently at the expense
of their own normal vocational development and personal life, pot . solely
because of what money they are paid but because of a moral commitment .to
serve Canada . That motivation often is present . Yet it was reported tous that
in 1 .980 a very senior officer in the R .C .M .P ., all of whose .experience had been
on the . criminal investigations side of the Force, when addressing a large group
of members of the Security Service, spoke of some human sources in extremely
derogatory terms . Nothing could have demonstrated more clearly to his
audience that he and others like him, with criminal investigation backgrounds,
were unlikely ever to be able to understand the handling of security intelligence
sources, perhaps the most difficult aspect of investigative work, by a security
service .
WE RECOMMEND the establishment of administrative guidelines concerning the principles to beapplied in the use of undercover operatives by
the security intelligence agency. These 'guidetines should be approved by
the Solicitor General, as the Minister responsible for the security intelligence agency and should be publicly disclosed . These•guidelines should
cover, inter alia, the following points:
(a) the forms of deceit which are unacceptable ;
549
�(b) sources and undercover members must be instructed not to participate
in unlawful activity. If an undercover operative finds himself in a
situation where the commission of a crime is imminent, he must
disassociate himself, even at the risk of ending his involvement in the
operation . In situations where there is time to seek advice as to the
legality of a certain act required of the undercover operative, such
advice should be sought . If the act is considered to be unlawful,
alternative courses of action should be considered . In many situations,
this will allow the operative to continue in his role while remaining
within the law ;
(c) undercover operatives should not be used in situations where it is
likely that the operative will be required to participate in unlawful
conduct in order to establish or maintain his credibility ;
(d) the agency should report unlawful conduct by undercover operatives,
in accordance with the procedures which we propose in Chapter 8 of
this Part;
(e) undercover operatives must not be used for the purpose of disrupting
domestic groups unless there is reason to believe such a group is
involved in espionage, sabotage or foreign interference ;
(f) undercover operatives should be instructed not to act as agent provocateurs and, in situations where they become aware of plans for violent
activity, to do what they can to persuade the members of a group to
adopt milder methods of protest ;
(g) interviews of persons for security screening purposes should not be
used as occasions for recruiting such persons as sources ;
(h) great care should be taken in authorizing the use of undercover
operatives to balance the potential harm to which the deployment of
such individuals within a social institution may do to that institution
against the value of the information which may be obtained ;
(i) the security intelligence agency should respect confidential professional relationships and other legal barriers to the use of sources in the
private sector and should be directed by expert legal advice as to the
extent of such legal barriers ;
(j) employees or persons under contract to the federal, provincial or
municipal governments must not be used as undercover sources in
regard to matters involving their government . Confidential information
held by governments must be obtained through legally authorized
channels; an d
(k) the making of ex gratia payments for loss or damage suffered as a
result of civil wrongs committed by undercover operatives .
(17)
WE RECOMMEND THAT to facilitate the obtaining of false identification documents in a lawful manner for undercover agents of the security
intelligence agency, federal legislation be amended, and the co-operation of
the provinces be sought in amending relevant provincial laws, in a manner
similar to that recommended for the false identification needed in physica l
surveillance operations.
(18 )
WE RECOMMEND THAT income tax legislation be amended to permit
the security intelligence agency sources not to declare as income payments
550
1
�received by them from the agency, and that other fiscal legislation requiring deduction and remittance by or on behalf of employees be amended to
exclude such sources .
(19)
WE RECOMMEND THAT section 383 of the Criminal Code of Canada
concerning Secret Commissions be amended to provide that a person
providing information to the security intelligence agency in a duly authorized investigation does not commit the offence defined in that section.
(20 )
E . ELECTRONIC SURVEILLANC E
90 . The interception of oral communications by technical devices is an
important means of collecting information about activities threatening the
security
. _. of Canada . This method of collecting information takes two different
.
_
forms : the recording of telephone conversations ('wire taps') and the planting
of hidden microphones ('bugging') . We have reviewed the use of these techniques by the R .C .M .P . Security Service, especially since 1974 when the use of
electronic surveillance became subject to the terms of section 16 of the Official
Secrets Act . This review has left no doubt in our minds as to the necessity of
using electronic surveillance for the protection of national security . There are
groups and organizations in the espionage, foreign intelligence and terrorist
fields that are very difficult to penetrate by human sources . In numerous
situations it is reasonable to believe that such groups or organizations constitute such a serious threat to the security of Canada that advance warning is
needed of their intentions and plans . Moreover, this advance warning is needed
before evidence of a particular criminal activity is available . Electronic surveillance will often be the only effective means of obtaining the information which
the state ought to have in these situations .
91 . However, while we have no doubt as to the necessity for electronic
surveillance as a technique of collecting information, we have found a number
of inadequacies in the law and procedures which now govern the use of
electronic surveillance by the R .C .M .P. Security Service . We identified some
of these inadequacies in Part III in our discussion of practices not authorized or
provided for by law . Here we shall bring together those legal considerations
with other matters of policy as a basis for recommending changes in these laws
and procedures .
Applications for warrants
I
92 . Under existing procedures, proposals of field units to use electronic
surveillance are reviewed at Security Service Headquarters. This review
includes obtaining an opinion from a lawyer from the Department of Justice as
to whether the proposed target of electronic surveillance falls within one of the
categories of subversive activities listed in section 16(3) of the Official Secrets
Act . If Headquarters approval is obtained, an application is prepared for a
ministerial warrant . The Director General of the Security Service then presents
the application to the Solicitor General, often with an aide-mémoire setting out
further details with regard to the application . The Director General swears to
551
�the truth of the information contained in the application . Normally no one else
has been present when the Director General presents the application to the
Solicitor General, although often the Deputy Solicitor General and the Commissioner have been present in the same room but have not participated in any
way in the application . Typically requests for warrants have been put to the
Solicitor General just after the weekly meetings with the Commissioner and
other senior members of the R .C .M .P.
93. We are satisfied that the Security Service at Headquarters has made a
conscientious effort to review the merits of proposals by field units that an
application be made to the Solicitor General for a warrant under section 16 .
The following statistics were provided to the Commission by the section
responsible for the administration of applications for such warrants, and cover
the period from July 1, 1974 to August 1, 1978 : 55 requests from the field for
such warrants were rejected by various levels at Headquarters . Seven of those,
which were rejected initially, received favourable consideration upon reapplication by the field units and the provision of additional information . Also,
it is evident that the several Solicitors General did not comply with all requests
for warrants made by the Security Service . Eleven applications made to the
Solicitors General from 1974 to 1978 inclusive were refused . In several of these
instances a warrant was subsequently granted when additional information was
provided .
94 . There are, however, a number of improvements which we think should be
made in the procedure followed in applying and granting warrants . To begin
with, the `application' - the document sworn by the Director General - has
often been very brief in describing the activities of the targetted person or
organization . Frequently much of the detailed information advanced in support
of the application was set out in an aide-mémoire which was not formally part
of the application . Mr . Dare testified that he did not consider that he was
swearing to the truth of the information in the aide-mémoire . We do not think
that this is an acceptable way of complying with the statutory requirement that
the Minister be "satisfied by evidence on oath" of the necessity of granting the
warrant . The truth of all of the evidence advanced in support of the request for
the warrant should be sworn to under oath . If there are important matters of
evidence which the Director General cannot in good conscience personally
attest to, he should bring with him members of the security agency who can, or
their sworn affidavits .
95 . In considering the merits of a proposal to use electronic surveillance for
national security purposes, the Solicitor General should have more advice than
is now available from officials of his Department who are not members of the
security agency . Under the system we have proposed for approving full
investigations (in which electronic surveillance is one possible investigative
technique) a senior official from the Solicitor General's Department (most
likely the Assistant Deputy Solicitor General for police and security) would be
included in the committee which decides whether to request ministerial authorization for a full investigation . This same official should also be involved in
assessing the case for using electronic surveillance . In addition we think the
Deputy Solicitor General should not be excluded from the process of appraisin g
552
�applications for warrants . We note that in Great Britain every application by
the Security Service for a warrant to intercept communications is submitted to
the Permanent Under Secretary of State at the Home Office "who, if he is
satisfied that the application meets the required criteria, submits it to the
Secretary of State for approval and signature of â warrant" ." We think it
would be simpler to have the Deputy Solicitor General present when the
Director General of the Security Service presents a proposal for electronic
surveillance . However, whether the Deputy Solicitor General approves applications before they are submitted to the Solicitor General or is present when the
Solicitor General is considering an application, the essential point is to make
sure that the Minister has the advice of the most senior and experienced
officials of his Department in making such a decision . It is especially important
for a new Minister in his first days of office to have the assistance of a
reasonably experienced Deputy, who is not a member of the intelligence
agency, in assessing applications for electronic surveillance .
96. We turn now to a more far-reaching proposal for change in the existing
law and procedure . We think that the use of electronic surveillance for national
security purposes should be based on a clearer and more precise standard of
necessity, similar to the standard established in section 178 .13 of the Criminal
Code for the use of electronic surveillance in the investigation of crimes .
Further we believe that a judge, rather than a Minister, should make the final
determination of whether a particular application satisfies the statutory
conditions .
97 . The conditions under which electronic surveillance may be authorized for
national security purposes are now defined in section 16 of the Official Secrets
Act as follows :
(2) The Solicitor General of Canada may issue a warrant authorizing the
interception or seizure of any communication if he is satisfied by evidence
on oath that such interception or seizure is necessary for the prevention or
detection of subversive activity directed against Canada or detrimental to
the security of Canada or is necessary for the purpose of gathering foreign
intelligence information essential to the security of Canada .
(3) For the purposes of subsection (2), "subversive activity" means
(a) espionage or sabotage ;
(b) foreign intelligence activities directed toward gathering intelligence
information relating to Canada ;
(c) activities directed toward accomplishing governmental change within
Canada or elsewhere by force or violence or any criminal means ;
(d) activities by a foreign power directed toward actual or potential attack
or other hostile acts against Canada ; o r
(e) activities of a foreign terrorist group directed toward the commission of
terrorist acts in or against Canada .
" Cmnd . 7873, April 1980 .
553
�It should be noted that subsection (2) establishes three different tests for the
issuance of warrants . The Solicitor General may issue a warrant if he is
satisfied by evidence on oath that one of the following facts exists :
- that such interception is necessary for the prevention or detection of
subversive activity directed against Canada ;
- that such interception is necessary for the prevention or detection of
subversive activity detrimental to the security of Canada ;
- that such interception is necessary for the purpose of gathering foreign
intelligence information essential to the security of Canada .
However, apparently little attention is given to identifying which of the three
tests has been satisfied by the evidence sworn by the Director General under
oath . The practice has been for the warrant to blend together all three tests and
simply recite that the Solicitor General i s
satisfied by evidence on oath of Michael R . Dare, a member of the Royal
Canadian Mounted Police, that it is necessary for the prevention or
detection of subversive activity directed against Canada or detrimental to
the security of Canada or is necessary for the purpose of gathering foreign
intelligence information essential to the security of Canada to intercept
and/or seize any communication hereinafter described . . .
Perhaps this would not matter so much if the "evidence on oath" directed the
Solicitor General's attention to one of the three tests . However, the so-called
`applications' which are the "evidence on oath" have usually not indicated
within which category the Director General has considered the circumstances
to fall .
98 . Section 16(2) of the Official Secrets Act should be compared with section
178 .13(1) of the Criminal Code which requires a judge to be satisfie d
(a) that it would be in the best interests of the administration of justice to
do so (i .e . to give the authorization) ; an d
(b) that other investigative procedures have been tried and have failed,
other investigative procedures are unlikely to succeed or the urgency of
the matter is such that it would be impractical to carry out the
investigation of the offence using only other investigative procedures .
While we acknowledge that part (a) of this test is not appropriate for national
security intercepts, we think that it is just as important in the national security
context as in the criminal investigation context that consideration be given to
the factors set out in (b) in justifying the authorization of what otherwise
would be an unlawful invasion of privacy by electronic means for those factors
relate to necessity . We shall recommend that the statute governing electronic
surveillance for national security purposes be amended to provide expressly the
same criteria as those required to be satisfied under section 178 .13(1)(b) of the
Criminal Code and additional criteria that are pertinent to the collection of
security intelligence . This should not be interpreted as requiring the security
intelligence agency to exhaust other investigative measures before it can obtain
a warrant . The section in the Code does not require that as a condition ; it is
only one of three alternative prerequisites . To require as a condition that other
investigative measures have been exhausted would be unduly restrictive, for, a s
554
�in the case of criminal investigations, there undoubtedly will be circumstances
in which no other investigative measures have even been attempted, and from
the very circumstances of the case it would be impractical to carry out the
investigation of the matter using other investigative procedures only ; or the
matter may be specially urgent .
99. In addition to incorporating the tests contained in section 178 :13(1)(b), a
clearer and more appropriate test should be adopted for assessing the national
security purposes to be served by electronic surveillance . The confusing tripartite test now contained in section 16(2) of the Official Secrets Act should be
replaced by language requiring that the person issuing the warrant be satisfied
by evidence on oath that the use of an electronic surveillance technique is
necessary for obtaining information about any one or more of the following
activities :
(a) activities directed to or in support of the commission of acts of
espionage or sabotage (espionage and sabotage to be given the meaning
of the offences defined in sections 46(2)(b) and 52 of the Criminal
Code and section 3 of the Official Secrets Act) ;
(b) foreign interference, meaning clandestine or deceptive action taken by
or on behâlf of a foreign power in Canada to promote the interests of a
foreign power ;
(c) political violence and terrorism, meaning activities in Canada directed
towards or in support of the threat or use of acts of serious violence
against persons or property for the purpose of achieving a politiçal
objective in Canada or in a foreign country .
The warrant should indicate the type of activity of which the targetted
individual or premises is suspected . In the previous chapter we have set out our
reasons for preferring the wording set out in (a), (b) and (c) above to that
which is now used in the definition of subversive activities in section 16(3) of
the Official Secrets Act . Briefly it should be recalled that this language, among
other things, makes it clear that electronic surveillance might be used to collect
information about terrorist groups whose activities are directed against foreign
countries and eliminates the dangerously broad and ambiguous phras e
(c) activities directed toward accomplishing governmental change within
Canada or elsewhere by force or violence or any criminal means .
Indeed, as we explained in the previous chapter we believe that intrusive
investigative techniques such as electronic surveillance should not be used when
there is no reason to believe that the activity of an individual or group goes
beyond the expression of revolutionary subversive ideas .
100 . With the adoption of clearer and more precise statutory tests for using
electronic surveillance to obtain information about threats to national security,
we think it would be appropriate for a judge rather than a Minister to issue
warrants for national security intercepts . Earlier in this chapter, we presented
our principal reason for requiring a judge rather than a Minister to make the
authoritative determination of whether the facts of a particular case satisfy the
statutory standard for the use of certain extraordinary investigative techniques .
But here let us consider what might be the most formidable objections to ou r
555
�recommendation to have a judge rather than a Minister issue warrants
authorizing electronic surveillance .
101 . First, it might be argued that the question of whether an individual or
group constitutes a sufficient threat to national security to justify an electronic
intrusion should be decided by Ministers who, unlike judges, are accountable to
Parliament and ultimately to the electorate for national security policies . We
agree with part of this argument . Ministers are responsible for the national
security activities of government ; in particular, the Solicitor General, as the
Minister responsible for the security intelligence agency, is responsible for the
investigative policies and practices of that agency . That is why we think the
Solicitor General should approve proposals by the agency to use electronic
surveillance (and other intrusive techniques) . He should approve such proposals from a policy point of view . But he and the Cabinet must discharge their
responsibility for national security policy within the law . When the law
establishes a carefully defined standard for exercising an investigative power
which would otherwise be a criminal offence, there is, in our view, no
derogation of ministerial responsibility in denying Ministers the final authority
to determine whether a particular case meets that standard . Our system of
government is not based on the single principle of ministerial responsibility : it
involves other important principles, one of which is the rule of law . In a system
of responsible Cabinet government operating within the rule of law Ministers
are responsible for the effective and proper execution of the powers lawfully
available to government, but they do not have the final responsibility for
determining what the law is . In our system of government this is normally the
function of judges .
102 . We should emphasize that we are not suggesting that the Minister
should be indifferent as to whether a proposal to employ electronic surveillance
meets the legal requirements . On the contrary, he and his advisers should
thoroughly scrutinize proposals from a legal as well as a policy point of view
before approving an application for a judicial warrant . But our review of the
administration of section 16 of the Official Secrets Act has indicated to us that
there is not sufficient assurance that in every case Ministers will carefully and
judiciously apply their minds to all of the legal requirements for the use of this
extraordinary power . We think that judges are more apt to have the appropriate experience and to be operating in an appropriate setting for making that
kind of determination of the law . As we argued earlier, normally the courts
determine the legality of government action only when it is challenged after the
fact . However, because the effective use of this power should always be secret,
no such ex post facto challenge is possible by persons who may be subject to an
unlawful exercise of the power . Therefore, we think it necessary that a judicial
determination of lawfulness be made before the power is exercised .
103 . A second possible objection to our proposal is that it is too cumbersome
and imposes too many procedural requirements on thë 'cônduct of national
security investigations . Granted, the proposal would add one extra step to the
decision-making procedure ; we do not think this constitutes a serious handicap .
Since the aim of most national security investigations is to collect information
well in advance of an actual act of espionage, foreign interference or terrorism ,
556
�an extra few hours should not, in most circumstances, mean that it becomes too
late to obtain important information . To provide for the exceptional occasion,
when even such a slight delay would jeopardize an important national security
investigation, there should be an emergency clause allowing the Minister to
authorize an electronic intrusion without a judicial warrant for a maximum of
48 hours . The use of this power in emergency, circumstances should be
reviewed by the independent review body we are proposing (the Advisory
Council on Security and Intelligence) and that body should report to the
Parliamentary Committee on Security and Intelligence any situations in which
it believed that the emergency use had not been justified .
104 . To ensure the availability of reasonably experienced judges to hear
applications for warrants, we propose that five judges from the Trial Division
of the Federal Court of Canada be designated by the Chief Justice of the
Federal Court to hear applications . If it were considered desirable to have
judges available outside Ottawa for this purpose, there are members of
provincial superior courts who, at the request of the Chief Justice of the
Federal Court and with the approval of the Governor in Council pursuant to
section 10(1) of the Federal Court Act, act as judges of the Federal Court .
They are resident across Canada and some of them might be designated to
review emergency applications . However, this may not be necessary, as the
warrants issued under section 16 have, so far as we know, always been applied
for and granted in Ottawa, with the exception of the occasional case when the
Director General has had to go to the Minister when the latter was outside
Ottawa . We think that the refusal of a judge to grant a warrant should be
appealable to three judges of the Federal Court of Appeal . This would ensure
the government some recourse in the event that a judge of first instance
adopted what appeared to be a particularly idiosyncratic view of the law . To
prevent `judge shopping', an applicant should be required to disclose to the
judge the details of any application made previously with respect to the same
matter .
105. We believe that the choice of the best procedure should be based on an
appreciation of Canada's security needs and the working of Canadian institutions of government . Nevertheless, it is relevant to ask those who believe that
Canada's national security will not be adequately protected, if Federal Court
judges rather than Ministers grant warrants for electronic intrusions, to
examine the experience of the United States . There, although the United
States Constitution assigns the President power over foreign affairs, since 1978
the use of electronic surveillance within the United States for foreign intelligence purposes has been governed by an Act of Congress which, whenever the
communications of United States persons are involved, requires an order
approved by a Federal Court judge based on an application approved by the
Attorney General of the United States .18 We are not aware of any submissions
by the executive, branch in the United States to the effect thât the requiremen t
18 Electronic Surveillance Within the United States for Foreign Intelligence Purposes,
Public Law 95-511, 95th Congress, October 25, 1978 .
557
�of judicial warrants for national security intercepts has significântly weakened
the investigative capacities of that country's intelligence agencies.
106 . The procedure we propose might also be objected to on the ground that
it does not go far enough to ensure the proper application of the law governing
electronic surveillance for national security purposes . Hearings before a judge
in our proposed system would be ex parte proceedings. As is now the case with
applications for warrants under section 178 .15 of the Criminal Code and under
section 443 governing search warrants, no one would be present to argue
against the application for the warrant . Submissions have been made to us that
the proceedings should be made more adversarial by providing for the appointment of an officer to serve as `a friend of the court' . This officer would appear
before the judge and point out possible weaknesses or inadequacies in applications . While we think such a proposal has considerable merit and have
considered it carefully, we have concluded that, on balance, it would not be
advisable to adopt such a mechanism . The adversarial element afforded by
such a procedure might be rather artificial and would make the process of
approving applications unduly complex . Further, we think that an experienced
judge is capable of giving adequate consideration to all relevant aspects of an
application without the assistance of an adversarial procedure . Finally, the
continuing and systematic review of the use of extraordinary powers by our
proposed independent review body (the Advisory Council on Security and
Intelligence) should provide an adequate means of ensuring that the system of
control is working as was intended by Parliament .
Renewals of warrants
107. In Part III, Chapter 3, we pointed out that, in contrast to section
178 .13(3) of the Criminal Code, section 16 of the Official Secrets Act makes
no provision for the renewal of warrants . We also noted that, despite the
absence of legal authorization for renewals, Solicitors General at the end of
each year approved the renewal of large batches of warrants . This deficiency in
the law governing electronic intrusions for national security purposes should be
remedied . The law should not only require, as it now does, that the warrant
specify the length of time for which it is in force, but it should also establish a
maximum time period for warrants and require that an application for a
renewal be treated as if it were a new application . We would suggest a
maximum period of 180 days . While this would be approximately 60 days
shorter than the average length for warrants in the last four years for which
reported statistics are available, still it is three times the maximum period
available under section 178 .13 of the Criminal Code for electronic surveillance
for criminal investigation purposes . The statute should require not only that an
application for renewal should satisfy the same criteria as apply to an application for a warrant, but, in addition, that a report be made to the judge under
oath as to the nature and value of the information obtained under the original
warrant .
108 . In the past there has not been a sufficiently thorough review of the
`product' of the interception of communications . Some interceptions have
become virtually permanent . It is true that the vast majority of warrants whic h
558
�are renewed and thus last for more than a short period of time are in respect of
the communications of persons or establishments suspected of undertaking
foreign intelligence activities, whether those persons are foreigners or Canadians . Even in these cases, in our view, there ought to have been a more critical
review of the value derived from warrants for the interception of communications . From the point of view of the Solicitor General, in our opinion it is
important that such a review take place in order that he can jûdge, with the
kind of information which should be in his possession to .enable himto reach a
sound judgment, the extent to which interception is "necessary" for any of the
purposes set forth in the statute .
Conditions governing the execution of warrant s
109. Another inadequacy of the law governing the use of electronic surveillance for national security purposes which was thoroughly examined by us and
reported on in Part III of this Report concerns the means which may be
lawfully used to examine, to install, to maintain and to remove an electronic
interception device . As we reported in Part III, Parliament, when it enacted the
Privacy Act, did not explicitly provide for the surreptitious entries which are
often essential for the effective use of certain kinds of listening devices and it is
at least questionable whether section 26(2) of the Interpretation Act or section
25(1) of the Criminal Code provide a basis in law for the surreptitious entry of
private premises or the removal of private property for the purpose of examining, installing, maintaining or removing devices the use of which rriight be
authorized under section 16 of the Official Secrets Act . There is also doubt as
to whether there is legal authority for using the electrical power available in
the premises for the operation of a device. We think these doubts should be
removed . Hidden listening devices cannot, in many instances, be used effectively without the surreptitious entry of premises or removal of private property .
Also they cannot be used effectively without the use of electrical power
belonging to or charged to the subject of investigation or another person . Thé
statute should expressly provide that a warrant for the interception of private
communications may permit the persons carrying out the interception to enter
premises or remove property for the purpose of examining the premises or
property prior to installing a device or for the purpose of installing, maintaining or removing a device . The statute should also provide for the use of the
domestic electrical power supply . These powers should be available only on
condition that their exercise shall not cause any significant damage to premises
that remains unrepaired, nor involve the use of physical force or the threat of
such force against any person . The statute should require the judge who issues
the warrant to specify on the warrant the powers which may be used to execut e
it .
110 . A further problem arises relating to the installation of electronic eavesdropping devices : the possible violation of provincial and municipal regulations
governing such matters as electrical installations, fire protection and construction standards . As we suggested in our analysis of these problems in Part III,
Chapter 3, we think that the co-operation of the provinces should be sought to
make lawful what would otherwise be unlawful under the regulations in these
areas .
559
�111 . A further condition which should attach to the execution of a warrant to
intercept communications for security purposes is that in every case the persons
carrying out the procedure should be accompanied by a peace officer . This
recommendation is particularly important when our proposal to organize the
security intelligence agency as a body separate from the R .C .M .P . is adopted .
Under that proposal the members of the security intelligence agency would not
be peace officers . In executing a warrant which may result in a breach of the
peace by a person coming on the scene, we think it important that a policeman
with peace officer powers be present . Moreover, as we shall explain more fully
in subsequent chapters, the requirement that security intelligence officers
obtain the assistance of a peace officer in executing warrants for extraordinary
powers of investigation would add a valuable countervailing power in our
security arrangements .
112. The statute should not require, as it does now, that a warrant "specify
the person or persons who may make the interception or seizure" . That is an
unnecessarily exacting requirement and one which, as we indicated in Part III,
is probably not being satisfied by existing procedures . We think it would be
more satisfactory for the statute to provide that a warrant be issued to "the
Director General of the security intelligence agency or to any persons who act
upon his directions or with his authority" . If the Director General proposes to
use a person who is not a member of the agency or a peace officer, he should
obtain the prior approval of the Minister to the use of such person .
The scope of warrants for intercepting communication s
113 . Considerable doubt and confusion have existed about the types of
communication which may be intercepted and the range of investigatory
activity which may be authorized pursuant to warrants issued under section 16
of the Official Secrets Act . Since 1976 warrants have been issued authorizing
the interception and seizure of written communications outside the course of
post. This was done after an opinion had been obtained from the Department
of Justice in 1976 to the effect that written communications could be intercepted under section 16 other than letters in the course of post . Members of the
Security Service have also on occasion, when on premises pursuant to a section
16 warrant, used the opportunity to rummage about and search the premises
beyond what was necessary for the installation of a listening device . In Part III
we reviewed all of these activities and the opinions on which they were based
and reached the conclusion that section 16 of the Official Secrets Act likely did
not authorize the interception or seizure of any kind of written communication
including mail or the search of premises . We contended that if the Security
Service needs the power to enter premises to examine written documents and
remove them for copying, or to intercept mail or to search premises in
circumstances for which a warrant cannot be obtained under the Criminal
Code or under section 11 of the Official Secrets Act, then a case must be made
to Parliament and legislation passed expressly authorizing such activities .
These activities must not be carried out on the foundation of an interpretation
of existing law that is not free from doubt .
560
�114 . Section 16 has also been used to authorize the acquisition from telephone and telegraph companies of copies of telegrams and telex communications . Also, section 7 of the Official Secrets Act provides for a special
procedure under which authorization may be given by the Minister of Justice
for the acquisition from any person who owns or controls "any telegraphic
cable or wire, or apparatus for wireless telegraphy" of copies of telegrams and
cables . This section provides that the Minister of Justice may grant a warrant
in any case where it appears "that such a course is expedient in the public
interest" . Until early 1971, section 7 was relied on by the Security Service to
gain access to telegrams, cables and telexes . "Telegraphic warrants" were
issued under this section by Ministers of Justice from 1953 onward and served
upon the telecommunications companies . The outstanding telegraphic warrants, like the telephonic warrants issued under section 11, were reviewed
monthly by the Minister of Justicé . It is not clear how long that procedure was
followed . It is known that'in 1971 thé Solicitor General, Mr . Goyer, began to
follow a new procedure . Telegraphic communications thenceforth were
assimilated procedurally with telephonic communications . Instead of applying
to the Minister of Justice for awarrant under section 7, the R .C.M .P . applied
to the Solicitor General for his authorization, and, if it was granted, a senior
officer of the R .C .M .P ., in his capacity as a Justice of the Peace, would,
pursuant to section 11, issue a warrant to search and seize directed,to the
telecommunications company . After July 1, 1974, when section 16 came into
effect, that section was relied on for the warrants 'issued by the Solicitor
General to acquire copies of telegrams and telexés . It is quite clear that the
broad terms of section 7 which allow for warrants in any case where "such a
course is expedient in the public interest" are inconsistent with the specific
approach spelled out in section 16 and with the philosophy of this Report .
115. In subsequent sections of this chaptèr we shall recommend that legislation be enacted authorizing the security intelligence agency, under an appropriate system of controls, to search premises and photograph or make copies of
documents and to open articles of mail- in the, course of post . These powers
must, be expressly provided for in legislation and, under our recommendation,
would require warrants separate from a warrant for the interception or seizure
of communications other than a message in the course of post . Legislation
authorizing the issuance of the latter warrants for national ~security purposes
should make it clear that communication means any oral or written communication other than a message in the course of post . There are written communications such as opened letters no longer in the course of post, and telex
messages, the interception or seizure of which may be as important for national
security purposes as is the interception of oral communications . But the statute
governing these warrants should require, as does section 16(4) of the Official
Secrets Act, that a warrant specify the type of communications to be intercepted or seized .
116 . As recommended in the preceding paragraphs, there should be' a single
statutory provision like section 16 to be relied upon as authority for obtaining
the contents of telephonic communications, non-telephonic conversations, and
messages passed by mail, telegram, cable or telex whether acquired b y
561
�electronic means or by acquiring copies of the printed message . Therefore, the
statute should contain a clear definition of "interception" so as to cover all
these situations . We suggest that this definition read as follows :
"interception" includes listening to, recording or acquiring any communication, any written communication other than a message in the course of post,
and any telecommunication, and acquiring the substance, meaning or
purport thereof.
The communication of intercepted information
117. A further deficiency in section 16 of the Official Secrets Act which we
discussed in Part III is that there is no protection in law for a member of the
Security Service who communicates information obtained through an authorized interception to other members of the Security Service, to other departments of the federal government or to provincial, municipal or foreign governments for security intelligence purposes . We think that protection should be
afforded to members of the security intelligence agency who communicate
information obtained from authorized interceptions, providing such communication is for the purposes of the security intelligence agency and is in
accordance with reporting rules approved by the Minister .
Reporting to Parliamen t
118 . Section 16(5) of the Official Secrets Act requires an annual report to
Parliament on the use of warrants issued pursuant to section 16 . The subsection reads as follows :
(5) The Solicitor General of Canada shall, as soon as possible after the
end of each year, prepare a report relating to warrants issued pursuant to
subsection (2) and to interceptions and seizures made thereunder in the
immediately preceding year setting fort h
(a) the number of warrants issued pursuant to subsection (2),
(b) the average length of time for which warrants were in force ,
(c) a general description of the methods of interception or seizure utilized
under the warrants, an d
(d) a general assessment of the importance of warrants issued pursuant to
subsection (2) for the prevention or detection of subversive activity
directed against Canada or detrimental to the security of Canada and
for the purpose of gathering foreign intelligence information essential
to the security of Canada ,
and a copy of each such report shall be laid before Parliament forthwith
upon completion thereof or, if Parliament is not then sitting, on any of the
first fifteen days next thereafter that Parliament is sitting .
A report formally satisfying the requirements of subsection (5) has been filed
for the years 1974 to 1978 inclusive .19 All of the statistical information
reported for these five years in accordance with the requirements of (5)(a) and
(5)(b) is contained in the table below .
19 A report for 1979 was filed in 1980, after the preparation of this part of our Report .
562
�Statistics reported on use of warrants under section 16 of the Official Secrets
Act, 1974-78
1974* 1975 1976 1977 1978
Number of warrants issued
339 465 517 471 392
Average length of time in force ( in days)
143 239 .7 240 .88 244 .5 244 .7
'6-month period onl y
119 . The descriptive information required under subsection (c) and (d) has
also been included in the annual reports to Parliament but in a very brief and
standardized form . The "general description" of the methods of interception or
seizure in the first two reports consisted of a reference to the fact that "wire
tapping and eavesdropping by microphone" were used . The reports for 1976
added the-information that -the Solicitor--Gener-al--had issued-a-warrant -authorizing the interception of postal communications but that "it could not be
executed due to the prohibitive effect of section 43 of the Post Office Act" . The
reports for 1977 and 1978 indicated that in addition to wire tapping and
eavesdropping by microphone warrants were issued for the "interception of
written communication outside the course of Post" . As for the "general
assessment of the importance of warrants", each of the reports has contained
virtually the same `boiler-plate' language, as follows :
(d) Warrants issued pursuant to section 16(2) O .S .A . have continued to
prove of value in the detection and prevention of subversive activity
both in the sphere of foreign intelligence activities directed towards
gathering intelligence information relating to Canada and in the
violent, terrorist or criminal activities directed towards accomplishing
governmental change in Canada or elsewhere .
Interceptions authorized by warrants issued pursuant to section 16(2)
O .S .A . also proved indispensable investigative aids to supplement, verify
or disprove information derived from other sources .
120. The bare minimum of information provided in these annual reports has
not afforded Parliament an adequate basis for reviewing the operation of
section 16 of the Official Secrets Act . The statistical information is apt to be
misleading . For example, in giving the annual number of warrants issued, there
was no disclosure that a number were merely renewals of warrants previously
issued . Nor was there any disclosure that a number of the warrants,issued in
later years were renewals of warrants originally issued as early as 1974 ; that is,
there was no way in which Parliament could realize that some warrants are, for
all practical purposes, perpetual . The disclosure of "the average length of time
for which warrants were in force" is misleading because, if the warrants that
are virtually "perpetual" are treated separately, the "average length of time"
for which other warrants were in force would be revealed as being significantly
lower than the figure given . Above all, we regard as unhelpful the "boilerplate" treatment of the requirement that the annual report provide "for the
general assessment of the importance of warrants issued" .
563
�121 . We recognize that there is a distinct problem of security in disclosing
information about the use of electronic surveillance and other secretive investigative techniques which may be employed for national security purposes .
That problem arises from the fact that hostile foreign intelligence agencies
analyze for their own purposes every bit of information they can obtain about
Canada's counter-intelligence activities . Information indicating a change in the
deployment of our resources devoted to detecting foreign espionage and foreign
intelligence activities may be of considerable use to such agencies . The report
of the Birkett Committee in 1957 on the exercise of the power to intercept
communications in Great Britain included statistics on interception for each
year from 1937 to 1956 . However, the Committee concluded that it would be
wrong to disclose figures at regular or even irregular intervals on the grounds
that
It would greatly aid the operation of agencies hostile to the state if they
were able to estimate even approximately the ëxtént df thé-interceptioris-of
communications for security purposes .2 0
Nevertheless, the very recent British White Paper on the Interception of
Communications, in response to expressions of public concern about the extent
of wiretapping and mail opening, has as "an exceptional measure" updated the
Birkett Committee's figures . It reports the number of warrants issued by the
Home Secretary for telephone wire taps and letter openings for each year since
1958 . These warrants, it should be noted, may be issued in response to requests
from the police and Customs and Excise officials, as well as from the Security
Service .
122. We think that Parliament should have a sounder basis on which to
review the exercise of the extraordinary power of investigation it has granted to
the security intelligence agency . Annual statistics should be reported publicly
on the number of warrants: issued for each type of warrant which is available
for national security investigâtion . (In addition to warrants for telephone
wiretaps and eavesdropping by microphones, we shall be recommending warrants for . concealed optional devices and cameras, or dial digit recorders, for
surreptitious entries, for mail opening and for access to certain kinds of
personal information held by government departments and agencies .) These
statistics should clearly distinguish new warrants from warrants that are, in
effect, renewals and indicate the frequency of renewals . With a statutory limit
of six months on the period for which a warrant is available, we cannot see that
any reaj purpose is served by requiring a disclosure of the average length of
time of, warrants . . The statistical information which we propose should be
annually reported may possibly be of assistance to hostile agencies . However,
we think that this is a . lesser evil than denying Parliament and the public an
opportunity at least to monitor quantitative changes in the security agency's
use of extraordinary investigative powers . The regular disclosure of accurate
statistics is to be preferred to thé irregular disclosure of information in response
to public concern stirred up by public disclosures .
20 Cmnd . 283, paragraph 152 .
564
�123 . Turning~to the qualitative assessment of the usefulness of the various
warrants issued, we think that parliamentary review of this kind would be more
effectively achieved through in camera meetings of a parliamentary committee
than by `boiler-plate' clauses in a public report . A full examination of the use
of extraordinary powers cannot take place in public without risking great
damage to the country's security . The Solicitor General should report annually
to the Parliamentary Committee on Security and Intelligence his assessment of
the usefulness of warrants issued in the past . In this forum, it should be
possible for the Solicitor General to respond more thoroughly to questions
arising from his report . Further, the independent review body (the Advisory
Council on Security and Intelligence) which we shall propose, would have as
one of its functions the monitoring of the entire system of special warrants for
extraordinary investigative techniques . The Council's report to the Parliamentary Committee should assist members of the Committee in understanding how
warrants -are -being used and how thoroughly the use of warrants is being
reviewed by the security agency and the . Solicitor General . The Parliamentary
Committee should also be informed of difficulties encountered in interpreting
or applying any of the statutory clauses governing the use of warrants . It
should be possible to disclose much of the Committee's discussion of problems
of this kind . Perhaps the wide discussion of the practice and procedure and
substance of decisions made under section 16, found in this Report, and the
extent to which the Government of Canada finds it possible to publish our
discussion and lay it before Parliament, will provide an indication to the
security intelligence agency and the responsible Minister in the future, as to
what assessment and information might be laid before Parliament without
imperilling the efficacy of the investigative technique or the work of the
security intelligence agency generally.
Intrusions of privacy by optical devices
124 . Long-distance viewing devices and miniature cameras are now available
through which investigators can obtain photographs or video recordings of
activities which occur or things whichare located in places where there is an
expectation of privacy . Future technological developments are likely to improve
these devices and make them even . more potent investigatory techniques .
Although Parliament has not yet made it a criminal offence to oversee private
communication or activity by these devices, still we believe that because they
have as much potential for invading privacy as aural eavesdropping techniques,
they too should be brought under an appropriate system of controls . We think
that the use of hidden cameras by the security intelligence agency to film
activities in places not open to the public should be lawful only under warrants
issued by a judge under the same conditions as we recommended should apply
to warrants for wiretapping and eavesdropping by microphone . This requirement, it should be noted, should not apply to cameras which are used in public
places to assist in physical surveillance operations . We have not examined the
use of intrusive viewing devices outside of the security context . However, this is
a subject which may soon require the same legislative attention as the use of
intrusive listening devices received a few years ago .
565
�Intrusions of privacy by "pen registers "
125 . An investigative device that is of occasional importance in intelligence
collection is called a "pen register" by police forces . Its correct name is a "dial
digit recorder" . It is a small unit which is attached to a telephone company
subscriber's line, usually by the telephone company . It may be used by the
company to detect long distance toll frauds . It may be used by police forces and
intelligence agencies to record the numbers dialled by a suspect, both local and
long distance, in the expectation that this record will reveal who the suspect is
dealing with . The device records the electronic impulses emitted by the
subscriber's telephone when an outgoing call is made . Perforations on a tape
attached to the device record the telephone number dialled, the date and time
the call was made, and the duration of the call . Normally, the device does not
record whether the receiving telephone was answered or the fact or substance
of any conversation .
126. Legal opinions have been expressed by the Department of Justice and by
one provincial attorney general that the use of pen registers does not constitute
an "interception" of a "private communication" within the meaning of section
178 .1 of the Criminal Code . We agree with that view . Likewise, we think that
the use of pen registers need not be authorized by a Solicitor General's warrant
under section 16 of the Official Secrets Act ; nor need it be, for such use would
not be an offence under section 178 .11 .
127. However, this leaves the policy question open . We think that a telephone
subscriber has the same reasonable expectation of privacy in respect to the
telephone calls he places as in respect to the communications he makes by
telephone . The list of numbers called by a person may, just as much as a
telephone conversation, reveal the most intimate details of a person's life .
Knowledge that a list of numbers dialled from a telephone can be compiled by
the police or a security intelligence agency without statutory authorization will
inhibit the use of telephone facilities by some persons, such as journalists, in
the legitimate exercise of their profession . If judicial support for the confidentiality of such information is needed, it may be found in Glover v . Glover .21
Consequently, as in the case of the use of intrusive optical devices, even if there
is no law making disclosure by the telephone company or the use of a pen
register by anyone an offence, we think that the use of such devices by the
security intelligence agency should be lawful only when there is a warrant
issued by a judge and under the same conditions as we recommended should
apply to warrants for wiretapping and eavesdropping by microphone .
WE RECOMMEND THAT there continue to be a power to intercept
communications for national security purposes but that the system of
administering the power and the statute authorizing the exercise of the
power be changed as follows :
21 (1980) DTC 6262 (Ont . C .A .) . The case itself was concerned not with authorizing the
use of a pen register but with whether the court in a child custody issue had the power
to order the telephone company to disclose such information .
566
�(1) All of the information on which an application for a warrant is based
must be sworn by the Director General of the security intelligence agency
or persons designated by him .
(2) Proposals for warrants should be thoroughly examined by a senior
official of the Department of the Solicitor General and by the security
intelligence agency's senior legal adviser, and the advice of the Deputy
Minister should be available to the Solicitor General in cônside r ing the
merits of proposals from both a policy and legal point of view .
(3) The legislation authorizing warrants should be amended so that,
except in emergency situations, warrants are issued by designated judges
of the Trial Division of the Federal Court of Canada on an application by
the Director General of the security intelligence agency approved in
writing by the Solicitor General of Canada .
(4) The legislation should authorize the judge to issue a . warrant if he is
satisfied by evidence on oath that the interception is necessâry for obtain•
ing information about any of the following activities:
(a) activities directed to or in support of the commission of acts o f
espionage or sabotage ( espionage and sabotage to be given the meaning of the offences defined in sections 46(2)(b) and 52 of the Criminal
Code and section 3 of the Official Secrets Act) ;
(b) foreign interference, meaning clandestine or deceptive action taken by
or on behalf of a foreign power in Canada to promote the interests of a
foreign power ;
(c) political violence and terrorism, meaning activities in Canada directed
towards or in support of the threat or use of acts of serious violence
against persons or property for the purpose of achieving a political
objective in Canada or in a foreign country;
and the warrant should indicate the type of activity of which the targetted
individual or premises is suspected .
(5) The legislation should direct the judge to take the following factors
into consideration in deciding whether the interception is necessar y
(a) whether other investigative procedures not requiring a judicial warrant
have been tried and have failed;
(b) whether other investigative procedures are unlikely to succeed;
(c) whether the urgency of the matter is such that it would be impractical
to carry out the investigation of the matter using only other invest i gative procedures;
(d) whether, without the use of the procedure it is likely that intelligence
of importance in regard to such activity will remain unavailable ;
(e) whether the degree of intrusion into privacy of those affected by the
procedure is justified by the value of the intelligence product sought.
(6) The legislation should provide that the Director General may appeal a
refusal of a judge to issue a warrant to the Federal Court of Appeal .
(7) The legislation should provide that an applicant must disclose to the
judge the details of any application made previously with respect to the
same matter .
567
�(8) The legislation should authorize the Chief Justice of the Federal
Court of Canada to designate rive members of the Trial Division of that
court to be eligible to issue warrants under the legislation .
1
(9) The legislation should provide that in emergency circumstances where
the time required to bring an application before a judge would likely result
in the loss of information important for the protection of the security of
Canada, the Solicitor General of Canada may issue a warrant which can be
used for 48 hours subject to the same conditions which apply to judicial
warrants. The issuance of emergency warrants must be reported to and
reviewed by the Advisory Council on Security and Intelligence .
(10) The legislation should require that warrants specify the length of
time for which they are issued and that no warrants should be issued for
more than 180 days .
(11) Before deciding to make application to renew a warrant the Director
General of the security intelligence agency and the Solicitor General
should carefully assess the value of the intelligence product resulting from
the earlier warrants . The legislation should stipulate that applications for
renewals of warrants be treated on the same terms as applications for
original warrants with the additional requirement that the judge to whom
an application for renewal is made be provided with evidence under oath as
to the intelligence product obtained pursuant to the earlier warrant(s) .
(12) The legislation should authorize persons executing warrants to take
such steps as are reasonably necessary to enter premises or to remove
property for the purpose of examining the premises or property prior to
installing a device or for the purpose of installing, maintaining or removing
an interception device, providing that the judge issuing the warrant sets out
in the warrant (a) the methods which may be used in executing it ; (b) that
there be no significant damage to the premises that remains unrepaired ;
and (c) that there be no physical force or the threat of such force against
any person . The legislation should also provide for the use of the electrical
power supply available in the premises .
(13) The Solicitor General should seek the co-operation of the provinces
to make lawful what would otherwise be unlawful under provincial and
municipal regulations governing such matters as electrical installations,
fire protection and construction standards, in order to allow the security
intelligence agency to install, operate, repair and remove electronic eavesdropping devices in a lawful manner .
(14) The legislation should provide for warrants to be issued to the
Director General of the security intelligence agency or persons acting upon
his,direction or with his authority, but require that in every case the
persons carrying out an entry of premises or removal of property in the
course of executing a warrant be accompanied by a peace officer. If the
Director General proposes to use a person who is not a member of the
agency or a peace officer, he should obtain the prior approval of the
Minister to the use of such person .
(15) The legislation should make it clear that warrants may be issued for
the interception or seizure of written communications, other than a message in the course of post, as well as oral communications. Warrants for
these interceptions must not be used for the examination or opening of mail
or the search of premises . Section 7 of the Official Secrets Act should b e
568
�repealed . (See Part IX, Chapter 2 for recommendation as to total repeal of
the Official Secrets Act . )
(16) The legislation should exempt from section 178 .2(1) of the Criminal
Code the communication of any information obtained from an interception
executed pursuant to the legislation by members of the security intelligence,
agency for purposes within the mandate of the security intelligence agency
or for the purpose of enabling the Advisory Council on Security . and
Intelligence or the Parliament Committee on Security and Intelligence to
review the operation of the legislation .
(17) The legislation should require that the Solicitor General annually
prepare a report to be laid before Parliament indicating the number of
warrants for interception which have been issued during the year, the
number of these which constitute renewals, and the frequency of renewals
and that the Solicitor General prepare a report for the parliamentary
Commi ttee on Security and Intelligence assessing the value of the intelligence products obtained from the warrants and problems encountered in
executing warrants under the legislation .
(18) The use by the security intelligence agency of (a) hidden optical
devices or cameras to view or film activities in places which are not open to
the public and (b) dial digit recorders ("pen registers") should be permitted only under a system of warrants subject to the conditions of control an d
review as are recommended above for electronic surveillance .
(21 )
F . SURREPTITIOUS ENTR Y
128. We have reviewed the various situations in which the Security Service
has conducted searches of private premises, vehicles or baggage to'look for
documents or other material that wôuld provide information about the activity
of an individual or an organization which threatens the security of Canada . We
have also considered the extent to which such ' investigative practices are
authorized in other jurisdictions and the extent to which future threats to
Canada's security might require the authorization of these practices . On the
basis of these deliberations, we have concluded that the law should be changed
to authorize the security intelligence agency, in certain well-defined circumstances and under a thorough system of control and review, to search premises
and property and to photograph and copy documents .
129 . We have reached this conclusion reluctantly . As we stressed at the
beginning of this part of our Report, in a liberal democratic state the intrusions
of the state into the private life of its citizens should be minimized . Already
numerous laws authorize agents of the state to enter and search private
premises and remove materials without the consent of the occupant or the
owner . No addition should be made to these laws unless it can be shown that it
is necessary to do so in order to protect our society from a grave danger . It is
because we think that the detection ' of threats to Canada's security requires a
power of search not now available under law that we are prepared to recommend this particular change in the ' law .
569
�130 . One of the reasons for the need for special search powers consists of the
activities of foreign intelligence agents . Foreign intelligence agents operate in
Canada under diplomatic cover or sometimes as private individuals under false
identity . Both kinds of agent are usually carefully trained to communicate in
ways which will avoid detection . Situations arise in which evidence needed to
corroborate suspicions that a person is acting as an undercover foreign intelligence agent takes the form of equipment used for secret communications such
as code books, microdot or radio equipment or personal possessions which
indicate the person's true identity . Past searches carried out by the Security
Service have on occasion produced such corroborating evidence - or evidence
discounting the suspicion, which may also be of importance in freeing a person
from suspicion .
131 . In the circumstances described above, a search warrant as provided for
in-- section 443 of the Criminal_ . Code would usually not be_ available or _
appropriate . That section sets out the conditions under which a justice may
grant a search warrant as follows :
443 . (1) A justice who is satisfied by information upon oath in Form l, that
there is reasonable ground to believe that there is in a building, receptacle
or plac e
(a) anything upon or in respect of which any offence against this Act has
been or is suspected to have been committed ,
(b) anything that there is reasonable ground to believe will afford evidence
with respect to the commission of an offence against this Act, o r
(c) anything that there is reasonable ground to believe is intended to be
used for the purpose of committing any offence against the person for
which a person may be arrested without warrant ,
may at any time issue a warrant under his hand authorizing a person named
therein or a peace officer to search the building, receptacle or place for any
such thing, and to seize and carry it before the justice who issued the
warrant or some other justice for the same territorial division to be dealt
with by him according to law .
But there may be no reason to believe that there is anything in the premises of
an individual suspected of developing a network of clandestine agents to work
on behalf of a foreign power, which has been used or is intended to be used to
commit a Criminal Code offence or will provide evidence of such an offence .
Under current law, possession of espionage equipment, such as a code book or
miniature camera, is not likely to point to any specific offence, nor do
possessions indicative of a false identity . (In Part IX, Chapter 2, see the
summary of our First Report recommendations with respect to possession of
espionage equipment .) Further, even if a search warrant could be obtained for
searching the premises of such a person, the procedure of obtaining and
executing such a warrant will not provide for the secrecy which is necessary in
counter-intelligence investigations . The opportunity of detecting the full range
of a clandestine agent's network and of the capacity and intentions of his
foreign handlers may be jeopardized if the search of his premises or possessions
is disclosed .
570
�132. The other provision of existing laws which might be thought to provide a
sufficient basis for counter-espionage and counter-intelligence searches is
section 11 of the Official Secrets Act which provides as follows :
11 . (1) If a justice of the peace is satisfied by information on oath that
there is reasonable ground for suspecting that an offence under this Act has
been or is about to be committed, he may grant a search warrant authorizing any constable named therein, to enter at any time any premises or place
named in the warrant, if necessary by force, and to search the premises or
place and every person found therein, and to seize any sketch, plan, model,
article, note or document, or anything that is evidence of an offence under
this Act having been or being about to be committed, that he may find on
the premises or place or on any such person, and with regard to or in
connection with which he has reasonable ground for suspecting that an
offence under this Act has been or is about to be committed .
This section requires only-suspicion, - not belief,-_that- anoffence has been or .is
about to be committed and relates the search warrant directly to the espionage
offences in the Official Secrets Act . However, in many investigations of
persons suspected of developing a base for espionage or clandestine foreign
interference there will be no grounds for suspecting a specific offence, e .g . that
he has communicated information that might be, or is intended to be, directly
or indirectly, useful to a foreign power . We think it is essential for the
government to be informed of secret foreign intelligence activities at an early
stage so that it can take action to expel diplomats or prevent undercover agents
from penetrating security sensitive areas of government or industry . The
security of Canada requires that much protection .
133 . One further deficiency of section 11 of the Official Secrets Act should
be noted . That section authorizes a justice of the peace to issue the warrant .
Under section 17 of the R .C .M .P . Act, R .C .M .P . officers of the rank of
Superintendent and above are ex officio justices of the peace having all the
powers of two justices of the peace . We think it would be especially wrong for
warrants authorizing such searches as section 11 provides for to be obtainable
from R .C .M .P . officers if the security intelligence agency, contrary to our
recommendation, remains within the R .C .M .P . But, even if our structural
recommendation for a security agency separate from the R .C .M .P . is adopted,
we think it inappropriate for special searches relating to espionage to be
authorized by justices of the peace, whether or not they are R .C .M .P . officers .
Searches of this kind should be authorized only by judges who are well-qualified to apply the terms of the statute to applications . Our recommendations
below provide for such a system of authorization . On this basis, we see no point
in retaining section 11 of the Official Secrets Act ; the search and seizure
powers in the Criminal Code should prove adequate for the enforcement by the
police of the offences in the Official Secrets Act .
134. The other kind of activity which we think constitutes a sufficiently
serious security threat to justify investigation through a special search power is
political violence and terrorism constituting a grave threat to persons or
property . Modern terrorist organizations frequently employ many of the methods used by foreign intelligence agencies . They develop clandestine communi571
�cations links with foreign powers and endeavour to build up networks of
support behind a safe cover . Situations have arisen in the past and are likely to
arise in the future, in which it is reasonable to suspect that a person or group of
persons are preparing for terrorist activity but in which there is no indication of
a specific offence . For instance, when a foreign intelligence agency informs
Canada's security agency of the presence in Canada of persons believed to have
participated in serious terrorist acts in a foreign country, there may be no
indication that such persons are planning any specific act in Canada . Because
of the frightening means of destruction available to terrorists, and the tremendous damage to the democratic process which can result from terrorist threats
to carry out acts of violence, we think the state should not have to wait until
there is reason to believe that such threats are imminent before its security
intelligence agency may be employed to search the premises or property of
suspected terrorists . It is because we think that these politically motivated
-terrorist-acts-pose such--a--threat--to- the -whole-body- politic-that we are prepared
to recommend legislation to make lawful certain kinds of searches by the
security intelligence agency which have heretofore been unlawful . We are not
however prepared to recommend a similar legislative change to render lawful
`intelligence probes' for other criminal investigation purposes .
135. Our support of this change in the law is conditional on the special power
of search being subject to a system of control and review similar to that which
we have recommended for electronic surveillance . That system, it will be
recalled, would require that applications for such searches be first approved by
the Solicitor General and then submitted to a Federal Court judge who would
apply a statutory test as to the kind of activity about which information may be
obtained and as to the necessity for using this particular investigative technique. Warrants would stipulate the time during which the warrant could be
executed and the methods which could be used to obtain entry, and would
require that the persons executing the warrant be accompanied by a peace
officer . The use of the power would be subject to review by Parliament and by
an independent review body in the same way that we have recommended for
the review of electronic surveillance warrants .
136 . The legislation authorizing searches for security intelligence investigations should make it clear that the premises which may be entered under
warrants also include any vehicle, vessel or aircraft and that warrants may
authorize examination of the contents of receptacles such as baggage and the
temporary removal of written material for examination or for photocopying
purposes .
137 . It may be useful in assessing our recommendation to compare it with a
similar proposal made by Australia's Royal Commission on Intelligence and
Security . In the Report of that Commission, Mr. Justice Hope concluded tha t
164 . . . AS1O (The Australian Security and Intelligence Organization)
should have limited and controlled right of examination and search ; the
right should be exercizable only upon warrant granted by the Minister, and
only where the Minister has been satisfied that there are reasonable
grounds to believe that documents or records may be situated on the
premises without which, or without intelligence concerning which, ASIO' s
572
�function of collecting security intelligence, in respect of an important
matter under investigation, would be seriously'prejudiced .
165 . The right should not be exercizable in relation to domestic subversion
unless the Minister is satisfied that the person or organization occupying or
using the premises is already engaged in subversive activities .
166 . These warrants, which should be exercizable at any time, should be
limited to searching for documents and records, and should authorize their
inspection, copying or removal . ASIO should be required to make a report
to the Minister concerning the results of any such entry or search? z
This recommendation was closely followed by the Australian Parliament in
enacting the Australian Security Intelligence Organization Act of 1979 .23
Section 25 of that Act provides as follows :
25 . (1) Where, upon receipt by the Minister of a request by the Director
General for the issue of a warrant under this section, the Minister is
satisfied that there are reasonable grounds for believing that there are in
any premises any records without access to which the collection of intelligence by the Organization in accordance with this Act in respect of a
matter that is important in relation to security would be serious impaired,
the Minister may, by warrant under his hand, authorize the Organization to
do such of the following acts and . things as the Minister considers appropriate in the circumstances but subject to any restrictions or conditions that
are specified in the warrant, nameÎ ÿ
(a) to enter the premises ;
(b) to search the premises for the purpose of finding records relevant to"
that matter and, for that purpose, to open any safe, box, drawer,
parcel, envelope or other container in which there is reasonable cause
to believe that any such records may be found ;
(c) to inspect or otherwise examine any records found in the premises and
to make copies or transcripts of any record so found that appears to be
relevant to the collection of intelligence by the Organization in accordance with this Act ; and
(d) to remove any record so found for the purposes of its inspection or
other examination, and the making of copies or transcripts, in accordance with the warrant and to retain a record so removed for such time
as is reasonable for those purposes .
(2) The Minister shall not issue a warrant under this section on a
ground that relates to domestic subversion unless he is satisfied that a
person or organization occupying or using, or that has recently occupied or
used, the premises specified in the warrant is engaged in activities constitut=
ing, or in preparation for, domestic subversion .
(3) A warrant under this section shall state whether entry under the
warrant may be made at any time of the day or night or only during
specified hours and may, if the Minister thinks fit, provide that entry ma y
1 2 Australia, Fourth Report of Royal Commission on Intelligence and Security, Vol . 1,
1977, p. 93 .
21 Australian Security Intelligence Organization Act, 1979, section 25 .
573
�be made, or that containers may be opened, without permission first sought
or demand made and authorize measures that he is satisfied are necessary
for that purpose .
(4) A warrant under this section shall specify the period for which it is
to remain in force, being a period not exceeding 7 days, but may be revoked
by the Minister at any time before the expiration of the period so specified .
(5) Subsection (4) shall not be construed as preventing the issue of
any further warrant .
In one sense our proposal would go further than the Australian legislation, in
that we would not confine such a search power to records but would extend it
to espionage equipment and possessions indicating a false identity . But, in
another sense, our proposal does not go as far as the Australian legislation in
that we would limit the availability of this investigative technique to espionage,
sabotage, foreign interference, serious political violence and terrorist activities,
whereas in Australia the power could also be used in relation to domestic
subversion . Under the definition section (section 5) of the ASIO Act of 1979,
domestic subversion includes activities which are "likely ultimately" to involve
the use of force or violence to overthrow the government and activities
"directed to promoting violence or hatred between different groups of persons
in the Australian community so as` to endanger the peace, order and good
government of the Commonwealth" . Further it should be noted that our
proposal would require that a different and, we believe, a more exacting test of
necessity be applied in deciding whether to grant a warrant and that a judge
rather than a Minister issue the warrant . Also, review by Parliament and an
independent review body are not features of the Australian scheme .
WE RECOMMEND THAT the security intelligence agency be authorized
by legislation to enter premises, to open receptacles and to remove property
for the purposes of examining or copying any document or material when it
is necessary to do so in order to obtain information about activities
directed towards, or in support of, espionage or sabotage, foreign interference or political violence and terrorism, providing that this investigatory
power is subject to the same system of control and review as recommended
above for electronic surveillance .
(22)
WE RECOMMEND THAT section 11 of the Official Secrets Act be
repealed .
(23 )
G . EXAMINING MAI L
138. In Part III we reviewed the Security Se rv ice's practice of obtaining
information by examining the envelopes or covers of items being sent through
the mail or by opening and examining the contents of such items, and
concluded that these mail check operations violated provisions of the Post
Office Act . (The Security Service's code name for these operations was
"Cathedral" .) However, at the end of that chapter we expressed the view that
the law should be amended to permit the examination of mail to or fro m
574
�persons if it is reasonable to believe they are engaged in activities dangerous to
the security of Canada, providing such examinations are subject to an adequate
system of control . Here we wish to elaborate on our reasons for taking that
position and to put forward our recommendations for legislative changes .
139 . Our assessment of the intelligence product of previous limited operations
was that it has been of only marginal value . The following cases have been
brought to our attention . One such operation was the investigation surrounding
the Japanese Red Army terrorist, Omura . Two unauthorized Cathedral 'C'
operations (mail openings) were performed during the Omura investigation,
one authorized Cathedral 'B' operation (photographing or otherwise scrutinizing envelope but not opening it), and an authorized telephone interception . It is
clear from the evidence that the telephone intercept provided evidence of a
definite interest on the part of a Toronto resident in the affairs of the Japanese
-Red Army . However, this technique did not_provide any .specific indication-of a
link between the Toronto resident and Omura, until almost a year after the
authorization for electronic interception was granted, when the terrorist arrived
in Toronto.
140 . The first Cathedral 'C' operation was undertaken to determine what
other telephone lines were being used by the Toronto resident which might
have to be tapped . This particular avenue proved inconclusive . Cathedral'B'
operations demonstrated the first concrete link between Omura (or "Joe", as
he was known) and the Toronto resident when it was noted that on April 8,
1976, the Toronto resident received a registered letter from "Joe" . The Toronto
resident replied to "Joe" on April 13, 1976 . This correspondence, as the second
unauthorized Cathedral 'C' operation disclosed, consisted of two sets of
applications to the University of Toronto, and established a clear link between
the Toronto resident and Omura . It also established that Omura intended to
visit Toronto . It is true that the telephone intercept had already indicated on
April 12 that the wife of the Toronto resident had made inquiries at the
University of Toronto concerning applications by foreign students in the
Department of Political Economy, but, without the mail interception, that in
itself would not have been sufficient to reveal the personal application of
Omura .
141 . Three R .C .M .P. members who testified before us concerning the case
clearly indicated that they considered the use of Cathedral operations to have
been vital to the resolution of this case . One of the witnesses indicated that
without the results produced by the Cathedral operations, surveillance of the
Toronto resident would not have been a priority item past April or May of
1976, and that, because of the scarce technical resources available to the
Service, the telephone intercept would probably have been discontinued long
before the expiry date of December 31, 1976, specified in the warrant . In other
words, without opening the mail the Security Service would not have known
that Omura intended to come to Canada, ostensibly to study, and the Service
might have decided by the middle of 1976 to terminate its telephone tapping
operation .
575
�142. Another example of the use of mail opening by the Security Service will
be published by us in edited form . Two Canadians who were members of an
organization that the Security Service believed to be subversive travelled to a
foreign country in the fall of 1970 and there was evidence that their expenses
had been paid by a Canadian who was suspected of being a foreign intelligence
agent . Earlier intelligence had suggested that this person had links with several
violence-oriented Quebec-based revolutionary organizations . The Security Service had information that the country to which the Canadians were travelling
was training guerrillas of other countries during 1969 and 1970 . The Security
Service was concerned that the violent guerrilla activity in that country and in
another country might be planned for Canada . Consequently the Security
Service began an intensive investigation in Canada of activities directed by
what was "later established" to be the intelligence service of the foreign
country . During the investigation, the Security Service opened the mail of the
Canadian who paid the expenses of the two-Canadians-and other suspected-agents . According to the Security Service, this helped to establish the identities
of other persons whom the agent might be approaching to become agents of the
foreign country in Canada, the mailing addresses of the foreign intelligence
agency's handlers who were operating in several countries, and the links that
existed with "several leading . .Communists" both in Canada and abroad, who
.
were supporting the activities of the foreign agents in Canada . The mail
opening was complemented by surreptitious entries and electronic surveillance
which produced evidence of cryptographic systems that were used by the
Canadian-based foreign agents to communicate with the handlers in other
countries ; this enabled deciphering of the messages opened in the mail . The
surreptitious entries also uncovered accommodation addresses being used by
the foreign agency in several countries ; helped in determining the channels and
the amounts of money being used in financing the foreign agency's operators in
Canada ; helped to identify the structure and the executive of the revolutionary
groups in Canada that were supporting the agents, and produced evidence that
the Canadian who paid the travel expenses was being directed by the foreign
agency and that he himself had recruited other agents in Canada . At the
conclusion of the investigation, the premises of the three principal targets of
the investigation were searched under warrants issued pursuant to section 11 of
the Official Secrets Act, and the people were interviewed by the Security
Service . No charges were laid, but one of the three returned to the foreign
country to live there, and the Security Service believes that the activities of the
foreign agency in Canada "subsided markedly after this event" (Vol . 315, p .
301406) .
143. We also examined summaries, prepared by the Security Service, of 67
Cathedral 'C' operations, of which 55 had been authorized by Headquarters
and 12 had not been so authorized . These 67 cases may be categorized as
follows :
(a) 10 cases are considered by the Security Service to have produced an
"important contribution to investigation" . Of these 10 cases, the Security
Service did not provide details as to the result in six cases ; in four cases
handwriting samples that were obtained proved to be useful ; and in one the
results were negative and were "important" only in the sense that the y
576
�contributed to the conclusion that the subject was not the agent of a
foreign power .
(b) 17 cases are considered by the Security Service to be cases in which .the
opening of letters produced an "investigative lead", but no details of the
"investigative lead" were given to us in 14 of the cases, and in a 15th case
the information produced by the opening was a list of addresses of persons
in contact with a suspected foreign agent . In the 16th case a known foreign
intelligence officer had a close relationship with a federal government
employee and once had been observed opening the employee's mail box ; it
was suspected that the employee was functioning as a "live letter box" (as
a contact for mail to the intelligence officer), but the Cathedral "C"
operation produced nothing of investigative value according to the summary provided ( and contrary to the evaluation list provided) . In the, 17th
case considered by the Security Service to have provided an "investigative
lead", - the envelope--maiied--by --a known-foreign intelligence -officer- was--found to contain an application for a subscription to a small-town Canadian newspaper .
(c) In 12 cases the Security Service considers that "no intelligence of value"
was obtained : in several, "semi-clandestine" contacts between the subject
and a foreign military attaché had led to suspicions that Canadian military
information might be passed ; in another a Canadian had met clandestinely
with an "agent of influence" of a foreign country ; in most of the remainder
of cases the subject was a known or suspected terrorist .
(d) In 16 cases, the Security Service reported that there was no evidence that
mail was received .
(e) In 6 cases, Cathedral 'C', while authorized either at Headquarters or
locally, was not carried out .
(f) The remaining 6 cases, while summarized, were not the subject of any
evaluation by the Security Service as to whether the operation produced
any intelligence of value . We do note that in one of these cases something
of value appears to have been obtained : the names of the friends, relatives
and contacts of a suspected foreign intelligence agent .
144 . Two other cases are in the public domain . One is that of Mr . George
Victor Spencer, the Vancouver postal employee who by 1960 had been
recruited by a K .G .B . officer who was a member of the staff of the embassy of
the U .S .S .R . According to the Security Service, Mr . Spencer admitted in his
interrogation in 1965 that the tasks assigned to him included the use of his
name and address as a "live letter box" . Three test letters were sent to Mr .
Spencer by the Soviet handler . As a signal, a small portion of a corner of the
stamp had been removed and there was a small ink dot on the flap side of the
envelope . His instructions were to deliver such letters unopened to his Soviet
handler, who could thus examine them to determine whether they had been
tampered with in the post . In addition, the Soviet handler made arrangements
for meetings by sending an apparently innocuous message by mail, containing
the date of the meeting. That message was to be responded to by an .apparently
innocuous letter of reply, which was to indicate whether the appointed date wa s
577
�acceptable to Mr . Spencer . 24 During this investigation the Security Service says
that it did not examine any of Mr . Spencer's mail, but speculates that the
investigation might have been expedited if his mail had been opened . In any
event, the case is useful as evidence of the use of the mail in Canada in an
espionage operation .
145 . So is the case of Mr . Bower E . Featherstone, a federal government
employee who had access to classified material . Mr . Featherstone, when
interviewed in 1966, denied having passed any classified material to the Soviet
Union, but admitted that he had acted as a live letter box and had passed five
letters from an unknown source to a Soviet handler and received payment for
his services . Featherstone was charged and convicted under the Official Secrets
Act because he had obtained and retained a naval chart which could have been
"of assistance to a foreign power, to wit, the Soviet Union", (he had not
delivered it) . The use of Featherstone as a live letter box was disclosed in court
by the Crown prosecutor .z5
145A . In 1978 the officer in charge of counter-espionage reported that he had
received information that a resident of Canada had requested instructions in
what appeared to be an operation in an ethnic community in Canada . The
R .C .M .P . Security Service suspected that instructions were given by letter, but
because mail opening is illegal there was no way to find out .
146. Clearly, the case for recommending legislative authorization of mail
examinations for national security purposes cannot be based solely on the value
of the intelligence obtained from mail check operations in the past . These
results of past operations do not settle the question of whether in the future, in
order to obtain important information about threats to Canada's security, it
may be necessary to examine mail, or the question of whether a law permitting
the examination of mail of persons believed to be participating in acts directed
towards or in support of espionage, secret foreign intelligence or terrorist
activities will deter the use of Canada's pôstal system as a channel of communication for these activities . Our consideration of these two questions about
the future brings us to recommend mail examinations for security purposes .
147 . Agents of foreign intelligence services and members of terrorist groups
are almost always very difficult to detect . They are usually individuals who are
intelligent, dedicated to their cause, and well-trained in the art of avoiding
detection by police or security officers . It is in their communication links that
such persons are often the most vulnerable . We think it is unwise to guarantee
them a free and convenient channel of communications within Canada by
exempting all mail communications from lawful examination by security
officers . Therefore, we believe it prudent that, in cases where there are
reasonable grounds to believe that the mail is being used by persons for th e
24 Most of the foregoing was described in the Report of the Commission of Inquiry into
Complaints made by George Victor Spencer, July 1966 . The Commissioner was the
Honourable Mr . Justice D .C . Wells .
zs April 4, 1967 . The prosecutor was Mr . P.T . Galligan, who disclosed this aspect of the
case when speaking to the accused's sentence . The transcript does not reveal that the
source of the information was Mr . Featherstone himself. See the Ottawa Citizen,
April 5, 1967 .
578
�purpose of working secretly on behalf of a foreign power in Canada or of
advancing the cause of a terrorist organization, the security intelligence agency
should have access to any item in the course of mail asa means of furthering
its investigation .
148 . Against these considerations must be weighed the intrusion of privacy
which will result . The mail is virtually the only means of communication left in
our Canadian society into which the state cannot intrude without the individual's consent . A decision to weaken this one remaining citadel of private
communication requires a very careful balancing of the respective weights
which should be given to these competing concerns of national security and
individual privacy . It is important to bear in mind that we are not dealing with
absolutes . We doubt that the staunchest proponent of thoroughness in the
protection of national security could demonstrate that Canada's security - as
we have defined that concept - will be absolutely imperilled if Canada's
security intelligence agency is denied the power of examining mail . But, by the
same token, the privacy of postal communication would not be absolutely
abolished for all citizens and residents of Canada by legislation which would
permit a security intelligence agency, under judicial warrant, to examine the
mail of persons who it reasonably believes are participating in espionage,
foreign interference or terrorist activities .
149 . This last point is important in that it refers to the conditions and
controls which, in our view, must attach to an acceptable mail-opening system .
Indeed our support for a legislative amendment authorizing mail examinations
for national security purposes is conditional on such legislation prescribing
conditions and controls similar to those which we have recommended for
electronic surveillance and the search of private premises or property . An
important objective of our review of the operation of section 16 of the Official
Secrets Act was to assess the adequacy of that law as a means of regulating the
interception of communications in national security investigations . Because of
the many inadequacies we found in the provisions of that section and in its
administration, we think it would be a mistake to extend that section to mail
without redefining the conditions under which the power may be used and
strengthening the system of controlling and reviewing its use along the lines we
have recommended above .
150. One change in the provisions of section 16 which is particularly important in the context of mail opening is the definition of subversive activity in
relation to which communication may be intercepted . Among other things, the
definition which is now contained in section 16(3) makes it possible to intercept
communications of persons whose subversive activity does not go beyond•
expressing ideas which call for the ultimate overthrow of our system of
government or organizing a demonstration or protest strike to bring about a
change in government policy . The definition of "subversive or hostile activities"
found in section 15(2) of the Access to Information Bill recently tabled in the
House of Commons (Bill C-43), is no improvement in this respect, as it still
contains the dangerously ambiguous reference t o
(d) activities directed toward accomplishing government change within
Canada or foreign states by the use of or the encouragement of the use
of force, violence or any criminal means .
579
�In our view the power to examine mail for the purpose of protecting national
security should be used only if it is necessary to obtain information about an
individual or group who, it is reasonable to believe, is engaging in activities
directed towards or in support of espionage, sabotage, clandestine or deceptive
actions to promote the interests of a foreign power in Canada, or acts of serious
violence against persons or property for the purpose of achieving a political
objective in Canada or in a foreign country .
151 . Suggestions have been made that a power which constitutes so grave an
encroachment on privacy as mail opening should be used only against foreigners, and not against Canadian citizens . Quite apart from obvious practical
difficulties, we cannot accept this suggestion . It is not the nationality of
individuals that determines whether their activities threaten security : it is the
seriousness of the threat of these activities and the need to obtain advance
information about them that constitutes the rationale for intercepting private
communications . In any case, we look with disfavour on an approach to civil
liberties in Canada which takes the position that the liberties which non-citizens in Canada may enjoy under Canadian law should be less than those
enjoyed by citizens .
152 . The system of granting warrants for the examination of mail and of
reviewing the use of such warrants should be essentially the same as that which
we have recommended for electronic surveillance and the search of private
premises or property . Warrants should be issued to the Director General by a
Judge of the Federal Court on the basis of an application approved by the
Solicitor General and with evidence given under oath as to the necessity of
using this particular investigative technique . The statute should direct the
judge to consider the same matters in determining whether there is necessity as
when hearing applications for warrants to intercept communications for purposes of criminal investigation under section 178 .13(1)(b) of the Criminal
Code . The use of warrants and the operation of the legislation should be
subject to review by Parliament and the Advisory Council on Security and
Intelligence on the same basis as recommended for electronic surveillance and
searches of premises or property .
153 . The legislation providing for the examination of mail by the security
intelligence agency should require that a warrant be obtained for the examination of all classes and types of mail and for obtaining information from the
envelopes or exterior covers of items in the course of post as well as from the
contents of mail . The legislation should expressly state that its provisions for
the issuing of warrants shall prevail over section 43 of the Post Office Act, and
the latter section should be amended to make this possible .
154 . Warrants should specify the ways in which articles are to be examined .
It may be sufficient to obtain information from mail covers and not necessary
to read the contents . There should be authorization for copying the covers or
contents of mail, and for temporarily removing the article from Canada Post
premises . We think it would be impracticable to adopt the suggestion made in
one submission to the Commission that warrants specify the letters to be
opened . It is impossible to predict the specific letters or parcels which ma y
580
�contain relevant information .or material . Warrants should be issued for the
interception of mail addressed to, or sent by or from, a specified person or
address . The latter possibility is necessary to provide for a situation in which it
is suspected that a false name is being used, Warrants should also specify the
length of time during which a warrant may be used within the same maximum
time period and subject to the same renewal conditions as we have recommended for electronic surveillance and searches . We note that section 27(4) of
Australia's ASIO Act imposes a 90-day time limit on warrants for postal
inspections as compared with a six-month limit . on electrbnic surveillance
warrants . However, we cannot see why there should be a difference in the
maximum periods for which the two kinds of warrants are available. In both
cases, six months should be treated as a maximum and every effort should be
made to confine the length of time for which a warrant is requested and
granted to the period when it is reasonable to expect significant communications to occur . Because breaches of the peace do not occur in executing a
warrant to examine an article in the course of post, it would make no sense to
require that a peace officer be present when these warrants are being carried
out . However, the legislation should require that thè Post Office Department
be informed whenever a warrant is issued and when warrants expire . Further
the legislation should require the co-operation of postal officials with members
of the security intelligence agency in carrying out the procedures specified in a
warrant .
155 . In judging whether articles of . mail should be inspected for national
security purposes and if so, under what conditions and controls this should be
done, Canadians will no doubt wish to base their decisions on an assessment of
Canada's security needs and on the ideals of civil liberty which derive from
Canadian traditions and aspirations . Still, in arriving at a decision and in
assessing the recommendations of this Commission on this subject, it may be
useful to look at the laws and policies of countries whose system of government
and democratic principles are close to. our own . In the United States, although
the Rockefeller Commission and the Church Committee disclosed widespread
improper surveillance of the mails by intelligence agencies, U .S . mail is not
made immune from lawful inspection for national security purposes . The
President's Executive Order of January 21, 197826 attempted to control national security mail checks by providing that :
2-205 . Mail Surveillance . No agency within the Intelligence Community
shall open mail or examine envelopes in United States postal channels,
except in accordance with applicable statutes'and regulations . No agency
within the Intelligence Community shall open mail of a United States
person abroad except as permitted by procedures established pursuant to
section 2-201 .
Generally the control system is stricter - where there is no suspiciôn of any
foreign involvement . First class mail which originatès in the United States
cannot be opened without a showing of "probable cause" (i .e ., a belief that
evidence of a crime will be discovered) unless consent has been secured or a n
zb Executive Order 12036 ; January 21, 1978 .
581
�emergency exists . Letters opened for foreign intelligence purposes may be an
exception to this rule . Mail cover checks are permitted under Postal Service
regulations which require a written request from a law enforcement agency
specifying "reasonable grounds" which demonstrate that the mail cover is
necessary t o
(a) protect the national security,
(b) locate a fugitive, or
(c) obtain information regarding the commission or attempted commission
of a crime .27
The "reasonable grounds" requirement is a standard which appears to be less
demanding than the "probable cause" requirement of the Fourth Amendment
of the U .S . Constitution . In late 1978 a Federal Court Judge declared this
national security ground to be unconstitutionally vague . In August 1979, new
regulations were adopted by the Postal Service defining the phrase "to protect
the national security" to mean :
,
to protect the United States from any of the following actual or potential
threats to its security by a foreign power or its agents :
(i) an attack or other grave hostile act ;
(ii) sabotage, or international terrorism ; or,
(iii) clandestine intelligence activities .2 8
In Great Britain authorization to examine mail for criminal investigation,
customs or security purposes is obtained through the same process of ministerial warrants as applies to telephone interceptions . The recent White Paper on
this subject discloses that over the past 20 years the highest number of
warrants for mail opening issued by the Home Secretary in any one year has
been 139 and the lowest, 44 .29 However, these figures do not indicate how
many of these warrants were issued for national security investigations . Finally, in Australia, following the recommendations of the Royal Commission on
Security and Intelligence, provision for examining mail has been included in
the Australian Security Intelligence Organization Act .30 Warrants for examining mail are issued on terms and conditions similar to those set out in section
25 (reproduced above) with respect to searches .
WE RECOMMEND THAT, notwithstanding the present provisions of the
Post Office Act, the security intelligence agency be authorized by legislation to open and examine or copy the cover or contents of articles in the
course of post when it is necessary to do so in order to obtain information
about activities directed towards or in support of espionage or sabotage,
foreign interference or serious political violence and terrorism, providing
that this investigatory power is subject to the same system of control and
review as recommended above for electronic surveillance, except tha t
27 39 C .F .R . 233 .2 .
21 Ibid.
29 Cmnd . 7873, April 1980, Annex, Table I .
30 Australian Security Intelligence Organization Act, 1979, section 27 .
582
�instead of requiring that a peace officer accompany persons executing
warrants issued for this purpose, the legislation should require that the
Post Office Department be notified when such warrants are issued and
expire and that Post Office officials co-operate with members of the
security intelligence organization in carrying out the procedure specified in
the warrant.
(24 )
H . ACCESS TO CONFIDENTIAL PERSONAL
INFORMATIO N
HELD BY GOVERNMEN T
156 . An important potential source of information for a security intelligence
agency is personal information contained in the files and records - the
so-called `data banks' - of departments and agencies of the federal government . We say `potential' source because under existing law the release of
virtually all personal information held in federal government data banks to the
R .C .M .P . is prohibited if the release is for security intelligence purposes . In the
past, as we reported in Chapter 6 of Part III, the R .C .M .P . Security Service
obtained confidential personal information from federal government departments notwithstanding that such practices were in some instances not authorized or provided for by law ; however, in the past two or three years the legal
barriers to access have been strictly observed .
157 . At the conclusion of Part III, Chapter 6, we stated our view that the
laws which protect the confidentiality of personal information held by the
federal government should provide some means of access by the security
intelligence agency to protected information, provided such access is subject to
an appropriate system of control and review . Here we shall set out our reasons
for recommending this change in the law and our recommendations as to the
kind of legislative change which is needed .
158 . Again, in considering this subject we must weigh our concern for the
individual's privacy against the requirements for effectively protecting national
security . Today, the enormous range of government programmes and regulation means that there are myriad circumstances in which the citizen is required
to give personal information to the government in order to comply with
statutory obligations or enjoy statutory benefits . Our concern about how this
ever-growing volume of information which the government holds about each
one of us is used, and how access to it is controlled, is not only a concern for
individual privacy ; part of our concern is with maintaining a relationship of
trust between the citizen and government .
,
159 . But it should also be recognized that there are important investigatory
needs relating to the protection of national security which are most effectively
met by affording the security intelligence agency access to certain kinds of
government information . We think these needs should be served, and can be
served, in a manner which will both prevent excessive disclosure of personal
information and entitle the government to retain the trust of the citizen in its
respect for the confidentiality of personal information .
583
�160 . The most important investigatory use of personal information in government data banks is in assisting the security agency in its efforts to identify and
locate individuals . These efforts are particularly important when the subject of
investigation is suspected of operating under a false cover, or when the agency
is trying `to discover the identity of a person reported to be in contact with a
hostile foreign intelligence agency or to be associated with a terrorist organization . Information in government files is obtainable directly and expeditiously,
and can often save considerable time and expense in ascertaining and corroborating identity . Information in the S .I .N . data bank, because of its
universality, is one of the most useful sources of government information for
this purpose .
161 . Our review of cases in which the Security Service has used information
in government data banks and cases in which it has requested to use such
information disclosed several other important uses of this kind of information .
162 . Occasionally, such requests have been made as the result of inquiries by
foreign intelligence agencies . We think these requests of foreign intelligence
agencies should be screened much more carefully than they have been in the
past . In Chapter 7 of this part of our Report we make recommendations for
strengthening the system of controlling liaison with foreign agencies and for
ensuring that the security intelligence agency provides information to foreign
agencies only on subjects that are within the Canadian agency's own statutory
mandate . But within these limitations and controls, we think it essential that
Canada's security intelligence agency be able to respond effectively to requests
received from foreign intelligence agencies . The protection of Canada's security frequently requires that our own security agency obtain information from
foreign agencies, including information held by departments of foreign governments about the identity of persons travelling with foreign passports in Canada .
Our security agency's access to this foreign information is put in jeopardy if it
cannot reciprocate by supplying information from its own government's files .
Access provided for in proposed Privacy Act
163 . A legislative proposal which is currently before Parliament would
remove the largest single legal barrier to a security intelligence agency's access
to government information . This is the proposed Privacy Act which, along with
the government's Bill on Access to Information, had its first reading in the
House of Commons on July 17, 1980 . This legislation could give the security
intelligence agency a controlled means of access to all personal information
held by government institutions except for information which is protected by
other Acts of Parliament . It would accomplish this by repealing and replacing
Part IV of the Canadian Human Rights Act . Section 52(2) of that Act
provides as follows :
(2) Every individual is entitled to be consulted and must consent before
personal information concerning that individual that was provided by that
individual to a government institution for a particular purpose is used or
made available for use for any non-derivative use for an administrative
purpose unless the use of that information for that non-derivative use is
authorized by or pursuant to law .
584
�When this "non-derivative use" section of Part IV became law in 1976, there
was some doubt as to whether Security Service requests for information (or, for
that'matter, Criminal Investigation Branch requests) constituted a prohibited
administrative use . However, by 1978, section 52(2) was being interpreted
strictly by all departments and agencies with the result that the R .C .M .P.
Security Service was now denied access to virtually all personal information
possessed by other federal government institutions .
164 . Section 7 of the Bill now before Parliament, which it is proposed should
replace Part IV of the Canadian Human Rights Act, provides that personal
information under the control of a government institution shall, subject to
certain exceptions, be used only for the purpose for which it was obtained .
Section 8(2) lists the exceptions, all of which are "subject to any other Act of
Parliament" . The exception which is most relevant for our purposes is 8(2)
which would permit a government institution to disclose personal informatio n
(e) to an investigative body specified in the regulations, on the written
request of the body, for the purpose of enforcing any law of Canada or
a province or carrying out a lawful investigation, if the request specifies
the purpose and describes the information to be disclosed ;
Assuming that the security intelligence agency would be an investigative body
specified in the regulations, it would by virtue of this clause have access to
personal information in all government data banks except those to which access
is barred by other Acts of Parliament . One of the important sources of security
intelligence to which this legislation would restore access is information which
the Department of External Affairs' Passport Office has obtained from passport applicants . However, there is some doubt as to whether the security
intelligence agency under the proposed legislation would have access to S .I .N .
card information . As we said in Part 111, Chapter 5, it may not be open to the
Minister of Employment and Immigration to release S .I .N . card information
for security intelligence purposes ." Nor would the agency have access to
income tax,32 family allowance," old age security34 or Canada Pension Plan
'36 all of
information 35 or census information obtained by Statistics Canada
31 Section 114 of the Unemployment Insurance Act (S .C . 1970-71 Chapter 48 as
amended by S .C . 1976-77, Chapter 54, Section 60 .1) provides as follows :
114 . Information, written or oral, obtained by the Commission or the
Department of Employment and Immigration from any person under this
Act or any regulation thereunder shall be made available only to the
employees of the Commission or the said Department in the course of their
employment and such other, persons as the Minister deems advisable, and
neither the Commission, the said Department, nor any of their employees is
compellable to answer any question concerning such information, or to
produce any records or other documents containing such information as
evidence in any proceedings not directly concerned with the enforcement or
interpretation of this Act or the regulations .
12 Income Tax Act (R .S .C . 1970, ch .148), s .241( I) .
" Family Allowances Act, 1973 (S .C . 1973-74, ch .44), s .17 .
'" Old Age Security Act (R .S .C . 1970, ch .O-6), s.19 .
's Canada Pension Plan (R .S .C . 1970, ch .C-5), s .107 .
36 The Statistics Act, S .C . 1970-71, ch . 15, s . 16 .
585
�which are protected by Acts of Parliament which bar disclosure of information,
even with the permission of the Minister, for any purpose unrelated to the
programme or purpose for which the information was obtained .
165. The proposed legislation would go some way towards improving the
current situation . It would give the security intelligence agency access to some
of the government information it must have if it is to discharge its functions
effectively . Also, it would provide a system of controlling and reviewing this
access which would be a distinct improvement on the haphazard and often
underhand procedures that prevailed in the past . Requests for personal information would have to be made in writing specifying the purpose for which the
information was needed . Requests would be made directly to the Minister or
head of the institution which holds the information . Section 8(3) requires that
the Minister or head of the institution must retain a copy of the request, and, if
requested by the Privacy Commissioner, provide the Privacy Commissioner
with a copy of the request . The Privacy Commissioner may review, either on
her own initiative or in response to an allegation by a complainant, whether
personal information has been properly disclosed . While these provisions of the
proposed Privacy Act represent, generally, a move in the right direction, we
think they fall short of a satisfactory comprehensive solution to the issue of
providing access for national security purposes to personal information held by
the federal government . In certain respects, the legislation goes too far in
opening up access to a security intelligence agency and in other respects it does
not go far enough .
The scope of access
166 . First, let us deal with what we consider to be an inadequacy in the
access provided for in the proposed Privacy Act - its limitation to data banks
not protected by other Acts of Parliament . We think there are circumstances in
which tax information will be an extremely valuable means of identifying or
detecting persons who are acting covertly on behalf of a foreign power or who
are furthering the objectives of terrorist groups . For these situations the law
should provide for the security intelligence agency to have access to income tax
information under an appropriate system of control and review . However, while
information from Family Allowance, Old Age Security and Canada Pension
Plan records is not as likely to be needed for security intelligence investigations,
we cannot see why the law should not provide for the same limited access to
these data banks . We note that the Church Committee in the United States which is the only other government Commission or committee in the Englishspeaking democracies to report on this subject - came to a similar conclusion .
While it called for tight controls on the intelligence agencies' access to tax
records as well as, medical or social history records, its recommendations on
this subject would give access to such informatio n
(1) In the course of a criminal investigation if necessary to the
investigation ;
(2) If the American is the target of a full preventive intelligence investigation and the Attorney General or his designee makes a written finding tha t
586
�(i) he has considered and rejected less intrusive techniques ; and (ii) he
believes that the covert technique requested by the Bureau is necessary to
obtain information necessary to the investigation ."
167 . One category of federal government information which it would be
reasonable to exempt from the scope of legislation giving access to otherwise
protected bodies of information is the census information compiled by Statistics Canada . While such information may not be more personal than that
found in some other federal data banks, the tradition in this country has been
very strongly in favour of complete confidentiality of census returns . The
unqualified guarantee of confidentiality helps to overcome the reluctance of
Canadians to respond to inquiries about personal matters for purposes which
may be suspect, or at least not clearly understood, by many .
Control and review of access
168 . Turning now to the system of control and review provided for in the
proposed Privacy Act, we think there are a number of ways in which that
system should be strengthened . The legislation does not provide a clear enough
test of necessity for access to personal information for security intelligence
purposes . It leaves the prior approval of all access, including access to details of
a person's life far beyond what is needed for purposes of identification, to
Ministers, and it provides no role in approving requests for information to the
Minister responsible for the security intelligence agency .
169 . In our view a satisfactory system for controlling access by a security
intelligence agency to personal information in the hands of government departments must recognize a distinction between two kinds of information requiring
two levels of protection . There are a number of items of what we will refer to as
`biographical information' which are extremely useful in identifying and locating individuals and which are relatively public in that such items of information about most of us are publicly available . There might be considerable room
for argument as to what should be included on a list of items of such
biographical information . Our own suggestion is that the list should include the
following :
- full name ( including change of name) ;
- address ( including changes of address) ;
- phone number ;
- date and place of birth ;
- occupation ;
- physical description .
We think that biographical information restricted to the items listed above
should be accessible by a security intelligence agency through a system of
administrative control similar to that provided for under section 8(2)(e) of th e
" U .S. Senate, Final Report of the Select Committee to Study Governmental Operations, 1976, Book 11, p . 329 .
587
�proposed Privacy Act . Under the general system for controlling security
intelligence investigation that we proposed in Section B of this chapter, the
security intelligence agency could make requests to government departments
for this kind of biographical data in a Level Two investigation which can be
initiated with no higher approval than the Headquarters of the security
intelligence agency . However, access to more personal information, including
information about a person's financial background, marital history, travel
plans, social welfare benefits or employment history, should require a higher
level of approval . Obtaining information of this kind can involve an intrusion of
a. person's privacy as serious as the intrusion involved in electronic surveillance,
searches of premises or property, or mail-opening, and should be subject to as
rigorous a system of control and review .
170 . The proposed Privacy Act does not provide a satisfactory test or
definition of the national security needs which may justify access to personal
information in government files . Section 8(2)(e) would permit access "for the
purpose of enforcing any law of Canada or a province or carrying out a lawful
investigation" . The first of these purposes, the enforcement of any law, is
reasonably clear (although we note in passing that it establishes that an
extremely minor case - for instance, the investigation of a traffic offence may justify access to very personal information . We will examine this aspect of
the legislation in Part X, where we consider legislative proposals related to the
criminal investigation responsibilities of the R .C .M .P .) . But the second purpose, "carrying out a lawful investigation", presumably for some purpose other
than law enforcement, is not at all clear . We think it is a mistake to provide
statutory authorization for security intelligence gathering in such vague terms .
If statutory provision is to be made for the security intelligence agency's access
to personal information in government data banks, it should be tied to a
statutory definition of the purpose and scope of security intelligence investigations . Further we think that the statutory definition which is used should
provide greater assurance than do existing definitions of subversive activities,
including the definition contained in the proposed Privacy Act, that security
intelligence investigations will not encroach on legitimate forms of political
dissent . Therefore we recommend that access to personal information of both
the biographical and more personal kind held by federal government departments and institutions, be accessible for security intelligence purposes only if
the investigation falls within the statutory mandate of a security intelligence
agency which we have recommended earlier in this Report .
171 . As we have indicated, we think that requests by the security intelligence
agency for personal information, beyond `biographical information', should
require a stricter method of control than that provided in the proposed
legislation . Requesting additional personal information from federal government institutions of any kind should be treated as a component of a "full"
investigation, the initiation of which, under the general scheme we proposed in
Section B above, requires the approval of the Solicitor General . Further,
personal information beyond biographical data should be accessible only
through a warrant issued by a Federal Court Judge in response to an
application of the Director General approved by the Solicitor General o f
588
�Canada . The issuance of the warrant should be conditional on meeting the
same test of necessity we have recommended for applicatiôns for warrants for
electronic 'surveillance, searches and mail' examinations : The provision in the
proposed legislation for a review by the Privacy Commissioner falls'far short of
an acceptable means of controlling such . a potentially intrusive technique of
investigation . Not only is that latter system confined to ex post facto review,
but, under' it, the Privacy Commissioner would not be informed of each
instance in which access to personal information was granted . She would
review only those cases where she requested a copy of the security àgency's
application . How is she to 'know when a questionable application has been
made? She can also review complainants' allegations of imprôper disclosûre :
however, as we have repeatedly emphasized, it is of the essence of security
intelligence investigations that the subjects of _such investigations . be unaware
of the investigation . It is precisely for that reason that. we believe a system of
prior approval, involving the judicious application of a strict test of necessity, is
needed as a means . of ensuring that government information about the personal .
details of one's private life, beyond those items that are generally public
knowledge, is used for national security purposes only when a clear case for the
necessity of such use has been made .
172 . If the scheme we recommend were to be adopted, review by the Pfivacy
Commissioner might be retained to enable that official to carry out her general
function of monitoring the protection of - privacy in government institutions .
But, in addition, provision should be made for the review of warrants for use i
frtviw
Onthescuriylgaensmirtohcendf
other warrants'authorizing the use of extraordinary investigatory powers by the
security intelligence agency - i .e . Parliamentary review and review by the
Advisory Council on Security and Intelligence .
173. Warrants granting access to personal information should be submitted
to the Minister of the Department or head of the institution which -possesses
the information . The question arises whether the Minister or head of the
institution should have discretion to refuse to accede to a request authorized by
warrant . Situations may arise in which a Minister believes that the integrity of
a programme administered by his Department is seriously jeopardized by the
disclosure of personal information obtained with an expectation of confidentiality . We have considered this matter carefully and have concluded that,
providing that the warrant has been granted on the basis of a showing of
necessity according to .the procedures we have recommended, the head of the
institution receiving the warrant should not have discretion to refuse to comply
with the terms of the warrant . If the Minister or head believes that a particular
warrant is unreasonable, or that à series of warrants indicates excessive use of
his institution's records and is'unable to persuade the' Solicitor General to
withdraw the warrant, he could make representations to the Prime Minister
and ask that the Solicitôr General be directed by the Prime Ministér not to
execute the warrant . But *if the necessity of obtaining information for the
protection of national security has been determined by the Minister responsible
for the security agency and according to a reasonably precise statutory
standard applied by a judge, then we do not think it right to leave it to'anôther
589
�Minister or head of an institution to put the requirements of his Department
ahead of the requirements of national security . The Prime Minister or Cabinet
might decide that the integrity of some other government programme should
be given more weight than protection against a particular threat to national
security, but this determination of priorities should not be left to a Minister or
head of an institution who has no personal responsibility for national security
matters .
Persona l information held by provincial government s
174 . There are a number of kinds of personal information held by provincial
governments or institutions under provincial jurisdiction which are useful to a
security intelligence agency . In the past the R .C .M .P . Security Service has
used information from the following provincial or municipal sources :
- hospital and health insurance records
- vital statistics record s
- land titles records
- motor vehicle and driver's licenses
retail tax records
- education records
- welfare record s
- public utilities records
- electoral records
As we reported in Part III, information from these sources sometimes was
obtained in ways not authorized or provided for by law . While we have no
doubt about the security intelligence agency's need to obtain certain kinds of
personal information from government institutions under provincial jurisdiction, we believe, that, with one possible exception, the legally authorized means
of access which now exist are adequate and that there is no need to seek the
support of the provinces for legislative amendments in this regard .
175 . It is extremely important that the security intelligence agency be
directed to obtain information from officials who are authorized by law to
release the information and not through undercover sources . If a legally
authorized means of access is not available with respect to some category of
provincial information which the security agency considers essential, the
matter should be raised with the Solicitor General of Canada and, if he is
persuaded of the need for the information in question, he should seek the
co-operation of the appropriate provincial Minister in making arrangements for
a legal method of access . If the provinces adopt privacy legislation which
restricts access to personal information as strictly as does Part IV of the
Canadian Human Rights Act, then it may well be necessary to seek provincial
support for an exception to such restrictions which would permit access by the
security intelligence agency on terms similar to those we have recommended
should apply at the federal level .
590
�176. The one qualification we make to our judgment that there is no
immediate need for provincial legislative change permitting security intelligence agency access to provincial government information concerns hospital
and medical insurance records . As Commissioners who have had an opportunity to study national security needs, we think that we should report our
findings as to the problem that existing statutory restrictions create for a
security intelligence agency . Briefly, we can report that situations have arisen
in the past in which information from hospital or health insurance records has
been of great assistance in successfully completing investigations of persons
whose activity has constituted a significant threat to the security of Canada .
For example, information obtained from the details of an individual's medical
history was crucial in a major counter-espionage investigation . Psychiatric
information has been of importance in providing security intelligence advice to
those responsible for coping with terrorist situations . We think it is likely that
similar situations will arise in the future in which detailed medical information
will be of great assistance in the successful completion of important security
investigations . Although we have been able to examine only a sample of the
legislation which governs access to medical and health records in the various
provinces, we note that there are secrecy provisions in the statutes and
regulations of a number of provinces which would clearly bar access by a
security intelligence agency to confidential information for purposes other than
the enforcement of the Hospital or Insurance Act itself . In these provinces, the
statutory provisions do not permit even the Minister, Hospital Board or
Insurance Commission to authorize release of medical records for security
intelligence investigations .3 8
177 . We think the infrequent but relatively urgent security investigation
needs create the strongest case for providing some lawful means of access to
medical and health information by a security intelligence agency . (As we noted
earlier, we comment on this matter in more detail in Annex I where we
examine the relevant recommendations of the Krever Commission .) Hospital
and medical insurance records are also useful sources of biographical data in
identifying and locating individuals . But we think the need for access to
biographical information through hospital or medical records may be signifi .cantly reduced if the legal barriers to obtaining such information at the federal
level are modified along the lines recommended above and provided for in
legislation now before Parliament . Also we should note that, if the changes in
the security screening procedures which we recommend in Part VII of thi s
38
We examined secrecy provisions in the following Acts :
Alberta Health Care Insurance Act, Saskatchewan Medical Care Insurance
Act, Ontario Health Insurance Act, Nova Scotia Hospitals Act, Nova
Scotia Health Services and Insurance Act, P .E .I . Health Services Payment
Act, Newfoundland Medical Care Insurance Act, Saskatchewan Hospital
Standards Act, Newfoundland Medical Care Insurance Act . One statute
relating to medical and health information which has no confidentiality
or secrecy provisions is the British Columbia Medical Services Act (S .B .C .
1967, ch .24) .
591
�Report are adopted, there will be no need for the security intelligence agency to
have access to medical information in carrying out its -responsibilities in 'the
security clearance process . If a government department considers that it needs
medical information, for instance arecord of a person's psychiatric treatment,
in order to assess an individual's `reliability' for a security sensitive .position,
under our proposals it would have to obtain that information with the individual's consent through security staffing officers in the department or from the
Public Service Commission . Under our proposals, such information is not to be
obtained, either openly or surreptitiously, through the security intelligence
agency .
WE RECOMMEND . THAT legislation authorize the •heads of federal
government institutions to release information concerning an individual's
name, address, phone number, date and place of birth, occupation and
physical description on receiving a written request from the security
intelligence agency stating that such information is necessary for the
purpose of locating or identifying an individual suspected of participating
in one of the activities identified as a threat to the security of Canada in
the statute governing the security intelligence agency, and that all other
personal information held by the federal government, with the exception of
census information held by Statistics Canada, be accessible to the security
intelligence agency through a system ofjudiçially granted warrants issued
subject to the same terms and conditions and system of review as recommended for electronic surveillance, searches of premises and property, and
the examination of mail.
(25)
WE RECOMMEND THAT warrants issued for obtaining personal information for security intelligence purposes be submitted to the Minister or
head of the government institution which holds the information and that
-the Minister be required to comply with the warrant unless the Prime
Minister directs the Solicitor General not to execute the warrant .
(26)
WE RECOMMEND THAT the security intelligence agency obtain personal information held by government institutions under the jurisdiction of
provincial governments only from persons legally authorized to release such
information and that, with regard to any province in which there is no'
authorized means of access to information to which the Solicitor. General
of Canada considers that the security intelligence agency should have
access in order to discharge its responsibilities effectively, the Solicitor
General should seek the co-operation of the province in amending its laws
to make such access possible.
1 . THE WARRANT SYSTEM AND PROPOSED
LEGISLATIO N
178. We conclude this chapter by explaining how the various warrants we
have recommended for the use of extraordinary investigative methods by a
592
�security- intelligence agency should be related to one another and by setting out
a draft legislative basis for this warrant system .
179 . Our recommendations would make the security intelligence agency's use
of four extraordinary powers conditional on obtaining a warrant from a
Federal Coàrt Judge . These four powers are the interception of communications by electronic surveillance, searches of . private premises or property in
circumstances in which a search warrant for criminal investigation would not
be âvailable, the examination of mail, and access to personal information other
tlian' `biographical information' held by the federal government . We refer to
these powers as `extraordinary' because they involve acts which would be
violations of law if carried out by ordinary citizens, and because, unlike special
police powers, they may be exercised in -circumstances where there is no
evidence that a particular crime has been committed or is about to be
committed . Two-other techniques, which are not extraordinary in this sense,
namely surveillance of private premises by hidden optical devices or cameras
and the use of dial digit recorders, should also be subject to this system of
control by judicial warrants .
180 . Under our recommendations for controlling the level of investigation,
the security intelligence agency could not initiate a request for a warrant to use
any of these techniques to gather intelligence about a specific individual or
group until a`full' investigation of that individual or group has been approved .
It will be recalled that a decision to carry out a full investigation must be
approved by the Solicitor General on a proposal which is supported by the
Director General and has been carefully reviewed by a Committee which
includes senior officers of the security agency as well as a lawyer from the
Department of Justice and a senior official of the Solicitor General's Department . At the time the Solicitor General's approval of a full investigation is
sought, the security agency might request his approval of an application to a
judge for. a warrant for a particular technique . It mighf conceivably at that
time request his approval for applications for warrants for more than one
technique, but in this case it would be extremely important for the security
agency and the Solicitor General to give careful consideration to the necessity
of using each technique . Every effort should be made to use only that method
which is best calculated to enable the agency to complete an investigation with
a minimum intrusion of privacy . We do not think that the various, techniques
requiring~a judicial warrant can be scaled in terms of their inherent intrusiveness . Indeed, in some circumstances, the use of an undercover informant, which
does not require a judicial warrant, may be regarded as a more intrusive and
less effective means of obtaining information than one of the techniques which
does .
181 . In considering an application for a warrant to use two or more methods,
the Federal Court Judge would have to consider the strength of the case which
is made for the necessity of using each technique . He should also be informed,
when considering any application, whether warrants have been issued for the
use of other techniques in relation to the same subject of investigation and, if
they have, what results they have produced . It is essential that the judge be in a
position to consider whether, given what has been obtained or what ca n
593
�reasonably be expected to be obtained from other techniques, and given the
statutory direction to minimize intrusions on privacy, the necessity of using a
particular technique has been demonstrated .
182 . Finally, an important focal point in the review of the warrant process
carried out by the Parliamentary Committee and the Advisory Council on
Security and Intelligence would be the extent to which the various warrants are
used together . Indications that warrants were being applied for and obtained
on a`blanket' basis would justify a critical re-examination of the system .
183 . The system of judicial warrants we have proposed would require the
repeal of section 16 of the Official Secrets Act and its replacement by
provisions of the statute governing the security intelligence agency . We have
set out below a draft of the legislative provisions we envisage for this purpose .
Proposed Section of the National Security Act
(1) In this section ,
(a) "interception" includes listening to, recording or acquiring any communication, any written communication other than a message in the
course of post, and any telecommunication, and acquiring the substance, meaning or purport thereof;
(b) "premises" includes any land, place, vehicle, trailer, mobile home,
vessel or aircraft .
(2) Upon the application of the Director General of the Security Intelligence Agency approved in writing by the Solicitor General of Canada, a
designated judge of the Federal Court of Canada may issue a warrant
authorizing one or more of the following :
(a) the interception or seizure of any communication, other than a message
in the course of post, by the use of an electromagnetic, acoustic,
mechanical or other device ;
(b) the interception or seizure from any person having, in the ordinary
course of business, custody of the original copy, record or transcript of
any communication, other than a message in the course of post ;
(c) the operation of a concealed optical device or camera in a place to
which the public does not have access ;
(d) the use of a dial digit recorder ;
(e) in respect of an article of mail in the course of post, an examination of
its exterior, photographing of its exterior, or its opening and the
examination and copying of its contents ;
(f) the inspection of any premises and of any specified thing or things
generally to be found in the premises, and the photographing or
copying of the thing or things ;
(g) access to personal information (other than biographical information as
defined in this Act) under the control of government institutions .
(3) Before issuing a warrant under subsection (2) the judge must be
satisfied by evidence on oath that the procedure authorized is necessary for
the prevention or detection of any of the following activities :
594
�(a) activities directed to or in support of the commission of acts of
espionage or sabotage ('espionage' and 'sabotage' to be given the_
meaning of the offences defined in sections 46(2)(b) and 52 of the
Criminal Code and section 3 of the Official Secrets Act) ;
(b) foreign interference, meaning clandestine or deceptive action taken by
or on behalf of a foreign power in Canada to promote the interests of a
foreign power ;
(c) political violence and terrorism, meaning activities in Canada directed
towards or in support of the threat or use of serious acts of violence
against persons or property for the purpose of achieving a political
objective in Canada or in a foreign country .
(4) An applicant for a warrant must disclose to the judge before whom the
application is brought the details of any application made previously with
respect to the same matter .
(5) In deciding whether the procedure for which such authorization is
applied for is necessary for the prevention or detection of any such activity,
the judge shall take the following factors into consideration :
(a) whether other investigative procedures not requiring a judicial warrant
have been tried and have failed ;
(b) whether other investigative procedures are unlikely to succeed ;
(c) whether the urgency of the matter is such that it would be impractical
to carry out the investigation of the matter using only other investigative procedures ;
(d) whether, without the use of the procedure it is likely that intelligence
of importance in regard to such activity will remain unavailable ;
(e) the value of the intelligence product obtained from any warrants
previously issued pursuant to this Act in relation to the same subject of
investigation ;
(f) whether the degree of intrusion into the privacy of those affected by the
procedure is justified by the value of the intelligence product sought ;
(g) such other circumstances as may be relevant .
(6) The Director General of the Security Intelligence Agency may, with
the written approval of the Solicitor General, appeal a refusal of a judge to
grant a warrant to the Federal Court of Appeal .
(7) In emergency situations where, in the opinion of the Solicitor General
of Canada, the time required to bring an application before a judge would
result in the loss of information necessary for the protection of the security
of Canada, the Solicitor General of Canada may issue a warrant to the
Director General authorizing the use of one or more of the procedures listed
in subsection (2) for a period of 48 hours, provided that he is satisfied by
evidence on oath that it is necessary for the purposes set out in subsection
(3) and provided that the warrant is subject to the same terms and
conditions other than the maximum time periods that would apply if a
warrant for the same purpose was issued under subsection (2) . The Advisory Council on Security and Intelligence must be notified whenever a
warrant is issued under this subsection .
595
�(8) A warrant issued pursuant to subsection (2) or subsection (7) shall be
issued to the Director General and those persons who act upon his direction
or with his authority an d
(a) in the case of a communication, shall specify the typi of communication to be intercepted or seized ;
(b) in all cases, shall state the activity referred to in subsection (2) in
respect of which the warrant has been applied for ;
(c) in all cases, shall specify the length of time for which the warrant is in
force, which shall not exceed 180 days ;
(d)_ in all cases, the judge by whom the warrant is issued or the Solicitor
General issuing a warrant under subsection (7) shall include therein
such terms and conditions as he considers appropriate, including such
powers as are provided for in subsection (9) and are appropriate in
order to enable the procedure to be effected without the knowledge of
any unauthorized person .
(9) A warrant issued pursuant to subsection (2) or subsection (7) may
provide that in the case of the procedures referred to in (a), (b), and (f) of
subsection (2) the persons carrying out the procedure may take such steps
as are reasonably necessary to enable the m
(a) to install any device the use of which is authorized ;
(b) to monitor, repair and remove the device ;
(c) to enter premises for the purpose o f
(i) examining the premises prior to installation of the device ;
(ii) installing the device ;
(iii) monitoring, repairing and removing the device ;
(d) to operate the device by using the electrical power supply that is
available in the premises;
(e) to copy material ;
(f) to examine the contents of receptacles, including luggage ;
(g) to take such other steps as may be reasonably necessary for such
purpose ,
provided always that in all these case s
(h) any such steps shall cause no significant damage to the prémises that
remains unrepaired ; an d
(i) in no case shall the persons carrying out the procedure use physical
force or the threat of such force against any other person ; and
(j) in every case the persons carrying out the procedure shall be accompanied by a peace officer .
(10) (a) The Postmaster General of Canada shall be notified whenever a
warrant is issued pursuant to subsection (2) or subsection (7) authorizing
use of the procedure referred to in (e) of subsection (2), and Canada
Post shall give to persons acting in pursuance of such a warrant all
reasonable assistance .
(b) A warrant issued pursuant to subsection (2) or subsection (7) may
provide that in the case of the procedures referred to in (e) of
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�subsèction (2) the persons carrying out the procedure may remove the
.,article of mail from the course of post and even from the post office
but only as long as is reasonably necessary to enable the procedure
which is authorized to be carried out .
(c) The procedure authorized by such a warrant may be carried out
notwithstanding the provisions of section 43 of the Post Office Act and
without any person thereunto duly authorized Sommitting any offence
under that Act .
(11) Warrants issued pursuant to subsection (2) and subsection (7)
authorizing the use of the procedure referred to in (g) of subsection
(2) :shall be submitted to the head of the government institution which
controls the information which' is requested and the •head of the
institution shall direct that the information requested be disclosed
according to the terms specifièd in the warrant .
(12) A renewal of the warrant may be given if. the judge to whom an
application for the renewal is made is satisfied that, if the application
were'for a warrant, he would have issued it pursuant to subsection
(2), and, in addition to the requirements of subsections 3, 4 and 5 ; he
shall be provided with evidence . under oath as to the intelligence
obtained pursuant to the warrant .
(13) The Solicitor General of Canada shall, as soon as possible after the
end of each year, prepar e
(a) a statistical report to be laid before Parliament setting fort h
(i) the number of warrants_ issued for each of the procedures referred
to in (a) to (g) of subsection (2) ;
(ii) the numberof warrants issued which were renewals of warrants
previously granted ;
(iii) the extent to which warrants have been renewed more than once .
(b) a report to be presented for examination by the, Joint Committee of
Parliament on Security and Intelligence providin g
(i) an assessment of the value of the intelligence products resulting
from the use,of warrants issued under subsection (2) ;
(ii) an account of any difficulties encountered in the administration of
this section which might indicate the need for amendments to the
-section .
178 .11 (1) of the Criminal Code shall not apply t o
,(14)Section
(a) a person who intercèpts a private communication as defined in section
178 .1 in accordancè with a warrant issued pursuant to subsection (2) ;
(b) 'any person who in good faith aids in any way a person who he ha s
reasonable and probable grounds to believe is acting under the author• ity of any such warrant .
. ,
.
.
(15) Section 178 .18(l) of the Criminal Code shall not apply to a person in
possession of a device such as is referred to therein for the purpose of
using it in an interception madè or to be made in accordance with a
warrant issued pursuant to subsection (2) .
(16) Section 178 .2(1) of the Criminal Code shall not apply to a person
who discloses a private communication, as defined in section 178 .1 of
597
�the Criminal Code, or any part thereof or the substance, meaning or
purport thereof or of any part thereof, or who discloses the existence
of a private communication for any purpose within the scope of the
power of the security intelligence agency, or for any purpose of review
of the operation of this section exercisable pursuant to this Act by the
Advisory Council on Security and Intelligence and the Parliamentary
Committee on Security and Intelligence .
(17) No action lies under Part 1 .1 of the Crown Liability Act in respect of
any procedure carried out pursuant to a warrant issued under subsection (2) .
(Section 16 of the Official Secrets Act would be repealed . The new section
should provide for the continuation in effect of all warrants issued under
section 16 of the Official Secrets Act for 30 days after the coming into
effect of the section, as if they had been authorized by a warrant issued by
a judge pursuant to the new section . )
(Section 178 of the Criminal Code should be amended wherever necessary
to ensure that an interception under a warrant is on the same plane as one
pursuant to a section 178 authorization : e .g . to ensure that there is no
question about the admissibility of the intercepted private communication
in evidence in a judicial proceeding . )
598
�CHAPTER 5
ANALYSIS, REPORTING, AND ADVISING
FUNCTION S
INTRODUCTION
1 . In previous chapters in this part of our Report, we established criteria for
deciding the proper subjects or targets of a security intelligence agency's
investigative activities . We also described the methods that the agency can
employ to collect information about these targets, and the controls necessary to
ensure that the risk to Canada's security justifies the use of the more intrusive
means of gathering information . In this chapter, we focus on what the agency
should do with the information it collects . We begin with the analysis function
by examining the purposes of analysis and the current strengths and weaknesses of the Security Service's analytical capabilities . Our recommendations
for improving this function then follow . A fundamental theme throughout this
section is our belief that analysis is of prime importance for a security
intelligence agency which is effective and which acts within the law . Indeed, it
is not an exaggeration to say that analysis has a dominant effect on all of the
significant activities that such an agency performs .
2. From analysis, we turn to the agency's reporting and advising functions .
We begin by developing basic principles in regard to two matters : first, what
the agency should report and advise on, and second, to whom it should report
and give advice . We then describe the nature of the reporting and advising
programmes that a security intelligence agency should adopt and conclude with
recommendations on the type of controls which should govern the reporting
function .
A . ANALYSI S
The importance of analysis
3. Those familiar with security or intelligence agencies often describe the
work of these organizations in terms of four functions : targetting, collecting,
analyzing, and dissemination (Vol . 69, pp . 11180-82) . We have found this
description useful for some purposes, including the structuring of this part of
our Report . Nevertheless, the simplicity of this description, though one of its
attractive features, may lead to difficulties if it is used as a basis for drawing
important conclusions about organizing the government's security intelligence
functions . For example, to conclude that any of the four functions is a separat e
. 599
�component which can be neatly detached from the others and placed in a
separate organization would be a serious misjudgment .
4 . That is why we disagree with Commissioner Simmonds, who, in his
testimony before us, suggested that the R .C .M .P . Security Service should
become essentially a collection agency, and that primary responsibilities for
analysis should lie elsewhere in government :
.
.. if for the future we take a look at a different way, in broad terms, of
Government organization to handle security matters, then it seems to me
that the role of the Service within the Force should be mostly one of just
investigating and collecting intelligence and so on and doing low level
analysis, but some of the things we, perhaps, have been expected to do, be
done in another forum .
(Vol . 165, p . 25377 . )
The most compelling reason for rejection of that opinion is that a security
intelligence agency cannot do the targetting and collecting functions properly
and effectively without a well-developed analytical capability . The judgments
involved in the targetting process are difficult . When, for example, does proper
diplomatic behaviour shade into foreign interference? What forms of political
violence are properly the concern of a security intelligence agency in addition
to being the concerns of local and provincial police forces? What is the
difference between `revolutionary subversion' and dissent? Such judgments
should be based on more than `low level' analysis .
5. There is a similar need for sound analytical skills in directing the agency's
investigative work . Those in senior operational roles are required to make
important choices daily about the allocation of the agency's limited investigative resources : whether, for instance, physical surveillance teams should follow
target A or target B to ensure the likelihood of the bigger payoff, and when it
is appropriate to use other investigative tools, including electronic surveillance
and informants. After information about a target is collected, agency personnel
must analyze it so as to redirect investigative efforts if necessary . This type of
analysis involves the piecing together of scraps of information to produce a
working hypothesis about the intentions and plans of the target . Intuition,
experience in the tradecraft of counter-espionage, and knowledge of the target
combine with clear logical analysis to produce expertise in this area . Without
such expertise, a security intelligence agency cannot possibly be successful in
its investigative work .
6 . Analysis plays a key role in the agency's reporting function . Raw information about possible threats to security will be of little value to government
unless the significance of that information is explained clearly . Crucial to this
reporting function is the capacity of agéncy personnel to undertake research
using books, articles and reports on all subjects related to the social, economic,
and political processes - national and international - relevant to the security
of Canada . This research is important not only in writing reports to government but in distinguishing between those activities which require surveillance
and those which do not .
600
�7 . Another argument bolsters our conclusions about the importance of analysis to a security intelligence agency . Any other department or agency would
have difficulty in getting access to the kind of information collected by the
security agency, and therefore would have difficulty in attempting analysis . In
evidence before us, Mr . Robin Bourne, the former head of the Police and
Security Planning Branch in the Solicitor General's Department, made this
point as follows :
The first problem was the whole business of the need-to-know information
and protecting third party interests . Obviously, long-term research into
these kinds of subjects would not be effective, unless we had all the
information that was available to do this kind of research . There is no
question that we were not getting from the R .C .M .P ., which was the prime
source, all the information which we needed to have for that kind of
research . .. and there were very good reasons for that . . .
Everyone is suspect in the security business until they prove themselves
otherwise . We hadn't really had time to prove ourselves . So, we really did
not have the basic information to do the research . .. I think you will find
that throughout the world, most security services and intelligence organizations do have as an integral part of their organization, the research branch,
just for that reason . So that they do have free access to the information .
(Vol . C68, pp . 9471-73 .)
With regard to Mr . Bourne's first point, our examination of the R .C .M .P . files
concerning the relationship between the Security Planning and Analysis
Research Group (SPARG) and the Security Service satisfies us that the
Security Service will vigorously resist any proposed arrangement that would
involve outside analysts having access to Security Service files .
8. To recognize the importance of analysis, the security intelligence agency's
analytical responsibilities should be stated explicitly in the statute establishing
the agency . This is not to argue that the analysis function should reside
exclusively with the security intelligence agency . Rather, a number of agencies
should have skills in this area . The question then becomes how these skills are
co-ordinated at the centre of government to be of maximum benefit to
Ministers and senior government officials . We shall return to this question in
Part VIII of this Report, where we discuss the security and intelligence
co-ordination mechanisms at the centre of government .
Assessing the Security Service's analytical capacity
9 . The Royal Commission on Security in 1969 was critical of the Security
Service's capacity to provide government with clear, timely, useful information
about security threats facing Canada .
Although the role of the R .C .M .P . is admittedly ill-defined, and recognizing that government policy has been inhibiting, we are not sure that the
R .C .M .P . has made a sufficient, or a sufficiently sophisticated, effort to
acquaint the government with the dangers of inaction in certain fields . We
are left with the impression that there has been some reluctance on their
part to take desirable initiatives and some inadequacy in stating the case for
necessary security measures in interdepartmental discussions at the higher
policymaking levels . A specific area in which the effectiveness of th e
601
�R .C .M .P . does appear to us to be capable of improvement involves personnel investigations . '
10 . Our own research - based on interviews with Security Service personnel
and the primary consumers of Security Service intelligence reports in other
government departments, and based on a thorough study of a cross-section of
Security Service reports - leads us to conclude that, while there has been
some improvement since the Royal Commission on Security, the Service still
has serious deficiencies in this area . One of our findings is that the Security
Service's reports and assessments are heavily oriented to providing covertly
collected information about specific groups and individuals . Many departments
which receive these reports have found them useful and have complimented the
Service on its investigative skills . Reaction to Security Service products,
however, has been by no means uniform . Officials of several departments have
been highly critical, voicing two common complaints : Security Service personnel lack experience and knowledge about what constitutes legitimate diplomatic behaviour, and they do not know enough about government - how it works
and the needs of Ministers . Our review of Security Service reports confirmed
the validity of these criticisms, and indeed, many within the Security Service
agree with them . We, as a Commission, add an additional concern . Some of the
analysis done by the Security Service demonstrates a serious inability to
distinguish between agitators for social change and those who pose a significant
threat to Canada's democratic process of government . Examples of this tendency occurred in the work done on the Extra Parliamentary Opposition (E .P .O .),
and in the analysis leading up to the countering operations in the early 1970s
(Operation Checkmate) .
11 . The Security Service is weakest when it comes to analysis which is longer
term, more broadly based, and less oriented to specific groups and individuals .
Such analysis, which tends to rely on both overt and covert sources of
information, is often called `strategic' analysis . The Security Service does not
do enough of this type of analysis and what it does is not of high quality . In
voicing this criticism we are not arguing that the Security Service lacks
potential in this area : we have met a number of Security Service staff with
well-developed analytical talents . The problem is that there are not enough of
them and, in addition, those in middle management often lack the skills and
experience to supervise them properly .
12. Some Security Service members have argued vigorously that strategic
analysis is not within their mandate : they have not been asked by government
to perform this function . We believe that such an argument is based on too
narrow an interpretation of the Security Service's mandate . The argument is
also suspect in that the Security Service has, on occasion, done just this
broader based, longer term type of analysis . The chief reason why the Security
Service does so little of this type of analysis, in our view, is that its members do
not feel confident about their capacity for doing it . As a result, Security
Service products are often unbalanced, relying far too much on covertly
collected information, and not nearly enough on what is available through overt
means .
The Report of the Royal Commission on Security, paragraph 56 .
602
�Proposals to strengthen the analytical functio n
13 . Our proposals for strengthening the analytical capabilities of Canada's
security intelligence agency fall into three categories . First, we shall recommend in Part VI, Chapter 2, that the agency be staffed with individuals who
are well-educated in a variety of disciplines, who, express themselves clearly,
who have in many instances working experience in other organizations before
joining the agency and who are full members eligible for promotion to senior
positions . Similarly, the agency requires senior and middle level managers who
can select, develop, and direct a highly versatile and well-educated staff .
Second, in Part VIII, Chapter 1, we shall recommend a revamped and
revitalized interdepartmental committee system, which will allow the consumers of the agency's products to play a more active role in setting the government's intelligence collection priorities and in providing the collecting agencies
with better assessments of the strengths and weaknesses of their current
products . Third, also in Part VIII, Chapter 1, we shall recommend that the
government establish a central Bureau of Intelligence Assessments to provide
intelligence estimates derived from the products of collecting agencies and
from public sources of information . Such a bureau, we believe, should develop
a small but highly expert staff to serve, in part, as a stimulus to other security
and intelligence agencies within government to improve the quality of their
analyses . In addition to these proposals, we shall put forward, as a suggestion
only, an organizing approach to ensure that those specializing in analysis
within the security intellligence agency are used with most benefit . We now
turn to this suggestion .
14. On two separate occasions in the past, the Security Service established a
specific unit, separate from the operational branches, with the resources and
responsibility for doing research and analysis . The disadvantage has been that
such a unit tends to get cut off from the operational branches . `Hardnosed'
operational personnel view these intellectually oriented researchers with suspicion, are reluctant to share their most sensitive information with them, and
resent having their conclusions `reworked' by a group without any current
operational know-how . The result is that the separate research group works
primarily on peripheral matters, and the overall quality of analysis has not
been improved to any degree . Another solution, which the Security Service has
also tried, is to establish separate analytical units within each operational
branch . The risk in this approach is that these units will focus entirely on high
priority operational problems and have little time for more in-depth contextual
analysis and research .
15 . One way out of this dilemma which we believe worthy of consideration is
to establish a small research group which does not formally report to any of the
operational branches but is available to them as a centralized service . Operational branches would retain responsibility for producing major pieces of
analysis (requests for these papers would likely come from interdepartmental
committees or the senior management of the agency), and would second
researchers and writers for short periods from this central pool to work with
their operational people for this purpose . Such temporary working groups
within the agency would bring together the writing skills and familiarity wit h
603
�overt sources which the centralized pool of researchers would possess, with the
`street' knowledge and access to covert sources of information which are the
forte of those in operational branches .
WE RECOMMEND THAT the security intelligence agency's responsibilities for the development of a competent analytical capability be explicitly
stated in the statute establishing the agency .
B . REPORTING AND ADVISIN G
Basic principles
16 . The reporting of timely, cogent information about security threats facing
Canada is the raison d'être of a security intelligence agency . The word
"dissemination" is often used by those working in security and intelligence
organizations as a convenient label for this function, but we prefer the term
"reporting" . "Disseminate", according to The Concise Oxford Dictionary,
means "scatter about, sow in various places" . In our examination of Security
Service reporting activities, we have found evidence of numerous problems
stemming from poor judgment concerning both what the Security Service
reports and to whom . In our view, there should be no indiscriminate spreading
of security intelligence information, especially information relating to individuals and groups . For this reason, we prefer to use the word "reporting" .
1 7. Given the importance of the reporting function, it should be provided for
in the Act establishing the agency . In addition, the Act should state that limits '
must be applied to this reporting function in the form of instructions or
guidelines issued by the Minister responsible for the security intelligence
agency . These guidelines should be approved by the Cabinet Committee on
Security and Intelligence and reported to the Joint Parliamentary Committee .
We briefly set out here a number of principles on which these guidelines should
be based .
18. The first of these principles is that the security intelligence agency, with
few exceptions, should report only information relevant to threats to security as
those threats have been defined by Parliament . The agency should not report
information which names individuals or groups, unless such information can
reasonably be related to some activity threatening the security of Canada .
Information concerning individuals should be reported only to departments
which require it for security clearance purposes or to departments, Ministers,
police forces or foreign agencies who need the information because of their
recognized responsibilities to deal with security threats as defined by the
Canadian Parliament . In Chapter 7 of this Part we shall discuss the types of
problems which a security intelligence agency can encounter in reporting
information to foreign agencies . We shall also suggest control procedures for
governing this activity .
19. In enunciating the above principle, we have purposely inserted the
qualifying phrase "with few exceptions" . This qualification is meant to cover
those few cases where the security intelligence agency, in the course o f
604
�investigating a threat to security as defined by Parliament, accidentally comes
across information unrelated to the security of Canada which it should report
to a domestic police force, or to a provincial government or to the . federal
government . For example, in its investigations of a domestic group suspected of
plotting some terrorist act, the security intelligence agency may stumble upon
information about activities which, though criminal, are unrelated to national
security . We believe that the security intelligence agency must report such
information to the appropriate police force . If the agency believes that to report
such information would likely be detrimental to the security of Canada, full
details of the matter should bé reported immediately to the Solicitor General,
for his decision as to whether or not the information ought to be reported .
While we think it desirable that the Solicitor General should consult with the
Attorney General of Canada at this stage, he should not be obliged to do so if
he believes that the information ought to be released to the police . On the other
hand, if the .Solicitor General agrees that the security of Canada would be
adversely affected by reporting the matter to the police, he should refer all the,
details to the Attorney General of Canada for his decision as to whether the
interests of the security of Canada outweigh the interests of the administration
of justice . (See discussion in Chapter 8 of this Part .) As a second example, if
the security intelligence agency, in its investigation of a suspected foreign
intelligence officer, were accidentally to collect information relating to a
foreign government's prospective bargaining position on an important trade
issue with Canada, we . believe it should be able to report such information to
the appropriate Federal or Provincial government department .
20 . We recognize that, in allowing exceptions to the general principle about
reporting only security relevant information, we open up a potential for two
kinds of abuse . First, if the agency is permitted to report information which it
has no mandate to collect, there is a great danger that its collection activities
will secretly expand . Second, there is a danger that the agency will report
certain accidental by-products which it has no business reporting . For example,
it would be highly improper for Cabinet Ministers to receive information about
their political opponents from a security intelligence agency . Using the agency
in this manner would do irreparable harm to Canada's democratic form of
government . Similârly, a security intelligence agency should not report any
information it has collected accidentally on the policies or strategy of a
provincial governnient .
21 . To guard against these potential abuses, we make several proposals . As a
first step, the ministerial guidelines on reporting should deal explicitly with the
types of accidental by-products of authorized investigations which the security
intelligence agency can properly report . Before reporting these by-products ; the
agency should require ministerial approval . In addition, the security intelligence agency should retain, in one convenient location, records of all accidental
by-products reported tô government or to the police so that the independent
review body has ready access to them . These records should state what
information was reported, how the reported information was collected, to
whom it was given, and the history of the investigation which produced the
information . The independent, review body should monitor closely these .investi605
�gations to ensure that they are not being misdirected for a purpose irrelevant to
the security of Canada . Finally, the security intelligence agency should not
analyze the accidental by-products, nor should it comment on their
significance .
22 . In addition to elaborating upon the type of information that a security
intelligence agency can report, the guidelines issued by the Minister should also
make clear to whom the agency can report information . Ministers, both
provincial and federal, government departments, police forces, and foreign
agencies will be the chief recipients of the products produced by the agency .
The agency, however, should not report information on its own initiative
directly or indirectly to the news media . As we state in the next chapter on
executive and preventive functions, it should not be the responsibility of the
agency to publicize threats to security . That function must rest with the
Minister responsible for the agency . There should be no contrived `leaks' by the
security intelligence agency nor cultivation of media sources for the purpose of
planting articles provided by the agency . Activity of this kind is highly
dangerous in that it may involve the agency in attempts to manipulate the
media .
23 . The agency should also exercise great care in reporting information to
individuals who are not government officials, Ministers, or police officers . In
the chapter which follows, we shall discuss when it is proper for a security
intelligence agency to do so .
24 . There is one additional topic concerning the reporting function which we
wish to address . That focusses on the caution practised by a security intelligence agency in revealing the sources on which its intelligence judgments are
based . Policymakers can find such caution frustrating if they wish to know
whether the agency's judgments are based on information provided by a
strategically placed agent, on inference drawn from diverse pieces of information, or simply on a guess on the part of the agency analysts . On the other
hand, an agency's reticence in these matters is not entirely without foundation .
Consider the following example documented by an American author writing
about the C .I .A . :
With war raging in Bangladesh between Indian and Pakistani forces in
December 1971, evidence began to mount that India was planning an
attack on West Pakistan as well . On December 7, Kissinger asked the
C .I .A . for an estimate of the probability of such an attack . The C .I .A . said
it didn't know . But within twenty-four hours it had positive information : the
C .I .A . case officer handling the Indian politician in Gandhi's cabinet in
New Delhi was told that a decision had just been reached to attack in the
West . A report was immediately cabled back to Langley and forwarded
directly to the White House in its raw form . Nixon was later to cite this
cable as one of the few really timely pieces of intelligence the C .I .A . had
ever given him, but the Agency paid a price . The report was widely read in
the White House, and its text, along with many other documents, was
quickly leaked to Jack Anderson, who published them in his column in
mid-December . That was the end of the agent . According to [a senior
C .I .A . intelligence officer], "he told us to go to hell" . 2
2 Thomas Powers, The Man Who Kept the Secrets, New York, Alfred A . Knopf, 1979,
pp. 206-207 .
606
�25 . The dilemma described above is not unique to the United States . During
interviews conducted by members of our research staff, several officials from
`consumer' departments complained about the Security Service's refusal to
divulge its sources . For example, officials from one department cited two
occasions when the Security Service attempted to get the Intelligence Advisory
Committee's approval for assessments which some members of the Committee
strongly suspected came from foreign intelligence services . While this dilemma
about revealing sources is not fully resolvable, the security intelligence agency
should enter into discussions with consuming departments about how it can
best reveal the basis for its judgments while providing reasonable protection for
its sources . We believe that a security intelligence agency should be able to
provide at least a general idea of the nature of its sources on which a particular
report is based, i .e . whether the sources are domestic, foreign, or a combination
and the number and reliability of these sources . The Minister responsible for
the agency should also address this question in his guidelines on the reporting
function .
Reporting and advising programmes
26 . Our review of security intelligence reporting activities has revealed that
the Security Service produces a large number of reports . These reports are
distributed to a wide variety of consumers from the Prime Minister in some
instances to Departmental Security Officers in others . As mentioned earlier, a
large majority of these reports tend to be case-oriented, that is, they tend to
deal with information collected by covert means about specific groups and
individuals . Our recômmendations concerning the proper mandate of a security
intelligence agency ensure that security intelligence products will continue to
be numerous and to be read by a wide variety of consumers . Nonetheless, there
should be several important changes . Security intelligence reports should put
more emphasis than is now the case on providing government with timely
advice on such matters as crisis handling and protective security . In addition,
security intelligence reports should be less case-oriented : greater attention
should be paid to providing government with longer term, more broadly based
assessments of security threats facing Canada . Furthermore, the security
intelligence agency's reports to government officials and Ministers about
specific groups and individuals should make greater efforts to put this information in context . Thus, a report on the . activities of a suspected foreign
intelligence officer may need to make clear the difference between acceptable
and unacceptable diplomatic behaviour and how the intelligence officer's
activities might relate to his country's foreign policy . We will elaborate on
these themes further in our discussion of the major security intelligence
reporting and advising programmes in the following four areas : screening,
emergencies and crises, protective security, and reporting on security threats .
Security screenin g
27 . Our recommendations for the security intelligence agency's role in security screening - recommendations which we shall develop in Part VII of this
Report - call for a significant change in the reporting responsibilities of the
agency, especially with regard to screening for government appointments . We
607
�shall propose that the agency no longer have responsibility for doing routine
field investigations on all Top Secret clearances . In addition, the agency should
report only information on an individual's character which is of direct relevance to security . The effect of these recommendations and others calling for a
reduction in Top Secret clearances will dramatically reduce the number of
routine reports that the Security Service now provides departmental security
officers . However, other recommendations concerning screening for government appointments will increase the agency's advisory responsibilities . For
example, we shall recommend that the agency develop a competent research
capacity for the purpose of providing advice to government on a variety .of
matters relating to subornation of public servants, including the following : the
latest techniques used by foreign intelligence officers to compromise people ; the
risks posed by individuals with certain character traits ; developments relating
to security screening in other countries ; and possible policy changes to improve
the government's screening procedures . Thus, the changes in screening responsibilities, at least in the public service area, call for a shift away, from routine
reports on individual cases to more emphasis being placed on providing policy
advice to government .
Emergencies and crise s
28 . In Part IX, Chapter 1, we shall .discuss the role of a security intelligence
agency in emergencies and crises : After describing, the role played by the
Security Service in the 1970 October Crisis, we shall emphasize the importance
of the ability of a security intelligence agency to provide opportune, well-written reports which warn governments of potential crises and, in turn, of the
capacity of. government to digest these reports and react to them . The number
as well as the content of such reports calls for careful judgment . .Too many
reports will lead to officials and Ministers ignoring the agency's advice on these
matters . Similarly, the government will lose confidence in the agency if it is too
cautious in forewarning about significant political violence . In addition to
advising on potential crises, the security intelligence agency should provide
government with periodic reports on crisis-handling . The agency should be
knowledgeable about the latest trends in international terrorism, the changing
nature of terrorist goals and targets, and, among other things, the steps being
taken by various foreign governments to . counter terrorist threats . 'In our
opinion, the R .C .M .P. Security Service does far too little of this type of
reporting to government .
29 . The agency also has an important reporting role during a particular crisis .
It will be responsible for providing the federal government's crisis centre with
accurate, up-to-date intelligence . reports based on information received from
police forces, foreign agencies, and other government departments . Thus, the
agency has a filtering function which requires careful judgment and communication skills so that the crisis centre is neither confused by conflicting reports
from several sources nor denied an essential piece of information originating
from other agencies .
608
�Advice on protective security
30. A security intelligence agency should be a major source of advice to
government departments and police forces which are responsible for enforcing
and carrying out measures to protect property and persons from security
threats as defined by Parliament . The agency itself should not be assigned'the
task of actually enforcing or carrying out protective security functions . For
example, in airport policing, the agency's role should be to provide information
about terrorist threats to airport security officials, to the police and to the
Ministry of Transport . In V .I .P. security, the agency shoûld provide intelligence about those who are likely to attack V .i .P.'s for political purposes their identity, whereabouts and methods . In the vital points programme ; the
role of the security intelligence agency should be to report on the kinds of
situations in which vital points might be attacked by those who fall within the
agency's mandate, and on the basis of this analysis, to assist those responsible
for the vital points programme in identifying vital points and designing
effective security measures . The emphasis in all of these areas, therefore, is on
providing useful information and advice, and not on actually carrying out
security programmes . Once again, it is our view that the Security Service'dôes
not provide government with enough high quality advice on these matters .
Reporting on security threat s
31 . Throughout the year, the Security Service provides government with
reports on a wide variety of security threats which -may not have a direct
relationship to screening, preparing for crises, or providing protective security .
Some of these reports are provided on a regular basis . For example, the
Security Service is required by the 1975 Mandate to report annually to
Cabinet . Other reports result from priorities set by an interdepartmental
committee . For example, the Intelligence Advisory Committee has, on occasion, requested that the Security Service co-operate with other departments in
producing a report canvassing the covert operations in Canada of a particular
country . Many of the Security Service's reports, however, result from ad hoc
requests from departments for information about a particular group, individûal, or upcoming event . All such ad hoc requests for information from depart.ments or police forces should be drawn to the attention of the agency's
headquarters staff to ensure that- investigations resulting from these requests
are subject to the regular control procedures .
32 . Earlier in this chapter, we proposed that the agency place more emphasis
on providing government with reports on the strategic aspects of security
threats facing Canada - how these threats are changing, and the measures
government might take to'deal with 'them . In subsequent parts of this Report,
we shall make additional recommendations affecting this aspect of the agency's
reporting responsibilities . In Part VIII,*we shall make proposals for how the
agency might improve its annual report to Cabinet : We shall also be recommending that the function of collating and assessing* current foreign and
security intelligence be consolidated in - the Intelligence Advisory Committee .
This change will likely affect the current practice of the Security Advisory
Committee in preparing and circulating a weekly security intelligence' report .
609
�Finally, our recommendation calling for the establishment of a Bureau of
Intelligence Assessments should have an important impact on the reporting
functions of the security intelligence agency . The agency will find itself
responding to many more requests than at present to participate in interdepartmental teams established to assess a variety of longer term security problems
facing Canada .
33. In conclusion, the recommendations in this Report have important
implications for the reporting and advising programmes of a security intelligence agency . Future emphasis will be placed more on providing its consumers
with advice and analysis on security problems and less on routine reports
dealing with specific individuals and groups .
Controls on the reporting function
34 . We conclude this chapter by summarizing briefly the system of controls
which should govern the security intelligence agency's reporting function . This
system should consist of at least four parts . The first is the set of guidelines
which the Minister responsible for the agency should issue under the authority
of the Act creating the agency . The Minister should disclose these guidelines to
the Joint Parliamentary Committee . As we noted earlier in this chapter, these
guidelines should cover at least the following topics :
- conditions under which the agency can report information about
individuals ;
- conditions under which the agency can advise individuals outside of
governments and police forces about security threats ;
the types of information not relevant to its mandate which the agency,
having collected by accident, can report to government ;
the manner in which the agency should handle ad hoc requests for
information from government departments and police agencies ; and
the manner in which the agency should reveal the basis for its judgments, while at the same time providing reasonable protection for the
sources of its information .
We shall also recommend that the Minister responsible for the agency issue
guidelines with respect to the agency's relationships with foreign agencies .
These guidelines will also be relevant to the agency's reporting function .
35 . The second aspect of the system of controls governing the reporting
function will be the independent review body - the Advisory Council on
Security and Intelligence - which we shall recommend in Part VIII . This
advisory body will monitor the security intelligence agency's operations including its reporting activities, and in this regard, will be an ex post facto control .
In performing this function, the Minister's guidelines referred to above will be
an invaluable aid in determining those areas of the agency's work which
require the Advisory Council's close attention . Complaints by members of the
public and by agency employees will be other means whereby this advisory
council can direct its investigations .
610
�36 . Another ex post facto control on agency reporting will be the Security
Appeals Tribunal which we shall recommend in Part VII . This Tribunal will
handle all complaints concerning the federal government's screening activities
regarding public servants, immigrants and applicants for Canadian citizenship .
Thus, the tribunal will be an important review mechanism for information
reported by the agency on individuals .
37 . A final element in the control system governing the agency's reporting
function will be a revamped interdepartmental committee system which we
shall recommend in Part VIII . The departments and agencies within the
federal government which are the principal customers of intelligence reports
have not in the past played a sufficiently active role in the process of setting
priorities for those organizations, including the security intelligence agency,
which collect and report security and foreign intelligence . A more active group
of consumers is essential if the government hopes to achieve value for its money
in this area .
WE RECOMMEND THAT the Act establishing the security intelligence
agency specify the reporting function of the agency and require the
Minister responsible for the agency to issue guidelines on how the agency
should conduct its reporting activities . These guidelines should cover at
least the following:
(a) conditions under which the agency can report information about
individuals;
(b) conditions under which the agency can advise individuals outside
governments and police forces about security threats;
(c) (i) the general principle that the security intelligence agency should
report only information relevant to its mandate, except that information which it has collected by accident which the guidelines
specifically require or authorize it to report to government or to
the police ;
(ii) the agency should report information which it has collected by
accident, which relates to an offence, to the appropriate police
force if, in the agency's opinion, to do so would not be likely to
affect adversely the security of Canada .
(iii) the types of information collected by accident which the security
intelligence agency may report to the appropriate federal or provincial government include information pertinent to the economic
interests of Canada .
(d) the manner in which the agency should handle ad hoc requests for
information from government departments and police forces;
(e) the manner in which the agency should reveal the basis for its
judgments, while at the same time providing reasonable protection for
the sources of its information .
(29 )
WE RECOMMEND THAT when the Solicitor General receives information from the security intelligence agency relating to the commission of an
offence, and the agency considers that it would adversely affect the
security of Canada to pass that information to the police, the Solicito r
611
�General should consult with the Attorney General of Canada with respect
to the release of that information . If, after such consultation, the Solicitor
General decides that the security of Canada would not be adversely
affected by the release of that information he should instruct the agency to
release it to the appropriate police force . On the other hand, if the Solicitor
General decides that the release of the information would adversely affect
the security of Canada, he should so advise the Attorney General of Canada
who should proceed in accordance with arrangements to be worked out with
provincial attorneys general . (See discussion in Chapter 8 of this Part.)
(30 )
WE RECOMMEND THAT
(a) the security intelligence agency retain, in one location, records of all
accidental by-products reported to government or to the police, and
that such records state what information was reported, how the
information was collected, to whom it was given, and the history of the
investigation which produced the information ; and,
(b) the independent .review body have access to such records and that it
monitor closely the investigations which produced the information to
ensure that the investigations are not being misdirected for a purpose
irrelevant to the security of Canada .
(31)
WE RECOMMEND THAT the agency, in addition to providing information about specific individuals and groups relevant to its mandate, place
greater emphasis than is now the case on providing government with :
(a) analysis and advice on the latest developments, techniques, and countermeasures relating to physical and V .I .P. security, and security
screening ; and ,
(b) reports which analyze broad trends relating to threats to the security
of Canada and which advise government on ways to counter these
' threats.
(32 )
612
�CHAPTER ' 6
EXECUTIVE POWERS AND PREVENTIVE
ACTIVITIE S
INTRODUCTION
1 . Because the essential function of a security' intelligence agency is to collect,
analyze and report intelligence about threâts to Canada's security, we'believe it
should not be authorized to enforce security 'measures . Thus, we think the
statutory mandate of the agency should not include -the functions of "deterring,
preventing and 'countering" which are * nôw included in the 1975 * Cabinet
Directive defining the Role, Tasks and Methôds ôf'the R .C .M .P . 'Security
Service .
2. We have two basic reasons for taking this, position . First, as we argued in
Part III, we think it is unacceptable. in Canada that the state should use a
secret intelligence agency to inflict harm on Canadian citizens directly . This
position, it must be .noted, does not .prevent a police force or a government
department from using intelligence supplied by the security intelligence agency
to enforce a law,or security measure against an individual . Second, we think
the liberty of Canadians would be best protected if ineasures to ensure security
were not enforced by the organization with the prime responsibility for
collecting information about threats to that security . The assignment of
executive enforcement responsibilities to agencies other than the security
intelligence organization assures desirable countervailing powers and avoids the
danger that the security intelligence organization might be both judge and
executor, in security matters.
3. Therefore, we think it would be wise to separate the enforcement function .
In this Canada would be following the Australian and New Zealand examples
of expressly excluding enforcement functions from the authorized activities of
the security intelligence agency . The Australian Security Intelligence Organization Act of 1979 provides tha t
17 . (2) It is not a function of the Organization to carry out or enforce
measures for security within an authority of the Commonwealth .
Similarly, the New Zealand Intelligence Organization Act 1969 provides that
4 . (2) It shall not be a function of the Security Intelligence Service to
enforce measures for security .
A similar provision should be included in the legislation governing Canada's
security intelligence organization .
613
�WE RECOMMEND THAT the legislation governing the security intelligence agency include a clause which expressly denies the agency any
authority to carry out measures to enforce security.
(33 )
A. POLICE POWER S
4 . Under the present structure, those members of the Security Service who
are regular members of the R .C .M .P . have the powers of peace officers as
provided for in section 17(3)' of the R .C .M .P . Act . These powers include the
powers of arrest and of search and seizure conferred on peace officers by the
Criminal Code of Canada, and additional powers conferred by other federal
and provincial statutes . In our interviews with members of the Security Service
we found that they rarely used their peace officer powers . Nonetheless, the
possession of peace officer powers has continued, rather illogically, to be a
requirement for management positions in the operational branches of the
Security Service, thus posing a barrier to the civilian member's advancement .
5. There is no need for peace officer powers in a security intelligence
organization which has as its essential function to collect, analyze and report
intelligence . On the contrary, in terms of retaining checks and balances in the
system, there is real advantage in not bestowing peace officer powers on its
members . That is one reason why, in the previous chapter, we recommended
that when members of the security intelligence organization exercise investigative powers involving the surreptitious entry of private premises or removal of
private property, they should always be accompanied by a policeman who
would deal with any breaches of the peace which may occur if the operation
were to be suddenly interrupted . The definition of `peace officer' in the
Criminal Code is very wide and besides mayors, reeves, sheriffs, justices of the
peace, wardens, prison guards, police officers, constables and bailiffs includes
" . . . other person employed for the preservation and maintenance of the public
peace. . . . . ' To remove any doubts, the statute governing the security intelligence organization should explicitly state that members of the organization are
not to be considered peace officers .
WE RECOMMEND THAT members of the security intelligence agency
should not have peace officer powers and that, to remove any doubt, the
legislation establishing the organization should explicitly state that members of the security intelligence organization are not to be considered as
peace officers .
(34 )
B. PERMISSIBLE AND IMPERMISSIBLE PREVENTIVE
ACTIVITIES
6 . In Part III, Chapter 7 and again at the beginning of this chapter we took
the position that the essential function of the security intelligence agenc y
' Criminal Code of Canada, section 2 .
614
�should be to collect, analyze and report intelligence and that the agency's
mandate should not include certain types of countering and should exclude any
executive powers for enforcing security . Here we will survey the various
preventive or countering activities in which the R .C .M .P . Security Service has
participated in the past and which might conceivably be envisaged for a
security intelligence agency in the future, in order to set out more precisely
which of these activities are permissible, which are dubious, and which are
unacceptable . The principle of the rule of law which must apply to all security
intelligence practices and policies requires a clear prohibition of any preventive
or countering technique which violates any law - federal, provincial or
municipal . The preventive techniques discussed below all relate to practices
which are lawful .
Reporting security intelligence to governments and police force s
7 . In the preceding chapter we reviewed the reporting functions of the
security intelligence agency, pointing out the contexts in which components of
the federal government and the R .C .M .P . require security intelligence in order
to fulfill their responsibilities . In the next two chapters we shall consider the
conditions under which the security intelligence agency should be authorized to
transmit information to foreign governments and to provincial and municipal
authorities in Canada . Such properly authorized transmission of security
intelligence is not only a permissible way for the security agency to participate
in preventing or countering threats to security but is indeed the overriding
raison d'être for the existence of a security intelligence organization . But this
reporting role, it must be emphasized, involves the transmission of information
to public bodies - to police and government departments - under properly
authorized law enforcement or security programmes .
Preventive security interviews or briefing s
8 . There are a number of contexts in which the security intelligence agency
may wish to warn individuals and organizations in the private sector about
threats to security . Canadian public servants or employees of private firms
which have access to classified information who are about to be posted to
missions in certain foreign countries, or civilians who are intending to travel in
those countries, should be warned about the methods known to have been used
by foreign intelligence agencies to compromise persons and through blackmail
induce them to become sources for the foreign agency . We think this is an
acceptable use of security intelligence and it is best for a member of the agency
to give the briefing . However, such briefings should be given only to persons
who are in a position to do serious damage to national security if they are
compromised . Also, the agency should not use these briefings as a pretext for
recruiting an individual to serve on a continuing basis as an intelligence source .
In Chapter 4 of this Part we specified the conditions under which such
continuing casual sources should be used as a means of collecting information .
When those conditions are met and the agency is authorized to use a person
who may travel abroad as a continuing source of information, it should not
approach the individual in a surreptitious manner for that purpose . Openness
615
�and voluntariness should be characteristics of the agency's security briefings of
individual Canadians .
9 . In the past, the Security Service has been known to communicate information to the employer of a person suspected of participating in, or supporting, a
subversive activity, in order to jeopardize the employment of such persons (Vol . .
41, p . 6709 ; Vol . 52, pp . 8426-7) . We think that this practice is unacceptable .
Denying a person employment in the public or private sector for national'
security reasons is a significant executive act which should be carried out only
through authorized security clearance programmes . If 'the security intelligence
agency has information indicating that a person in a firm which is carrying out
defence-related work or work relating to national security is a security risk, it
should pass that information to the department of the federal or provincial
government responsible for the defence or security programme .
10 . In at least one major Canadian city the Security Service undertook a
programme of visiting senior officials in different sectors of community
activity . One purpose of this programme was to make, private employers aware
of the availability of the Security Service in case they had reason to be
concerned about subversive employees . We consider this a dangerous and
unwise programme in that it is likely to lead to an exchange of information
between private employers and the security intelligence agency which, again,
may jeopardize the employment opportunities of individuals . Further, we do
not think a security intelligence agency should advertise its services to the
private sector . If the government deems it necessary to alert private organizations to the availability of the security intelligence agency to receive reports
about threats to security, the government should do so through a vehicle other
than the security intelligence agency .
11 . We also think that the practice of giving security briefings to private
groups to alert them to threats to security should not be permitted . Participation in activity of this kind may be perceived to be, or may in fact become, a
propaganda campaign by the security intelligence agency . We think the
dissemination of information about threats to security should be left to
responsible Ministers . Mr . Justice Hope reached a similar conclusion with
respect to the Australian Security Intelligence Organization :
248 . It is no part of ASIO's intelligence dissemination function to publicize
threats to security . Any D .G . of Security who reads s .5(l)(a) of the ASIO
Act as authority to engage in propaganda, however `laudable', embarks on a
misconceived enterprise . The likely result is to bring discredit to ASIO .
249 . A propaganda activity of this kind crosses the boundary between
provision of information, which is proper, and the taking of a`measure for
security', which is not proper .
250 . If warnings about the internal security situation are to be given
publicity - whether attributably or not - that is something for the
Government . It can seek advice from AS1O, or be offered it, and publish it .
But the agency of publication should not be ASIO . Our system of government requires ministers to submit themselves to questioning in or out of
Parliament . They have the responsibility and not ASIO .
616
�253 . If ASIO becomes involved directly in the public dissemination of
security intelligence, it is likely to be accused of taking a partisan political
position . It is most important that ASIO be above reproach in that regard .
In many respects, its effectiveness depends on it having the confidence of all
the major political parties . '
We agree with Mr . Justice Hope's reasoning . We would add that if the
Director General or any other member of the security intelligence organization
is to make a speech or otherwise appear in public to describe the work of the
security agency or to give advice about threats to security, he must do so only
with the permission of the Minister responsible for the agency, and only for the
purpose of explaining or expounding government policy . In our view, for the
reasons advanced by Mr . Justice Hope, the Minister would be well advised not
to involve the Director General or other members of the agency in this kind of
activity .
Relations with the press
12. For a number of years the Security Service carried on a press liaison
programme, one purpose of which was to cultivate relationships with journalists that would enable the Security Service to "plant" certain material in the
press . The articles were aimed at drawing attention to the security implications
of certain events or the background or activities of certain individuals . (See, for
example, Vol . 315, pp . 301427-63 .) The cultivation of journalists was also
designed to improve the Security Service's public image and to counter adverse
publicity .
13. We think that the carrying out of a press liaison programme of this kind
is seriously wrong . As we have said, it should not be a function of the security
intelligence agency to publicize threats to security . If the agency requires any
public defence of its activities or improvement of its image, this should be done
by responsible Ministers. Secret intelligence agencies pose a serious threat to
the democratic order when they endeavour to develop their own undercover
media networks . That is why in our discussion of the use of- human sources we
recommended that the use of journalists as informants be very strictly controlled . We see no reason whatsoever for the security intelligence agency to
maintain a press liaison programme or even a press liaison officer . Questions
about the activities of the security intelligence agency should be answered by
the Solicitor General or the Prime Minister . In Part VIII of this Report, we
shall stress that one of the responsibilities of the Solicitor General, as the
Minister responsible for the agency, is to provide opportunities for Members of
Parliament and for the general public to study policy issues relating to the
work of the security intelligence agency . It is important to provide a basis for a
better public understanding of the function of the security intelligence agency,
but this basis must not be established through a network of press relations
established by the agency .
z Australia, Fourth Report of the Royal Commission on Intelligence and Security,
Volume 1, pp.128-130.
617
�Disinformation and smear campaigns
14 . Attempts by a security intelligence agency to disrupt a domestic political
group by circulating information about certain of its members constitute
another category of unacceptable preventive activity . Such tactics, or "dirty
tricks", are unacceptable even if they involve no breach of the civil or criminal
law . The security intelligence agency should not be permitted to inflict damage
on individual Canadians or Canadian organizations . In our liberal democratic
system the state should administer sanctions against a citizen only when it has
been established by due process of law that the citizen has broken the law .
`Disinformation' campaigns by the security organization run the risk of misleading not only the targetted group, but also other police forces and the
government .
15 . The prohibition of this type of disruptive activity should extend to the use
of such tactics as anonymous letters or telephone calls designed to breed
distrust amongst members or between factions of domestic political groups . It
should not be a function of a security intelligence agency to break up Canadian
political organizations, even those suspected of supporting or participating in
activities constituting threats to the security of Canada, by trying to manipulate their affairs secretly . The collection of intelligence about such groups by
the agency may well enable those who are responsible for law enforcement or
other executive programmes to take action against such groups . The process of
collecting intelligence, especially through informants and defectors from such
groups, may well have disrupting effects . But spreading information deliberately in order to disrupt such groups should not be permitted .
Disruptive measures which mislead other government officials
16. In one case which was part of Operation Checkmate, Security Service
officials did not raise security objections about a certain individual who was
applying for Canadian citizenship . They reasoned that doubts might be raised
among this person's colleagues, should he suddenly be granted citizenship after
a number of prior refusals . There is no evidence to suggest that the Security
Service officials informed either their own Minister, the Minister responsible
for the Citizenship programme or the Interdepartmental Committee on Citizenship, the body of officials responsible for reviewing citizenship applications,
about this operation .
17 . It is our opinion that deceiving other government officials in this matter is
unacceptable behaviour on the part of a security intelligence agency . Should
the agency in future wish to use another government programme to help
deceive one of the agency's subjects of surveillance, then the Minister responsible for the agency should inform the Minister responsible for the government
programme in question and seek his concurrence or seek to have the other
department take the required action .
Disruptive effects of double agents and informant s
18. The use of informants by the security intelligence agency is very likely to
have direct disruptive effects on penetrated groups or organizations . In th e
618
�counter-espionage field this is certainly the case with double agent operations,
where an attempt is made to recruit a member of a hostile foreign service to be
a source of information about the intentions and resources of the foreign
agency and to influence the decisions of the foreign agency in a direction
Canada would prefer .' Such operations, if successful, may enable the security
agency to inflict serious damage on the foreign agency . The application of such
methods in the counter-intelligence field against agencies of hostile foreign
powers is an acceptable, indeed a highly desirable, preventive activity for the
security intelligence agency, providing it is carried out in Canada . Similarly,
the agency should be authorized and prepared to assist members of hostile
foreign agencies who wish to defect while in Canada .
19. Informants may also be used by the security intelligence agency to gather
information about a domestic political organization where there is reason to
believe it is planning serious political violence . The presence of informants in
such organizations may certainly have disruptive effects, but so long as the
informant's primary purpose is to provide the security intelligence organization
with information this is an acceptable activity . It becomes unacceptable when
it is primarily a scheme of political interference designed to break up the
organization . A cynic might say that in practice this will become a meaningless
distinction : in our view it is a distinction which can be maintained, provided the
members of the security intelligence agency understand and accept the reason
for it . On the other hand, it will not likely be maintained if members of the
agency, especially its senior officers, fail to appreciate that active intervention
in the political process by a secret state agency endangers Canadian
democracy.
20. Having said that an informant must not be injected into a domestic
political organization for the primary purpose of disrupting the organization,
even though it is planning political violence generally, we think that an
informant who has penetrated a political organization for intelligence gathering purposes should be instructed that, when persons in the organization form
an intent to commit a specific crime, the informant should try to discourage
and inhibit the members of the organization from carrying out that crime . We
note that such an instruction is included in the guidelines governing the F .B .I .
use of informants, issued by the Attorney General, Mr . Levi, in 1976 .' But we
also note that in his testimony to a Congressional Committee, Mr . Levi stated
that such disruptive actions must be "the minimum necessary to obstruct the
force and violence" and "designed and conducted so as not to limit the full
exercise of rights protected by the Constitution and laws of the United
States ." '
For a good account of this counter-intelligence strategy in wartime, see John Masterman, The Double Cross System, New York, Avon Books, 1972 .
° Attorney General's Guidelines for F .B .I . Use of Informants in Domestic Security,
Organized Crime, and other Criminal Investigations, December 15, 1976 . Quoted in
John T . Elliff, The Reform of FBI Intelligence Operations, Princeton, New Jersey,
Princeton University Press, 1979, Appendix IV .
Quoted in John T . Elliff, The Reform of FBI Intelligence Operations, Princeton, New
Jersey, Princeton University Press, 1979, p . 129 .
619
�21 . In using the words "to discourage and inhibit" we wish to make it clear
that in no way do we understand them to mean that the informant is licensed to
break the law in order to achieve his specific objective of discouraging or
inhibiting the crime . We envisage that there are ways of discouraging or
inhibiting the commission of a specific crime which do not in any way entail
the transgression of the law . To that extent we are in agreement with the
Guidelines issued by Mr . Levi in 1976 . Section 27 of the Criminal Code is a
clear illustration of the latitude which may be exercised under the law . That
section reads :
Everyone is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offenc e
(i) for which, if it were committed, the person who committed it might
be arrested without warrant, an d
(ii) that would be likely to cause immediate and serious injury to the
person or property of anyone o r
(b) to prevent anything being done that, on reasonable and probable
grounds he believes would, if it were done, be an offence mentioned in
paragraph (a) .
Defusing
22 . `Defusing' is a technique designed to reduce the possibility of violence by
groups . It is accomplished by having members of the security intelligence
agency speak to members of the group, letting it be known that the agency is
aware of the group's plans to use violence . The expectation is that this will
cause the group to have second thoughts . Also the agency might point out
acceptable non-violent ways in which the group can pursue its political
objectives . Such defusing programmes or `constructive encounters' have been
said to be analogous to the English policeman's gentle and good natured
admonition to members of a restless crowd to "move along, there" . We
consider that a word of caution and encouragement to use non-violent means of
publicizing a group's cause are perfectly proper techniques of preventing
disorder in a democratic society . Hôwever, we are not convinced that such
defusing actions should be a responsibility of Canada's_ security intelligence
agency .
23. Under the statutory mandate which we have recommended for the
agency, much of what might be referred to as civil disorder would not be within
the purview of the security intelligence agency . The resort to violence by
political groups should be of interest to the security intelligence agency only
when it constitutes terrorism or a serious threat to the democratic order . But
even where the threat of political violence is within the intelligence collection
mandate of the agency, we do not think it is the most appropriate body to
attempt defusing actions . It would be preferable for police forces, with local
peace officer responsibilities, to employ such techniques . There is also a
practical consideration : using members of the agency in such a programme
decreases their availability for covert operations by revealing their identity as
members of the agency to too many people .
620
�Conspicuous surveillanc e
24. `Conspicuous surveillance' is a technique of intimidation whereby members of a security intelligence agency, by making a group aware of their
presence, attempt to frighten the group into abandoning its meeting or
demonstration . To equate such conspicuous surveillance by members of a
security intelligence agency with the presence of uniformed police officers at a
public meeting or demonstration at which violence may break out is to use a
false analogy : the presence of policemen in those circumstances is a legitimate
means of dampening the possibility of immediate violence . They are identifiable as police and there is nothing in their deployment that smacks of
intimidation by the state for a purpose other than law enforcement . It is not
acceptable to use security intelligence officers in civilian clothes, in large or
small numbers, to intimidate Canadians attending political meetings, even
meetings at which the intention to use political violence is promulgated .
25 . The common theme in our approach to the techniques of countering or
preventing threats to security is that the security intelligence agency should not
be permitted to carry out activities or disruptive measures designed to inflict
damage on Canadian citizens or domestic political groups . The agency should
concentrate on the collection and analysis of intelligence, the `countering' of
foreign intelligence agency operations in Canada, and the transmittal of
intelligence to the appropriate departments of government so that they may
take whatever action they deem to be in the public interest . A distinction
should be drawn between the extent to which `countermeasures' are taken
against spies and international .terrorists on the one hand, and against domestic
subversive groups on the other . In the former cases, it is permissible to `weaken'
the adversary by recruiting an agent in place who will attempt to shape the
decisions of the hostile agency or group, or by encouraging a hostile agent to
defect . But in purely domestic matters, the purpose of penetration should be
solely the collection of intelligence rather than disruption . Of course, if the
target is a Canadian citizen acting as a foreign agent these . activities are not a
purely domestic matter, but even in this case we consider it undesirable for the
agency to engage in any disruptive activity if the Canadian is an active member
of a recognized Canadian political party . In domestic matters, if there is
evidence of the commission of a crime, the security intelligence agency may
turn it over to the police having jurisdiction in criminal matters, a perfectly
acceptable kind of countering in all situations .
1.
26 . We do not recommend any system of prior approval of countering
measures, because we do not envisage the use of any countering measures
which are not part of authorized and acceptable intelligence collection methods . Some might regard the position we have taken against countering programmes by a security intelligence agency as unreasonably severe . However,
we believe that this position is justified on the basis of the damage which the
employment of such techniques, even when lawful, may do to the democratic
process and to the security intelligence agency itself . Nothing has done more to
discredit secret intelligence agencies in the western democracies, including
Canada, than their perpetration of `dirty tricks' on the citizens of their own
country . The securing of democracy requires an effective security intelligenc e
621
�agency. That effectiveness requires that the agency have broad public support .
That support must not be alienated by unacceptable countering or disruptive
activities .
WE RECOMMEND THAT the security intelligence agency not engage in
making known to employers in the private sector its availability to receive
information about employees alleged to be subversives, and that any such
advice as to such availability should, if the government considers such
advice to be desirable, be transmitted through another department or
agency .
(35)
WE RECOMMEND THAT it not be a function of the security intelligence agency to publicize, outside government, threats to the security of
Canada ; and accordingly, the security intelligence agency should not
maintain liaison with the news media ; and further, that all public disclosure
about the activities of the security intelligence agency should be made by
responsible Ministers .
(36)
WE RECOMMEND THAT the security intelligence agency not be permitted to disseminate information or misinformation in order to disrupt or
otherwise inflict damage on Canadian citizens or domestic political
organizations.
(37)
WE RECOMMEND THAT if the security intelligence agency wishes to
use another government programme to help deceive one of the agency's
subjects of surveillance, the Solicitor General should seek the concurrence
of the Minister responsible for the programme in question .
(38)
WE RECOMMEND THAT the security intelligence agency not be permitted to use informants against domestic political organizations primarily
for the purpose of disrupting such organizations .
(39)
WE RECOMMEND THAT an informant of the security intelligence
agency who has penetrated a political organization for intelligence gathering purposes should be instructed that, when persons in the organization
have formed an intent to commit a specific crime, the informant should try
to discourage and inhibit the members of the organization from carrying
out that crime, but that the informant must not transgress the law in order
to discourage or inhibit the commission of the crime .
(40)
WE RECOMMEND THAT it not be a function of the security intelligence agency to carry out defusing programmes and that the agency not be
permitted to use conspicuous surveillance groups for the purpose of
intimidating political groups.
(41 )
C . INTERROGATION OF SUSPECTS
27 . In Part III, Chapter 10, we pointed out that there may be interrogations
of persons within the Security Service suspected of having become agents for a
622
�foreign intelligence agency . Here we wish to stress the importance of observing
the law in conducting such interrogations . So long as the Security Service is
within the R .C .M .P ., the provisions of the R .C .M .P . Act and Regulations as to
the questioning of regular members must be adhered to . Civilian members are
not subject to the same rules . If a civilian member is suspected, he must not be
detained for questioning unless the police are prepared to arrest him for an
offence . Of course, if a civilian member does not co-operate willingly, he will
certainly prejudice his employment .
28 . If a member of the security intelligence agency or an employee of another
federal government department is questioned (for example an employee of the
Department of External Affairs who has returned from a foreign posting) the
members of the security intelligence agency must remember that there is in our
law no general power to detain for questioning .6
29 . If, as we recommend, the functions of the Security Service are in the
future exercised by a security intelligence agency separate from the R .C .M .P .
and without police powers, it will be particularly important to ensure that the
members of the agency are conscious that, just as the police have no power to
detain anyone against his will for questioning, so too no civilian person has
such a power .
6 Leigh, Police Powers in England and Wales, London, Butterworth's, 1974, p . 29 .
623
��CHAPTER 7
INTERNATIONAL DIMENSION S
INTRODUCTION
1 . The origins of many of the threats to Canada's internal security are
located outside of Canada . Clearly, the security intelligence agency whose
function it is to provide advance intelligence about threats to Canada's security
should be able to obtain information about the foreign sources of these threats .
2 . There is a considerable body of public information about international
trends and events which the security intelligence agency can and should use .
For instance, the branch that deals with Communist bloc intelligence activities
and the branch that deals with Marxist and Leninist organizations in Canada
should have a capacity for analyzing publications describing the international
policies of Communist countries and international trends in Marxist and
Leninist political movements . The security intelligence agency should also have
effective liaison with the Department of External Affairs so that it can make
good use of the understanding of international trends acquired by Canadian
missions abroad .
3. However, because of the highly secretive character of foreign security and
intelligence agencies and international terrorism, much information about
activities directed against Canada's security from abroad cannot be obtained
through public sources of information . Canada, unlike most of its allies, has not
developed a foreign intelligence service . When we speak of a foreign intelligence service we mean 'ân'agency which collects abroad, by overt and covert
means, intelligénce on security, economic, political and military matters relating to other countries, which may be of interest to Canada . On occasion, and
more in the distant past than in recent years, Canada has used secret agents
abroad to collect information pertinent to Canada's internal security . But for
the most part Canada has relied on its allies for foreign intelligence about
threats to the country's security .
4. There is some information that friendly foreign agencies will not collect, if
only because they have no need to or no interest in doing so if their national
interests would not be served . Some of this information may be obtained
through extensions abroad of security intelligence investigations initiated in
Canada . In this way an extra-territorial dimension is added to the activities of
the Canadian Security Service . In section A of this chapter, we explore the
circumstances in which we think it appropriate for members or agents of the
security intelligence agency to go abroad for operational purposes .
625
�5 . Information provided by the intelligence agencies of a large number of
countries has been an important source of security intelligence for Canada in
the past . It has not been forthcoming without a willingness on the part of
Canada's Security Service to exchange information . In section B of this
chapter, we will look at some of the current problems involved in the exchange
of information with foreign agencies . We will suggest that guidelines be drawn
up to govern such relationships generally, and that terms of reference governing particular relationships with foreign agencies conform to these guidelines .
We also suggest the kinds of information which should and should not be
exchanged, and outline a system of controls for monitoring relationships .
6 . In section C we turn to a more speculative question : whether or not
Canada should establish its own secret foreign intelligence agency . We make
no recommendations on this subject, but urge that it be carefully studied . To
look at this question following our consideration of the foreign activities of the
Canadian security intelligence agency and its relations with foreign agencies is,
we think, appropriate, since part of the difficulty in defining the proper
circumstances for members of the security intelligence agency to go abroad
arises from Canada's lack of a foreign intelligence service . As regards relations
with foreign agencies, this country is in a position of considerable dependence
on its allies for information necessary for the identification of security threats
to Canada .
A . ~ FOREIGN OPERATIONS UNDERTAKEN BY THE
SECURITY INTELLIGENCE AGENC Y
7 . What, if any, operations should the security intelligence agency conduct
outside Canada? Currently this issue, as it affects the R .C .M .P . Security
Service, is clouded by a lack of clear guidelines within that agency, together
with a lack of clear policy within government . This is compounded by
confusion as to what constitutes `defensive' and `offensive' activities . Consideration of overseas operations carried out by the security intelligence agency is
made more difficult, in the Canadian context, by the fact that Canada does not
deploy a foreign intelligence service engaging in espionage in and against
foreign countries . The difficulty arises from the resulting notion that the
Canadian Security Service has not operated secretly abroad . It has, from time
to time . While Canadians have not conducted espionage abroad, they have
collected information secretly . This has created sensitivity both , inside and
outside government concerning Canadian security intelligence activities carried
out in foreign countries .
8. Questions concerning a security intelligence agency's operations abroad are
closely related to questions concerning the agency's relationships with "friendly" foreign agencies . If Canada wishes to obtain intelligence about activities in
other countries which threaten the security of Canada, intelligence not openly
available, Canada must either collect the information covertly or obtain it from
an intelligence agency of a friendly country . To the extent that Canada chooses
not to collect such information itself it must depend on obtaining this informa626
�tion from friendly agencies . We will examine these arrangements in section B
of this chapter .
Historical background
9. The historical section of our Report (Part II, Chapter 2) showed that there
was a time in Canadian history when security intelligence was collected on a
systematic basis, at least in the United States . This was particularly true of the
period between 1864 and 1871 when Sir John A . Macdonald personally
directed Gilbert McMicken's Western Constabulary to infiltrate Fenian groups
in the United States . Thereafter, foreign intelligence operations became more
spasmodic . At the turn of the century, rumours of American plots to annex the
Yukon were investigated through the surveillance of suspected plotters in the
United States and Canada, and through the infiltration of some American
miners' organizations . The first World War saw further activities in the United
States, directed principally from British Columbia, against agents suspected of
espionage and subversion . The information from these operations was sent to
Ottawa and to British authorities . Before the United States' entry into World
War I the Commissioner of the R .N .W .M .P . directed, from the Force's
Headquarters in Regina, investigations of persons of German and Austrian
extraction suspected of launching espionage or sabotage activities against
Canada from the western United States .
10 . Since the formation of the R .C .M .P . in 1920, there has been no systematic collection overseas of security intelligence information by the Force . We
have no evidence that this practice arose from a decision of government .
Apparently it was a decision reached within the R .C .M .P . The policy did not,
in itself, imply there was no need for Canada to collect information overseas . It
simply meant that Canadians would not be deployed abroad to collect secretly
such information .
The proper scope of security intelligence activities outside Canad a
11 . In the past, policy discussions of the Security Service's foreign operations
have frequently focussed on the distinction between an `offensive' and a
`defensive' intelligence agency . It has been argued that, because the Security
Service is strictly a`defensive' service, it should not operate abroad . According
to this argument foreign operations should only be carried out by an `offensive'
agency . We do not find this distinction between an `offensive' and `defensive'
agency helpful, since the distinction could refer to three different aspects of
intelligence operations :
(i) the kind of intelligence which an agency seek s
(ii) whether the collecting agency attacks foreign agencies which are
targetted against Canada or waits to defend itself against foreign
attacks
(iii) the geographic location of the agency's activities .
Discussions of `offensive' and `defensive' intelligence agencies often fail to
make clear which of these three aspects is being referred to . Failure t o
627
�distinguish amongst them may lead to great confusion in defining the proper
scope of the foreign operations of a security intelligence agency .
12 . First, so far as the nature of intelligence being sought is concerned, the
mandate we have recommended for the security intelligence agency might be
termed `defensive' in the sense that the intelligence it seeks must pertain to
threats to Canadian security . Its intelligence mandate should be confined to
activities against the security of Canada generated by others - individuals,
groups or countries . In this sense the security intelligence agency is a counterintelligence agency, not an espionage agency .
13 . Turning to the second dimension of a security intelligence agency whether it attacks or simply defends - it is also clear from what we have
recommended with regard to the use of countering activities (e .g . double agent
operations in the counter-espionage field) that the security intelligence agency
should not be entirely confined to a defensive posture . In Canada, but not
abroad, it should be able to attack foreign agencies by penetrating them and
gaining defectors ; it should not be required to wait until it, or some other
branch of Canadian government, is being attacked . To borrow from the
language of sports, the best defence is sometimes a good offence .
14 . Now, turning to the third dimension - the geographic location of the
security intelligence agency's activities - we do not think that the agency
should be required to confine its intelligence collecting or countering activities
to Canadian soil . If security intelligence investigations which begin in Canada
must cease at the Canadian border, information and sources of information
important to Canadian security will be lost . Thus a total ban on security
intelligence operations outside Canada would be an unreasonable constraint . If
to operate abroad is `offensive', then Canada's security intelligence agency
should be offensive in this sense, although we are cognizant of the very great
risks - diplomatic, moral and practical - in carrying out security intelligence
activities abroad . Because of these risks it is important to confine such
activities to those that are essential, to subject them to a clear and effective
system of control, and to ensure that they are always within the mandate of the
security intelligence agency . In what follows we shall endeavour to define more
precisely the circumstances in which a security intelligence agency should be
permitted to extend its operations abroad and the controls which should apply
to such operations .
Current practice
15 . Covert Security Service operations outside Canada today are conducted
on an ad hoc basis . These cases involving foreign travel always arise from an
internal security investigation begun in Canada . Generally, the rationale for
such operations is that the information sought relates directly to the internal
security of Canada and is not the kind of information that can be or should be
obtained through liaison with friendly security and intelligence agencies .
16 . It is important that the distinction be made between occasional travel
abroad by members of the R .C .M .P . Security Service for operational purposes,
and the activities of R .C .M .P . liaison officers posted to Canadian mission s
628
�abroad . The 48 liaison officers stationed in 26 posts abroad perform two
functions for the Security Service : they screen immigrants applying for entry to
Canada in order to establish which individuals have criminal records or are
suspect from a security point of view, and they carry out liaison with the police
and security agencies of the host country . The liaison officer's functions do not
include the direction of cases involving the collection of intelligence by covert
means .
17 . Many nations deploy both a security intelligence agency and a foreign
intelligence service . Canada is unique among its close allies in that it does not
have a secret foreign intelligence service . This country's non-involvement in
covert foreign operations, or espionage, was most recently stated by Prime
Minister Trudeau, when he told the House of Commons that :
We have never, to my knowledge, certainly not under my government,
engaged in any espionage abroad in the sense that we have not been looking
for information in an undercover way in any other country . '
18 . To clarify the circumstances under which foreign operations might be
permitted, we felt it might be helpful to review past operations . The cases we
reviewed could be divided into three categories which correspond to low,
medium, and high levels of risk in foreign operations : the element of risk
pertains not only to the individuals concerned, but to Canada's relations with
the state against whom the operation is mounted, or the state in which it takes
place . In the course of this work we identified some areas where a high risk was
evident . If Canada is to mount foreign operations in the future, it is our view
that it is inappropriate for a Canadian security intelligence agency to carry out
some particular types of high risk operations .
19 . Decisions as to when a foreign operation by the security agency should be
permitted must be guided by a balancing of costs and benefits . Without
attempting to be exhaustive, we would suggest that at least the following
considerations be taken into account :
(a) the intelligence `target' of the foreign operation must be one which is
within thé security intelligence agency's mandate ;
(b) a foreign operation involving clandestine activity should be undertaken
only for the purpose of obtaining information which is of great
importance to the security of Canada, or for maintaining an intelligence asset which is of great importance to the security of Canada ;
(c) wherever possible the security intelligence agency should work co-operatively with the security agency of the host country ; the cumulative
effect of unilateral Canadian operations abroad might invite retaliatory
actions which could be detrimental to Canada's security and foreign
relations ;
(d) transgressions of foreign laws would not be taken as having been
authorized by the mere fact of authorization having been granted for
travel to a foreign country, and the agency should place the problem
before the Cabinet for a decision as to what should be permitted ;
' House of Commons, Debates, January 10, 1974, p . 9227 .
629
�(e) the Minister responsible for the security intelligence agency and the
Minister of External Affairs should be kept adequately informed of
security intelligence operations outside of Canada .
We turn now to the controls which should regulate foreign operations of a
security intelligence agency .
Controls
20 . Under the present system there are certain stages through which a foreign
operation must go for approval before the operation occurs . We examined these
stages, and it is significant that within these reporting relationships, as now
prescribed, there is no provision for notifying the Solicitor General, the
Minister responsible for the Security Service .
21 . So far as control within the security intelligence agency is concerned, we
think the Director General should be notified of all foreign operations . As the
chief executive officer of the security intelligence agency, he should have the
opportunity to question any foreign operations and to veto those which he
thinks are inadvisable . There may be emergency circumstances in which the
Director General is not immediately available, in which case he should name
his deputy on a pro tem basis, as responsible for giving his approval for any
such operation .
22 . At the ministerial level we think that it is intolerable to continue with a
situation in which the Minister responsible for the security intelligence agency
is not informed of foreign operations . The Director General should notify the
Solicitor General before initiating any foreign activity involving a member of
the agency or its informants . The Minister's review of such proposals should be
based on a set of policy guidelines, prescribed by him, governing foreign
operations . These guidelines would incorporate the factors suggested in paragraph 24 above . These guidelines should also be approved by the Cabinet
Committee on Security and Intelligence and disclosed to the special Parliamentary Committee on Security and Intelligence . It is important that guidelines in
this area be subject to a collegial interdepartmental approval process, as they
should reflect the various concerns of government that must be balanced in
determining the advisability of foreign operations by an intelligence agency .
The statute governing the activities of the agency should include authorization
to operate abroad .
23. We recognize the need to ensure that foreign operations by a security
intelligence agency are co-ordinated with the requirements of Canada's foreign
relations . Even though we anticipate that the number of foreign operations
undertaken by the security intelligence agency will be low, still certain of these
operations might, if improperly handled, cause grave damage to Canada's
international relations or run counter to Canada's foreign policy objectives . We
do not think, however, that all foreign operations by a security intelligence
agency incur such risks . Some of the cases we reviewed involve low-level risks .
Moreover, in our view, it would be desirable that in any foreign operations
contemplated in the future, the following two practices be followed :
630
�(1) The Minister responsible for the security intelligence agency should
notify the Department of External Affairs in advance of any operations
entailing significant risks to Canada's foreign relations . In an emergency situation, a foreign operation could go ahead with the provision that
notification took place ex post facto .
(2) On an annual basis, the Director General and appropriate officials of
the security intelligence agency should meet with the Under Secretary
of State for External Affairs and the Deputy Under Secretary of State
for Security and Intelligence to review foreign operations completed,
currently being undertaken, or proposed by the security intelligence
agency .
The system we propose recognizes that it is a ministerial responsibility to
ensure that the Department of External Affairs is consulted in advance about
foreign operations with serious implications for foreign policy and provides a
process whereby the Department of External Affairs can be kept comprehensively informed of the security intelligence agency's foreign operations .
24. There may well be situations in which the Department of External
Affairs would consider that the risk to Canada's foreign relations exceeds the
potential worth of the security intelligence that might be obtained from a
foreign operation . In resolving differences of this kind it is important that one
set of interests should not automatically take precedence . Thus, when the
Solicitor General and the Secretary of State for External Affairs could not
agree over a foreign operation, the matter should be decided by the Prime
Minister .
WE RECOMMEND THAT for intelligence purposes falling within the
security intelligence agency's statutory mandate and subject to guidelines
approved by the Cabinet Committee on Security and Intelligence, the
security intelligence agency be permitted to carry out cèrtain investigative
activities abroad .
(42 )
WE RECOMMEND THAT the Director General of the security intelligence agency inform the Minister responsible for the agency in advance of
all foreign operations planned by the security intelligence agency .
(43 )
WE RECOMMEND THAT in cases which on the basis of policy guidelines are deemed to involve a significant risk to Canada's foreign relations,
the Minister responsible for the security intelligence agency inform the
Department of External Affairs sufficiently in advance of the operation to
ensure that consultation may take place .
(44 )
WE RECOMMEND THAT the Director General and appropriate officials
of the security intelligence agency should meet with the Under Secretary of
State for External Affairs and the responsible Deputy Under Secretary on
an annual basis to review foreign operations currently being undertaken or
proposed by the security intelligence agency .
(45 )
631
�B . RELATIONSHIPS WITH FOREIGN AGENCIES
25 . One of Canada's major sources of intelligence about security threats to
this country comes from foreign security and intelligence agencies . The largest
suppliers of such information are agencies'of countries with which Canada is
closely allied . Even if this country had its own secret intelligence service
working abroad, there would still be a need for agreements with foreign
agencies .
26. Relationships with foreign security and intelligence agencies inevitably
involve a sharing or exchange of intelligence : in order to receive information,
Canada must be willing to give information to those agencies . The notion of
reciprocity is, then, central to successful liaison relationships with foreign
agencies .
27 . Liaison with foreign agencies raises a number of important policy concerns . One is, simply, whether true reciprocity exists . There is always a danger
that, unless the exchange of information is carefully monitored, Canada may
give far more than it gets . A second concern relates to the entering into
agreements which may conflict with Canada's foreign policies . An agreement
should not be made with the agency of a foreign country if it would entail
implicitly condoning policies which Canada has opposed as a matter of our
foreign policy . A third issue involves the need for sufficient control over
information leaving this country to ensure that the rights of Canadians are
adequately protected .
28. ' These and other issues all point to the need for careful and accountable
control by government of liaison agreements between the Canadian security
intelligence agency and foreign agencies . From our review of this subject, it is
evident that there has been a lack of government attention to the policy issues
inherent in such agreements, a neglect which can create an excessive vulnerability to thé hazards of liaison with foreign agencies .
29 . Another, less tangible, problem related to foreign agreements is the
danger of Canada's security intelligence agency adopting the outlook and
opinions of a foreign agency, especially of an agency which has come to be
depended upon heavily . This danger is particularly acute because Canada does
not have its own foreign intelligence agency, so that a Canadian Security
Service may become extremely dependent on foreign agencies for covert
information . This tendency to adopt the views and analyses of a foreign agency
would be offset if the security intelligence agency had at its disposal expertise
capable of providing analyses derived from open literature . The R .C .M .P .
Security Service has had few members capable of providing analyses of foreign
situations with possible effects on Canadian security .
30. Some central issues have to be addressed regarding the identity and
nature of the partners with whom the government is willing to enter into
relationships, the extent of agreements including the kinds of information to be
exchanged, and the procedures .to be established to ensure that the agreements
or relationships reflect both the wishes and the needs of the Canadia n
632
�government while balancing security interests with foreign policy interests . In
what follows, we will set out our recommendations on these matters .
Agreements with foreign agencie s
31 . Relationships with foreign agencies are covered by a variety of agreements, both formal and informal, enduring and occasional, covering the
exchange of different kinds of information and services . The R .C .M .P. currently has relationships with foreign agencies providing for many types of
exchange, including information regarding terrorism, visa vetting of immigrants, information given to foreign agencies on Canadian emigrants, and
information regarding counter-espionage . This list is not exhaustive, but it
gives some idea of the variety of relationships entered into by the R .C .M .P .
Security Service .
32 . One characteristic of the development of these relationships has been
their ad hoc nature. They have been entered into as a result of a perceived need
within the R .C .M .P. and have not been subject to an over-arching set of
government guidelines . A more fundamental objection to the development of
these previous agreements is that the Solicitor General, the Minister responsible for the R .C .M .P ., has not been adequately informed about them until
very recently . In 1977, the then Solicitor General, Mr . Fox, asked the
R .C .M .P . to provide him with a list of all existing foreign liaison arrangements .
To attempt to comply with the wishes of the Minister, the Security Service had
to solicit information from its operational branches : no central record existed .
It was only after much research by us and by the R .C .M .P . that by 1980 it had
been determined that there were, in fact, arrangements with a great many
countries . We mention this to emphasize the absence of any recording or
control of such an important network of arrangements . As a result, the
R .C .M .P . has proceeded independently to develop foreign agency arrangements in an area of foreign policy concern .
33 . This is not to suggest that relationships with foreign agencies have been
of a sub rosa nature . We simply make the ;point that two obvious points of
control, the Department of the Solicitor General and the Department of
External Affairs, have remained largely in ignorance of the existence or . terms
of such relationships . While we appreciate the sensitivity of information
exchanges and the consequent need to limit knowledge of their existence within
the government, we feel it particularly unsatisfactory that the Solicitor General, the Minister responsible for the Security Service, has not been consulted,
nor his agreement sought, in the establishment of relationships with foreign
security and intelligence agencies .
34 . We think that the statutory mandate of the security intelligence agency
should explicitly provide that there may be foreign liaison agreements subject
to proper control . The principal points of control should be the two Ministers,
the Solicitor General and the Secretary of State for External Affairs . No
agreement should be entered into without terms of reference approved by thé
two Ministers . The terms of reference for each agreement with a foreign'
agency should specify what types of information or service could be exchange d
633
�(for example, immigration visa vetting, and intelligence on terrorists) . These
terms of reference, while recorded within the Canadian government, need not
necessarily be written down or formally agreed upon with the foreign agency.
Some foreign agencies would withhold their cooperation if the Canadian
security intelligence agency insisted on formal written agreements .
35 . If agreement on terms of reference cannot be reached between the
.Secretary of State for External Affairs and the Solicitor General, the decision
would be made by the Prime Minister . We would anticipate that any such
disagreement would arise from competing considerations relating to foreign
policy and security . It is important that one Minister not have the power of
veto over a particular set of terms of reference, and that disagreements be
resolved by the Prime Minister or the Cabinet .
WE RECOMMEND THAT the statutory mandate of the security intelligence agency provide for foreign liaison relationships subject to proper
control.
(46 )
WE RECOMMEND THAT the terms of reference for each relationship
specify the types of information or service to be exchanged .
(47)
WE RECOMMEND THAT the terms of reference for each relationship
be approved by the Solicitor General and the Secretary of State for
External Affairs before coming into effect and that any disagreement be
resolved by the Prime Minister or the Cabinet .
(48)
36 . The government should establish a clear statement of principles to guide
the security intelligence agency's relationships with foreign security and intelligence agencies . One purpose of these guidelines would be to diminish the risk
of the security agency's becoming an appendage of foreign agencies, particularly in relation to those agencies from whom it borrows information frequently .
These principles should be developed as a set of guidelines by an interdepartmental committee, and approved by Cabinet . In the following paragraphs, we
suggest some of the principles that should be reflected in these guidelines .
Exchanges of information with foreign agencie s
37 . As we have indicated, an effective Canadian security intelligence agency
requires information and intelligence from foreign agencies to meet Canadian
needs . These foreign agencies may provide not only useful general assessments
of potentially or actually dangerous situations, but also intelligence concerning
individuals who may come to Canada or who are already here . Given the
reciprocal nature of these relationships, the Canadian security agency must be
willing to provide similar kinds of information in return .
38 . With this understood, we are of the opinion that certain precautions have
to be taken with regard to the information provided to foreign agencies by the
Canadian security intelligence agency . In 1971, for example, Assistant Commissioner Parent sent letters to four foreign agencies enclosing the R .C .M .P .'s
brief on the Extra-Parliamentary Opposition (E .P .O .) which included th e
634
�names of individuals in the Canadian Public Service believed to be involved to
a greater or lesser degree in that movement, and the names of some individuals
who were not even suspected of involvement . We have no objection to the
provision of the general assessment of the situation to other agencies . Rather,
our objections to this action are twofold : first, the evidence on which the E .P.O .
list of names was based was not reliable and was therefore potentially
misleading to a foreign agency as well as harmful to,individual Canadians ; and
second, there was no knowledge of the use, if any, to which the information was
to be put by the foreign agencies, nor any procedure for recovering the
information once it had been used . There appears to have been, and there still
appears to be, no consciousness on the part of the R .C .M .P . of these concerns
in respect of that information . That, if symptomatic of a general attitude, is
most disheartening and alarming .
39 . The principle of reciprocity may also induce the Canadian security
authorities, in their position of dependence, to enter into relationships with
foreign agencies without giving adequate weight to possible conflicting foreign
policy considerations . A lack of sensitivity in this area will, almost inevitably,
create friction with those responsible for directing Canada's external relations .
40. A third facet of reciprocity is the assessment of the flow of information in
and out of Canada . A relationship with a foreign agency which consistently
results in a net outflow of information is clearly one which should be examined
for its usefulness to this country . This is not to suggest that the R .C .M .P.
Security Service's participation in the world intelligence community is not
valued by its allies . It is important to Canada in terms of, for example,
terrorism and foreign intelligence activities . Moreover, if Canada were unwilling to collect information and to exchange it with foreign agencies, there is
the danger that those agencies would take steps to get it themselves in Canada,
by developing agents and sources in this country . These real or potential
problems, together with lesser ones not set out here would, we feel, be
overcome by the precepts which follow .
41 . There should be records of the transmittal by the security intelligence
agency to foreign agencies of information concerning Canadian citizens, or
persons in Canada, or Canadian organizations .
42 . As well as recording the transmittal of information, the so-called `third
party rule' must apply to such information in order that some semblance of
control be retained over Canadian proprietary rights to the information,
although it is recognized that such `control' may well be somewhat illusory .
The third party rule stipulates that information given by one agency to another
may not be passed on to a third agency or party without the approval of the
original agency . This rule should govern further use of the information by the
recipient, and would also facilitate its retrieval . The difficulty of retaining any
real control over information sent to another agency is illustrated by the
inability of the R .C .M .P . to recover information it had supplied for more than
twenty years 1o a foreign agency . In June 1978, pursuant to a decision
previously taken by Mr . Fox, Mr . Blais instructed the R .C .M .P . to cease
providing such information and requested the return of information previousl y
635
�provided . At the time of writing this Report the requested information has not
been returned .
43 . The information given to foreign agencies must be about activities which
are within the statutory mandate of the Canadian security intelligence agency .
Foreign agencies are likely to have different mandates and therefore are likely
to ask for information about Canadians or about people in Canada which is
beyond the Canadian agency's terms of reference . When this occurs, the
Canadian security intelligency agency must refuse to go outside its mandate,
even though this may result in a reciprocal loss of information for Canada . In
Chapter 5 of this part of the Report, we set out our views on what information
received from a foreign agency should be reported by the security intelligence
agency . We said that, with few exceptions, the agency should report only
information relevant to threats to the security of Canada as defined in its
mandate .
44 . We take the view, too, that the Canadian security intelligence agency, as
a pre-condition for passing information to a foreign agency, should know the
reason for the request . To provide information without questioning the request
invites the danger that the security agency will operate according to the
mandate of a foreign agency rather than according to its own terms of
reference .
45. Management of liaison arrangements must take into account the importance to Canadian security of maintaining a relationship between the Canadian
security agency and its foreign counterpart . In relationships where Canada is
the net beneficiary in the flow of information, this will be a particularly
important consideration . In exchanges involving information on international
terrorism or counter-intelligence, there will likely be little conflict of interest . A
more probable source of difficulty would seem to us to be in exchanges of
information on domestic subversion, where Canada's standards may differ
from those of the foreign agency seeking information, and where there may be
insufficient concern for the protection of the interests of Canadian citizens .
46 . Moreover in our opinion, it should be a fundamental principle that
information disclôsed by a potential immigrant within the immigration process
is for the sole and exclusive use of the Canadian government, and should not be
further disseminated or disclosed, unless there is a clear and important reason
related to Canada's security and the approval of the Director General of the
Canadian security intelligence agency has been obtained .
The exchange of services and joint operation s
47 . Cooperation with a foreign agency may also entail some joint operations
with that agency . The cooperation may take the form of lending a human
source to the foreign agency, borrowing a source from the foreign agency, or
providing or receiving some other support . An instance in which the R .C .M .P .
Security Service borrowed from a foreign agency was that of Warren Hart .
The Security Service of the R .C .M .P . has also undertaken joint operations with
friendly foreign agencies within Canada . We are satisfied that these operations
have been approved by the Security Service as being justified in the Canadia n
636
�interest, and that every reasonable effort has been made to ensure that friendly
foreign agencies not conduct operations on Canadian territory without the
prior approval of the Security Service . As mentioned earlier, however, we are
not satisfied with the extent to which the Minister has been informed of the
occurrence of such operations .
48 . We believe that all cases involving the exchange of sources must have the
approval of the Director General of the security intelligence agency . Such cases
must be within the mandate of that agency, hence relevant to Canadian
security, and should, in addition, be carefully controlled by Canada . In cases
where a foreign security agency requests assistance which falls outside the
mandate of the Canadian security agency but concerns a criminal matter, the
request should be passed on by the security intelligence agency to the relevant
police force in Canada . In this way, the security agency would act as a central
clearing house and recorder of requests from foreign intelligence agencies . .
Such a procedure would permit an effective review of such operations by the
independent review body .
49 . Elsewhere, we have reported on the use by the R .C .M .P, Security Service
of journalists in the writing and publication of articles containing information
believed by the Service to be true . If such a practice were to involve the
R .C .M .P. in attempting to arrange Canadian publication of foreign information, that would be both dangerous and undesirable, because it could result in
information being published in Canada which is both unreliable and inconsistent with Canadian interests . Toleration of such a practice would open the door
to the possibility of foreign manipulation of Canadian public' or official
opinion . That would be unacceptable . As stated earlier in this Report, any
publication of material at the instigation of the Security Service should require
the approval of the Director General of the security agency and his Minister .
This would apply both to articles of foreign origin and to those inspired by
press contacts within the agency .
50 . A final aspect of the exchange of services between . foreign agencies and
the Canadian security intelligence agency concerns security screening for
immigration purposes on behalf of a foreign agéncy . Under our recommendations for screening in Part VII of this Report, the securitÿ intelligence agency
would carry out few field investigations . It should have a tightly circumscribed
mandate to collect information about character reliability for Canadian purposes and should not collect this information on behalf of a foreign agencÿ .
Foreign agencies must not be allowed to carry out their own field checks here .
They must rely on interviewing individuals in their own country or at their
consulate or embassy in Canada . In sum, only limited aid could be given to a
foreign agency in this area, and that assistance would have to coincide with the
Canadian screening programme. Any assistance beyond this would have to be
negotiated on a government-to- government basis .
Obtaining security intelligence outside liaison arrangement s
51 . It may be necessary for the Canadian security intelligence agency Eo
obtain information otherwise than through a liaison arrangement, from a
foreign country whose law forbids the dissemination of information to foreig n
637
�governments . As we will point out in Part VII, Chapter 2, to authorize the
Canadian security- intelligence agency to establish a paid source, or otherwise
to break the laws of a foreign country in order to obtain information about one
of its citizens, would be imprudent . To us, a more attractive alternative would
be bilateral discussions between the two governments to obtain the information .
In most cases, interviews with potential immigrants will suffice .
52 . The normal exchange of security intelligence may, with some countries,
be prevented by a lack of cooperation between the Canadian security agency
and the host agency . One solution is to rely on the assistance of the agencies of
friendly countries who have members there, and who may be able to advise the
Canadian authorities of security information relevant to a potential immigrant .
This procedure carries with it some risk of exposure and subsequent embarrassment to the Canadian government . In such cases, risks must be weighed
against potential benefits and the decision incorporated into the terms of
reference drawn up for the relationship with the friendly agency .
Statement of principles
53. The foregoing discussion indicates a number of the principles which
should be incorporated into guidelines governing the security intelligence
agency's relationships with foreign agencies . Briefly, we would suggest that
these guidelines include the following principles :
(a) all relationships should have approved terms of reference ;
(b) all transmittal of information by the security agency should be
recorded ;
(c) the third party rule should operate so that the information transmitted
to a foreign agency may be retrieved when it is no longer needed ;
(d) the security agency should be aware of the reason for the request from
the foreign agency and that reason must relate in some way to the
security of the requesting country ;
(e) all exchanges must be within the mandate of the security intelligence
agency and hence relate to the security interests of Canada ;
(f) Canada must control all foreign agency operations in Canada ;
(g) the Director General of the security agency must approve of each joint
operation ; an d
(h) the Minister responsible for the agency should be notified when a
member of the agency goes abroad on behalf of the agency .
WE RECOMMEND THAT the Government establish a clear set of policy
principles to guide the security intelligence agency's relationships with
foreign security and intelligence agencies and that the Joint Parliamentary
Committee on Security and Intelligence be informed of these principles .
(49)
WE RECOMMEND THAT the information given to foreign agencies by
the security intelligence agency must be about activities which are within
the latter's statutory mandate ; that the information given must be centrall y
638
�recorded ; that the security intelligence agency know the reasons for the
request; and that the information be retrievable.
(50)
WE RECOMMEND THAT the Director General approve of each joint
operation with a foreign agency and ensure that Canada control all foreign
agency operations in this country .
(51)
WE RECOMMEND THAT the Solicitor General be informed of each
joint operation, or operation of a foreign agency, in Canada .
(52 )
Liaison officers abroa d
54 . The recommendations for change which we have presented here should
not, in any substantial way, alter the current arrangements pertaining to
R .C .M .P . liaison officers . Currently, all such liaison officers come under the
R .C .M .P .'s Director of Foreign Services which is not part of the Security
Service . We anticipate that, even with a separate security intelligence agency,
it should be possible to substitute a member of that agency for a member of the
R .C .M .P . in those posts that, at present, have more than one liaison officer . In
those missions where now there is only one liaison officer from the R .C .M .P., it
should be possible for a single liaison officer to supply information to both the
R.C .M .P . and the security agency . As both organizations, under our proposals,
would report to the same Minister, he should ensure that the liaison function
involves no unnecessary duplication of services and that there . is effective
cooperation between the R .C .M .P . and the security agency .
55 . The recruitment and training programme outlined elsewhere in this
Report would, we feel, better prepare individuals for international postings .
These individuals should have diplomatic status as has recently become the
case with some R .C .M .P . liaison officers .
56. The relationship between the liaison officer and the Head of Post should
remain as at present and as laid down within the terms of reference formulated
for the Foreign Service of the R .C .M .P . These state that liaison officers will
serve as an integral part of the mission, and will be responsible to the Head of
Post . Despite the clear need for communication between these two individuals,
we take the view that if the liaison officer wishes specially to safeguard some
security intelligence by sending it to his headquarters without clearing it with
the Head of Post, he should be able to do so . The receipt of such information
should be recorded by the security agency headquarters so that, except in
extraordinary circumstances, the Under-Secretary of State for External Affairs
has access to it . Where extraordinary circumstances exist, the Director General
should disclose them to the Solicitor General . The decision to widen access to
this information would then rest with the appropriate Ministers and not with
their representatives at a foreign mission .
57 . The post-war period has seen western missions in the U .S .S .R . and
eastern Europe under persistent and increasingly sophisticated technical surveillance by Soviet and Soviet bloc intelligence agencies . Throughout this
period, a great deal of evidence has been collected by western security an d
639
�intelligence agencies about the use of microphones, radio transmitters, and
other forms of eavesdropping and electronic interception equipment used
against their missions . It is very often unknown what time lag there has been
between the installation and its discovery . It has been, and continues to be a
most serious problem . . Historically, there has been disagreement within some
departments and agencies of government as to the extent of the threat and,
therefore, the resources that should be available to counter it . The departments
and agencies of government should, through suitable intragovernmental
arrangements, arrive at agreement on this type of threat and on the resources
necessary to meet it .
WE RECOMMEND THAT the security intelligence agency have liaison
officers posted abroad at Canadian missions to perform security liaison
functions now performed by R .C.M .P . liaison officers, except that in
missions where the volume of police and security liaison work can be
carried out by one person, either an R .C.M.P . or a security intelligence
liaison officer carry out both kinds of liaison work .
(53)
WE RECOMMEND THAT the relationship betweèn the liaison officer
representing the security intelligence agency and the Head of Post be
governed by the terms of reference as laid down for the Foreign Services of
the R .C .M .P ., but that the security intelligence agency's liaison officer
have the right to communicate directly with his Headquarters and
independently of the Head of Post when the intelligence to be transmitted
is of great sensitivity . Except in extraordinary circumstances, which
should in each case be reported by the Director General to the Solicitor
General, such communications should be made available to the UnderSecretary of State for External Affairs .
(54)
WE RECOMMEND THAT the government examine, on a regular basis,
both the resources which are being devoted to the technical security of
Canadian missions abroad, and the policies and procedures which are being
applied to the security of those missions .
(55) .
Review of foréign liaison activities
58 . In addition to ministerial responsibility, we advocate three other points of
reference for these activities . First, the security intelligence agency's annual
report to Cabinet should include an account of the agency's foreign liaison
activities . Second, the independent review body should ensure that the agency's
relationships with foreign agencies fall within the statutory mandate and meet
the guidelines set out by government . This review would be facilitated by the
central recording of the terms of reference governing particular relationships .
Third, the Joint Parliamentary Committee on Security and Intelligence should
be informed of the principles governing such relationships and, where possible,
should have access to the terms of reference of particular 'relationships . If a
foreign agency objected to the terms of its relationship with Canada's security
intelligènce agency being disclosed to members of the Committee, then the
Canadian government would have the choice of foregoing that relationship or
of refusing the Committee's access to the terms of the relationship .
640
�WE RECOMMEND THAT the security intelligence agency's relationships with foreign agencies be subject to the following forms of review :
( a) An account of significant changes in these relationships be included in
the security agency's annual report to the Cabinet ;
(b) relations with foreign agencies be subject to continuing review by the
independent review body ;
(c) the Joint Parliamentary Committee on Security and Intelligence be
informed of the principles governing the security agency's relations
with foreign agencies and, to the extent possible, of the terms of
reference of particular relationships .
(56 )
C . SHOULD CANADA HAVE A FOREIGN
INTELLIGENCE SERVICE ?
59 . Canada is unique among its major allies in not deploying a foreign
intelligence service . While we are in no position to carry out a comprehensive
review of Canada's foreign intelligence needs, a general look at the question of
a secret foreign intelligence service is a natural outgrowth of our consideration
of the policies and procedures governing a security intelligence service . We
have already shown how the lack of a foreign intelligence agency limits the
effectiveness of a security intelligence organization . In the previous section, we
showed how Canada, through liaison arrangements with `friendly' intelligence
agencies, compensates, to some extent, for the lack of a foreign secret service of
its own . Also we think it important to consider how the system of government
control and accountability which we are recommending for a security intelligence agency should apply to a foreign intelligence service, if and when
Canada decides to establish such a service .
Previous studies of Canada 's foreign intelligence need s
60. There would have been little need for us to comment on this subject if
previous studies of Canada's intelligence needs had examined the subject
comprehensively, but those to which we have had access make virtually no
mention of it .
61 . The more recent general reviews of which we are aware are four in
number .
62 . Perhaps the most important of these studies was one carried out in 1970 .
Significantly, many of the 'points made regarding the lack of integration of
intelligence with governmental decision-making are still valid one decade latér .
It noted the emphasis on military intelligence in Canada and the need for this
country to follow the Americans and the British in a greater use of political
and economic intelligence . The government was advised of the need for greater
co-ordination of intelligence at the centre, via the intelligence committees, and
to some extent this advice has been'tâken . A more general aim of the study,
like others later, was to question, first, if Canada was getting its money's worth
from certain areas of its intelligence program and secondly, if the collected
intelligence was being used as efficiently as possible .
641
�63 . The various studies came to the conclusion that Canada was indeed
getting its money's worth from its multilateral intelligence arrangements and
allowed that the arrangements were, in fact, a bargain . The second question as
to whether or not the best use was made of the intelligence, was directly or
inferentially answered in the negative . The further study, carried out on
economic intelligence, was set up specifically to look at the linkages between
producers and consumers and methods of improving the use made of this
intelligence within the consuming departments .
64. All of these studies pointed to two further, and potentially serious,
shortcomings . The first was that the mechanisms for determining Canada's
foreign intelligence priorities and requirements were inadequate . The second
shortcoming was the lack of intelligence analysis either within departments or
on an interdepartmental basis . Despite widespread agreement that the analytical capacity should be strengthened within the intelligence community, little
would appear to have been done to bring it about .
65 . The first shortcoming, the lack of definition of priorities and requirements, has to some extent been offset, at least so far as foreign intelligence is
concerned, by the establishment of suitable intragovernmental arrangements . It
should be remembered, however, that a definition of requirements and priorities depends in some measure on an analysis of current intelligence holdings
and on identification of areas or subjects that require further intelligence
collection . In short, an inadequate analytical capability will contribute to a lack
of clarity in the definition of requirements and priorities . Where there is a need
for detailed information, such as in tactical or current intelligence on particular
issues, this vagueness in definition will impede the collection process . In
matters of broad strategic intelligence, the lack of precision in defining
requirements and priorities will be much less of an impediment to effective
direction of the collectors .
66 . Although the weakness of the intelligence analysis function was recognized in the past, it has not been remedied to date . A proposal we shall develop
later in this Report, that the Intelligence Advisory Committee have a responsibility for writing current intelligence assessments and that a Bureau of
Assessments be established to provide strategic assessments, would, we believe,
be the basis for overcoming this shortcoming in Canada's intelligence system .
The external environment and changing intelligence needs
67 . A nation's intelligence requirements depend on a variety of factors, such
as its political, economic, and military aspirations, its geographic location, and
its involvement in regional organizations . Meeting these requirements does not
necessarily involve covert information only ; in fact, most of the collection
effort, at least in human terms, will probably be focussed on gathering overt
information . The extent to which a nation collects covert foreign intelligence
through its own resources will depend, among other things, on its financial
resources, its ethics, its international posture and the extent to which it believes
it can rely on its allies .
642
�68 . There has been a paucity of analysis of non-military intelligence requirements in Canada . The current multilateral arrangements were formulated and
continue to function largely within the context of East-West relations and the
military blocs which underpin those relations . These arrangements for sharing
intelligence have been based on mutual aims and a common perception of
threats . Political intelligence which is processed information on other nation's
international political relations does not, generally, have this element of
commonality ; it entails a national, rather than collective, need . Similarly,
economic intelligence, despite the interdependence of the leading economic
powers, tends to be more national and less multinational in perspective . The
emergence of non-military concerns as dominant foreign policy issues of
western nations has altered intelligence requirements . The emergence of
energy, for example, as a pre-eminent foreign policy issue, reduces the commonality of interests between advanced western nations .
69 . This skewing of national intelligence needs, away from military intelligence and towards greater emphasis on economic intelligence, places Canada
in a situation which is quite different from its earlier post-war experience . One
result of the emergence of new issues and the changes in the international
climate in the past decade, has been the blurring of the once clear distinction
between one's friends and those whose friendship is less manifest or reliable .
While these changes have not, from a military point of view, altered the
alignment of forces and so given rise to novel military intelligence requirements, there is a demonstrably greater need for political and economic
intelligence for national purposes .
Factors to be considered in deciding whether Canada 'should establish a
foreign intelligence service
70. A first step in considering those intelligence requirements which are
related to Canada's distinctive national interests is to identify those national
needs that cannot be met through liaison arrangements with allies . There is
likely to be a quite narrow set of intelligence requirements, of a political or
economic nature, or related to Canada's domestic security, which is either of no
interest or of a competitive rather than a collaborative interest to Canada's
allies . However few in number, such requirements should be identified . The
second step is to determine how the intelligence needed in these areas can be
collected, if it is not available from overt sources . There are, generally, two
means of collecting intelligence covertly . The first is technical collection . The
second method is through human sources conducting espionage .
71 . Human sources have the great advantage of being able to yield intelligence about human intentions - and it is frequently knowledge of intentions
which is most valuable in defending a country's political and economic interests
as well as warning it of foreign threats to its internal security . Another
advantage is cost : human sources cost much less than technical sources, all the
more so if only a small organization is envisaged with a capacity for collecting
intelligence in only a limited number of places . While we are not in a position
to put a price on establishing a secret intelligence service - the costs of it s
643
�equipment, training facilities, and professional support services, for example,
we understand that the cost of operating a small service is modest .
72 . The costs of not having a capacity for collecting foreign intelligence
relevant to distinctive Canadian interests must be considered . The experience
of some foreign countries suggests that the intelligence product of a modest
secret service has been useful to these nations . How much more security and
intelligence information would Canada receive from its allies if it contributed
more to the common pool? While this cannot be answered firmly, it is not
unreasonable to suppose that the amount of intelligence available to Canada
would increase . Foreign experience indicates that information is available to a
country's foreign intelligence agency through liaison with other agencies that
does not flow either to its diplomats or to its domestic security service .
73 . While it is possible to outline some of the benefits which might accrue to
Canada by establishing a limited secret intelligence service, there are also some
readily identifiable liabilities . To begin with, there is a clear political risk in a
government directing espionage activities against other states . The image of
honesty and straightforwardness in the conduct of international affairs may
produce benefits to this country, particularly within a Commonwealth setting,
that cannot be readily measured . What potential penalties might be incurred in
acknowledging the existence of a Canadian secret intelligence service? The
issue seems to centre on the notion of `image' . That image, however, is
somewhat misleading, given our use of intelligence obtained by the espionage
services of other countries .
74 . It is difficult to gauge the politicâl costs incurred by democratic countries
who do deploy secret services . Unquestionably, as the recent situation in Iran
vividly demonstrates, the conduct of secret intelligence activities abroad can
have dire effects on a country's international relations and the security of its
citizens . Risks of this kind can be reduced but not eliminated by confining a
foreign intelligence agency to the collection of intelligence and denying it any
mandate for political intervention or para-military operations .
75 . There is also a serious moral issue involved in a government employing a
secret agency whose modus operandi requires it necessarily to break the laws
of other nations . It may be argued that the existence of an agency with such a
mandate brings with it a risk of influencing the practices of a country's security
intelligence agency . Lawbreaking can become contagious both within a country's `intelligence community' and amongst those senior officials of government
and the national political leaders who are responsible for directing the intelligence community . Were this to happen in Canada it could seriously undermine
reforms which we hope will be put in place to guard against illegality and
impropriety in the activities of the security intelligence agency and the
R .C .M .P . On the other hand, it may be argued that so long as this risk is
recognized, and the proper controls are in effect ; the risk of such influence and
contagion can be minimized .
76 . We do not know the extent to which Canada's abstaining from foreign
espionage has been based on moral or political considerations . It may have
been based more on a judgment that Canada's allies provide so much intelli-
644
�gence to this country that our basic foreign intelligence requirements can be
met from these sources . Whether or not-this is a correct interpretation of past
poliçy, wedo not know . However, we do believe that a careful analysis of the
various costs and benefits is overdue and that a review should be carried out so
that Canada's policy on this particular feature of its intelligence capabilities
might be decided upon in an informed and mature manner . In urging that
there be further study of this matter we emphasize that we are referring only to
the collection of intelligence ; we are not in any way suggesting that the
Canadian government should even examine whether or not it should have a
service: which may be used to destabilize foreign governments or attack .their
leaders .
Organizational and governmen[al aspect s
77 . While we make no recommendations either for or against the establishment of a secret foreign intelligence service, we do think it important to
indicate how, organizationally and in terms of government direction, such a
service should relate to a security intelligence agency .
78 . In our view, it would be extremely important to keep such an agency
separate from the security intelligence agency . We have already mentioned the
dangers of contagion-with respect to an espionage agency's practice of violating
the laws of other countries . Further, it is clear to us that the intelligence which
such an agency collects would go well beyond the purposes of security
intelligence . It would be unwise to combine very different intelligence collection responsibilities within a single agency . In addition, there is a danger of
creating a security and intelligence monolith in a democratic state . Demarcation lines between the two services, dealing with the foreign and domestic
overlap of the two, would have to be carefully drawn . z
79. If a foreign intelligence agency were to be established by Canada it
should • not be done in the surreptitious fashion in which such agencies have
been established in other countries . In the western democracies we have surely
learned by now the need to subject intelligence agencies to the basic precepts of
democratic and responsible government . This means at the very least that a
Canadian foreign intelligence agency should have a clear charter approved by
Parliament . While working out a legislative_ mandate is not without difficulty,
the task should be easier than recent American experience indicates, for in that
country the biggest difficulties have centered on notification of Congressional
Committees, and approval of covert operations involving political interference
in thé affairs of foreign countries, rather than on intelligence collection . As a
Canadian service should not have a mandate to indulge in active measures of
intervention, drawing up a charter to cover the collection of secret intelligence
might be somewhat less complicated and controversial . In addition to a
prohibition on active measures, we would not envisage a secret service having
any paramilitary functions .
2 See, for example, John Bruce Lockhart, "Secret Services and Democracy", Brassey
Annual Review, 1975-76 ; and "The Relationship Between Secret Services and Government in a Modern State", Journal of the Royal United Services Institute for Defence
Studies, June 1974 .
645
�80. A legislative mandate should also specify the controls to which such a
service would be subjected and also provide for Executive and Parliamentary
review of its activities .
81 . Finally, it is almost axiomatic that the government should develop an
assessment capacity not solely within the collecting agency . Recent experiences
abroad amply illustrate the dangers of maintaining the two functions wholly
within one agency . Thus the establishment of a strengthened capacity at the
centre of government for assessing intelligence and defining intelligence priorities along the lines proposed in Part VIII of this Report would be an essential
prerequisite for an expanded foreign intelligence collection capability .
646
�CHAPTER 8
RELATIONSHIPS WITH OTHER
DEPARTMENT S
PROVINCIAL AND MUNICIPAL AUTHORITIE S
INTRODUCTION
1 . In this chapter, we examine the relationship of the security intelligence
agency with other governmental bodies having security and intelligence responsibilities . The chapter has two sections . In the first, we focus on what some
refer to as the federal government's `security community' . We concentrate
most of our attention on two departments - the Department of External
Affairs and the Department of National Defence . Other departments are also
affected by our recommendations but in this chapter we indicate only the
general nature of these changes and where they are dealt with in this Report .
In the second section of this chapter, we explain the relationships between the
security intelligence agency and provincial and municipal authorities . Our
general theme throughout both parts of this chapter is the need for a higher
degree of co-operation among those government bodies whose activities in some
way affect the security of Canada .
A . RELATIONSHIPS WITH OTHER FEDERAL
GOVERNMEN T
DEPARTMENTS AND AGENCIE S
2 . In earlier chapters of this Report, we noted that the R .C .M .P . has made
formalized written agreements with a significant number of federal government departments and agencies . Many of these agreements have sections
relating to the Security Service . We have expressed our concern, particularly in
several chapters in Part III, with the contents of some of these agreements .
Here, we wish to register our deep concern over the fact that most of these
agreements were not submitted for approval by the Solicitor General, the
Minister responsible for the R .C .M .P . These agreements do not deal with
trivial matters ; many have an important bearing on significant policy issues
affecting R .C .M .P . operations . Moreover, as we pointed out earlier, some of
these agreements are questionable on grounds of legality and propriety . We
believe that the Deputy Solicitor General and the Director General of the
security intelligence agency should ensure that all agreements which are made
between the agency and other federal government bodies and have significant
implications for the conduct of security intelligence activities be brought to th e
647
�attention of the Solicitor General for his approval . The Solicitor General
should inform his colleagues on the Cabinet Committee on Security and
Intelligence of the nature of these agreements .
3 . The unwillingness on the part of the R .C.M .P . to seek the Solicitor
General's approval of agreements with other departments is another manifestation of one of the Force's principal weaknesses : its poor capacity for dealing
effectively with other departments and agencies of government . Nowhere is
this weakness more apparent than in the Security Service's relationship with
the Department of External Affairs .
The Department of External Affairs
4. As we have stated throughout this Report, many of the threats to Canada's
security emanate from abroad . This single fact demands the closest of co-operation between the Department of External Affairs and the security intelligence
agency . Until recently, however, they have not enjoyed a close relationship . In
some ways, the tension and suspicion between the two bodies is almost
inevitable : the Department of External Affairs is committed to an easing of
international tensions based on co-operation and understanding ; the Security
Service tends to view the activities of many foreign countries with deep
suspicion . The result is a difference of views on the threats to this country's
security which originate abroad . One example of how these differing points of
view lead to conflict is in deciding the appropriate course of action in the case
of a foreign diplomat engaging in improper intelligence activities . While the
Security Service has generally favoured the prompt expulsion of these
diplomats, the Department of External Affairs, either through fear that
Canadian diplomats will be expelled in reprisal or because of the timing of a
certain diplomatic initiative, has not always agreed to declare these diplomats
personae non gratae. Such differences, we should note, are not peculiar to
Canada . In the nations with which we are most familiar, similar tensions exist
between those organizations charged with the conduct of foreign relations and
those concerned with the conduct of security and intelligence activities . The
situation in this country, however, is worse than it needs to be, in part because
of the wide differences in educational background and work experiences of the
staff of the two organizations . We think that some of our recommendations will
help this situation, principally those dealing with the recruitment and training
of personnel for the security intelligence agency . Such measures will go some
way towards encouraging a greater measure of sophistication in the analysis of
international affairs by the agency, a change that in itself we would hope will
reduce the current disparities in the views of the Department of External
Affairs and the Security Service .
5 . While mutually negative attitudes have been part of the underlying tension
between the two bodies, an attempt has been made by both of them since the
mid-1970s to provide mechanisms for improving the process of co-operation .
6 . We believe that a Memorandum of Understanding is one means of
ensuring compatibility between Canada's security intelligence activities which have international effects - and its foreign policy endeavours . Conse648
�quently we recommend that the separate and civilian security intelligence
agency, the creation of which we propose in Part VI, draw up a memorandum
of understanding between itself and the Department of External Affairs . This
document should be prepared by the respective deputy ministers, the Under
Secretary of State for External Affairs and the Deputy Solicitor General, and
submitted for approval to their Ministers . It should cover the appropriate
aspects of security and intelligence co-operation and co-ordination listed above .
We now consider the general principles which should be contained in this
memorandum . The changes we are recommending call foi• a higher degree of
involvement by the Secretary of State for External Affairs and his officials in
setting security intelligence policy and in deciding on specific operations with
international implications .
(i) Consultatio n
7. There are at present regular meetings between the Deputy Under Secretary of State for External Affairs (Security and intelligence) and the Director
General of the Security Service . We think it would be desirable to continue this
practice after the formation of a separate and civilian security intelligence
agency . In addition, there is a need for the Deputy Solicitor General and the
Under Secretary of State for External Affairs to discuss on a regular basis
important questions of policy requiring resolution . The role of the Deputy
Solicitor General in these policy discussions is consistent with the recommendations we make in Part VIII, Chapter 1, calling for this official to be more
active in directing and controlling the security intelligence agency .
(ii)
Foreign operations undertaken by the security intelligence agenc y
8 . In the, previous chapter, we set out the need for a set of guidelines for
foreign operations of the security intelligence agency . Further we recommended that the Cabinet Committee on Security and Intelligence, of which the
Secretary of State for External Affairs is a member, should approve such
guidelines . Under our recommendations, the Solicitor General and his deputy
have the main responsibility for ensuring that the guidelines are adhered to by
the security intelligence agency . Our recommendations also call for periodic
reviews of the guidelines by officials in the Department of External Affairs and
the security intelligence agency in the light of past operations . The security
intelligence agency should consult with the Department of External Affairs in
advance only concerning those foreign operations with significant implications
for Canada's foreign relations .
(iii)
Counter-intelligence operations in Canada
9 . Counter-intelligence operations in Canada are of concern to the Department of External Affairs when they involve foreign nationals working in this
country, or diplomats working out of their missions here who are suspected of
intelligence activities . In Chapter 4 of this part of the Report, we discussed
information collection methods to be employed by the security intelligence
agency . We recommended the establishment of three basic levels of investigation . The third level, what we have called the full investigation, requires a
649
�three-stage initiating procedure . It is at the first stage, in which senior officers
of the security intelligence agency and officials of government departments
consider the merits of proposals for full investigation, that we think the
Department of External Affairs should be consulted in certain circumstances
when proposals have a bearing on foreign relations . We should emphasize that
External Affairs should not have a power of veto over security operations .
(Differences between the security intelligence agency and External Affairs
which cannot be resolved at the official level must be taken up at the
ministerial level .) Nevertheless, our recommendations here call for a higher
degree of involvement of the External Affairs Minister and his officials in
important operational decisions .
(iv)
Agreements between the security intelligence agency and foreign
agencies
10. Our principal recommendation here, as set out in Part V, Chapter 7, was
that future agreements conform to guidelines to be formulated by the Cabinet
Committee on Security and Intelligence and approved by Cabinet .
The Department of National Defenc e
11 . The Department of National Defence has responsibilities to provide "aid
of the civil power" under section 233 of the National Defence Act .' Under this
section, the Chief of the Defence Staff must comply with a request for troops
from a provincial attorney general i n
. .. any case in which a riot or disturbance of the peace requiring such
services occurs, or is, in the opinion of an attorney general, considered as
likely to occur, and that is beyond the powers of the civil authority to
suppress, prevent or deal with .
The Chief of the Defence Staff has the authority, however, to determine what
resources are required to deal with a particular situation . (We discuss "aid of
the civil power" in more detail in Part IX, Chapter 1 .) To help the Department
of National Defence perform these responsibilities, there are arrangements for
the exchange of intelligence and information concerning the threat to internal
security . It is recognized that the flow of information is primarily one way from the Security Service to the Department of National Defence .
12 . Under the mandate we are proposing for Canada's security intelligence
agency, there will continue to be a need for close co-operation between the
Department of National Defence and the new agency . The Department has
other needs for security intelligence information in addition to "aid of the civil
power" . Securing Canadian Forces bases across the country and being aware of
the activities of foreign spies interested in Canada's military secrets are two
such examples . We consider it necessary, therefore, that the Deputy Solicitor
General, the Deputy Minister of National Defence and the Chief of the
Defence Staff negotiate a Memorandum of Understanding to be ratified by
their respective Ministers .
' National Defence Act, R .S .C . 1970, ch .N-4 .
650
�13 . Our recommendations in Part VII with respect to the security screening
process will not significantly alter the Department of National Defence's
security screening role in regard to its own employees . The Department would
continue to call upon the R .C .M .P . for criminal records checks, and would
request information from the security intelligence agency about activities
which are threats to security as defined by Parliament . The Department could
carry out field investigations, as it now does, provided that these investigations
are confined to information about a person's character and personal qualifications and are consistent with the role we have recommended for security
staffing officers from the Public Service Commission or government depart•
ments . (See Part VII, Chapter 1 .)
14 . As for communications security, the security intelligence agency would
continue the Security Service's role of providing technical advice and intelligence about threats to security to all those in government responsible for
maintaining communications security . The R .C .M .P .'s "P" Directorate would
retain its lead role in establishing and monitoring the maintenance of standards
in technical security matters such as in computer security . The Department of
National Defence would thus liaise with both "P" Directorate and the security
intelligence agency on these matters .
Other federal government departments and agencie s
15 . We refer the reader to the appropriate chapters of our Report where our
recommendations have important implications for the relationship of the
security intelligence agency to other federal government departments and
agencies . There are four such chapters . Our recommendations for thé security
screening of the Public Service in Part VII, Chapter 1 have an important
impact on other government departments and especially the Public Service
Commission . Then, in Part VII, Chapter 2, where we discuss security screening
for immigration purposes, we suggest a number of changes affecting the
Canadian Employment and Immigration Commission . In Part VIII, Chapter 1,
we examine the interdepartmental security and intelligence committee system,
and here again, our recommendations have important implications for several
government departments . Finally, in Part IX, Chapter 1 we discuss the subject
of crisis management, another area of interdepartmental endeavour for the
security intelligence agency . In all of these chapters, our aim is to ensure that
the relationships of the agency with other government departments conform to
the mandate we are recommending for the agency, help the agency become
better integrated with the rest of government, and provide the agency with
continuing `feedback' about the usefulness of thé information it is providing .
WE RECOMMEND THAT the Solicitor General approve all agreements
which the security intelligence agency makes with other federal government departments and agencies and which have significant implications for
the conduct of security intelligence activities.
(57)
WE RECOMMEND THAT the security intelligence agency, once it has
separated from the R .C .M .P ., negotiate a Memorandum of Understanding
with the Department of External Affairs.
(58 )
651
�WE RECOMMEND THAT the Deputy Solicitor General, the Deputy
Minister of National Defence and the Chief of the Defence Staff negotiate
a memorandum of understanding to be ratified by their respective
Ministers .
(59 )
B . RELATIONSHIPS WITH PROVINCIAL AND
MUNICIPAL AUTHORITIE S
16 . In a federal state, the relationship between federal security authorities
and provincial governments and the police forces under their authority is
extrernely important . Australia and the Federal Republic of Germany are
considerably ahead of Canada in establishing an effective system of liaison
between the national security agency on the one hand and the governments and
police forces of the member states on the other . Granted that each federal state
must achieve inter-governmental co-operation according to its own constitutional traditions and institutional arrangements, still we think there is room for
much improvement in federal, provincial and municipal liaison on national
security matters in Canada . To a large extent we think that improvement in
this area depends on recognition by the federal authorities that from a practical
point of view Canada's security should not be treated as a water-tight
compartment of exclusive federal responsibility and that effective protection
against security threats requires the co-operation of provincial and municipal
authorities . We develop this theme further in examining the following five
areas : security screening, V .I .P . protection, liaison with provincial police and
security organizations, co-operation between federal and provincial ministers,
and the investigation of criminal activity by members or sources of the security
intelligence agency .
Security screening
17. The provision of security screening services by the R .C .M .P . for provincial and municipal authorities has a long history . Here we summarize briefly
only the highlights of this history . In 1954, R .C .M .P. Commissioner Nicholson
agreed to undertake `subversive' and criminal records checks for the police
forces that were members of the Chief Constables' Association of Canada . The
Ontario Provincial Police and the Metro Toronto Police were the only forces to
take advantage of the offer . An R .C .M .P . policy was adopted in 1957, and
reaffirmed in 1963, which approved assistance to contract provinces (those
provinces that, under arrangements with the federal government, use the
R .C .M .P . for policing, both on a provincial and municipal basis) under strict
conditions, whereby the provincial attorney general could request background
security checks on provincial government employees . An arrangement with a
non-contract province occurred in October 1971, when the Quebec Police
Force set up screening arrangements with the R .C .M .P. for the Centre
d'Archives et Documentation (C .A .D .), a security intelligence advisory Committee for the Quebec government . Under this arrangement the Quebec Police
Force did the field investigation and the R .C .M .P . did the criminal and
subversive records checks . As requests grew dramatically, the Quebec govern652
�ment under Premier Robert Bourassa adopted a screening document similar to
the federal government's Cabinet Directive 35 (CD-35), the document setting
out security criteria for employment in the federal Public Service . From 1971
to 1977, the Security Service conducted over 6,000 security screening checks
on behalf of the Quebec authorities .
18. In June 1978, the R .C .M .P . Security Service in South Western Ontario
submitted a memorandum seeking clarification of the federal government's
policy in relation to the screening of applicants for the Ontario Provincial
Police, and the Metro Toronto Police Department, and for sensitive positions
within the Ontario government . This request led to a review of the screening
service provided by the R .C .M .P . Security Service to police forces and
provincial governments, and to an examination of the authorizations for
providing this service . Because CD-35 did not specifically authorize screening
services for agencies outside of the federal government, the Diréctor General of
the Security Service, Mr . Dare, gave instructions on June 29, 1978 to suspend
this screening service .
19.' While the programme was suspended pending the Solicitor General's
decision, Mr . Dare, in a letter to Mr . Bourne, the Assistant Deputy Minister,
Police and Security Branch, provided two reasons in support of continuing the
vetting service. The first was that joint operations between federal, provincial
and municipal security and police agencies required close co-operation . Hence,
it would be desirable that municipal and provincial participants in these joint
operations be security cleared . Second, the screening of,some provincial and
municipal government employees was defensible on grounds of national security . Employees with access to sensitive information involving, for example, the
administration of justice, the vital points programme, or emergency measures,
should be "loyal, reliable and of good character" . Consequently, Mr . Dare
proposed that the R .C .M .P . should respond to (a) requests from an attorney
general which had a bearing on national security and (b) requests from a
provincial or municipal law enforcement agency which was a member of the
Canadian Association of Chiefs of Police . The Honourable Jean-Jacques Blais,
the Solicitor General, gave his authorization for a resumption of the screening
service on an interim basis . Before the service resumed, however, the government changed and the matter was not acted upon by the new Solicitor General,
the Honourable Allan Lawrence . The present Solicitor General, the Honourable Robert Kaplan, has also not authorized the resumption of this service .
20. We believe that there are distinct advantages in the security intelligence
agency providing security screening services to provincial governments and to
provincial and municipal police forces . The provision of such services should
improve communication between federal and provincial bodies with security
responsibilities and may facilitate further federal-provincial co-operation . In
addition, there is a real danger that security intelligence services, established in
part to perform this service, will proliferate at the provincial level . Increasing
the number of such services in Canada would appear to us to complicate the
control and monitoring of security intelligence activities . In recommending that
the federal government provide screening services upon request to provincial
governments and provincial and municipal police forces, we emphasize that th e
653
�Solicitor General should approve all such requests for a screening programme
and that the security intelligence agency should provide only information that
is within its mandate to collect . Thus, those provincial and municipal bodies
receiving the screening services should have primary responsibility for assessing
character reliability . Finally, we believe that it would be highly desirable for a
province using this screening service either to establish its own review mechanisms for persons who believe that they have been treated unfairly in the
screening process, or to `opt into' the federal review system which we propose
in Part VII, Chapter 1 .
21 . What should happen if the security intelligence agency, in the course of
an investigation not connected with a provincial screening programme, comes
across information relating a provincial public servant or politician to a
security threat? In our examination of Security Service files, we discovered
that at least one such case had occurred within the last 10 years . A regionally
based Security Service officer approached a provincial premier in order to
warn him about the activities of certain members of his party . We believe that
a security intelligence agency should report security relevant information to
provincial politicians and officials, but the agency should exercise great care in
doing so. Otherwise, as we noted in Part V, Chapter 3, it runs the risk of
damaging the very democratic process which it has been established to secure .
Given the sensitivity of such matters, we believe that the agency should seek
the approval of the Solicitor General before reporting security relevant information relating to provincial politicians or public servants .
V.I.P. security
22 . A further aspect of security work in which a high degree of federal-provincial co-operation is required is in the protection of V .I .P .s such as members
of the Royal Family, the leaders of other countries and Canadian dignitaries .
Currently, "P" Directorate of the R .C .M .P . is responsible to the federal
government for protecting V .I .P .s, a responsibility that involves liaison with
provincial authorities and also with the R .C.M .P . Security Service . The
Security Service is expected to provide "P" Directorate with assessments
regarding security threats to V .I .P .s including the potential for violence
developing at international events taking place in this country . It is not the role
of the Security Service to provide the actual protection, but rather the
intelligence on which protective measures can be based . It falls to "P"
Directorate to produce the actual plans and details of protection . In performing
this function, "P" Directorate often must solicit the help of provincial and
municipal police forces who will assist in the role of providing protection . In the
past, disagreements have arisen either because, in "P" Directorate's view, too
much security has been provided or, alternatively, too little has been provided .
23 . We believe that a more systematic process of co-operation and co-ordination is necessary. In line with some foreign experience, we think that a formal
mechanism should be established to co-ordinate V .I .P . security measures. To
this end, it would be useful for the government to study the evolution and
practice of the co-operative and co-ordinating machinery that exists in Australia and in the Federal Republic of Germany . The recently established
654
�Australian machinery is particularly interesting . In proposing the establishment of a Standing Advisory Committee on Commonwealth-State Co-operation for Protection against Violence, the Australian Prime Miriister stated that
its purpose was to achieve "the highest degree of efficient operation and
co-operation on a nationwide basis"z in providing advice to government about
politically motivated violence . It meets every six months . In Canada, there now
exists federal-provincial-municipal co-ordinating machinery for dealing .with
various kinds of crises . Similar machinery could be developed for V .I .P.
security . One facet of this co-ordinating machinery might be written agreements between various levels of government . These should set out, we think,
the duties of the law enforcement agencies and also the role of the security
intelligence agency as the collector of intelligence and the body responsible fôr
taking the lead role in assessing the degree of threat . In this way, and with a
central body for co-ordination, the degree of overlap between the jurisdictions
might be reduced and protective security measures more effectively co-ordinated between them .
Liaison with police and provincial security organization s
24 . V .I .P . protection is only one among many security concerns requiring
co-operation between the security intelligence agency and domestic police
forces . With the creation of a separate and civilian agency at the federal level,
liaison problems may increase at least in the short term, because of the
traditional reluctance on the part of police forces to share criminal intelligence
information with members of an agency who are not policemen . To help
overcome these problems, we make two suggestions . First, the security intelligence agency should establish a special liaison unit, staffed in part by personnel
with police backgrounds . The major responsibility of this unit would be to
facilitate the exchange of security relevant information with domestic police
forces and to encourage co-operation . Second, following the example of its
Australian counterpart, the security intelligence agency should attempt to
develop written agreements with major domestic police forces . These agreements, among other things, would establish liaison channels, specify the types
of information to be exchanged, and indicate under what conditions joint
operations could be conducted . The Solicitor General should approve such
agreements .
25 . The potential problems connected with joint operations deserve special
comment . The evidence given before us of the joint operation against the
A .P .L .Q . (Operation Bricole) by members of the Montreal City Police, the
Quebec Police Force, and the R .C .M .P . Security Service illustrates that the
planning for this operation took place at the local level in isolation from
Security Service Headquarters . Because there was no plan approved by Headquarters, the respective roles of the three forces were unclear . The R .C .M .P .
officer who was asked to approve the actual surreptitious entry of A .P .L .Q .
offices was under the impression that the R .C .M .P . was playing only a support
role. He gave his approval because he believed that, if he failed to do so ,
z Quoted in Mr . Justice R .M . Hope, Protective Security Review (Canberra, 1979), p .
56 .
655
�relations between the R .C .M .P. and the two forces would suffer . To avoid these
and other problems, we propose that the Director General or a deputy
designated by him be informed of all joint operations . Of course, under the
control system we have recommended joint operations involving the most
intrusive techniques in investigation will also require ministerial approval .
Moreover, general schemes of longer term co-operation between the security
intelligence agency and provincial authorities should require ministerial
approval . Before approving a joint operation the Director General should have
at least the following information :
- an assessment of the targe t
- the reasons for the joint operatio n
- the resources each partner in the operation plans to commit
- the expected duratio n
- the organizational structure for the operation
- the type of investigative techniques to be use d
- a plan for providing senior members of the security intelligence agency
with periodic progress report s
26. Even these two types of prior approval may not be sufficient to avoid all
of the serious pitfalls that a joint operation may present . For example, we
would be concerned if the partners of the security intelligence agency in a joint
operation rather than the agency itself took complete responsibility for employing intrusive investigative techniques . In this way, the agency would be
receiving the intelligence and indeed participating in the management of the
operation without having to go through the stringent control procedures which
we have recommended in Chapter 4 of this part of our Report . To avoid this
problem, we are of the view that the security intelligence agency should not use
joint operations to circumvent control procedures for the use of covert intelligence-gathering methods . The Solicitor General should develop guidelines for
the use of such methods in joint operations l
Relationships with provincial attorneys general and solicitors general .
27. Co-operation in the past between federal and provincial authorities with
security responsibilities has been of an ad hoc nature . We have alreadÿ noted
the situation regarding security screening for provincial or municipal aùthorities . Co-operation between the two levels of government, has, typically, been
through two channels : from the federal Solicitor General to his provincial
counterparts ; and from the R .C .M .P . to the provincial attorney general . In
total, however, there has been little co-operation of a systematic nature . In the
autumn of 1977, at the close of the Federâl-Provincial Conference of Attorneys
General, a press communiqué was issued committing the Ministers responsible
for police forces at both levels of government to close co-operation and
co-ordination of intelligence-gathering in relation to organized crime . In
response to this commitment, the R .C .M .P . canvassed all divisional Commanding Officers on the method and frequency of their communications with
provincial attorneys general . The results showed a great diversity in th e
656
�frequency of contacts . While these . contacts dealt principally with police
matters, the Director General of the Security Service, Mr . Dare, directed that
briefings of provincial authorities should also cover security matters of mutual
concern such as terrorism . The briefings took place in the first half of 1978 and
concentrated on areas where the Security Service's application of covert
investigative techniques may have contravened provincial statutes . One result
was that some of these techniques were discontinued pending clarification of
their use by the attorneys general .
28 . Our philosophy is that a spirit of federal-provincial co-operation should
exist in the areas of policing and security . As stated at the beginning of this
section, these areas will not benefit from a jealous guarding of jurisdictions .
Indeed, many of our proposals are premised upon co-operation between the
federal government and the provinces . Unilateral action cannot resolve many of
the issues that we have examined throughout this Report . In the preceding
paragraphs we have mentioned the need for systematic co-operation between
the two levels of government through the use of . written agreements covering
such activities as security screening, V .I .P . security, and liaison between the
security intelligence agency and provincial and municipal police forces . Similar
co-operation is necessary in the effective handling of complaints alleging
R .C .M .P . misconduct - a topic which we examine in Part X, Chapter 2 . In
addition, our analysis has shown that if the rule of law is to be strictly
observed, neither the security intelligence agency nor criminal investigation
agencies can effectively carry out- their functions without amendments to
provincial as well as federal laws . Thus there is a need for formal co-operation
between the federal Solicitor General and the provincial attorneys general or
solicitors general in obtaining the necessary legislative changes .
29 . It is clear, therefore, that for both legal and operational reasons, the
Solicitor General and his provincial counterparts should establish more effective procedures and mechanisms for federal-provincial co-operation in security
matters . In this regard, we should note one further concern . It would be tragic
for the future of Canadian democracy if, having brought security intelligence
operations under an adequate system of control at the federal level, there were
to emerge at the provincial level or in the private security industry organizations using operational techniques which encroach on liberal democratic principles and which are not subject to a rigorous system of democratic control . We
are particularly concerned about the growth of the security industry in the
private sector . There are now more private security personnel in Canada than
there are policemen . A few large firms dominate the contract part of the
industry and within such firms former members of the R .C .M .P . are prominent . There is some evidence that these former members retain close links with
their former colleagues - links which may give them access , to security
information .' A prime concern in the expansion of private security forces is
their effect on cherished freedoms in this country through, for example, thei r
The expansion of the security industry in the private sector is outlined in Clifford D .
Shearing and Philip C . Stenning, Private Security and Law Enforcement in Canada, a
study prepared for the Department of the Solicitor General, December 1977 .
657
�possible use to infiltrate groups in order to prevent unionization . A similar
growth in the private security industry is evident in the United States particularly since the reforms which have changed the scope of F.B .I . operations . We
are disturbed by this trend and are convinced that effective co-operation
between the federal and provincial authorities, including the security intelligence agency, must be established to monitor this development .
The reporting and investigation of alleged criminal activity committed by
members or agents of the security intelligence agenc y
30. Two important questions concerning the relationship between federal and
provincial governments arise when there is some indication that members or
agents of the security intelligence agency have been engaged in acts that may
be violations of the Criminal Code or other federal or provincial statutes . First,
if knowledge of criminal activity first comes to the attention of the Solicitor
General of Canada or some other federal Minister, should they be obliged to
bring the matter to the attention of the prosecuting authorities in the province
where the violation of the law has apparently occurred? Second, should there
be any limitations on the access by provincial investigators to information held
by the federal government which may relate to the alleged offences ?
31 . These are difficult questions and neither existing statute law nor judicial
decisions provide full answers . These questions have not been submitted to a
systematic analysis by provincial and federal authorities, nor are we aware of
clearly defined solutions adopted by other federations . We think it will be
essential for federal and provincial authorities to discuss these questions and to
consider alternative solutions . The approach we suggest below is designed to
strike a balance between provincial responsibility for the administration of
justice and the paramount federal responsibility for protecting the security of
Canada . As such, it avoids the extreme of giving either level of government an
absolute and exclusive authority for investigating and directing criminal proceedings with respect to criminal activities by persons associated with the
security intelligence agency . We hope that this proposal will be of assistance to
those involved in federal-provincial consultations on this subject and we suggest
that the approach we outline below be followed at least on an interim basis
while a permanent system is being developed .
32 . We think that the starting point for answering the questions we pose in
this section must be recognition of the fact that traditionally in Canada the
provinces have exercised the prime responsibility for instituting criminal proceedings . We are not concerned here with violations against the Official
Secrets Act, which expressly makes prosecution subject to the approval of the
Attorney General of Canada, or with the Narcotic Control Act, as to which the
Supreme Court of Canada has held that there is concurrent federal and
provincial jurisdiction to prosecute .4 We also leave aside other federal statutes
that create offences, such as the Income Tax Act and the Customs and Excise
Act, jurisdiction over the enforcement of which has not in recent years bee n
" R. v . Hauser [1979] 1 S .C .R . 984 .
658
�vigorously asserted by the provinces . As far as federal legislation is concerned
our discussion here relates only to violations of the Criminal Code .
33 . The position traditionally taken by the provinces is that violations of the
Criminal Code and of provincial statutes are matters relating to "the administration of justice in the province" and therefore are within provincial jurisdiction under section 92(14) of the British North America Act . There is, of
course, no question that the enforcement of provincial statutes is a matter for
the provinces . As for the Criminal Code, the provincial position is generally
supported by constitutional authorities . One recent author summarizing judicial decisions on this issue states that : s
The responsibility for the enforcement of the criminal law by police and
prosecutors has been held to be within the provincial power over the
administration of justice .6 However, the federal Parliament has concurrent
authority to provide for the enforcement of the criminal law on the basis
that its legislative power over the criminal law (or any other subject matter)
carries with it the matching power of enforcement .' In fact, however, the
enforcement of the criminal law is for the most part carried out by the
provinces .
Apart from Supreme Court decisions and statements of constitutional scholars
on the law, we take cognizance of the policy statements of federal Ministers of
Justice in the House of Commons to the effect that the prime responsibility for
instituting proceedings with respect to Criminal Code offences rests with the
provincial authorities . e
34. We see no reason for departing sighificantly from the tradition of
provincial responsibility for criminal proceedings when it comes to offences by
persons associated with Canada's security intelligence agency . On the contrary,
precluding provincial responsibility for criminal law enforcement on the
grounds that national security may be involved would conflict with the pattern
of federal-provincial co-operation which, as we have recommended throughout
this Report, should be the prevailing practice in national security matters .
35 . Thus, when federal authorities become aware of possible criminal activities by members or agents of the security intelligence agency, the normal
situation should be that the matter is brought to the attention of the appropriate provincial attorney general . It would then be up to police forces accountable to the provincial attorney general to proceed with the investigation and up
to the provincial attorney general to decide whether or not to prosecute . We
take exactly the same approach to the investigation and prosecution of criminal
activity by members of the R .C .M .P. involved in criminal investigation work
(see Part X, Chapter 2) .
I Hogg, Constitution of Canada, Toronto, Carswell, 1977, pp . 277-8 .
6 Citing principally Di brio v . Montreal Jail Warden (1977) 73 D .L .R . ( 3d) 491 (Sup.
Ct . Can .) .
Citing Re Collins and the Queen [1973] 2 OR . 301, affirmed without reference to
merits [1973] 3 OR . 672 (Ont . C .A .) ; R . v . Pelletier [1974] 4 OR . (2d) 677 (Ont .
C .A .) .
These statements are discussed in J .LI .J . Edwards, Ministerial Responsibility for
National Security, Ottawa, 1980, pp . 14-15 .
659
�36. We think that the proper channel for communicating information to the
provincial authorities about criminal activity by members or agents of the
security intelligence agency is the,Attorney General of Canada . Where federal
authorities, such as the Legal Adviser to the security intelligence agency, or the
Solicitor General as the Minister responsible for the agency, or the independent
review body, (the Advisory Council on Security Intelligence which we recommend be established in Part VIII, Chapter 2), come across evidence pointing to
criminal violations by members of the agency or by persons on behalf of the
agency, they should bring the matter and all the evidence, pertaining to it to
the attention of the Attorney General of Canada .
37 . Once evidence of a criminal offence by a member or agent of the security
intelligence agency is brought to the attention of the federal Attorney General,`
he should, subject to one exception, report the matter and the evidence
pertainirig to it to the attorney general of the province in which the alleged
offence occurred. The one exception is a situation in which the Attorney
General of Canada is convinced that national security, as defined in the Act
governing the security agency, would be seriously damaged by turning over to
the provincial authorites the evidence on which a decision to prosecute would
have to be based . Such a decision by the Attorney General of Canada would be
subject to a review procedure we will describe below . We stress that a decision
not to report evidence of criminal activity to a provincial attorney general
should only be made in highly exceptional circumstances by the law officer of
the Crown at the federal level, applying the definition of national security in
the statute governing the security intelligence agency and subject to an
independent review process . The normal situation should be that such evidence
is reported . to the provincial attorney general so that the conduct of any ensuing
investigation and the decision as to whether or not to lay charges may be made
at the provincial level . This does not preclude federal authorities, including
representatives of the security intelligence agency, discussing with the provincial attorney general the security implications of instituting criminal proceedings . But the decision as to whether or not to prosecute would normally be
made by the provincial attorney general .
38 . The second question we are concerned with may arise when, independently of reports from the federal Attorney General, the provincial attorney general
receives information about a possible criminal offence by a member or agent of
the federal security intelligence agency . What access will the provincial
attorney general have to relevant information held by departments or agencies
of the federal government? Let us be clear that we are discussing this question
at the investigatory stage . Once a decision to prosecute is made and the case is
before the courts, there are a number of laws such as section 41 of the Federal
Court Act and rules concerning the protection of the identity of sources which
may provide a legal basis for not disclosing certain information in judicial
proceedings .9 But we are concerned here with the position of the provincial
attorney general before trial when he is trying to determine whether the
evidence in his possession justifies laying a charge . At this stage he may well
have reason to believe that important evidence which may have a vital bearing
on the exercise of his prosecutorial discretion is in the hands of the federa l
660
�government. In these circumstances should there be any. lim'►tation, on his
access to information held by the federal government ?
39 " Again our answer to this qûestion 'is that, in a situation of this kind, 'the
governing principle should be that the federal authorities co-operate fullÿ''with
the provincial'attorney general and that, subject to one exception, the Attorney
General of Canada should see to it that all the information possessed by the'
federâl 'govern'ment pertinent to the alleged offence is disclosedto the provincial attorney general . The one exception 'to this' principle of full disclosure is
that there may be very exceptional circumstances in which the disclosure of
certain information to provincial prosecutorial authorities would jeopardize the
protection of national security as we have defined that concept in this Report .
In these circumstances, and subject to a review process which we will enlarge
upon below, we think the Attorney General of Canada should have the right to
withhold information from a provincial attorney general . . Recognition of this
right is a necessary safeguard to ensure that the federal government can .
effectively .discharge its paramount responsibility for protecting the security of
Canada .
40. Setting some limit to the federal government's obligation to co-opérate'
with provincial authorities in investigating criminal activity by members of the
security intelligence agency is consonant with the basic tendency in our legal
system to balànce the need for effective law enforcement with the need to
protect other important social values . The powers of investigating and prosecuting authorities in the Canadian legal system are'not unlimited . For example,
there is *recognition at both the investigativè and trial stages of our criminal
justice system of the need to maintain the confidentiality of lawyer-client•
communications and, in the public sphere, section 41 of the Federal Court Act'
recognizes the right of a federal Minister to withhold information from court'
procèédings on â number of grounds including the danger of causing injury to
national security . It would seem -to us to be imprudent not to provide some
protection for that latter intérest at the investigatory stage of criminal proceedings . In taking this position, we should're-et'rtphasize that the limit on 'provincial investigators' access to federal government information should apply only
..
.
in exceptional circumstances .
In our First Report, Security and Information (Ottawa, Department of Supply and
Services, 1979), we recommended' that "the provision of section 41(2) of the Federal
Court'Act not apply to security and intelligence docum~ents or their contents and tha t
new legislation -be enacted providing .tha t
-(a) when a Minister of the Crown claims a privilege for such information
on the grounds that its disclosure would be injurious'to'the security of
Canada ; or
• (b) any person hearing any judicial procéedings is of the opinion that th e
giving of any evidence would be injurious to the security of Canad a
the matter shall bè referred to a judge of the Federal Court of'Canada,'
designated by the Chief Justice of that court, to determine whether the
giving of such evidence should be refused.
661
�41 . In a régime which strives to maintain federal-provincial co-operation in
security matters such a restriction should rarely apply . But we can think of
possible examples . For instance, some information on the security intelligence
agency's files will have been obtained from foreign agencies on the firm
understanding that it not be passed on to a third party . In the previous chapter
we pointed out how essential it was for Canada's security intelligence agency to
attach similar restrictions on information the Canadian agency provides to the
national security agencies of other countries . We would think it wrong for the
federal government to be required to turn over information to provincial
investigators in circumstances that would violate the conditions under which
information has been obtained from a foreign country . Another example is one
in which the identity of a security intelligence informant who has penetrated a
terrorist cell may be contained in records of security operations relating to a
criminal offence which is being investigated by provincial authorities .
42 . It is important that the federal decision not to report evidence of criminal
activity to a provincial attorney general or to restrict the provincial attorney
general's access to information be made as carefully as possible and be subject
to review . Therefore, the Attorney General of Canada, as the Law Officer of
the Crown at the federal level, should be responsible for making such decisions .
He should be guided by a statutory standard which empowers him to withhold
information if in his opinion disclosure of the information would seriously
jeopardize the protection of Canada's national security as that concept is
defined in the Act governing the security intelligence agency. In exercising his
judgment the Attorney General of Canada should bear in mind that the
governing principle favours co-operation with the provincial attorney general .
43 . . An independent review of the Attorney General's decision should be
provided by the independent review body (the Advisory Council on Security
and Intelligence) . Full details of the information withheld should be reported to
that body and, if it does not agree with the decision, it should so notify the
Attorney General of Canada, and the Joint Parliamentary Committee on
Security and Intelligence .
44 . To increase the acceptability of the review process to the provinces, we
think it would be wise to add provincial representatives to the Advisory Council
on Security and Intelligence when it is reviewing decisions of the Attorney
General of Canada . For this purpose the federal government should be able to
supplement the membership of A .C .S .I . by three persons selected from a panel
of seven persons nominated jointly by all the provincial attorneys general .
Those persons should be bound by the same constraints as the regular members
of the independent review body and therefore would not be permitted to
disclose the information to which they are made privy, except to those persons
to whom the independent review body may disclose it . We think that, even if
the regular members of the independent review body do not decide that the
matter should be the subject of comment and report to the Parliamentary
Committee, it should nevertheless be the subject of such comment and report if
such is desired by a majority of the provincial nominees .
662
�WE RECOMMEND THAT the security intelligence agency and the
R .C.M .P., with the approval of the Solicitor General, provide, upon
request, security sçreening service s
(a) to provincial governments for public service positions which have a
bearing on the security of Canada;
(b) to provincial or municipal police forces .
(60)
WE RECOMMEND THAT the security screening services provided by
the security intelligence agency for provinces and municipalities be subject
to the same conditions which apply to the screening services for federal
government departments and agencies .
(61)
WE RECOMMEND THAT, if the security intelligence agency obtains
security relevant information about provincial politicians or public servants
in the course of an investigation unrelated to a security screening programme for the Province in question, then the agency seek the approval of
the Solicitor General before reporting this information to the appropriate
provincial politician or official .
(62)
WE RECOMMEND THAT the Solicitor General encourage a provincial
government which uses these security sceening services either to establish
its own review procedures for security screening purposes or to opt into the
federal government's review system .
(63 )
WE RECOMMEND THAT the Solicitor Genéral initiate a study of
V .I .P. protection in foreign countries with federal systems of government
with the aim of improving federal-provincial co-operation in this country .
(64)
WE RECOMMEND THAT the security . intelligence agency, to facilitate
the exchange of security relevant information with domestic police forces
and generally to encourge co-operation ,
(a) establish a special liaison unit for domestic police forces, staffed, in
part, by personnel with police experience;
(b) develop written agreements with the major domestic police forces to
include, among other things, the types of information to be exchanged,
the liaison channels for effecting this exchange, and the conditions
under which joint operations should be conducted .
(65)
WE RECOMMEND THAT the Director General approve all joint operations undertaken by the security intelligence agency and that the Solicitor
General develop guidelines for the use and approval of intrusive investigative techniques in joint operations .
(66)
WE RECOMMEND THAT the Solicitor General develop in conjunction
with his provincial counterparts a mechanism for monitoring the use by
private security forces of investigative or other techniques which encroach
on individual privacy, freedom of association, and other liberal democratic
values.
(67 )
663
�WE RECOMMEND THA T
(a) the federal government immediately initiate discussion with the provinces on the procedures which should apply to the reporting and
investigation of criminal activity committed by members or agents of
the security intelligence agency ; and
(b) the arrangements outlined in this chapter be followed on an interim
basis .
(68 )
664
�
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Text
Commission of Inquir y
Concerning Certain Activities of the
Royal Canadian Mounted Polic e
Second Report Volume 2
Freedom and Security
under the Law
_~..
August, 198 1
�Commission of Inquir y
Concerning Certain Activities of the
Royal Canadian Mounted Polic e
Second Report Volume 2
Freedom and Security
under the Law
_~..
August, 198 1
��FREEDOM AND SECURITY UNDER THE LAW
��A 410
COMMISSION OF INQUIRY
CONCERNING CERTAIN ACTIVITIES OF TH E
ROYAL CANADIAN MOUNTED POLIC E
Second Report - Volume 2
FREEDOM AND SECURITY
UNDER THE LA W
August, 1981
�© Minister of Supply and Services Canada 198 1
Available in Canada through
Authorized Bookstore Agents
and other bookstores
or by mail from
Canadian Government Publishing Centre
Supply and Services Canada
Ottawa, Canada, KIA OS9
Catalogue No. CP32-37/1981-2-2E Canada : $12.00 ( 2 Volumes)
ISBN 0-660-10952-2
Other Countries : $14.40 ( 2 Volumes)
ISBN 0-660-10950-6 (V. I and 2)
Price subject to change without notice
�PART VI
A PLAN FOR THE FUTURE :
MANAGEMENT, PERSONNEL ,
AND STRUCTURE OF A SECURITY
INTELLIGENCE AGENC Y
INTRODUCTION
CHAPTER 1 : The Historical Context
CHAPTER 2 : Management and Personne l
CHAPTER 3 : Structure of the Security Intelligence Agency : Its Location
Within Government
665
��INTRODUCTION
1 . Having concluded that Canada needs a security intelligence organization
at the federal level, and having decided on the basic functions of this organization, we are now in a position to discuss two difficult and related issues : first,
the management and personnel practices of a security intelligence organization
and, second, its appropriate structure within the Canadian government .
2 . The first issue demands our consideration of the following questions :
What overall approach to management is most likely to produce effectiveness and encourage behaviour which is both legal and proper ?
What should be the role of the Director General and the organization's
senior management? What qualities should they possess ?
What kinds of people should this organization attract and how should they
be recruited, trained, supervised, and rewarded ?
What procedures are appropriate to govern such areas as internal security,
discipline, and complaints ?
Our answers to these questions will lead logically to a discussion of the second
issue, that of appropriate structure . In that regard, we shall tackle one of the
most complex questions facing our Commission : should the security intelligence organization remain part of the R .C .M .P ., or should it, or at least part of
it, be separated from the Force? And if separation appears preferable, should a
security intelligence organization be a separate department of the federal
government, part of an existing department, or an agency with a distinct set of
relationships to the central management bodies of the Federal Government the Treasury Board, the Public Service Commission and the Privy Council
Office ?
3 . These management, personnel and structural issues have a long history .
Indeed, as we shall illustrate in the next chapter, R .C .M .P . senior management
and, to a lesser extent, Ministers and other senior officials within the Federal
Government, have been wrestling with these problems for at least 25 years .
667
��CHAPTER 1
THE HISTORICAL CONTEXT
4 . Our objective in this chapter is to describe how management and structure
have been dealt with in the past - the major studies, the recommendations
which these studies made, and the impact they had on the R .C .M .P . Security
Se rvice. We end this chapter by summarizing briefly the major conclusions we
have reached on these issues .
A . POST WORLD WAR II TO THE ROYAL
COMMISSION ON SECURITY, 196 8
5 . As we noted in Part II, Chapter 2, which traces the history of the Security
Service, its management and structure developed along a relatively stable
pattern in the three decades following World War II . A large increase in staff
during this period accompanied a series of organizational changes . These
changes had the dual effect of enhancing the status of the security intelligence
function, as well as giving it an organizational form which became increasingly
separate from the criminal investigation side of the Force . There were also a
number of changes which were premised on the specialized needs of security
intelligence - for example, the hiring of civilians in research and analytical
capacities, and the development of training courses on security intelligence
matters . Two internal studies, one by Superintendent Rivett-Carnac in 1947
and another by Assistant Commissioner Harvison in 1956 (both of whom
became Commissioners), were instrumental in pointing the Force in these
directions .
6. There was, in addition, a third internal study of the Force's security
intelligence function, completed in 1955 . This study put forward recommendations which broke sharply with the relatively stable development pattern we
described above . Its author was a civilian member employed by the R .C .M .P.
in a senior research capacity, who was asked by Commissioner Nicholson for
proposals as to the most effective use of civilians in the Special Branch .'
Interpreting this request broadly, the Report called for a radical reorganization
of the security intelligence function . The major recommendation was for the
establishment of a "two team organization" comprised of a Special Branch
under a Deputy Commissioner and a parallel Internal Security Service (ISS)
under a Director with the equivalent rank of a Deputy Commissioner . Both th e
' Special Branch was the name then given by the R .C .M .P . to the organizational unit
responsible for the security intelligence function . For a description of how the name
of the Security Service evolved, see Part II, Chapter 2 of this Report .
669
�Deputy Commissioner and Director would report to the Commissioner of the
R.C .M .P. The ISS would be fully civilian in nature, with complete responsibility for counter-espionage, research, policy development, and foreign liaison . It
would share responsibility with the Special Branch (each would have complementing "specialties") in the following areas :
- counter-subversion
- security screenin g
- governmental and public liaison
- emergency plannin g
In counter-subversion, for example, the Special Branch would do the day-today "detailed coverage" activities, while ISS would "select from this coverage
those cases requiring long term specialized attention" . In a summing up
analogy, the Report compared the Special Branch to an army, with its' high
visibility and systematic activities performed across Canada ; the ISS, on the
other hand, would be more like a guerrilla force, covert in nature, and capable
of concentrated sudden strikes against specific targets .
7 . The Report preferred this two-team approach to an upgraded Special
Branch for two reasons . First, it judged that the Special Branch was not doing
its job, and, given the likelihood of an increasingly dangerous international
environment (the Report was written at the height of the Cold War), the
Special Branch did not have the time required to shore up its weaknesses .
Second, a po lice force could not perform the duties of a fully specialized
security service . For example, recruiting, training, and career planning practices of police forces were inappropriate, the author said, for a security service
which required professionals from a broad range of disciplines, with a sophisticated understanding of revolutionary processes .
8. That the R .C .M .P . did not implement those recommendations was not
surprising . Two R .C .M .P . historians, Carl Betke and S .W . Horrall, summed up
the Force response this way : "Not surprisingly, that comprehensive advice
from a civilian newcomer of no operational experience was rejected" . In our
view, the rejection of some of the recommendations was justified . But it was
unfortunate that the Force and the government took little or no action to deal
with other issues raised in the Report, including the following :
- whether or not police recruiting, training, and staffing procedures are
appropriate for a security service ;
- the differences between the role of a police force and that of a security
service ;
- the necessity for legal advice as a component of security service
decision-making;
- the question of whether or not a security service is required to do illegal
or improper acts and the problems this dilemma created for its
members ;
- the capabilities required of a security service for policy development
and governmental liaison ;
- the need for a legislative charter for the security intelligence function .
670
�,9: As we shall see, these issues would return to haunt the R .C .M .P ., and
indeed are still current tôday .
B . THE ROYAL COMMISSION ON SECURITY ; 1968,
AND ITS AFTERMAT H
10 . The Royal Commission on Security, chaired by Mr . Maxwell Mackenzie,
completed its report in 1968 .2 Of relevance to this chapter was the Commission's recommendation calling for "the establishment of a new civilian nonpolice agency to perform the functions of a security se rvice in Canada ."' The
Commissiônecs'based this recommendation on three arguments : .
(i) The differences between ' police and security duties are wide . Consequently, a security serv ice should not orient its recruiting and
training practices, its career patterns and its organizational structures towards the requirements of a police force .
had . failed to play an effective role in taking
"desirable initiatives", or in .stating the case for necessary . security
measures at high level policy-making forums within the federa l
(ii) The R .C .M .P .
' ' government.
(iii) The association of the security function with the police role tended .
to make the work of both the Security Service and the rest of the
R .C .M .P . more difficult . On the one hand, inquiries made- by
civilians in connection with security clearances would be received
with more' understanding than would similar inquiries made by'
-policemen . On the oth'èr hand, it is not appropriate for â policéforce to be concerned with activities that are not crimes or sûspected crimes . Moreover, a security service might be involved in actions
" . . . that may contravene the spirit if not the letter of the law'"" and
that may infringe on individuals' rights . Such activities are not
appropriate police functions .
11 . From our study of R .C .M .P . file material, we know that the reaction of
R .C .M .P. senior officers to this recommendation was one . of shock and
disbelief. For example, Assistant Commissioner W .L . Higgitt, who at,the time
was the officer in charge of the Security and Intelligence Directorate and
became Commissioner in the following year, in an address to the Secucity
Panel (a senior interdepartmental committee of officials), termed the recommendatiôn for a separate civilian service "a travesty of justice," and added that
"the Soviet Intelligence would be jubilant . They could never hope to duplicate
the accomplishment" .
12. Once the initial shoçk had subsided, the senior management of the
R .C .M .P . put together a detailed rebuttal of the Royal Commission's Report .
The Force's critique was threefold . First, the Royal Commission had done its
job poorly : it had failed to assess the effectiveness of the Security Service, ha d
= For a description of the events leading up to the establishment of the Royal
Commission'on Security, see Part II, Chapter 2 of this Report .
Report of the Royal Commission on Security, paragraph 297 .
' Ibid., paragraph 57 .'
671
�made numerous errors in fact, had ignored other areas of importance, and had
not taken into account evidence supplied by the R .C .M .P. Second, creating a
separate security service would be a serious mistake, in the Force's view, for
the following reasons :
- a new civilian agency would be easily penetrated ;
- the advice was, where possible, to establish a security service as part of
the national police ;
- only the R .C .M .P . was spread sufficiently widely across Canada to
constitute an adequate service ;
- the R .C .M .P . had built up meaningful liaison with foreign agencies and
these relationships could not be readily developed by a new service .
Finally, if the recommendations concerning the Security Service were ever to
be published, the Force believed that severe damage would result to the
Canadian security community .
13. The documents relating to the treatment of the Report by the Cabinet
Committee on Security and Intelligence and its various committees of officials
indicate that much of the consideration focussed on the question of whether or
not to publish even an abridged version of the Report . There appeared to be
little support, either at the ministerial or the official level, for the new civilian
agency proposed by the Royal Commission .
Prime Minister Trudeau's 1969 Statemen t
14. After a lengthy debate, the Cabinet Committee on Security and Intelligence agreed to publish an abridged version of the Royal Commission's Report .
In tabling the Report in the House of Commons on June 26, 1969, the Prime
Minister rejected the Commissioners' recommendation for a separate security
service and announced, instead, that the security intelligence function would
remain within the Force but become " . . .increasingly separate in structure and
civilian in nature" . The following are the key paragraphs in which Mr .
Trudeau outlined this new policy :
After careful study of the considerations put forward by the commissioners in support of their recommendation, we have come to the conclusion
that current and foreseeable security problems in Canada can be better
dealt with within the R .C .M .P. through appropriate modifications in their
existing structure than by attempting to create a wholly new and separate
service .
We are keenly aware that the R .C .M .P . are one of the most'honoured
and respected of Canadian institutions . The force has come to be recognized as one of the finest national police forces in the world, whose
members, as the commissioners rightly state, are "carefully selected, highly
motivated, and of great integrity ." The government also recognizes that no
organization is perfect, and that there is some validity in the view of the
royal commissioners that some basic differences do exist between police and
security duties, by their very nature .
It is therefore the government's intention, with the full understanding
of the R .C .M .P ., to ensure that the Directorate of Security and Intelligenc e
672
�will grow and develop as a distinct and identifiable element within the basic
structure of the force, and will be more responsive, in its composition and
character, to the national security requirements described by the commissioners. The basic aim will be to develop the security service so as to draw
on the police services for personnel of suitable qualifications and character,
and to retain administrative, research, documentation and other services in
common with them . The security service, under the Commissioner of the
R.C .M .P ., will be increasingly separate in structure and civilian in nature .
New and more flexible policies in relation to recruiting, training,
career planning and operations will be calculated to ensure that Canada's
security service will be capable of dealing fairly and effectively with the
new and complex security problems which we will undoubtedly face in the
future, and also to ensure that it clearly reflects the nature of our cultural
heritage . Under the new arrangements it will be possible, for example, for
an increasing number of university graduates from all parts of Canada to
join the Directorate in a civilian capacity and to aspire to positions at the
top of that organization, thereby making the kind of contribution referred
to by the commissioners . Nothing in the proposed changes will unfairly
prejudice the career expectations of people already in the service . 5
15 . The Prime Minister's statement was, in essence, a compromise . What Mr .
Trudeau was attempting to achieve was a Security Service similar to the one
envisioned by the Royal Commission, but located within the R .C .M .P. The
statement made no mention of any implementation scheme .
16. In replying to Mr . Trudeau's statement, both the Honourable Robert
Stanfield, the Leader of the Opposition, and Mr . T .C . Douglas, Leader of the
New Democratic Party, expressed reservations about the government's decision
.
not to form a civilian non-police agency . Mr . Stanfield wondered " . . whether
the mounted police, as it is presently constituted and organized, lends itself
very readily to the sort of modifications to which the Prime Minister refers ."
He went on to add :
My initial reaction might be that we are more interested in considering the
proposal for a special agency, though I can see certain difficulties in this
regard . But I look forward to hearing a further explanation in the house by
the government when we have our discussion, presumably in the fall . 6
Mr . Douglas based his support for a separate agency on what he believed to be
" . . . a difference in the type of training required, the form of recruitment and
the structure of a police force on the one hand, and a security agency on the
other ." '
17. After a thorough study of relevant R .C .M .P . files, and after questioning
numerous witnesses including Ministers and senior officials on this topic, we
conclude that the R .C .M .P . has not sufficiently implemented the policy
announced by the Prime Minister in his 1969 statement, nor has it made a
concerted effort to do so . For the better part of the last decade, the successive
Commissioners of the Force and their senior managers who were not part o f
' House of Commons, Debates, June 26, 1969, pp. 10636-10637 .
6 Ibid., p . 10639 .
' Ibid., p. 10640.
673
�the Security Service have endeavoured to ignore the policy statement whenever
possible : When circumstances forced them to deal with the statement, they
have tended to misinterpret it by concentrating on the "increasingly separate in
structure" aspect of the policy, showing insufficient concern for what has come
to be called "civilianization" of the Security Service . A careful reading of the
Prime Minister's statement reveals that increasing sepaiation was only a means
to achieving more flexible personnel policies so as to facilitate civilians' joining
the Service and rising to senior positions . The Prime Minister, as we shall see
later in this chapter, made this abundantly clear to the Force several years
later .
18. The use of appropriate statistics is one way of assessing what has
happened to the government's policy since 1969 . Before introducing these
statistics, we refer again to a basic feature of the R .C .M .P. Security Service
which we- explained in the introductory chapter of this Report . The Service has
four different types of employees :
- public servants, who fill mainly clerical or support staff positions ;
- special constables, who perform specialized roles in such areas as
security screening ;
= civilian members, who were first hired in the earlÿ 1950s'to perform
research analyst roles and who now, in addition, perform specialized
functions in translation and in technical areas dealing with computersand sophisticated surveillance technology ;
'
-, regular members, who_first joined the R .C .M .P . as policemen, and who,
after receiving basic training, usually spend several years in regular
policing before joining the Security Service .
Since 1969, there have been no substantive changes in the methods of
recruiting regular members into the Security Se rvice. They must still train and
serv e first as police officers. Consequently, to judge the progress in implementing the policy enunciated by the Prime Minister in 1969, we must examine
what has happened to the civilian member category of employee .
19 . The statistics we have compiled lead to three conclusions . First, the
civilian member component within the Security Service has increased in both
absolute and relative terms, but it is significantly smaller than the regular
member component . Second, civilian members are heavily concentrated in
lower ranking jobs . Third, most of the senior positions held by civilians are not
in the key operational sectors of the Service but rather, they are in service
.branches. Moreover, since 1969, there is evidence that'there has been a relative
decline in the civilian component making up the operational units within the
Security Service.
674
�20 . The growth in civilian members has been about 125 per cent since 1969 .
Table 1 illustrates how the civilian component has grown in relative terms .
Table I
Established Positions As a Percentage
of the Total Security Se rv ice Strengt h
1969 1979 Change
53 .3% 46 .1% -7 .2%
Regular Members
Special Constables 9 .8% 13 .2% 3 .4% .
17 .2% 7 .3% •
Civilian Members 9 .9%
27 .0% 23 .5% -3 .5%
Public Se rvânts
100 .0% 100 .0%
Total
In relative terms, the civilian member component as a percentage of the total
Security Service has grown from 9 .9 per cent to 17 .2 per cent . Even with this
growth, the civilian member component is still significantly smaller than the
regular member component . These figures, if anything, overstate the growth in
the civilian member category.
21 . Table 2 is the basis for the second conclusion that the large majority of
the civilian component is in the lower ranks . To help the reader interpret this
Table, we note that civilian members do not have ranks as do regular members .
In comparing civilian positions to those of regular members, salary ranges have
been used as the basis of comparison . The ranks of regular members are as
follows (proceeding from the most junior to the most senior) : constable,
corporal, sergeant, staff sergeant, inspector, superintendent, chief superintendent, assistant commissioner, deputy commissioner and commissioner . Corporals
are called junior non-commissioned officers (Jr . NCOs) . Sergeants' and staff
sergeants are called senior non-commissioned officers (Sr ., NCOs) and those
with the rank of inspector and above are called officers
2
.Table
Distribution of Regular Members (RMs) Position s
and Civilian Members (CMs) Positions By Rank - March, 1980
Constable
Senior Senior Junior &
Officers NCOs NCOs, lower Total
RMs who are 9 .4% 31 .9% 44 .3% 14 .4% , 1 100% _
CMs who are equivalent 2 .4% 28 .6% 17 .5% 51 ..5% • 100%
to
-
-
•
22 . Finally, Table 3 illustrates that civilian members holding relatively senior
ranks within the Service are significant in service sectors but not in operational
sectors .
675
�Table 3
Comparison by Rank of Established Positions of
Civilian Members and Regular Members .- March 1980
A . In Service Sectors : Percentage of
Established Positions Held
Civilian Regular
Members Members Total
Officers
22 .9% 77 .1% 100%
Senior NCOs 50 .5% 49 .5% 100%
Junior NCOs 44 .7% 55 .3% 100%
Constable & Lower 96 .9% 3 .1% 100%
B . In Operational Sectors : Percentag e
of Established Positions Held
Civilian Regular
Officers
Members Members Total
1 .9% 98 .1% 100%
Senior
NCOs
Junior
NCOs
5 .5% 94 .5% 100%
4 .3% 95 .7% 100%
Constable & Lower 36 .4% 63 .6% 100 %
23 . The fact that not one civilian member, with the exception of the Director
General, now holds an officer-equivalent position with operational responsibilities is perhaps the best single indicator that the type of security service
envisioned by Prime Minister Trudeau has not materialized . In particular, this
statistic should be looked at in the light of the Prime Minister's statement that
" . .. it will .be possible, for example, for an increasing number of university
graduates from all parts of Canada to join the Directorate in a civilian capacity
and to aspire to positions at the top of that organization, thereby making the
contribution referred to by the commissioners ." Moreover, there is some
evidence to suggest that since 1969 the situation of civilian members in the
operational sectors of the Service has actually deteriorated . Table 4 below
compares their position in 1968/69 with that of 1977 . More up-to-date
comparisons are difficult because of at least one organizational change which
has removed an operational unit from the Security Service . We have no reason
to believe that the situation has improved significantly in the last three years .
Table 4 8
Percentage of Positions Held by Civilian
Members in Operational Sectors by Ran k
1968/69 1977
Officer
8 .7%
.0%
Senior NCOs 5 .4%
.4%
Junior NCOs
6 .8% 1 .9%
Constable & Lower 14 .1% 25 .9 %
° This Table is slightly adapted from a similar one developed by civilian members in
preparing a brief for the Special Committee on the Review of Personnel Management
and the Merit Principle, commonly referred to as the D'Avignon Committee. Unlike
Tables 1 to 3, this one is not based on established pos'itions, but rather uses actual
numbers of people employed at a given point in time .
676
�24 . In our discussions with members of the R .C .M .P . about the Prime
Minister's 1969 policy statement, many have pointed to the improvement in
formal education levels of those within the Service as indicating that the Force
has taken the policy statement seriously . Table 5 below demonstrates that
formal education levels, especially among regular members, have indeed
improved .
Table 5
Percentage of Security Service Employees
with University Degree s
1969 1979
Regular Members
5 .5%
Civilian Members
13 .8%
.7
Special Constables
21 .4%
26 .3%
1 .61/o-
25 . Several policies have been responsible for producing these changes :
sending regular members of the Security Service to university as full-time
students ; offering reimbursement of tuition fees for part-time university study ;
and adopting several Force-wide programmes, now discontinued, .to encourage
university graduates to join the Force . But none of these programmes was
really directed at the main objective of the Prime Minister's policy, that is, "for
an increasing number of university graduates . .. to join the Directorate in a
civilian capacity and to aspire to positions at the top of that organization" .
(Our emphasis .) Moreover, we believe that there is an important difference
between, on the one hand, recruiting people with university backgrounds and,
on the other, sending existing members of the Security Service to complete
university degrees . We concur with Mr . R .D . French, an associate professor at
the Faculty of Management, McGill University . After submitting a brief to
this Commission, he had this to say in the question period during the public
hearing :
I would like to observe that the kinds of social experience and breadth of
acquaintanceship and catholicity or variety of background, that you find at
the University level, and that you experience as a young generally single
student, are not comparable to,going to University and getting a B . Com . in
management or a B .A . in Political Science, or whatever, at the age of thirty
or twenty-eight . I think they are fundamentally different things . I think it is
highly desirable that R .C .M .P . officers who can benefit from University
education get one . That's first class . But it is not a substitute for a broader
net at the point of initial recruitment into the organization .
(Vol . 95, pp . 15533-15534 . )
26. While there is little evidence of "new and more flexible policies" aimed
directly at implementing the June 1969 policy statement, there is evidence in at
least one personnel area - classification-- of the Force's having adopted
policies which point in the opposite direction to that intended by the Prime
Minister . The Security Service, along with the rest of the Force, began
developing a new classification system in 1971 under the general direction o f
677
�the Treasury Board . The new system, which was finally implemented on
April 1, 1975, had the important feature of including "police training and
experience" as a prerequisite for most of the senior and middle management
jobs in the Service and for all officer equivalent jobs in the operational area
with the exception of the Director General's position . Including such a prerequisite was not forced on the R .C .M .P . by the Treasury Board . The result of
this classification system has been to provide virtually no career path for
civilians in the operational side of the Service .9 For those in the technical
services areas of the Service, the most senior job a civilian can assume is at the
Superintendent level (Chief Superintendent, Assistant Commissioner and the
Director General are three levels above the Superintendent rank . )
27 . The adoption of the classification system has also had an unintended
effect on the status of civilians within the Service . Until 1975, civilian member
salaries were tied to salary levels of regular members . With the adoption of the
new classification system, civilian member salaries were tied to equivalent jobs
in the Public Service, and did not keep pace with the more rapid rise in police
salaries . Thus, civilian positions within the Security Service for the last five
years have been gradually downgraded' when compared to regular member
positions .
28. We should note one recent change to the career paths of civilian analysts
within the Service . In 1979, the Security Service created eight additional
"dual" staffing positions (such positions can be filled by either regular members or civilians) in certain operational branches at Headquarters . One of these
positions is at the inspector level (the first rank in the officer category) ; five are
at the senior NCO level . This change is part of a longer term plan with two
objectives : first, to enhance gradually civilian career paths within the Service
itself, and second, to provide civilians with government-wide career paths by
converting civilian member positions into regular Public Service positions .
29. We, view this longer term plan with substantial reservations . It is clear,
for example, that civilians within the Service will still remain in basically
"support" roles . As the authors of one recent document outlining this new plan
put it :
9 The R .C .M .P. is not unique among Canadian police forces in failing to provide
meaningful career paths for civilian members in operational areas . In a 1977 report
reviewing the Criminal Intelligence Service of Canada - a confederation of major
police forces across Canada to provide a co-ordinated approach against organized
crime - the authors had this to say :
11 .6 There was one area in which the views of the members interviewed by
both Audit Teams approached unanimity . It was in regard to non-police
participation in the intelligence network at any level where they can exert
authority or control . Their loyalties, discipline and methods are invariably
suspect just by virtue of not being members of the police community . This
drains support for the program and undermines confidence in the security
and integrity of the system .
678
�It is questionable whether a command . structure which proposes other than
regular members in command positions would be accepted . The perception
is that it would not make for a smooth functioning situation within the
Force .
Thus, the civilian career paths will remain stunted, resulting in . the same
second-class status that has characterized the .civilian component of the
Security Service for 25 years . This continuing irritant, coupled with greater
mobility within the Public Service, will likely mean that the better civilian
analysts will soon leave the Security Service to pursue more promising careers
elsewhere . .The . effectiveness of the Service will suffer accordingly .
30 . Statistics and personnel policies, however, do not tell the whole story . To
appreciate fully why the 1969 statement was never satisfactorily implemented,
we now describe the actions taken, or not taken, by some of the key individuals
= the Solicitors General, the Commissioners of the R .C .M .P ., the Directors
General of the Security Service .
C . THE ERA FOLLOWING THE ROYAL COMMISSION
ON SECURITY : 1969-8 0
The early 1970s ,
31 . The drafts of the Prime Minister's statement to the House of Commons
on June 26, 1969, in the preparation of which senior members of the Force
participated, contain an early hint about the Force's attitude to what was to be
proposed . In the penultimate draft, the government was intending to arinôunce
this new direction " . . with the full agreement and understanding of the
Force . : ." When Prime Minister Trudeau finally read the statement to the
Hoitsé of Commons, it was only " . .. with the full understanding of the Force" .
32. Even "full understanding" may have been an overstatement . On June 27,
1969, the day following the Prime Minister's statement, Assistant Commissioner Higgitt, who was then the officer in charge of the Security and Intelligence
Directorate and who would soon be named the new Commissioner of the
R .C .M .P ., wrote to his counterparts in foreign security services, enclosing a
copy of the Prime Minister's statement and a copy of the abridged report of the
Royal Commission on Security . He summed up his reaction to the new policy
this way :
Naturally, we have welcomed this renewed statement of confidence in us
and will now be able tô carry on as before with really only the mildest of
organizational adjustments .
(Our emphasis . )
Mr . Higgitt wrote a similar letter to his senior staff in the Security and
Intelligence Directorate and included the above sentence .unaltered .
33 . In testimony before us, Mr . Higgitt has also indicated that he was
opposed to the appointment of a civilian from outside the R .C .M .P. as the new
Director General of the Security and Intelligence Directorate :
679
�The change that was then made was that the Director General should
become a civilian and a person who had not had the advantage of coming
through, of gaining the experience of coming through the Force, and
indeed, coming through the Security Service side of the Force. Now, I
objected in principle to that . . .and made my objections very well known to
those in government circles at the time . But I did not object to the person
involved.
(Vol . 84, pp . 13732-13733 )
34 . The "person involved" was Mr . John Starnes, a career foreign service
officer, who left a senior position in the Department of External Affairs to
become the first civilian to head the security intelligence function within the
R .C .M .P . His appointment, effective January 1, 1970, was the first and most
significant step taken by the government to implement the June 26th policy
statement .
35. Testifying before us, Mr . Starnes stated that he was never shown Mr .
Higgitt's letter to the senior staff of the Security Service and the heads of
foreign agencies referred to above (Vol . C32, pp . 4016-4019) . In hindsight, he
noted that he was not surprised by the letter . By his own admission he was
successful in effecting only a few minor changes in the management of the
Service : a change in the name of the agency to the Security Service ; civilian
dress for Service employees ; and separate identity cards (Vol . C33, pp .
4205-4215) . He was not successful in his attempts to gain autonomy for the
Service in three main areas - operations, personnel policy, and financial
administration - a step he felt essential if the Prime Minister's statement was
to be translated into a reality (Vol . C29, p . 3512) .
36 . Just before leaving the Service in March 1973, Mr . Starnes met with the
Prime Minister to tell him about a study by a group of management consultants on the management and structure of the Security Service . (This study will
be discussed later in this chapter .) He also told the Prime Minister, according
to his testimony, that " . . . in fact we really hadn't done very much up to that
point . .. by the time I left, there was no - we did not have control over our
personnel resources or financial resources, in effect" (Vol . C33, p . 4223) .
37 . We have found no evidence that successive Solicitors General took
initiatives to develop an implementation plan, or that they systematically
monitôred the R .C .M .P .'s progress in this area. For example, the Honourable
Jean-Pierre Goyer, who served as Solicitor General from December 1970 to
November 1972, testified that he left the implementation of the government's
1969 policy totally up to Mr . Starnes :
Q . Did you deal with the question of structural changes, that is to say,
recruiting more members or more non-members or non-constables into
the Security Service so as to meet certain objectives which had been
established? More civilians ?
A . No, no . That was up to Mr . Starnes . And it was not a subject with
which I dealt in detail . My concerns were of a more general nature :
recruitment policies ; training policies and so on .
(Vol . 122, p . 19062 . Translation . )
680
�38 . The elements of the failure in implementation are clear : the policy
statement itself, which contained no specific targets or dates and which was not
followed up with a more detailed set of instructions ; the absence of a clear
implementation plan ; the lack of any strong ministerial initiative on the part of
the successive Solicitors General to ensure that implementation was proceeding; and, perhaps most important, concerted opposition to the policy statement
from the senior management of the Force . As we shall see, these contributing
factors remained more or less constant for the remainder of the decade .
39 . In many discussions we have had with senior members of the Force about
the Prime Minister's statement, they have used the statement's alleged imprecision as their primary defence for inaction . "What does ` . .. increasingly
autonomous in structure and civilian in nature' mean?" they have asked us .
There are three rejoinders to this question : first, senior members of the Force
were involved in lengthy discussions on the recommendations of the Royal
Commission and the drafting of the Prime Minister's statement . Their own file
material reveals this . Second, the R .C .M .P . has been unable to give us any
instances in which their senior managers asked the government to clarify the
policy statement . Third, while the statement lacks specifics, its general direction is clear, particularly in the last portion of the policy statement quoted
earlier in this chapter . The Prime Minister was not ambiguous in announcing
that there would be "new and more flexible policies in relation to recruiting,
training, career planning and operations" so that an increasing number of
university graduates from all parts of Canada could join the Service "in a
civilian capacity" and "aspire to positions at the top of the organization" .
Relevant to this discussion about the alleged imprecision of the policy statement is the following question and answer sequence from the testimony of Mr .
Dare, the current Director General of the Security Service :
Q . Mr . Allmand, in his testimony . . . refers to a meeting when you were
appointed, at which . .. the Prime Minister emphasized the need to
continue with civilianization of the Security Service . Was that, in fact,
suggested to you ?
A . That is correct, Mr . Chairman .
Q . And do you consider that in the years before the Commission began,
the policy of civilianization of the Security Service was carried out ?
A . No, Mr . Chairman .
(Vol . C90A, pp . 12474-12475 . )
Mr . Dare's unequivocal response indicates that he clearly understood the
policy . The inaction within the R .C.M .P . in implementing it, therefore, boils
down to one factor : the Force's senior management strongly opposed it .
The Bureau of Management Consulting's Report, 1973
40 . As part of his attempt to effect change along the lines of the June 1969
policy statement, Mr . Starnes obtained agreement from Commissioner Higgitt
in June 1972, to employ the Bureau of Management Consulting (B .M .C .), a
component of the Department of Supply and Services, to undertake "a study o f
681
�organization and classification" . Mr . Starnes, in his testimony before us, noted
that he expected " . . . very far reaching proposals for change" (Vol . C33 ; pp .
4220-22) .
41 . A short summary of the report's major findings was presented to Mr .
Starnes in March 1973 . The actual report was not ready until Mr . Michael
Dare, a former military officer, had become Director General : In July 1973,
Mr . Dare wrote the senior administrative officer of the Force, advising him
that the senior managers of the Security Service had reviewed the report and
had accepted in principle its major findings and recommendations .
42 . The most controversial recommendations concerned the relationship of
the Service with the rest of the Force. The B .M .C . recommended that the
Security Service be given managerial control over both its operations and the
administration of its resources - human, physical, and financial . The B .M .C .'s
concept of managerial autonomy was reflected in the following key paragraph
from the report :
In the concept of managerial autonomy we propose, the managerial link
would be confined to the Commissioner, Director General level . There
would be no influence from the administrative arm of the R .C .M .P . as to
how the Service administers its resources in the execution of its mandate .
Also, there would be no influence from R .C .M .P . Divisional Commanding
Officers over both operational and administrative actions of Security
Service field components . Control would be exercised by the central agency
of the Security Service .1 0
43 . The rationale behind this recommendation rested on two crucial premises :
(i) the mandate of the Security Service is intrinsically different fro m
that of a police force and requires that "policies and programs must
be controlled and monitored from within the Service . "
(ii) the Director General of the Security Service lacks the delegated- •
authority to manage this operation effectively .
44 . The B .M .C . noted, however, that several factors support a concept of
"managerial autonomy" within the R .CM.P. : the excellent reputation of the
Force; the need for the Service to maintain a secret budget ; the utilization of
services common to both activities ; and the need for close liaison in regard to
activities of interest to both the Security Service and the law enforcement side
of the Force .
45. Other recommendations made in the B .M .C . report included adopting the
principle of "centralization of policy and program control and decentralization
of execution," revamping the planning process along "management . by objectives" lines, flattening the organizational pyramid by reducing the number of
supervisory levels, improving training programmes, and upgrading selection
criteria for entry into the Service . The B .M .C . also noted that "morale could be
considerably improved" and made several suggestions to accomplish this .
46. In contrast to their counterparts in the Security Service, senior managers
from the rest of the Force were highly critical of the B .M .C . report . There was
10 Bureau of Management Consulting's Introductory Report, 1973, p . 81 .
682
�virtually no support for its major recommendation concerning operational and
administrative autonomy for the Security Service . Rather, both divisional
commanding officers and senior administrative staff argued fôr the reverse
situation for some of the following reasons, as noted in a record of the
discussion :
- 95% of the Security Service want to remain with the Force ;
- by becoming more autonomous, the Security Service could be easily
"snipped away" from the Force by a "stroke of the pen" of some
politician ;
- commanding officers of field divisions complained of getting all the
problems relating to the Security Service but none of the benefits (no
consultation and information or none of the better personnel) ;
- theré was a need for closer relationships between the criminal investiga-,
tion side of the Force and the Security Service because of changing
, internal conditions within Canada (i .e . increased terrorism) ;
- there would be problems of "internal relativity and compatibility" ;
- costs would increase at a time of fiscal constraint ;
- it would be difficult to establish responsibility if problems arose (who,
for example, would be in charge of classification for the Force as a
whble?) .
47 . In December 1974, Commissioner Nadon, his Deputy Commissioners,
Mr . Dare, and several Assistant Commissioners, met to make decisions with
respect to matters raised in the B .M .C . study . The minutes of that meeting
indicate that the major recommendation concerning Security Service autonomy
was rejected, that the Security Service was to be linked even more closely to
the Force, And that few of the remaining recommendations relating to internal
management and personnel of the Security Service were even recorded as
having been discussed . At this point, the B .M .C . study would appear to have
had an effect opposite to that intended by Mr . Starnes .
National division status
48. Following these discussions of the B .M .C . report by the Force's senior
management, Commissioner Nadon received at least two requests to clarify the
organizational changes he was contemplating for the Security Service . The first
came from Mr . Gordon Robertson, the Clerk of the Privy Council, who
directed his request to Mr . Roger Tassé, the Deputy Solicitor Géiteral ."The
second came from Prime Minister Trudeau who wrote to the Solicitor General,
the Honourable Warren Allmand, in September 1975 . The Prime Minister
went immediately to the heart of the matter by noting tha t
. ..I have not had any report for several years on the progress that has been
made to implement the government's decision that the Security Service of
the R .C .M .P. should be made more autonomous in its structure and more
civilian in its character . From information that has reached me, I have the
impression that not much progress has, in fact, been made and if this is so,
it disturbs me.
683
�He ended his letter by asking Mr . Allmand to
. . . let me have a report on this matter at your earliest convenience - both
concerning the situation as of the present time and concerning the further
measures that are in contemplation to achieve the result decided upon in
1969 .
49. The Force's senior management began drafting replies to both requests,
based on the results of the R .C .M .P .'s deliberations concerning the B .M .C .
report . Basically, they were developing two proposals :
1 . that no further steps be taken to separate the Security Service from the
rest of the Force ;
2 . that there be greater integration of technical support and administrative
functions with the rest of the Force .
50 . A handwritten note by Commissioner Nadon to his senior administrative
officer is indicative of the reaction he received from the Solicitor General's
Department to these proposals :
Solicitor General returned this to me today stating he believes we will have
a hard time selling this to the P .M . He suggests we prepare a memorandum
to P .M . along the lines of memo to Cabinet and that I should go and defend
my position before P .M . personally .
.
.
51 . Not surprisingly, the structural changes that were eventually approved in
1976, first by a committee of senior officials and then the Prime Minister,
appeared - at least on the surface - to be quite different from the R .C .M .P .
proposals . The Security Service became a "national Division" within the
R .C .M .P . It was to have administrative responsibilities similar to those delegated to an R .C .M .P . geographical division (with a few exceptions, there is an
R .C .M .P . division for each province) but it would be unlike other divisions in
being national in scope . To create this "national division", Commissioner
Nadon delegated additional authorities - both operational and administrative
- to the Director General of the Security Service. Under the new operational
authorities, the Security Service units in the field, which up to this point had
reported to the head of their R .C .M .P . geographic division, began reporting to
a Security Service officer based at Headquarters in Ottawa . This change
formalized a situation which, in fact, was already largely in place . As Commissioner Simmonds noted in testimony before us :
Right up until 1976 . . . the Security Service personnel in the field were
underneath the divisional commanders for the purposes of administration
and discipline, and so on, but their operations were to a very large extent
centralized under the Director General at Headquarters, and thus there was
a split . Operations reported one way, and yet for administration and
discipline, it was another way, and it was not, in any view a very sound
structure at that point .
(Vol . 164, p. 25182 . )
52 . In commenting on the administrative changes, Commissioner Nadon
explained in the documentation that went to the government in July 1976 that,
"As a guide, the general administrative structures and authorities of the
Security Service will be patterned along those of a Division of the Force wit h
684
�the necessary adjustments to take into account the special needs and national
character of the Security Service ." How, in fact, the Force was going to
interpret this broad statement became clear in an internal memorandum .
Commissioner Nadon noted that any administrativë policies that the Security
Service would henceforth adopt would still have to be "in accordance with the
legislation, regulations, policies, directives and guidelines applicable to other
components of the Force" . An article in the R .C .M .P .'s in-house newspaper,
Pony Express, in December 1976, also tended to down-play the importance of
these structural changes . A particularly telling question and answer sequence
in the article was the following :
Q. Where will the main impact of the reorganization occur ?
A . The reorganization will mainly affect the administrative side of Security Service, especially at the Headquarters level . Quite simply, Security Service Headquarters will be establishing administrative units to
attend to, these needs of members of the Service . The membership of
Security Service can expect to see, in fact, very little change in what
they have to do, administratively . The change will be that material
formerly sent to each Divisional Headquarters will now be sent to
Security Headquarters . In this way, there will be uniformity of policy
and direction for all Security Service members . Also, Security Service
members will be looked after by those who have knowledge of the needs
of the Service.
53. Mr . Michael Pitfield, the new Clerk of the Privy Council, wrote to
Commissioner Nadon in August 1976, a few weeks after the National Division
changes had been approved by the committee of senior officials . Mr . Pitfield
indicated that the Prime Minister had approved these changes and had noted
that " . .. the arrangements which you have recommended provide the necessary authority for the Director General of the Security Service to work towards
a greater emphasis on the civilian character of the Security Service" .
54. The Security Service went to work immediately in August 1976, to
implement National Division Status . Implementation was not completed until
early 1978 . We have no evidence, however, that these changes have resulted in
any greater emphasis being placed "on the civilian character" of the Service . If
anything, the current period can be characterized as one of increasing integration of the Security Service with the rest of the Force . The current Commissioner, Mr . Robert Simmonds, whose term as Commissioner began in September 1977 after the formation of this Commission, instituted a number of
changes that are noteworthy in this regard . For example, the senior executive
committee of the Force, consisting of the Commissioner, his three Deputy
Commissioners and the Director General, must now approve all major operational policies of the Service . In addition, the Commissioner has established an
operational audit unit specifically for the Security Service in order to give him
another "window" into what is happening within the Service . Recommended
changes resulting from these audits are discussed by a Force-wide Audit
Committee . Finally, the Commissioner has made a number of senior appointments which have moved several officers with no prior Security Service
experience into several of its most senior positions . As for the question of
increasing the civilian character of the Security Service, Commissioner Sim-
685
�monds testified before us that no progress is being made at the moment and
that in his view what has already been done "may have gone .too far . . ." (Vol .
165, p . 25377) . According to Commissioner Simmonds, the Security Service, in
future, should have " . . . a stronger peace officer connotation . . ." on the assumption that certain analytical functions now performed by the Service would be
done .elsewhere in the government .
The current situatio n
M . There is at least one other aspect of the current situation with regard to
the management and structure of the Service which we find particularly
noteworthy . On the basis of our experience in the hearings, the numerous
informal meetings we have had with a great variety of Security Service
members ranging from some of the most junior to the most senior, our own
examination . of Security Service files, and research done by our staff, we
conclude that a desire for significant change exists at virtually all levels within
the Security Service . Levels of dissatisfaction with current personnel policies
within the Service are high, and often those holding these views see structural
solutions (either more autonomy within the Force or complete separation) as
the ultimate answer .
56 . Our assessment of the current situation within the Security Service,
summarized above, is not based on any research study which attempted to
determine the opinions of a scientifically chosen sample of Security Service
members . Having said this, we find it noteworthy that our assessment is
compatible with two recent studies of the Security Service which produced
statistical results . One such study was conducted by an R .C .M .P. audit team in
March 1976 and the other was carried out by our researchers . In the R .C .M .P .
study, questionnaires were distributed to members of the Security Service, and
an impressive 80% were returned . The opinions and those favouring each were
as follows :
Percentage of
Respondents
Favouring
Each
Optio n
Option
I . Remain an integral part of the Force and continue to function a s
it does now, retaining the current operational and administrative
policies and practices .
21
2 . Remain an integral part of the Force and be governed by commo n
Force administrative policies and practices .
6
3 . Remain an integral part of the Force, retain the current operational practices and be given more administrative autonomy tha n
now exists .
47
4 . Become a completely separate entity outside the Force .
26
100 %
Thus, 79% of the respondents favoured changes from the status quo . While 6%
favour closer integration of the Security Service into the R .C .M .P ., 73% favour.
686
�change in the opposite direction . The most popular option ; favoured by 47%,
was greater autonomy within the R .CM .P . 26% supported complete separation
from the R .C.M .P.
57. . The second study was an interview programme conducted by our own
research staff in late 1978 and the early part of .1979 . Participants in this study
expressed nearly unanimously a desire for far-reaching changes . In all, our
staff interviewed 38 members of the R .C .M .P ., chosen on the advice of the
R .C .M .P. unit responsible for liaising with the Commission so as to represent a
cross-section of knowledgeable opinion . Each interview lasted between two and
three hours . Of those interviewed, nine were civilian members and one was â
special constable . The remaining interviewees were regular members of the
Force, the largé majority of them officers . Six participants were, not members
of-the Security Service, but foûr of'these had seived in it for long periods . The
average length of service within the R .C.M .P. was slightly over 21'years . '
58. Those advocating significant change identified three possible directions :
1 : The Security Service should remain within the R .C.M.P . but 'have the
necessary autonomy to fashion a managernént approach and personnel
systems in keeping with its role .
This approach was favoured by slightly less than half of thos e
.1 1
interviewed .
'
2 . The Security Service should separate from the R .C.M.P.
This option was also favoured by slightly less than half of tNose
inte rviewed, including a number of senior officers .
3 . The - Security Service should remain within 'a significantly changed
R .C.iLf.P. '
This argument, put forward by three participants, was based on the
premise that the management and personnel systems of the Force are as
inappiopriate to the rest of the Force as they are to the Security Se rv ice .
Thus, they concluded, significant and dramatic change is needed in all
areas within the R .C .M .P .
This interview programme was not based on any scientifically chosen sample .
The results are nevertheless noteworthy, because the desire for change was
intensely felt and shared ,by a large number of long-serving and quite senior
Security Service members .
59 . The inte rv iew programme conducted by our researchers and ' our own
interv iews have'disclôsed that one group within the Security Se rvice is particularly dissatisfied, , even bitter, about ' the ' current situation . Thes e are civilian
members, especially those holding analytical jobs . One civilian went so far to
describe the second-class status of civilians within the se rvice as ."administrative apartheid" . Others feel just as .strongly . Indeed, in the latter part of.. 1978,
a number of civilian members prepared a brief for the committee chaired by
Mr . Guy D'Avignon on the Review of Personnel Management and the Merit
Principle in ,the Public Se rvice . This brief was highly critical of R .C .M .P .
practices - towards its, civilian . members. The civilian members agreed i not to
687
�submit the brief on the undertaking of senior management of the Force to
review and reply to the points raised in the brief . Nearly everyone we talked to
in the Service acknowledged the need to find some solution to a problem which
has been well known to the Force's senior management since 1955 . This level
of employee dissatisfaction, especially among civilian members, would be an
unhealthy situation in any organization : but in a security service, which is
especially vulnerable to "leaks" and - even more serious - penetration
attempts by hostile foreign agencies, it is an intolerable and dangerous
situation .
60 . In the next two chapters we shall spell out the extensive changes we
believe necessary to put the Security Service on a sound managerial and
structural footing . We shall recommend these changes with two objectives in
mind : first, to improve its overall effectiveness, that is, to help the Service
provide more timely information of higher quality to government about the'
security threats facing Canada ; and second, to reduce the risks of Security
Service members committing illegalities and improprieties in the performance
of their duties . To give the reader an overall sense of our basic directions in
these matters, we shall summarize our views briefly in the final section of this
chapter .
D. CONCLUSION S
Understanding the pas t
61 . All four attempts to change the Security Service reviewed in this chapter
- the study conducted by the senior civilian member in 1955, the Report of
the Royal Commission on Security in 1969, the Prime Minister's policy
statement in the House of Commons in 1969, and the study of the Bureau of
Management Consulting in 1973 - had a similar essential logic . Each
recognized, to varying degrees, that there are significant differences between
the functions of a security intelligence organization and the basic functions of a
police force. These differences imply that a security intelligence organization
requires a different set of managerial and personnel policies . In particular, a
more experienced, better educated, broader type of individual is needed for
security intelligence work . Consequently, to develop these different policies, the
Security Service should either separate from the R .C .M .P . (the Royal Commission on Security) or have a significant degree of autonomy within the Force
(the 1955 study, the Prime Minister's statement, the B .M .C . study . )
62 . In addition to the similarity of their arguments, these attempts at change
met with much the same fate . They had little or no impact, primarily because
of stiff resistance from the senior management of the Force . Even the publicly
announced policy statement given by the Prime Minister of Canada in 1969
was largely ignored by the Force over a ten-year period . The policy has not
been substantially implemented, nor has the Force made a concerted effort to
do so .
63 . Why has each of these attempts at change met with so little success?
Hearing the testimony of a large number of Force personnel, studying th e
688
�Force's management and personnel systems, seeing at first hand the recruit
training programme in Regina and studying the curriculum, have all given us
important insights in answering this question . To implement any of the major
recommendations flowing from these studies would have been a wrenching
experience for the Force. It would have meant a denial of what many in the
R .C .M .P . hold to be the essence of the organization and the basis for the wide
measure of support it has among the Canadian public . Let us enlarge on this
proposition .
64. In the course of our inquiry, several people have compared the R .C .M.P .
with a religious Order . One such person was the former Solicitor General, Mr .
Goyer, who testified as follows :
Q . Did Mr . Starnes tell you of any difficulties or reluctance he encountered in properly managing or administering the Security Service ?
A . I think Mr . Starnes was faced with the same problems which I
explained I had, that is to say, when you are not a Mountie, you are
strictly an outsider . The same thing is true of R .C .M .P. clerical staff,
who are not Mounties, or of certain people who work in laboratories .
They definitely feel that they have second-class status . It is unfortunate .
What can you do to improve that situation? I don't know . It's a matter
of establishing communication, confidence and, eventually, perhaps
friendship . But I do not think that - I did not notice that Mr . Starnes
was incapable of doing his work for that reason .
Q . Did he tell you that he had difficulty establishing this communication
of which you speak ?
A . Yes, but once again, in this sense : the same difficulty that I encountered
at the beginning, which decreased but never really disappeared . You
never become a member of the R .C .M .P . if you haven't been through
Regina . You have to accept the mould . When you do, you are one of
them . The same is more or less'true in the Armed Forces, I think . And
that is surely the way it is with the Jesuits, to draw the same
comparison . (Vol . 122, pp . 19063-5 . Translation . )
65. Certainly some of the primary characteristics of the R .C .M .P . are those
normally associated with a religious Order . Force recruits are young, with few
exceptions they enter the organization at only the lowest level, gradually work
their way up a well-defined rank structure, and pursue a "generalist" career
path . Thus, there is a significant degree of homogeneity in the membership of
the organization . In addition, the recruit training of the Force is designed to be
a mentally and physically rigorous experience - it is an "initiation rite", a
process which moulds the individual in the image of the Force, an experience
which develops an esprit de corps .
66. Loyalty to the organization is a norm of the Force . As far as possible the
R .C .M .P. arranges for the training of its own members in needed disciplines,
rather than recruiting professionals, so that their first loyalty is to the
organization rather than to their profession . M ôTeover, joining the Force is
~
meant to be, if not a lifelong commitment, at least one which spans the best
part of a person's working life . The Force pension scheme, for example,
discourages officers from leaving until they have se rv ed, usually, 35 years .
689
�67 . There is also an extensive and well-defined set of rules governing the
conduct of members both on and off the job . For those who demonstrate
disloyalty by deviating from the accepted norms of the 'organization the
disciplinary procedures are harsh . Even now, the Commissioner has the power
to arrest a member and to hold him in custody without trial for up to 30 days
for certain Service offences, ranging from disobeying lawful orders to engaging
in "any activity in which his involvement is not in the best interests of the
Force" . As Commissioner Simmonds noted in testimony before us : "I doubt if
there is any organization that has set higher standards fôr itself and exacts
more out of its members than this organization, if they go wrong" (Vol . 164, p .
25237) .
68 . Finally, the R .C .M .P . possesses a definite quality of insularity . It has
difficulty accepting and working with "outsiders", as the testimony of- Mr .
Starnes, Mr . Bourne, and Mr . Goyer so amply demonstrates . Accompanying
this insularity is a certain self-satisfaction which manifests itself in a variety of
assumptions : that the organization is headed in the "right" direction ; that the
managerial ingredients that have worked so well in the past will continue to
work in the future ; and that staff members who are not regular members of the
Force can, with few exceptions, perform only peripheral roles .
69 . None of the characteristics we have outlined above is unique to the
R .C .M .P . All organizations have at least some of these to varying degrees . But
it is their combination and special emphasis within the Force which makes the
R .C .M .P . distinct from the rest of the federal government departments and
agencies, and the vast majority of non-governmental organizations . Given the
importance of these characteristics, which have a long history within the
R .C .M .P . and are essential elements in its traditions, it is not surprising that
the four attempts at organizational change described in this chapter met with
so little success . To have accepted these changes would have implied an influx
of civilian members in middle and senior management positions, none of whom
shared the Force's traditions and work experiences, and all of whom would be
reducing opportunities for regular members . Such attempts at change are an
anathema . To accept them would be akin to a religious Order allowing those
who had not gone through the arduous process leading up to the taking of
religious vows to influence an essential part of the Order's operations .
Our position on managerial and structural matter s
70. In the following chapter on management, we shall be making recommendations which, in several respects, are similar to proposals that have been made
in the past. We shall recommend that Canada's security intelligence agency be
staffed with more experienced, better-educated personnel, with a wide variety
of backgrounds in government, universities, police forces and the private sector,
and that many of the other personnel policies of the current Security Service
(those, for example, dealing with training and development, remuneration and
career paths) be altered to "fit" this type of employee . But we shall also be
departing from past studies in some important ways . We believe strongly that
changes in internal management practices are a critical element in the package
of reforms we shall be proposing to reduce the risks of future illegalities and
690
�improprieties . Past studies paid little, if any, attention to this aspect of
management, whereas for us it is a dominant theme which colours many of our
recommendations in this area .
71 . Following the chapter on management, we shall turn to questions of
structure . Our major recommendation here will call for a security intelligence
agency which is separate from the R .C .M .P . We shall weigh carefully the
arguments for and against this structural change, but for us, a compelling
argument in its favour is our belief that the managerial reforms which we think
are necessary and achievable have little likelihood of being implemented,
should the Security Service remain within the Force . Past history, and our
understanding of what many within the R .C .M .P . cherish about their organization, strongly support this conclusion . We realize that there are costs involved
in separating the Service from the rest of the Force - certainly in human
terms and possibly in financial terms . .(We shall examine this latter point in
more detail in Part VI, Chapter 3 .) But our judgment is that the benefits of a
separate security intelligence agency outweigh these costs .
691
��CHAPTER 2
MANAGEMENT AND PERSONNE L
INTRODUCTION
1 . A security intelligence agency is a complex organization and managing it
is no easy matter . The international and national dimensions of its work
present challenges ranging from liaison with foreign agencies to communicating, sometimes under demands of secrecy, with a staff that is dispersed widely .
To this broad spectrum of relations with provinces, states, and other agencies
are added factors that, while more intangible, still pose challenges to management . These include : the need to control carefully the use of intrusive and
secret investigation methods, with their potential for damage to Canadian
liberal democratic values; the false romance with which spy novelists have
glossed the public image of intelligence work, ignoring the methodical drudgery of day-to-day investigations ; the lack of public recognition of success,
coupled with the quick condemnation of error ; the moral pressure on individuals of work that relies to some extent on deceit, manipulation and other
practices inherent in the collection of intelligence about espionage and subversion ; and finally, the constant fear of the penetration of the agency by a foreign
agent, thereby spurring protective measures that may themselves offer complex
challenges to management .
2. In sum, the management of a security intelligence agency is not a job for
amateurs . But, paradoxically, there is a danger in describing it as a job solely
for professionals . There are some connotations of the term `professional' which
we find attractive - for one, it suggests a high level of competence - but
there are two aspects to `professionalism' which are potentially dangerous to a
security intelligence agency operating within a liberal democratic country . The
first is that non-professionals (those not belonging to the agency) are seen to
have little basis for making useful comments on important aspects of its work .
Mr . Robin Bourne, a former assistant deputy minister in the Solicitor General's Department, in testimony before us, gave a good example of this tendency,
when speaking of the Police and Security Planning and Analysis Branch of the
Department .
We did not interfere with operational policy . Now, the recruitment of
sources - I am not saying we should have or shouldn't have . I am trying to
explain why, even though you would interpret the terms of reference that
way, we did not nor were we asked to involve ourselves in this kind of
policy . If we had tried to in an unsolicited way, we would have been accused
of interference in operations which are the business of professionals .
(Vol . 142, p . 21768 . )
693
�In an area of government fraught with difficult political decisions and moral
dilemmas, this tendency to exclude others because they are not professionals is
both wrong and dangerous. Ministers and senior government officials must
play an enlarged role in governing the affairs of the agency . Our second
misgiving about professionalism arises from the tendency of professionals to
give their first loyalty to their profession . We believe that security intelligence
staff should give their primary loyalty not to their profession, nor to their
employing agency, nor, especially, to the political party in power, but to
Canada's liberal democratic principles which the agency has been established
to protect . For these reasons, we do not recommend this kind of `professionalism' as a distinctive quality of the staff of a security intelligence agency .
3 . In this chapter, we concentrate almost exclusively on the `human' side of
managing . We say nothing about property management or computer management, and have only some brief comments to make on financial management .
The basic principles put forward in this chapter should apply no matter where
the security intelligence agency is placed within government . They are as
relevant to a Security Service within the R .C .M .P . as they are to an agency
separate from the Force .
4 . We address first the question which is central to this Commission's work :
why did people behave illegally and improperly, and what are the best
approaches that an organization can adopt internally for preventing, as far as
possible, the recurrence of such behaviour? Following discussion of this general
question, we shall specify the requirements for the positions of Director
General and other senior management and examine the appropriate personnel
policies for the agency by considering such matters as recruitment, training
and career paths . Recommendations in both of these initial sections aim at
ensuring that the right people are doing the right jobs . In the latter sections, we
shall turn our attention to how people relate to each other within the agency .
We shall develop recommendations on leadership style, on approaches to
organization, on how the agency should provide its legal and auditing services,
and finally on internal security procedures .
A . THE IMPORTANCE OF INTERNAL MANAGEMENT
5 . Our recommendations on the management of Canada's security intelligence agency will have two equally important objectives in mind : first, to
enhance the agency's capacity to provide government with timely; high-quality
information about security threats to Canada ; and se (!ond, to ensure that the
agency, in providing this information to government, acts in a manner which is
both legal and proper . Because so many of our recommendations are coloured
by concerns for reducing the risks of future wrongdoings, it is appropriate that
we begin this chapter by explaining our basic approach to this matter .
6 . What sort of internal policies can an organization such as a security
intelligence agency adopt to minimize the risks of its members behaving
illegally or improperly? Answers to this question depend upon assumptions
about the causes of wrongdoings in organizational settings . One assumption is
that people who do these acts are `evil', and it leads usually to a`battenin g
694
�down the hatches' approach aimed at discouraging or uncovering deviant
behaviour . Thus, the organization relies heavily .on such approaches as auditing
mechanisms, placing `good' people in,kéy positions, centralizing . decision-making, and prescribing acceptable behaviour in, great detail .through the use of
standardized routines and manuals .
7 . There are costs involved in an over-reliance on such `watchdog' or `policing' type control mechanisms . They can produce a rigidity in the functioning of
the organization and apathy in performance of individuals and, worse, their
very existence may spur employees to try to counter or cirçumvent them . But
our deeper, concern is that the assumption on which they are founded - that
wrongdoings are caused solely by, or even primarily by, `evil' people - simply
is not supported by the evidence before this Commission . We . were not
investigating acts of `police corruption' . Most of those involved in wrongdoing
would probably be considered exemplary citizens in their private lives =
law-abiding, morally sensitive, public-minded, and so on . Why did• these men
act in the way they did ?
8 . There is no simple answer to this question, but our testimony does, reveal
that several factors were important . One of the most commôn rationales we
heard was that the "ends justified the means" . Consider the following testimony by a former Commissioner :
Q . Am I correct to understand that the géneral rule of ethics'is that the
end does not justify the ineans ?
A . Yes, I think that is true, yes .
Q . But when we come to-security matters„there are situations where the
end will justify the means ?
A . Yes, I think there are occasions when,, as I have just explained, actions,
all of which must always be reasonable - there are cases .w:here actions
are taken in the pursuance of Security Service, delicate investigations
where actions that would not be justified under other circumstances can
be justified .
And later :
Q . So would you put a brake to your principle that the end'does at times
justify the means within the confinement of legality? ,
A . No, I don't think I would be able to put that brake on it . It has got to be
within the confinements of reasonableness .
Q . Andreasonableness can stand beyond legality ?
A . Yes, indeed, I think it can in certain circumstances .
(Vol : - 193, pp . 17457-17462 . )
9 . Those who . put forward this rationale for acting illegally or, improperly
tended to emphasize the grave threats to national security which appeared to
call for extraordinary'means .
10 . . Another common justification used by many who appeâred_beforé us was
that their actions were not based on a "guilty mind', that is, they argued that
they had,no criminal intent . The following, for example, are the comments of a
695
�Security Service officer who authorized the publication of a false communiqué
in the early 1970s .
So, I don't believe that the publication of that communiqué would have
been an offence under that section [of the Criminal Code dealing with
forgery] . I don't know whether I would have been convicted of an offence
under that section . I concede that because of the terminology, I might have
been charged with such an offence ; but I think that the intent - the intent
to make a forgery, for example, which is important, was not there .
(Vol . 65, p . 10705 . )
11 . Yet another common refrain which we heard in our hearings was that "I
was only doing my duty" . Thus, many witnesses saw themselves as not
responsible for their actions . They were obeying the orders of their superiors,
or, in some cases, conforming to policy approved at the Force's most senior
levels.' Here is a constable involved in an incident in which material was taken
without the consent of its owner :
Q . Did you ever consider whether the operation in which you were asked to
participate was lawful ?
A . I considered it and felt that due to the reason explained to me by my
superiors, that it was necessary, and it was needed at all costs .
Q . What do you mean by that ?
A . Well, I felt in my mind it was necessary . .. .* had a source to establish
in the milieu . What that source was involved in, or how sensitive his
position was, I don't know . I presumed it must have been quite
important for such an operation, and I was satisfied that if
. ..*instructed . ..*and I to get a hold of such a thing, that it was
necessary . I was not in a position to question it, sir .
Q . Why were you not in a position to question it ?
A . Because I am a constable and .
..*is a Staff Sergeant . That's the
reason .
12. Constables were not the only R .C .M .P . members to use the rationale of
superior orders to justify their actions . Even a former Commissioner believed
that he had faced the dilemma of superior orders :
But, you know, I was a Commissioner and I was sitting in on some very
high councils of this land when things were very difficult, and I was being
told exactly what was necessary and what ought to be obtained if that were
possible . Now, whether you take it as .an instruction or a wish, I don't know,
but as a Commissioner, I would not have remained in office very long if he
[sic] had said, "There is no way" . There has to be a way .
(Vol . 87, p . 14358 . )
13 . Testimony before us on several occasions has pointed to the difficulty
facing a member of the R .C .M .P . who might have questioned the orders of a
superior . Former Commissioner Higgitt, for example, told us that a member
was not forced to obey an unlawful order, but that refusal to follow such an
order might result in an undesirable transfer . Commissioner Simmonds took a
different approach to this question . He refused to accept the premise tha t
*Name deleted made pending disposition of possible legal action .
696
�" . .. in this organization, a member would be afraid to question an unlawful
order" (Vol . 165, p. 25521) . But he went on to acknowledge the difficulties
facing a junior member who might wish to question the orders of a superior,
and suggested that the member's career would not be impeded as long as he
was right (Vol . 165, p . 25525) . (Our emphasis . )
14. Finally, we heard from a number of Security Service members who stated
that questions of legality and propriety never entered their minds . Consider the
following testimony on the matter of the letter sent to Mr . Allan Lawrence,
M .P ., concerning R .C .M .P. mail opening practices :
Q . Well, had you had any discussion or concern with the senior officers
about the legality or propriety of this ôperation ?
A . No .
Q . Did it ever occur to you that it would,be necessary or desirable for you
to have such a discussion ?
A . I cannot say that it did, Mr . Thomson .
Q . Why not ?
A . Well, I assumed = perhaps I was wrong to have done so - that the
officers of the Force that would approve this sort of operation understood fully what it was about, and the ramifications of it and that it
must be sanctioned by someone in authority at least . This is all
retrospective analysis, because I cannot say that I really ever addressed
my mind to the question at the time .
(Vol . 159, p . 24309 .)
Captured in the testimony is a troublesome aspect of modern organizations :
long chains of command that separate the person who makes the decision from
the one who executes . Who is to bear the consequences ?
15. Another factor peculiar to a security intelligence organization which may
help explain why so little attention is paid to these issues, is that the nature of
the work, at times, dulls an individual's sensitivity to moral issues . Nowhere is
this more graphic than in the development of informants or `sources' . To be
succéssful here, some contend, requires the condoning of ethically questionable
activities . As one former member of an intelligence agency explains :
. . . the highest art in tradecraft is to develop a source that you "own lock,
stock and barrel ." According to the clandestine ethos, a "controlled" source
provides the most reliable intelligence . "Controlled" means, of course,
bought or otherwise obligated . Traditionally it has been the aim of the
professional in the clandestine service to weave a psychological web around
any potentially fruitful contact and to tighten that web whenever possible .
Opportunities are limited, but for those in the clandestine service who
successfully develop controlled sources, rewards in status and peer respect
are high . The modus operandi required, however, is the very antithesis of
ethical interpersonal relationships . '
E . Drexel Godfrey, Jr ., "Ethics and Intelligence", Foreign Affairs, Vol . 56, (April/
July 1978), p. 630 .
697
�16 . In pointing out some of the motivations which led to the allegations of
wrongdoing investigated by us, we are neither condoning the behaviour nor
suggesting that motives, no matter how noble, provide a legal defence for
questionable behaviour . In Part IV, Chapter 1 of this Report, we have made
our position quite clear on this point . What we are suggesting, however, is that
motivations provide relevant clues for designing ways to prevent such acts in
the future . The evidence before us suggests that the reasons for committing
wrongdoings are complex and have at least as much to do with `systems'
failures - that is, failures in the systems of law, management, and governmental relationships affecting the Security Service - as they do with human
failings . This conclusion leads to another : that to rely solely on control
mechanisms which `police' behaviour or require approval for action from some
organization or individual outside the agency would lead to a system of controls
which is less effective than it could be . We, therefore, stress a variety of
approaches : some admittedly are of a watchdog type, but others aim at
reducing or eliminating the characteristics within an organization that lead
`good' people to act improperly or illegally . These latter approaches are usually
inexpensive, tend to opérate more or less automatically in the day-to-day
operations of the agency, and, if properly designed, will not produce organizational rigidities, or behaviour aimed at subverting their intent . One disadvantage of such approaches, however, is that they cannot usually be,implemented
in a short time period .
17 . The recommendations we have developed on the mandate of Canada's
security intelligence agency illustrate our belief in the need for a variety of
approaches to encourage behaviour that is legal and proper . For example, we
have recommended increased ministerial and judicial involvement in the process of approving the use of intrusive investigative techniques . But it is clear to
us that such approval is no guarantee that those within the agency will use
these investigative methods properly with due regard for the law . Therefore, it
is equally important that there be no ambiguity as to how legality and
propriety relate to other agency goals . For agency employees, it must be crystal
clear that breaking the law will not be condoned or ignored in any circumstances, even if other agency goals are being met . Thus, clarifying the type of
behaviour which is expected of agency emplôyees is perhaps as important as
changing the approval processes affecting the use of intrusive investigation
methods . In this chapter, and those which follow, we shall continue to stress 'a
vâriety of approaches, tailoring a particular approach to the likely motivations
which might cause wrongdoings .
B. THE DIRECTOR GENERAL AND SENIOR
MANAGEMEN T
The Office ojDirector Genera l
18 . The very nature of a security intelligence agency - its operations
shrouded in secrecy, its highly intrusive investigative techniques, and its
interests in the political arena - explains why the relationship between the
agency and the government has a high potential for abuse . On the one hand ,
698
�there is the danger that politicians or their senior officials will pressure the
agency into providing information to be used for partisan purposes . For
example, they might ask the agency to collect information about the private
lives of certain political opponents in the hope that some of the information will
be derogatory and therefore useful in discrediting these opponents . There is
also the potential for the reverse kind of abuse : the security intelligence agency
acts autonomously, with no effective direction and control of it by government .
An extreme manifestation of this latter abuse occurs when the agency uses its
covertly collected information to pressure politicians to achieve certain ends,
such as increasing the agency's power within government, ensuring that the
head of the agency is not fired, obtaining certain changes in policy, or
preventing public disclosure of questionable operations . One of the major
findings of the Church Committee in the United States was that both kinds of
abuse had occurred :
The Committee finds that information has been collected and disseminated
in order to serve the purely political interests of an intelligence agency or
the administration, and to influence social policy and political action . '
19 . Choosing an appropriate person to be Director General of the security
intelligence agency is one important means by which the likelihood of these
abuses can be reduced . What are the desirable characteristics that a Director
General should possess? First, he should be a person of " :' . high capacity and
probity, and be accepted by the public and by others in government as having
those qualities ."' Second, in making this appointment, consideration should be
given to individuals from outside the agency, although promotion to this
position from within should not be barred . The following assessment in the
study of the Central Intelligence Agency, conducted in the United States under
the Chairmanship of then Vice-President Rockefeller, is relevant to Canada :
"Experience in intelligence service is . not necessarily a prerequisite for the
position [of Director of the C .I .A .] ; management and administrative skills are
at least as important as the technical expertise which can always be found in an
able deputy ."4 Third, the Director General shôuld be knowledgeable about the
various political and social movements in our society, should have a good grasp
of international affairs, and, should be experienced in the functioning of
government . Moreover, he should value highly what the security intelligence
agency is, in the end, securing - that is, the liberal . democratic principles
embedded .in Canada's Constitution . And finally, it is important that the
Director General's judgment on political matters be sound and unbiased .
20. In addition to choosing a Director General wisely, we believe it is
important that certain aspects of his position should be structured to réduce the
possibility of abuses . Our approach here is twofold . First, we shall make severa l
2 United States Senate, Final Report of the Select Committee to Study Governmental
Operations, Book 11, 1976, p . 225 .
Australia, Fourth Report of the Royal . Commission on Security and Intelligence
( The Hope Report), Canberra, 1978, paragraph 385 .
^ United States, Commission on C.I .A . Activities Within the United States, June 1975,
p. 93 .
699
�recommendations concerning how the Director General is appointed, his term
of office, and how he can be dismissed . The point of these recommendations is
to make it easier for the Director General to resist improper pressures from
politicians and their advisors . Second, we shall recommend a series of checks
and balances on the Director General's performance with the aim of ensuring
that what his agency does is under the control and direction of government . In
our discussion of the agency's mandate, we have already recommended one
such device : the formation of a committee including several officials from
outside the agency with responsibilities for controlling the use of highly
intrusive investigative methods . In this section of the Report, we shall consider
briefly the reporting relationship of the Director General as another check on
the agency's operations .
21 . In our opinion, the office of the Director General should be provided for
in the legislation which creates the agency . That legislation should state how
the Director General is to be appointed, to whom he is responsible and what his
duties are. We shall deal with these three subjects in order .
22. Because of our strong belief that the government's activities in security
matters should be removed from the realm of partisan politics, we feel that the
Director General of the agency should be acceptable to all parties in the House
of Commons . To accomplish this we consider that the statute should provide
for the appointment of the Director General by the Governor in Council after
consultation with the leaders of all opposition parties . We hope that an
appointment made in this fashion will remove any taint of partisanship and will
engender a degree of confidence which will facilitate the development of an
effective relationship of the agency to Parliament . (We shall have more to say
on this topic in Part VIII of this Report . )
23 . We believe that the non-partisan appointment of the Director General
will more likely help to avoid the kinds of abuses that we noted above by
enhancing his office and thus providing him with the necessary strength to
resist any improper pressures . We propose that his position be further strengthened by having his appointment extend for a term of years rather than "at the
pleasure" of the Governor in Council . During that term he should be dismissable only for cause, and the grounds for dismissal should be set out in the Act .
The Australian legislation has handled the matter as follows :
13 . (1) The Governor-General may terminate the appointment of the
Director-General by reason of physical or mental incapacity, misbehaviour
or failure to comply with a provision of this Act .
(2) If the Director-Genera l
(a) absents himself from duty, except with the leave of the Minister, for 14
consecutive days or for 28 days in any 12 months ; o r
(b) becomes bankrupt, applies to take the benefit of any law for the relief
of bankrupt or insolvent debtors, compounds with his creditors or
makes an assignment of his remuneration for their benefit ,
the Governor-General shall terminate his appointment .5
5 Australian Security Intelligence Organization Act 1979, s .13 .
700
�We would recommend that dismissal for cause be defined to include physical
or mental incapacity, insolvency or bankruptcy, misbehaviour or failure to
comply with the provisions of the Act establishing the security intelligence
agency .
24 . The very strength of this proposal - that is, the difficulty the government would have in proving proper grounds for dismissal - also carries with it
an inherent weakness . The government might find itself wishing to remove a
Director General whom it regards as incompetent but without sufficient
evidence to meet the statutory test . To reduce the likelihood of this, we propose
that the Director General be appointed for a fixed term of five years . Such a
provision has the additional advantage of providing a signal to both the media
and the opposition parties, should the Director General resign or be dismissed
before completing the full five-year term . In this situation, the government
would likely be subjected to persistent questioning on what, if anything, has
happened to explain his premature departure .
25 . A final statutory condition on the appointment of the Director General is
that the maximum period for which one person can serve in this position should
be 10 years . Thus, the five-year term would be renewable only once . There are
several advantages to this proposal . Ten years is long enough for any one
person to head such an organization, since the Director General's job is a
wearing one . A new Director General will bring new ideas and new approaches,
and this fresh infusion will likely be healthy for the agency . A second
advantage is that the Director General, after 10 years as head of a security
intelligence agency, may know or be thought to possess much knowledge of a
derogatory nature about politicians, senior officials and others in Canada . He
might be tempted to use this knowledge as a lever to prolong his stay in office
or for other questionable purposes .
26 . We believe that the legislation, having thus established the office of the
Director General, should then deal with his reporting relationships and the
extent of his responsibility . Both the Australian and the New Zealand legislation have covered this question . The New Zealand Act states quite simply :
(3) The Director of Security shall be responsible to the Minister for the
efficient and proper working of the Security Intelligence Service. 6
The Australian Act is somewhat more elaborate in its approach . It provides :
8 . (2) In the performance of his functions under this Act, the DirectorGeneral is subject to the general directions of the Minister, but the Ministe r
is not empowered to override the opinion of the Director-General (a) on the question whether the collection of intelligence by the Organization concerning a particular individual would, or would not, be justified
by reason of its relevance to security ;
(b) on the question whether a communication of intelligence concerning a
particular individual would be for a purpose relevant to security ; or
(c) concerning the nature of advice that should be given by the Organization to a Minister, Department or authority of the Commonwealth . '
6 New Zealand Security Intelligence Service Act 1969, s .5(3) .
' Australian Security Intelligence Organization Act 1979, s .8(2) .
701
�27. We do not favour giving the Director General independent powers, as has
been done in the Australian legislation . As mentioned earlier, we do not wish to
give the Director General authority outside of a system of effective governmental control . Nor do we favour having the Director General responsible directly
to the Minister . All the evidence before us leads inescapably to the conclusion
that Ministers, although willing to exercise control over the R .C .M .P . Security
Service, were unable to do so because they had no effective means of finding
out what the Security Service was doing . In most cases members of the
Security Service would no doubt have been willing to provide the Minister with
whatever information he requested, although we have referred to cases earlier
in this Report where members were less than forthcoming, and, in certain
instances, intentionally misled the Minister - but the real difficulty is that the
Minister has not known enough about the Security Service to know what
questions to ask . He has been completely at the mercy of the Director General
and the Commissioner of the R .C .M .P . With an agency whose operations are
essentially secret we think this is not a healthy situation and we shall have
more to say on this subject in Part VIII in dealing with ministerial direction .
At this point we simply wish to deal with the lines of the reporting relationship .
28. The legislation should provide that the Director General is responsible
directly to the Deputy Minister rather than to the Minister . The Deputy
Minister would have the right to give direction to the Director General on all
matters . Our purpose in recommending this structure is to counterbalance what
would otherwise be the tremendous power in the hands of the Director General,
given his control of a secret agency, the special method of approval of his
appointment, and his tenure of office 'or a term of years .
29 . The third area which should be covered in the legislation in relation to the
Director General is the nature of his responsibilities . Once again it is instructive to turn to the Australian and New Zealand Acts . Each of them deals with
the matter very simply . The Australian Act states :
8 . (1) The Organization shall be under the control of the DirectorGeneral . g
The New Zealand Act states :
5 . (1) There shall be a Director of Security who shall control the Security
Intelligence Service .
(3) The Director of Security shall be responsible to the Minister for the
efficient and proper working of the Security Intelligence Service . 9
We favour the very simple Australian statement, with the addition of the
provision mentioned above that the Director General be responsible to the
Deputy Minister and subject to the Deputy Minister's direction . Our recommendations on the responsibilities and the reporting relationships of the
Director General will be found in Part VIII, Chapter 1 .
Ibid ., s .8(1) .
New Zealand Security Intelligence Service Act 1969, s .5 .
702
�30. Throughout our recommendations in this Report we have proposed that
aspects of the security intelligence agency's functions be dealt with in legislation . We anticipate that the legislation would refer to the Director General as
the person having certain duties and rights . For example, it would be the
Director General who would contract on behalf of the Crown for the employment of staff . We think that this language is . appropriate providing that there is
the overriding clause that everything that he does is subject to the direction of
the Deputy Minister . We should enter one caveat here . That is that in certain
exceptional circumstances the Director General should have the right to go to
the Minister `over the head' of the Deputy Minister, or to the Prime Minister
`over thé head' of both the Deputy Minister and the Minister . We do not
consider that it is necessary to include this provision in the legislation . The
circumstances in which we consider it to be appropriate will be set out in Part
VIII .
A team approach to decision-making
31 . We believe that no one person can possess all the qualities necessary to
run such a complex organization as a security intelligence organization . Many
factors make one-man rule obsolete, among them : the impact of new technology, both on the investigative side and in the area of information storage,
processing, and communication ; the increase in employee demands to influence
decisions affecting them ; the size of the agency's operations ; the increasing
need to `work things out' with other gôvernment departments . Consequently,
we believe it important to focus on the Director General and his team of senior
managers - that is, the heads of the operational branches, the financial and
personnel services, and the technical services of the agency .
32 . We use the word `team' quite deliberately . Because of the ever-present
danger of an agent of a foreign power penetrating a security intelligence
agency, the agency adheres to the `need-to-know' principle . The effect of this
principle is to restrict the flow of sensitive information within the agency . One
problem, as the Rockefeller Commission pointed out, is that the application of
the principle can easily lead to extremes :
The compartmented nature of C .I .A . operations and the adherence to
'need-to-know' principles has restricted communication to lines of authority
within each directorate . One directorate generally does not share information with another. The Director of Central Intelligence is, as a consequence,
the only person in a position to be familiar with all activities . Therefore he
is the focal point for formal internal control of the C .I .A .1 0
33 . Having only one person in the agençy familiar with all,of its activities is
undesirable for at least two reasons . First, there is a greater likelihood of the
agency's embarking on activities "of questionable legality _ and propriety . It is
imperative, in our view, that the Director General receive advice from several
sources on difficult decisions facing the agency - especially from those whose
interests differ from the person initiating the proposed course of action .
10 United States, Commission on C.I .A . Activities Within the United States, June 1975,
p . 85 .
703
�Second, the quality of decisions is likely to be higher if taken with the
assistance of a group of senior managers .
34. We have seen little evidence of an effective senior management team
functioning within the Security Service . The Director General and his senior
managers do not have regularly scheduled meetings, nor is there any indication
that they as a group are the focal point for significant policy or opérational
decisions. In October 1979, the Commissioner of the R .C .M .P . approved the
terms of reference for the Operational Priorities Review Committee
(O .P.R .C .), a group whose existence was acknowledged two years earlier in
November 1977 . The O .P.R .C . is composed primarily of managers from
operational branches along with a Department of Justice lawyer and an officer
from the criminal investigation side of the Force . While the formation of this
group is potentially a positive development, it cannot adequately replace a
senior management team whose members should encompass all of the major
areas of the Service . There are many policy questions, which, because of the
operational orientation of the O .P.R .C .'s mandate, will not likely be tackled by
this group. As well, significant operational decisions should not be left primarily in the hands of operational managers, nor similarly should administrative
issues be dealt with solely by administrative staff. A senior management group
drawn from various sectors ensures that countervailing pressures are brought to
bear on major decisions .
35 . In recommending the formation of a senior management team, we are not
advocating the abolition of the need-to-know principle, at least as it applies to
the senior managers of the agency . Rather, we are suggesting that common
sense should prevail . The senior managers should direct their collective attention to only the most sensitive operations, and even here they can make .
informed decisions without knowing certain highly confidential information for example, the actual names of informers .
36. One of the important tasks of the Director General is to ensure that he
and his senior managers function as an effective team and that the make-up of
this team reflects the strengths and experience necessary for making important
agency decisions . Thus, several senior managers should have wide experience in
other government departments and agencies, particularly those whose functions
are relevant to security intelligence work, in order to encourage the infusion of
new ideas and fresh approaches . Several should have an extensive investigative
background, especially in counter-intelligence work . It would be desirable if at
least one of the team members were a lawyer. (This person would not act as the
legal adviser to the agency, a role which we shall explain later in this chapter .)
All of the team members should place a high priority on effectiveness, on
conducting agency operations legally and with propriety, and on upholding
liberal democratic principles . Finally, at least one of the senior management
team should have extensive knowledge of modern management methods and
theories .
WE RECOMMEND THA T
(a) the Director General should be a person of integrity and competence ;
he should have proven managerial skills but need not have prio r
704
�working experience in security intelligence matters; he should be
knowledgeable about political and social movements, international
affairs and the functioning of government ; he should have a high
regard for liberal democratic principles ; and he should have sound
political judgment, not affected by partisan concérns;
(b) the appointment of the Director General of the Security Intelligenc e
Agency be made by the Governor in Council ;
(c) the Prime Minister consult the leaders of the opposition parties prio r
to the appointment of the Director General .
(69 )
WE RECOMMEND THAT the following conditions of employment for
the Director General should be included in the statute establishing the
security intelligence agency :
(a) the Director General can be dismissed only for `cause' ;
(b) 'cause' includes mental or physical incapacity ; misbehaviour ; insolvency or bankruptcy ; or failure to comply with the provisions of the Act
establishing the agency;
(c) the Director General should be appointed for a five-year term ;
(d) no Director General may serve for more than 10 years .
(70)
WE RECOMMEND THAT the Director General and his senior managers
act as a team in dealing with important policy and' operational matters
affecting the security intelligence agency .
(71)
WE RECOMMEND THAT Canada's security intelligence agency encourage the infusion of new ideas and fresh approaches by ensuring that a
reasonable number of its senior managers, prior to joining the agency in a
middle or senior management capacity, have worked in other organizations .
(72)
WE RECOMMEND THAT the senior management team of Canada's
security intelligence organization have a wide diversity of backgrounds,
reflecting experience in both governmental and non-governmental institutions, in the law, in investigatory work, and in management . All of the
agency's senior managers should place a high priority on effectiveness, on
conducting the agency's operations legally and with propriety and on
upholding liberal democratic principles.
(73)A!
C . PERSONNEL POLICIE S
.37. In this section, we use the term `personnel policies' to encompass the
following matters :
- the kind of personnel required in a security intelligence orgânization ;
- methods of recruiting personnel ;
- policies relating to secondments ;
- career paths within the organization ;
= training and development procedures ;
705
�- whether or not' agency employees should be members of the Public
Service'of Canada ;
- whether or not agency employees should be allowed to form a union ;
- counselling, discipline and grievance procedures ;
- procedures for dismissing employees .
These matters do not exhaust the possible list of personnel policies relating to a
security intelligence agency, but, in our view, they are the most important . We
deal with each in the order given above .
Required personnel for a security intelligence organizatio n
38. The R .C .M .P . is predominantly a career se rv ice . By this we mean that
new members, with few exceptions, enter the organization at the lowest rank,
and then proceed to work their way tip the various levels of the organization,
through a combination of seniority and merit . Thus, all the senior managers of
the Force, including those within the Security Service with the exception of the
Director General, have `come up through the ranks' . Within a career service,
there is little or no recruitment of middle and senior managers from outside the
agency .
39 . This system, as applied to the Security Service, has some obvious
strengths . It ensures, for example, that the Service has a very experienced
group of senior managers - nearly all have spent at least 25 years in the
Force, some even longer . Until recently, those who have joined the. Security
Service have tended to remain in it for most of their career . The fact that all
the senior managers and a large . majority of middle managers of the Se rv ice
have police backgrounds enhances cooperation with other police forces and
ensures that investigative experience is brought to bear in decision-making . In
addition, the common set of work experiences and traditions creates an esprit
de corps amongst regular members of the Se rv ice, and this is an important
asset .
40. Nonetheless, a career service concept as applied by the R .C .M .P . to the
security intelligence function does not appear to us to provide the Security
Service with the type . of personnel required to perform its responsibilities
effectively . Some commonly shared weaknesses among Security Se rv ice personnel are the following : a lack of knowledge of international affairs, a poor
capacity for legal and policy analysis, a lack of sufficient experience in working
with Ministers and other government departments and a serious deficiency in
management skills and expertise . In addition to these weaknesses, R .C .M .P .
career service employees tend to allow their powerful, inbred loyalty to the
organization to overshadow other important responsibilities . Each of these
points requires further elaboration .
.
41 . Of the commonly shared weaknesses among members of the Security
Service, the lack of extensive knowledge of international affairs is one of the
most serious . In our research on the Service's relationships with foreign
agencies we have found considerable evidence of this weakness . For example,
on a number of occasions the Se rv ice has not demonstrated sufficient concer n
706
�about the foreign policy implications of its relationships abroad, nor has it,
until very recently, shared sufficient information with External Affairs officials
about these relationships. Lack of knowledge of international affairs or sensitivity to its implications also manifests itself in the analysis by the Service of
activities of foreigners in this country . In paper after paper that we have
examined, the Security Service analysts have not paid sufficient attention to
the foreign policy context of what they are reporting on, nor have they
demonstrated a sufficiently well-developed conception of what constitutes
proper and improper diplomatic behaviour . The long history of poor relations
with the Department of External Affairs is one legacy of this weakness in the
international area . An uneasy relationship between a security intelligence
agency and External Affairs may be an inevitable consequence of the difference in functions of the two organizations ; nonetheless, the relationship has
been far worse than it needs to be . The Security Service senior managers must
bear their share of the responsibility for this .
42. : Another 'shared weakness among members of the Security Service over
the past decade has been an inadequate capacity for legal and policy analysis .
The Royal Commission on Security pointed out this basic weakness in 1968,
and we have seen little evidence of any marked improvement in this area . In
the numerous meetings we have had with Security Service personnel on issues
with clear policy and legal implications, we have been struck by the general
absence of truly creative thinking . Policy papers by the R .C .M .P. which we
have examined have been, with few exceptions, poorly structured and
one-sided . They do not present the issues in a coherent and compelling fashion,
and they demonstrate a lack of sensitivity to points of view other than those
current within the Force . The papers have not analyzed clearly and cogently
the powers required by an intelligence agency . In addition, there is little
évidence of an attempt to balance the requirements of the agency with the
important values of a liberal democratic society .
43 . An insufficiently high 'level of managerial skills is yet another common
weakness we have observed in the senior management and, indeed, in others
within the Service . Extreme dissatisfaction among Security Service personnel,
especially civilian members, is one indicator of this weakness . Another is the
lack of any systematic, continuing programme within the Service to evaluate
the `products' in terms of the costs of producing them . We have seen, for
example, no careful evaluation of any operations on a cost/benefit . basis .
Finally, as in our other discussions with R .C .M .P . members on policy matters,
we were not impressed with the level of analysis brought to bear by senior
people within the Service and the Force as a whole in meetings we held on
management issues . There was little creative thinking on their part about the
range of options a security intelligence agency might employ to ensure behaviour that is proper and legal . Moreover, we heard few worthwhile suggestions as
to ways to deal with several serious problems facing the Security Service in be
personnel area (for example, the lack of continuity of staff in the operational
branches) .
'44 . So far, we have been stating the case that members of the Service have,
over the past decade, shared a number of common weaknesses which hav e
707
�reduced the effectiveness of the Service . There is an important corollary to this
argument . When a career service like the R .C .M .P . finally perceives a weakness in its staff make-up, it takes a long time to correct, especially in the senior
management ranks, simply because the most expeditious solution - hiring
someone from outside the agency - cannot be used . Two illustrations will help
make this point more cogently . The first is the small number of francophones
in senior positions within the Service . As of January 1980 there were only three
officers above the rank of inspector whose first language was French . Given
that one of the most complex and potentially volatile problems facing the
Service may well originate in the Province of Quebec, this statistic indicates a
serious myopia . Yet within a career service it is difficult to correct easily . The
only option is to move francophones from the criminal investigations side of the
Force, but the problem with that is that these individuals will not likely have
any experience in security intelligence work .
45 . A second illustration concerns women . The Force began recruiting
women for the first time in the mid 1970s . Under current personnel practices,
this means that no woman can reach a senior management position within the
Service until well into the 1990s .
46 . In addition to the inherent costs of a career service concept already noted
above, there is at least one other, namely the tendency of career service
employees to demonstrate an excessive loyalty to the organization . Indeed,
recruiting and training practices are geared to foster this . The senior officer at
the R .C .M .P . recruit training centre at Regina told us that underlying the
emphasis at the training academy on physical conditioning and mental awareness was the objective of having the recruit "identify with the Force . . ." :
The whole of those first six months for a new member is an admixture of
physical exertion, mental exercise, emotional testing and conditioning . Long
days that start at six in the morning and end at ten at night . It is totally
exhausting particularly during the first several weeks but it serves to test
the strength of his commitment . It can be seen as his initiation into the
Force . Its successful completion gives the candidate a sense of having
accomplished what others before him have done, hence it is his license to
belong . That is perhaps the strongest identity factor we have . Most members will tell you they were proud of having done it but would not want to
do it again .
47 . While building this type of organizational loyalty has its advantages, a
significant cost, at least in the Security Service, is that the commitment to
liberal democratic principles, including the rule of law, may become secondary .
As we have made abundantly clear in other chapters of this Report, the
disregard of these principles by Security Service members has been the most
worrisome aspect of the Service's performance over the last 10 years . We are
not suggesting that the career service concept was the sole or even primary
cause of the illegal and improper acts which we have investigated . Rather, it
simply did not provide any kind of check on these activities . Thus, there should
be no equivocation in the future on this point . The primary loyalty of the senior
managers (and indeed other staff) of Canada's security intelligence agency
should be to the liberal democratic principles embedded in our constitutiona l
708
�system rather than to the organization itself or to the security intelligence
profession .
48 . Given the costs which we believe are associated with having senior and
middle managers with little or no experience in other organizations, we do not
find it surprising that few organizations outside the police community adhere
to such a system . Even some police forces have changed their thinking . In the
United Kingdom, for example, no one can be appointed chief constable of a
district police force without having served in another force .
49 . We have recommended that a reasonable number of the agency's senior
management, prior to joining the agency in a middle or senior management
capacity, should have worked in other organizations . In making this recommendation, we wish to make it clear that it would still be possible, and indeed
desirable, that some people who join in a relatively junior capacity have a full
career within the agency . Once the implementation phase for creating the new
agency is completed, we would envisage that the large majority of those
entering the agency with experience in other organizations would do so at
middle management levels and only occasionally at senior levels . This practice
would ensure that those within the agency are not discouraged from seeking
full careers within it, and would still make it possible for the agency to have a
senior management team with a diversity of backgrounds . What are desirable
work experiences for agency employees to have? Many should have experience
in other government departments and agencies such as External Affairs,
Industry, Trade and Commerce, Employment and Immigration, Solicitor
General, Privy Council Office, and the Treasury Board . Police experience,
while it should be a prerequisite for only a small number of specialized
positions, should continue to be valued within the agency . Still others should
have experience in universities, business, or labour unions .
50 . Having a university degree should not be a requirement for joining the
agency . University training is no guarantee of competence in the analytical,
investigative or other types of skills required in security intelligence work . Nor
is attending university the only means of obtaining these skills . Nonetheless,
the agency should actively seek university graduates on the assumptionthat
many who have attended university will have both the inclination and ability
required for security intelligence work . At the very least, it should not restrict
recruitment primarily to a pool of police candidates, 90 per cent of whom did
not have university degrees upon entering the Force . Tables 1 and 2 below give
some indication of those members of the Security Service who now have
degrees :
Table I
Percentage With Degrees - 1979
Regular Members 21 .4%
Civilian Members 26 .3%
Special Constables 1 .6 %
709
�Table 2
Percentage of Regular Members With
Degreesby Rank - 197 9
Officers
42 .8%
Staff Sergeants 13 .2%
Sergeants
17 .8%
Corporals
18 .7%
Constables 26 .3 %
In our view these percentages should be substantially higher .
51 . In addition to hiring more people with university degrees, a security
intelligence agency requires people with training in a wide variety of disciplines, including languages, social sciences, physical sciences, liberal arts,
administration, and law . Indeed, no particular degree should be declared
irrelevant to the agency's work : an essential requirement is rather a capacity to
obtain and weigh evidence, a capacity which may be developed in any of the
intellectual disciplines . The Table below indicates to us that there has been far
too much emphasis on degrees in political science and not enough on other
disciplines - in particular law, administration, economics, and languages .
Table 3
Disciplines in Which Regular Members
Obtained Degrees (As of 1979 )
% of total
degree s
B .A .s
Political Science
50
Sociology
7
History
8
Psychology
Economics & Commerce
Othe r
6
4
12
B:Sc.s
Geology
Engineering
Chemistry
Physical Education
Public Administration
Zoology & Biology
Post Graduate Degrees
4
Total 100%
52 . The question of language skills requires further exploration . Below is a
breakdown of members of the Security Service who have a second language
capability in other than the two official languages .
710
�Table 4
Language Capability by Function - 1979
Percentage with
Language Capability
in other than th e
Two Official Languages
Translators/monitors 48 .4 %
Investigative Roles 10 .2%
Analytical Roles 17 .42%
The statistics may overstate the situation . The language capability is selfassessed, and thus the statistics are likely to be on the high side . Even more
important, those with a language capability, especially in the analytical and
investigative roles, are not likely to use this capability for long because of the
rate of mobility within the Service . (We shall provide more details concerning
this problem in the next section of this chapter) .
53. While attempting to attract people .with a variety of work backgrounds
and educational experiences, the agency should be looking for some characteristics common -to all of its employees : discretion ; emotional stability ; maturity ;
tolerance ; the capacity to work in an organization about which little is said
publicly ; no exploitable character weaknesses ; a keen sense of, and support for,
what the security intelligence agency is ultimately securing (i .e . democratic
processes, structures and values) ; and" political acumen . Perhaps patience
should be added to this list as well, given the long-term nature of security
intelligence targets . Security intelligence work can be frustrating for action-oriented individuals, who become bored with the slow pace at which investigations
sometimes move.
Recruitment procedure s
54 . To recruit the experienced well-educated type of staff with the variety of
backgrounds outlined above, the security intelligence agency will need to
modify substantially its present recruiting procedures . In particular, it will
need to make three important changes : first, the agency must widen the pool
from which it recruits its staff; second, it should have only one category of
employee, apart from support staff; and third, the agency should employ a wide
range of recruiting techniques to determine those best suited for security
intelligence work . Before developing each of these themes further, we shall
summarize briefly current Security Service recruiting procedûres .
55 . Four distinct categories of employees work for the R .C .M .P . Security
Service - regular members, civilian members, special constables and public
servants. In addition, within the regular member category there are two
distinct sub-categories, non-commissioned officers (N .C .O .s) and officers . For
reasons never satisfactorily explained to us, N .C .O .s receive full pension
benefits after 25 years service whéreas officers mu'st serve longer - usually 35
years - to receive full pension benefits . N .C .O .s are eligible for overtime pay
while officers are not, and have separate eating and social facilities .
711
�56 . Briefly, the current recruitment policies for each of these four categories
are as follows. The Security Service acquires all of its regular members from
within the ranks of R .C .M .P . regular members serving with the criminal
investigation side of the Force . Interest in the Security Service is identified
through a computerized system which is updated regularly . When vacancies
occur, the Security Service staffing branch reviews the list of all regular
members who have signified such an interest and interviews those who, among
other things, have "a balanced political perspective", above-average performance rating, "a demonstrated interest and capability in pursuing post-secondary education", and no restrictions on mobility . Candidates who complete the
interview successfully must then have a security clearance interview prior to
joining the Service . The Security Service rarely recruits corporals, sergeants or
officers . Almost all the regular members coming into the Service have three to
five years experience and are at the constable level, the lowest R .C .M .P . rank .
The one exception to this general rule is in the centralized functions ,administration, finance and personnel . Thus, to a large extent, the Security
Service is a career service within a career service .
57 . We shall now describe the procedures by which regular members are
recruited by the R .C .M .P . itself . The procedure is essentially as follows :
- initial contact with an applicant is usually made by members stationed
at detachments across the country;
- the detachment determines if the applicant meets minimum requirements for engagement ;
- if so, the applicant is required to write a 3-hour general knowledge test ;
- if successful up to this point, the applicant is interviewed by Division
staffing and personnel branch (the interview includes a second test this time a psychometric test) ;
- if the interviewer recommends engagement, then a thorough background investigation is conducted ;
- if no information of a serious derogatory nature turns up, the applicant's name is added to the waiting list .
58. There are several salient points about this recruiting process . First, it is
geared for entry into the R .C .M .P. at the constable level . Over the past decade,
only a very small percentage of members have entered the R .C .M .P . at other
than the lowest rank . (An example of an exception was the hiring of a band
leader who was immediately promoted to inspector.) Second, ionly a small
percentage of those recruited through this process are university graduates . In
May 1979, of 770 people who had successfully met the minimum requirements
and who were on the waiting list, only 77 (or 10%) had university degrees .
Another 100 had some post-secondary training . Third, R .C .M .P . recruits tend
to be young . The minimum age for joining the Force is 19 . The average age of
those on the waiting list in May 1979 was just over 22 years . Fourth,
candidates must meet a certain combination of physical and educational
standards to qualify . For example, a male under 5 feet 6 inches in height, with
a university degree, but no prior police experience, could not become a regular
member of the R .C .M .P . And finally, the recruiting process is based o n
712
�meeting minimum standards, not on achieving the highest scores in the
recruiting process . Thus, an applicant who achieved-the minimum standards as
of January 1, 1980, would be chosen for training before a candidate in the
same geographic area who scored higher but who went on the waiting list as of
January 10, 1980 . As one staffing officer explained to a member of our staff,
the Force does not want "all race horses" .
59. The recruitment procedures for civilian members and special constables
are more easily explained . The selection criteria are quite general, reflecting
the diversity of employees covered by these two categories (they range from
clerical employees to highly skilled specialists in the computer and research/
analytical fields) . The only common qualifications are that all candidates must
be Canadian citizens and at least 19 years of age . Personal acquaintance with a
serving member appears to be the primary means of identifying prospective
employees in these categories . Advertising and recruiting visits to universities
are secondary methods . For specialist or technical jobs, candidates are interviewed by a board comprised of Force members expert in the field . Security
Service staffing personnel also interview all candidates and administer two
selection tests used by the R .C .M .P . for regular member recruiting . Finally,
recommended candidates are subject to a security clearance .
60 . Recruitment procedures for public servants, who are employed by the
Security Service primarily in clerical jobs, are the same as those for the Public
Service as a whole . These procedures are administered by the Public Service
Commission and are subject to the Public Service Employment Act .
61 . The above description of current Security Service recruiting procedures
leads to several conclusions . The most obvious is that the recruiting base from
which the Security Service draws its employees is far too narrow . In our view,
it is ludicrous for a security intelligence agency to limit its primary source of
recruits to those who have joined a national police force, generally at a young
age with little or no experience in other organizations and with limited
educational achievements . Over the past 25 years, the R .C .M .P . has recognized
the inherent weakness of these recruiting practices in a variety of ways . One of
the most important was creating a civilian member category for specialized
jobs in technical and analytical areas . This solution, as we noted in the last
chapter, has created additional managerial and morale problems which have
plagued the Force for two decades . Similar problems exist because of the
creation of a special constable category . There are even serious problems
associated with the Force's having two types of regular members, officers and
N .C .O .s . This is illustrated by the following testimony of a senior officer in the
Security Service :
Q . So, to put it bluntly and admittedly rather simply : you get a Staff
Sergeant (an N .C .O .) who is looking at a possible promotion (to the
officer ranks) . It is going to cost him money in his pocket . You let him
do another ten years before he can go on pension and subject him, at a
time when his family may require his attention, to the probability of
many moves, and at the same time, he knows full well that he can go
out into the civilian sector and get a very attractive monetary offer .
R . Yes .
713
�Q . And I suggest to you that the result of that is, you said : you lose a lot of
good people when they are becoming particularly effective ?
R . Yes, that's generally in the time of their career when they are most
productive because of their expertise.
(Vol . C20, pp . 2599-2600 . )
In our opinion this problem requires very careful consideration by government,
not only from the point of view of the Security Service, but with regard to the
whole Force . We will look at this further in Part X, Chapter 1 .
62. Apart from support staff, the security intelligence agency should have
only one category of employee, which we shall refer to as intelligence officers .
In keeping with the type of individual we hope the security intelligence would
attract, we also recommend that intelligence officers not be given ranks used by
the military or police, such as sergeant and inspector .
63 . One purported advantage of current recruitment procedures, cited by
several Security Service members in discussions with us, is that they reduce the
risk of penetration - that is, of a foreign intelligence agency having a spy
within the Security Service . Indeed, this argument, as the reader may recall
from the last chapter, was put forward by the Force as a rebuttal to the
recommendation of the Royal Commission on Security that there be a Security
Service separate from the R .C .M .P . In essence, those making this case cite the
uncertainty which a spy joining the R .C .M .P. would face as to whether he
would even be successful in gaining entrance to the Security Service . He first
must serve up to three years in a general policing role and, at that point, might
find that instead of being admitted into the Security Service he is reassigned to
other general policing duties . Thus, instead of penetrating the Security Service,
he might well end up on traffic duty in a remote provincial town .
64. In our view, it is difficult for anyone, even those within the Security
Service, to make this argument (or indeed, the counter-argument) with any
degree of certainty . The reason is obvious . We are not likely to know the extent
to which foreign intelligence agencies have penetrated the Security Service
until well after the event, and even then the histories of spying activities are
usually shrouded in doubt . The best one can do with this argument, therefore,
is to make a judgment supported by what evidence there is . Our judgment is
that current recruiting practices for the Security Service do not significantly
reduce the risk of penetration . Regular members of the Security Service can be
recruited as spies by foreign agencies . In an age when there are few illusions
about East Bloc Communism, this method of recruiting spies, based usually on
blackmail or bribes, would appear to us to be potentially more fruitful than
first recruiting an agent on ideological grounds, and then having the agent
attempt to join the R .C .M .P. and be transferred to the Security Service .
65 . The experience of the Security Service over the past 30 years would
appear to support this point . The Security Service has advised us that during
this period the Service was penetrated . In a case which we examined closely, it
was a regular member who, after joining the Security Service, was recruited to
spy for a foreign intelligence agency .
714
�66. A second point is that the penetration argument applies to less than half
of Security Service employees, for civilians, special constables and public
servants enter the Service by other routes .
67. Finally, it is significant to us that many experienced Security Service
personnel do not take this argument seriously . As . one senior staffing officer
told us, a foreign agent with a university degree and a language capability who
joins the R .C .M .P . is very likely to be accepted into the Security Service within
three to five years . Another very senior officer summed up his views this way in
a speech to his colleagues during a commanders' conference in 1974 :
We have a large number of employees of various categories . Some of those
employees are not well paid ; some have left themselves open to compromise ;
some may have sold out for purely venal reasons ; some may have been
recruited priôr to employment with us . I do not differentiate between the
various categories of employees . I disagree with the very dangerous assumption held by some to the effect that Regular Members recruited from the
Law Enforcement side are more or léss immune to coercion .
68. The thrust of our recommendations concerning recruitment thus far has
been to enlarge the pool of people from which to draw suitable candidates for
security intelligence work . The question now centres on how agency recruiters
should attract candidates from this enlarged pool . We believe that an `old boy
network' should not be the primary means of recruitment : events in other
countries have shown that such a network is no protection against spies indeed, it can lull the agency into complacency about its employee-screening
procedures . Moreover, this method of recruitment may not ensure the fresh
infusion of new ideas and perspectives which we believe to be important for an
organization prone to insularity . This is not to argue that the agency should
discourage its employees and ex-employees from giving advice on recruitment
matters . Rather, we are proposing that such advice be supplementary to a more
open process of recruitment, much like that employed by other organizations
looking for the same type of mature, experienced, well-educated individual .
Thus, agency recruiters should visit university campuses, should encourage
applicants from police organizations, provincial governments, and of course
federal government departments, and, from time to time, should advertise in
the newspapers . (Both the Australian and New Zealand security intelligence
agencies have recently advertised for candidates through newspapers . )
69. To accompany this more open approach to recruitment there will need to
be more rigorous security screening procedures (this topic will be expanded in a
later section of this chapter) and a well-developed process for choosing those
candidates best suited for security intelligence work . Currently, in the Security
Service, staffing officers rely almost exclusively on a two- to three-hour
interview to judge candidates . We believe that other means should be employed
as well . For example, psychological testing should be used to help identify those
who are clearly not suited for this type of work, although it will be of little help
in determining who would be successful intelligence officers . Techniques like
discussion groups can be used to assess a candidate's attitudes towards dissent,
deviant behaviour and minority groups . In addition, the agency should develop
means of testing the writing and analytical capabilities of its potential ne w
715
�members . As another example, agency personnel should discuss with prospective employees, perhaps along with their spouses, the types of constraints which
working in a security intelligence agency places on a person's life, such as the
problem of not being able to say much to friends or spouses about the nature of
the work .
70 . We make one final comment on the process for recruiting agency
personnel . In our view, one of the deficiencies of the Security Service's current
approach to recruitment is the lack of involvement of senior operational
officers . Experienced intelligence officers from the main areas of activity
should be involved with staffing `specialists' in both the process of designing
recruiting policies and the process of deciding who should become members .
Secondment s
71 . The use of secondments ( temporary interchanges of personnel with other
institutions) is another way in which the security intelligence agency can
develop a staff with diversified work experiences . At the same time, it can
benefit from those who have spent a significant portion of their working lives in
other institutions . Mr . Starnes, the former Director General of the Security
Se rv ice, testified before us as to the difficulty of achieving an interchange of
personnel between the Security Service and the rest of government :
. . . I thought that there should be a lot more interchange between members
of the Security Service and individuals in other government departments .
And, in particular, having members of the Security Service assigned to
other government departments, to give them some feeling for the scope of
the government's work as a whole, and some knowledge how other government departments faced their various problems . In this area, I would,
perhaps, get an agreement in principle, but then when it came to actually
assigning someone to another government department, that agreement
wouldn't be forthcoming in a concrete way ; and, so, I would say that that
would be an example of a step forward and then a couple of steps
backward . Eventually, after a good deal of pushing and shoving, we did, in
fact, get a number of people assigned to other government departments, but
it was not a readily accepted thesis .
(Vol . C33, p . 4205 . )
72 . The number of secondments actually achieved during the last 10 years
appears to support Mr . Starnes' testimony .
Table 5
Secondments to and from the
R .C .M .P . Security Service 1971-198 0
Secondment to the Security Service fro m
- External Affairs 3
- Department of Justice 1
- Other (outside the Government of Canada)
5
TOTAL
716
9
�Secondments from the Security Service t o
- Solicitor General's Dept .
-
External
7
Affairs
3
- Privy Council Office 2
- Other (outside the Government of Canada)
5
TOTA L 1 7
Both the number of secondments and the the number of institutions with which
secondments are arranged should increase . In addition to exchanges with other
agencies, federal government departments, and the R .C .M .P ., the security
intelligence agency would benefit from an interchange of personnel with such
organizations as provincial governments, businesses, universities, and provincial
police forces . Secondment arrangements with other agencies should be
approved by the Minister .
Career paths
73. Like most police forces in Canada and in other western countries such as
the United States and the United Kingdom, the R .C .M .P . has adopted a
`generalist' approach in developing the careers of its members . Regular member's are not encouraged to become specialists . Rather, after spending two or
three years in one type of policing, they are often transferred by the Force to
another geographic location, often to assume quite different duties . Nor is it
unusual to find members who, after spending all of their careers in operational
roles, are appointed to an administrative job, for example in the personnel or
financial area .
74. Here is the actual career path of an inspector now serving in the Security
Service, who has been with the Force since 1959 . It may well be typical .
10 - recruit training in Regina (this is now 6 months)
months
2 years, - general detachment duties first in Prince Rupert, B .C . and . then in
9 months Terrace, B .C .
2 years - highway patrol duties in Ottawa
1 year - Security Service - counter-subversion branch in Ottaw a
3 years - university training at Carleton University, Ottawa, (summers spent in
counter-espionage and counter-subversion in Ottawà )
4 months - security screening duties in Ottawa
5 years - counter-espionage branch in Ottaw a
I year - research role, first in central research branch, then in counter-espionage
branch in Ottaw a
5 years - personnel administration role in Ottaw a
75 . The inappropriateness of the Force's generalist career model was a
recurring criticism among Security Service members . The problems identified
are of three kinds . First, needed continuity is not built up and maintained in
areas requiring in-depth knowledge and experience . Second, a significan t
717
�number of people in the Service are doing jobs they do not enjoy . And third,
people in the Service appear to be less willing to move their families as often as
the generalist career model dictates .
76. The Security Service conducted a detailed study of two of their largest
branches to document some of these problems more fully . This study confirms
that Security Service employees change jobs frequently ; the Tables below
summarize the results .
Table 6
Percentage of Branch employees (not including Support Staff) who changed jobs
Branch I
Branch 2
1975/76 (12 months) 56 .3
1976/77 (1 2 months) 44 .9
33 .8
1977/78 (12 months) 68 .2
47 .9
54 .1
Table 7 gives an idea of how devastating this type of movement can be on job
continuity .
Table 7
Effects of Movement on Job
Continuity 1975/78
Branch I
Branch 2
Percentage of total branch employees remaining in th e
Branch for the 3-year period 1975/78 23 .1
21 .6
Percentage of total branch employees remaining in th e
same job over the 3-year period 1975/78 6 .2
6.8
The extent of the movement within the Service and the resulting lack of job
continuity, as illustrated by the above Tables, is extremely harmful to the
effectiveness of the Security Service . It also has a bad effect on the morale and
well-being of employees and, consequently, on their families .
77 . Other government departments, facing somewhat similar problems, have
adopted approaches that may be worth emulating . External Affairs, for
example, has attempted to create `broad' specialties . Each foreign service
officer, at some point early in his or her career, chooses two such specialties usually one of these is a functional specialty (for example, economics), and the
other a geographic specialty (perhaps Southeast Asia) . This broad,specialties
notion could be modified and applied to the Security Service . One such
specialty could be East Bloc countries, resulting in a career path, something a s
follows :
2 years in H .Q . in Counter-espionage Branch
3-4 years as an analyst in a regional office
3-4 years in H .Q . in Counter-espionage Branc h
1-2 years as a liaison officer in a European countr y
1-2 years secondment to another government department with an interest in
East Bloc relation s
several more years in Counter-espionage Branch .
718
�78 . Some intelligence officers may join the agency without a specialty in
mind . These individuals might embark on a career path which would expose
them to a variety of work experiences in the early years of their career .
Following this period when they are `generalists', their careers should be built
around a specialty or specialties . The high frequency of transfer from one area
to another must be avoided in the new agency if a satisfactory level - of
effectiveness is to be achieved by taking advantage of specialization . Specialization may allow an intelligence officer to obtain employment more easily
outside the agency, thus avoiding the problems associated with an employee
being locked into his employment .
79. Implicit in an approach stressing greater specialization is the need for an
improved career-planning capability - a capability which does not exist within
the Security Service at the present time . Moreover, we believe that such a
career-planning capability can function only with the close collaboration and
support of those in operational jobs, who should be involved in both the design
of this new career-planning approach and its implementation :
80 . An implication of more specialized career paths is that not all those in
research roles within the agency would have to become investigators at some
point in their career, or vice versa . In our view, these functions, while they both
have an analytical component,. are different and consequently attract people
with different skills and inclinations . Some investigators and researchers might
profitably exchange roles, but the agency should not build its staff on the
assumption that all members are generalists who can move from role to role
every two or three years and be proficient in each area . What the agency must
pay very close attention to, however, is how the researchers and investigators
coordinate their work . It would be very damaging for two distinct streams to
develop within the agency - one for `thinkers', and another for `doers' .
81 . Besides adopting a more specialized approach to career planning, there
are at least two other ways in which the security -intelligence agency can
enhance job continuity in key areas of its work . The first' is to reduce the
number of job levels within the organization . There are currently nine levels of
regular members, ranging from constable to Director General, . within the
Service . Special constables and civilian members below the rank of constable
would add to this total . What we suggest is reducing the number of levels,
perhaps to five or six . This change would have several advantages . . It would
allow incumbents to remain in a position for longer periods and, at the same
time, receive successive pay raises . (By reducing the .number of levels, the pay
band for each level will widen .) In addition, reducing the number of levels will
also tend to `flatten' the organizational pyramid, and this flattening should
facilitate better communication within the agency . The Church Committee
Report made a similar comment about the large number of bureaucratic layers
in the C .I .A ., and the resulting filtering problems as information moved up the
organizational pyramid, often losing something at each level . As the Committee noted, " . .. there are too many people writing reports about reports ."' !
United States Senate, Final Report of the Select Committee to Study Governmental
Operations, Book I, p . 269 .
719
�82. Another approach that will help to provide opportunities for more specialization and job continuity is to create a number of senior positions throughout
the agency which do not have heavy administrative responsibilities . Currently
within the Security Service, a promotion invariably means accepting responsibility for managing more people . Thus, it is difficult for senior people within
the Service to develop any degree of specialized knowledge . As an example of
what we are proposing, the agency might establish several senior analyst
positions in the counter-espionage area with no administrative responsibilities .
Experienced analysts could be promoted to these jobs without loss of continuity
and without wasting the specialized knowledge they have built up .
Training and developmen t
83 . A description of the training and development opportunities available to
Security Service members must begin with the recruit training which a regular
member receives on first joining the Force . Since 1969, all recruit training has
been done at the R .C .M .P .'s Regina Academy . The course lasts for six months
and costs approximately $18,000 per recruit . Following completion of this
course, a new recruit is given an additional six months on the job training at a
regular Force detachment .
84. The Regina Academy relies mainly on instructors who are regular
members from operating divisions, and who come to Regina for a three-year
period . Outside resource people are employed as instructors as well, but they
teach less than 6% of the formal periods . The curriculum is a mixture of
physical conditioning and academic subjects encompassing some 858 formal
periods . (One of the officers at the Academy told us that the average student
would work approximately 75 hours per week .) About half of these formal
periods are devoted to the academic side of recruit training, made up of law,
human relations (history of policing, human behaviour, criminal justice system,
and effective speaking), operational techniques (typing, report writing, care
and handling of prisoners), and technical devices (fingerprinting, photography
and so on) . The other half of the curriculum is more physically oriented driver training, drill, physical training, self-defence, swimming, and small-arms
training . Equestrian training is no longer given at the Regina Academy .
Training in the law is only a small part of a recruit's curriculum, accounting
for approximately 15% of the formal periods of instruction .
85 . According to the non-commissioned officer in charge of the academic
section, the Academy employs a "systems approach" to training . This approach
is one behavioural psychologists would feel comfortable with . Trainers define
as precisely as possible "terminal behaviours" or "end of course behaviours" .
These desired behaviours provide the basis for building course standards,
deciding on teaching methodologies, and evaluating the effectiveness of
courses . To be useful, these "terminal behaviours" have to be specific and
concrete - for example, "identifying traffic violations", or "understanding
criminal trial procedures" . Using less technical language, the officer in charge
of the Academy gave us a similar explanation of the underlying philosophy of
recruit training . Of all the training available to a member, he noted, recruit
training is perhaps the most critical " . . .in terms of molding the new membe r
720
�in the image of the Force ." Another senior officer at the Academy emphasized
the importance of barracks living as an ingredient in recruit training . The
effect of living at close quarters with 31 others, all of whom are enduring the
same demanding activities, is, he explained, to create a surrogate family for a
new recruit .
86 . Once a regular member enters the Security Service, the bulk of his
training occurs within the Service itself until he reaches the senior officer
levels . Before 1945, members of the Security Service received no formal
training . The first formal course was given in 1947 when members were
provided with a series of lectures related to their investigative duties . By 1979,
the Security Service's Training and Development Branch offered four major
courses :
Intensive Basic Parts I&
!/, which are aimed at newly appointed
analysts and investigators .
The Intermediate and Senior Courses, which are management oriented,
and aimed at N .C .O .s, junior officers and their equivalents . These
courses are each of two weeks duration .
The legal content in these courses is limited . In the Intensive Basic Course,
there is one session of two hours devoted to the legal basis of the Security
Service . This same session was added to the Intermediate Course in the fall of
1978 .
87 . Three new courses have been under development during the life of our
Commission and will likely be operational when this Report is published . The
first is a new induction course for those entering the Security Service who are
not eligible for the Intensive Basic Course . The second new course about to be
offered is aimed at improving analytical skills . The assumption behind the
course is that although analysts are `born not made', a course can improve
analytical skills by exposing people to analytical tools such as critical-path
diagramming and data-collation techniques . Finally, the Training and Development Branch, with the cooperation of the R .C .M .P. Legal Branch, is developing a more intensive 15-hour course on legal issues relevant to the Security
Service . The aim is to present this course to all area commands .
•
88. The 18 staff members of the Training and Development Branch rarely
.
teach courses . Rather they are course `coordinators' who rely on resources both
within and outside the Security Service to do the actual teaching . In 1979, five
of these 18 staff members had university degrees . Few, if any, had any
teaching experience prior to coming to the Branch . In addition to this Headquarters staff, there are full-time training personnel in Ottawa, Toronto and
Montreal . Other area commands have staff members in part-time training
capacities .
89 . In addition to developing new in-house courses during the last décade, the
Security Service began placing more emphasis on sending members to university on a full-time basis or subsidizing part-time university attendancé . Table 8
demonstrates this trend .
721
�Table 8
Year
Number Graduated from Part-Time University
Full-Time University Year Attendance
1969
1970
1971
1972
1973
1974
1975
1976
5
1972/73
257
2
1973/74
544
13
1974/75
491
10
1975/76
412
17
1976/77
486
19
1977/78
311
19
1978/79
336
17
1979/80
43 7
10 2
90. We are favourably impressed with some aspects of the current approach
to Security Service training . The greater emphasis now being placed on
discussing legal issues is one example . Another is the Branch's identification of
its future priorities : the more systematic development of on-the-job training
and development; improving post-course follow-up to assess changes in the
work performance of trainees ; and the introduction of operational training at
more senior levels .
91 . Nonetheless, we believe significant changes are required in this area of
personnel policy . A number of these changes flow from earlier recommendations, which called for a more experienced, more mature, and better educated
person, who would enter the agency at a variety of levels . Thus, the current
introductory course for analysts and investigators (the Intensive Basic Course)
should be substantially modified . The emphasis should be on developing a
much more sophisticated skill in dealing with the legal, political and moral
contexts of security intelligence work and mastering `tradecraft' techniques .
Similarly, the existing six-month R .C .M .P . recruit training programme at
Regina is inappropriate for those individuals wishing to work for a security
intelligence agency . There is too much'emphasis on `parade square' discipline
and on molding .behaviour, and the course content is understandably oriented
to police work rather than to the more specialized and politically oriented
aspects of security intelligence . Finally, we find many of the aspects of the
Regina programme authoritarian in tone, and likely unacceptable to the range
of university graduates from which we think the security intelligence agency
should draw many of its recruits in the 1980s .
92. The training and development programmes also reflect a general tendency within the- Security Service towards insularity . We propose a variety of
training approaches that will counteract this tendency by constantly exposing
its members to ideas from persons outside the agency . We have the following
approaches in mind : relying more on outside advice about curriculum, particularly in the areas of law, management, and the social and behavioural sciences ;
designing training experiences that will combine security intelligence members
with people from other departments to examine areas of common concern (e .g .
the covert intentions of a, particular country) ; having intelligence officers
.
attend two- to six-week management courses, especially designed by certain
universities for middle'and senior managers in the private and public sectors ;
and developing a security intelligence course aimed at an international audience of `friendly' agencies .
722
�93 . We voice one note of caution concerning future efforts of Canada's
security intelligence agency to collaborate with foreign agençies in developing
training programmes . The mandates of these agencies may differ markedly
from that of the Canadian agency . Consequently, collaboration runs the risk of
introducing to Canadians a set of ideas and techniques which, if applied, could
be outside the Canadian agency's mandate . Cooperation with foreign agencies
on training should not be approached lightly . As we recommended in an earlier
chapter on the international dimensions of the Security Service's work,
exchange of personnel for training courses should be part of the agreement
drawn up between Canada's security intelligence agency and foreign agencies
with which it co-operates . In addition, the Minister should be informed when
training exchanges actually occur .
94 . Finally, as in other important areas of personnel policy ; managers in
operational branches should play a more active role in the design of training
programmes and in their implementation . Furthermore, while'it is important to
continue to recruit people with operational experience into training roles, this
should not be the exclusive means of staffing this function . Training 'and
development personnel ; like others in the security intelligence agency,'can
benefit from increased specialization .
Unionization
95. Until recently, members of the R .C .M .P . (the "member" category does
not include public ser'vants) did not appear to have the right to unionize . The
R .C .M .P. Administration Manual, which derives its authority from subsection
21(2) of the R .C .M .P . Act, provided that a member could not
Engage in activities which involve joining a union, association or similar
collective bargaining group.
This prohibition has been rescinded but other restrictions on collective- bargain=
ing,in the R .C .M .P. are also found in the Public Service Staff Relations Act°.1z
That Act is the central piece of legislation governing collective bargaining in
the federal public sector . The Act applies generally to all the Public'Service ;
but expressly excluded from the provisions of the Act :is
. .. a person who is a member or special constable of the Royal Canadian
'Mounted Police or who is employed by that Force under terms and
conditions substantially the same as those of a member thereof.
2(e))
..(Para .
. Thus, non-member (Public Service) employees of the R .C .M .P . Securit y
Service have the right to bargain collectively under the Public Service Staff
Relations Act, but not those employees who are -regular, civilian or special
constable members of the Force . There has been no test in the courts as *to
whether other legislation in the field of labour relations would permita group
of R .C .M .P . members to be certified as a union and to acqûire collective
bargaining rights . That possibility therefore remains uncertain .
96. The R .C .M .P . does have a "Division Staff Relations Representative
Programme" which allows the R .C .M .P. member some participation in mârtagement decisions that affect him . The membérs of each division elect a
12 R .S .C . 1970, ch .P-35 .
723
�full-time representative " . . to present problems, concerns . and recommenda.
tions on behalf of the members to management" . The R .C .M .P .'s Administration Manual under Chapter I1 .16, provides :
The Division Staff Relations Representatives will participate in the decision-making process whenever practicable, i .e ., Headquarters benefits studies; pay discussion ; kit and clothing design ; division boards on transfers and
promotions ; succession planning ; grievances and all meetings where policy
directly affecting the welfare, dignity and operational effectiveness of the
members is being discussed .
97. We believe it is imperative that members of a security intelligence agency
should not be allowed to unionize . Indeed, we would extend this prohibition to
cover public servants who are now employees of the R .C .M .P. Security Service .
We base this recommendation on internal security considerations . Union
negotiations involving a security intelligence organization run the risk that
information of considerable value will become known to a foreign intelligence
agency - information such as the number of employees, their duties, the
command structure of the agency, and recruiting practices . In addition, we
worry about the possibility of union-management relationships becoming so
embittered that the risks of damaging leaks of information, or even an enemy
penetration, become unacceptably high .
98. As an alternative to granting unionization rights to agency employees, we
propose the following three-point approach . First, the security intelligence
agency should fashion a managerial style which stresses employee participation
in decision-making . (We shall describe such a style in more detail in a later
section of this chapter .) Secondly, the agency should encourage the formation
of an employee association which would make representations to the management of the agency with respect to salaries and working conditions. This
association would provide another means for allowing employees to communicate with the management of the agency and to influence important decisions
of the agency . We see this association playing only a secondary role in ensuring
good management/employee relations . The more successful the agency is at
establishing a participatory management style, the less important the role of
this association will be in that regard . Finally, the salary and benefits of agency
employees should be tied to those of the Public Service of Canada through a
pre-determined formula . This arrangement will ensure that agency employees
receive at least the major benefits of the collective bargaining process .
Agency employees and the Public Service of Canad a
99. We now consider the question whether or not agency employees should
belong to the Public Service of Canada as defined by the Public Service Staff
Relations Act . We believe it essential that agency employees not belong to the
Public Service . By virtue of section 5 of the Public Service Employment Act,
the Public Service Commission has the authority to appoint and dismiss public
servants . Given the special nature of the threat of penetration facing a security
intelligence agency, we believe strongly that the agency itself, rather than the
Public Service Commission, should have this authority . The agency requires
the flexibility to develop a more stringent set of screening procedures for its
employees than those pertaining to the Public Service . Conversely, it als o
724
�requires a less stringent set of conditions for releasing an employee for security
reasons . We know of no security or intelligence agency which does not have the
authority to hire and dismiss its own employees .
100 . A major disadvantage of agency employees not belonging to the Public
Service is that movement of personnel between the agency and federal government departments will be more difficult to effect . We propose several ways to
reduce this disadvantage . To facilitate the transfer to and from the Public
Service, staff benefits for agency personnel should be similar to those enjoyed
by federal public servants . Furthermore, the benefits should be `portable'
between the agency and the federal government, and should be covered by
portability arrangements between the federal government and private sector
organizations and other levels of government . Finally, we propose that agency
employees have the same rights now enjoyed by members of the R .C .M .P. and
the Canadian Armed Forces," who, for the purposes of being eligible to enter
Public Service competitions, are deemed to be persons employed in the Public
Service . Such a provision would also facilitate movement from the agency to
the Public Service .
Counselling
101 . Estimates of the portion of any employee group suffering from emotional problems severe enough to affect job performance range as high as 15 per
cent . Emotional problems can be triggered by a variety of causes - marital
difficulties, alcoholism, physical sickness, or job-related factors . In- a 1977
study of R .C .M .P . health services, the author, Dr . M .L . Webb, gave evidence
illustrating that Force employees, and, in particular, certain categories of
Security Service employees, have more significant stress problems associated
with their work than the average population .
102 . Troubled employees are a significant cost to any organization, in shoddy
work, serious mistakes, high rates of absenteeism, danger to other employees in
certain cases, and in the expense of hiring and training replacements . For an
intelligence agency, however, there is the added danger of penetration . Emotionally troubled employees may become prime targets for agents of unfriendly
foreign intelligence organizations, who are highly trained in both detecting and
exploiting such employees . Given the serious consequences of such a penetration, it is not an unreasonable expectation that a security intelligence agency
would be highly skilled at dealing with this type of problem .
103 . During the interview programme that our staff conducted of some
Security Service employees, most interviewees were unfamiliar with the term
`counselling' and were not fully aware of what programmes existed within the
Security Service . One participant who was aware of existing programmes
called them "primitive" . Another described them as "fragmented" .
104. One approach to employee counselling, which has been adopted by a
number of organizations both in the private and public sector, involves the
hiring of staff especially trained in counselling to help emotionally troubled
employees . The success of such a programme in a security intelligence agency
would appear to depend upon several factors . The programme should for th e
" Under section 2(2) of the Public Service Employment Act .
725
�most part be voluntary. In addition, confidentiality must be maintained . Only
in exceptional circumstances should those in counselling roles report information about employees which has been received in confidence . Two such
exceptions, of which employees should be aware, are information about participation in illegal acts, and information given to counsellors which suggests that
there is a serious risk of penetration by hostile intelligence agencies .
105. We note that Dr . Webb, in the study we referred to above, recommended a similar programme for the Force as a whole . The Force has accepted this
recommendation and, subject to Treasury Board approval, plans to implement
it in the fiscal year 1981/82 .
Grievances
106 . Like many organizations, the R .C .M .P. has both a formal and an
informal means of dealing with employee grievances . The 1976 Report of the
Commission of Inquiry Relating to Public Complaints, Internal Discipline and
Grievance Procedure Within the R .C .M .P . (commonly known as the Marin
Commission) strongly supported informal approaches for dealing with grievances, prior to resorting to more formal means :
. . . we strongly approve of the current practice of seeking local and
informal avenues of resolution of grievances before resorting to formal
prôcedures. In our view, this practice should be encouraged and strengthened wherever possible as it constitutes the most efficient method of
resolving grievances . "
107. We concur with the Marin Commission's emphasis on informal approaches and believe that this philosophy should be adopted by a security
intelligence agency . Indeed, senior managers within the agency should closely
monitor the use of more formal grievance procedures . A rising number of
formal grievances is a likely indicator of a problem Area - recruiting errors,
poor internal communications, an autocratic managerial style, or insufficient
supervisory training programmes .
108. The current R .C .M .P . formal grievance procedure involves a four-stage
process, starting with the officer commanding a subdivision and moving up
through the Force hierarchy to the Commissioner . We do not think that such a
cumbersome process is required for a security intelligence agency . We favour a
simpler two-stage procedure . The first stage would involve submission to a
three-member grievance board appointed by the Director General . The board
would investigate the grievance, hear the parties concerned, and make a ruling .
The second stage would be an appeal procedure, whereby any of the parties to
the grievance could ask the Director General, or a deputy appointed by him, to
review the Board's decision . Following the Marin Commission (and current
R .C .M .P. policy) we propose that no member should be penalized directly or
indirectly as a result of lodging a grievance .
Remedial action for improper behaviou r
109. The R.C .M .P.'s approach to improper conduct on the part of its
members continues to reflect the origins of the Force - a paramilitar y
" The Report of the Commission of Inquiry Relating to Public Complaints, Internal
Discipline and Grievance Procedure Within The R.C.M.P ., 1976, p . 182.
726
�organization with responsibilities for frontier policing . As the Marin Commission " report stated ; "Discipline within the R .C .M .P . was developed and has
evolved under the influence of the military character of the Force and the
operational requirements of law enforcement ."15 The 'Force originally relied on
the rules of discipline of the Royal Irish Constabulary, which, in turn,
duplicated many of the military procedures'in use in Englànd and Canada - at
the time . The Force was also originally staffed with men who served as officers
and non-commissioned officers in the Canadian Militia and the British Army .
110 . "Police service on the frontier" ; explained the Marin Commission
Report, "required that the majority of the members of the Force serve
independently or in groups of two or three, far removed from direct superv i- ,
sion . Given the authority and discretionary power of a police officer, it was
imperative that he exercise self-discipline and self-control" .16 But balancing the .
Force's trust that its officers would exercise self-restraint and control were
"provisions which exemplified a strict and summary approach to breaches of
discipline" . The Report went on to note that minor misconduct by a member of
the Force "constituted more than a misdeed ; it gave evidence of a breach of
trust and characterized the member as unreliable . When self-discipline failed,
punishment was swift and severe" . "
111 . Sections of the R.C .M .P . Act establishing the penalties for serious
offences are an indication of the potential harshness of the current approach to
improper behaviour . Penalties for major service offences = for example,
refusing to obey , the lawful command of a superior - range from a year's
imprisonment, to a fine not exceeding $500 .00, to a reduction in rank, to a
reprimand . For minor service offences, - for example, immoderate consumption of alcohol or using profane language, - punishment ranges from confinement to barracks for up to 30 days to a simple reprimand .
112 . In addition to being unduly harsh, the current disciplinary system of the R .C .M .P . is characterized by a multitude of regulations governing the conduct
and performance of members . The impression is one of a great web of rules
touching every facet of a member's on-duty life and many parts of his private
life . Moreover, the process of determining disciplinary steps is laid down in
great detail and tends to be very adversarial in nature . Thus, there are
procedures for launching an investigation, for laying of se rv ice charges, for
formal quasi-judicial hearings to determine the member's culpability, for
determining penalties, and finally for appealing the verdict .
113. The Marin Commission Report was highly critical of the present
disciplinary system of the Force . The Commissioners found the procedures too
formal, the control too centralized, the member's rights . ill-defined, and the
exercise of disciplinary authority too arbitrary . We concur with these criticisms . That such a system should still exist in the latter part of the 20th
century, and that the impetus for changing it had to come from an outside
body like the Marin Commission, are additional evidence of a weakness in the
mana gerial expertise existing within the Force . Bill C-50, An Act to Amend
's Ibid., p . 111 .
16lbid ., p . 31 . '
11
.
.
Ibid., pp . 111-112 .
727
�the Royal Canadian Mounted Police Act, which was introduced in April 1978,
and which would have substantially modified the Force's disciplinary procedures along many of the lines recommended by the Marin Commission, died on
the order paper .
114. The approach for dealing with improper behaviour which we recommend for the security intelligence agency is a system based on a different set of
philosophical principles . First, we believe that the cornerstone of such a system
should be self-discipline and self-control, based on more positive motivations
than fear of punishment . The great majority of employees will exercise a high
degree of self-discipline and control if they have taken an active part in
working out with their superiors the conduct and performance expected of
them, or are in very substantial agreement with the standards because of a
thorough understanding of the need for the standards . We shall be developing
this theme much more fully in the next section of this chapter . Here we want to
emphasize that the collegial management style we are recommending is not in
any way incompatible with a highly disciplined security intelligence agency
which acts legally, properly, and in concert with government policies . Quite the
contrary, collegiality can and should be structured in such a way that security
intelligence officers `going off on their ôwn' in disregard of government and
agency policies, is simply not tolerated within the agency .
115 . Second, primary emphasis on correcting inappropriate behaviour should
be through remedial action, rather than by punishing individuals . Moreover,
the remedial action may not be directed solely or primarily at individuals .
Rather, improper behaviour may indicate faults in certain organizational
practices : communication may be poor, supervisory patterns inadequate, or
training programmes too skimpy . When remedial action is directed toward
individuals, the key, in our view, is to avoid a highly formalized adversarial
process . Supervisors may need to rely on expert staff resources to help them
work out remedial programmes with certain employees . The stress should be on
creatively working out joint solutions to problems rather than on punishing
people . Only in rare circumstances should formalized disciplinary procedures
be launched against an employee.
116. We propose one important exception to the above approach : where there
is evidence of an illegality on the part of an employee . The procedure to be
followed in handling such cases is described in Part V, Chapter 8 . The
employee should be suspended with pay, pending the outcome of this
procedure .
117. In a few extreme cases, the best solution may appear to be dismissal .
Such a decision should not be made lightly and it should be made only after
supervisors and others have made considerable effort in applying remedial
measures . The actual decision should be made by the Deputy Solicitor General,
on the advice of the Director General and his senior management team . The
Director General may wish to consult others outside the agency, both to test
the soundness of his recommendation to dismiss an employee and to explore
possible employment options for the individual elsewhere . As in most other
private and public organizations, the decision to terminate employment should
be based on `cause' . In some instances, it may be appropriate for the agency to
728
�pay the costs of a termination counsellor for the employee and to make a
sustained effort to help the dismissed employee find suitable work elsewhere .
Avoiding the problems of disgruntled ex-employees of the-security intelligence
agency will be well worth the effort as such . persons can do great harm to a
country's security system .
118 . We should make one other point about dismissal procedures . That
concerns dismissals based on security grounds . The dilemma here is that the
Director General must tolerate a much lower level of risk than would the heads
of most other government departments and agencies, and yet, at the same time,
individual employees must hâve some sense of job security upon agreeing to
work for the agency . There are no easy answers here . The best approach we
can think of is as follows . The Director General should have the power to
suspend a person with pay while a security investigation is conducted . If the
evidence would not warrant dismissal from another government department
and yet leaves some doubt as to the employee's reliability within a security
intelligence agency, then the employee should, if possible, be given work of
comparable status in a non-sensitive area in another federal government
agency or department. The Director General should work out a procedure for
handling :such cases and seek the approval of the appropriate interdepartmental
committee .
WE RECOMMEND THAT the security intelligence agency adopt the
following policies to help it determine who should work for the agency : ;
(a) the agency requires staff with a wide variety of backgrounds % i n
governmental, non-governmental, and police organizations;
(b) police experience should be a prerequisite for only a small number of
specialized positions ;
(c) the agency should periodically hire persons from outside the agency
for middle and senior management positions;
(d) having a university degree should not be a prerequisite for joining the
agency. Nonetheless, the agency should actively recruit those with
university training;
(e) the agency should hire individuals with training in a wide variety of
academic disciplines ;
(f) the agency should seek employees with the following characteristics :
patience; discretion; emotional stability ; maturity ; tolerance ; no
exploitable character weaknesses; a keen sense of, and support for,
liberal democratic principles ; political acumen; and the capacity to
work in an organization about which little is said publicly .
(74)
WE RECOMMEND THAT the security intelligence agency adopt the
following recruiting procedures :
(a) it should widen its recruiting pool in, order to attract the type of
personnel we have recommended, rather than rely on'the R .C.M .P. as
its primary source of recruits;
( b) apart from support staff, it should have only one category of, employee,
to be known as intelligence officers. Intelligence officers should not be
given military or police ranks ;
729
�(c) it should not rely primarily on referral by existing or former employees
to attract new recruits but rather should employ more conventional
methods, including recruiting on university campuses and advertising
in newspapers;
(d) in addition to the personnel interview, it should develop other means,
such as psychological testing and testing for writing and analytical
ability, to ascertain the suitability of a candidate for security intelligence work ;
(e) it should involve experienced and senior operational personnel more
actively in the recruitment process .
(75 )
WE RECOMMEND THAT
(a) the security intelligence agency initiate a more active secondment
programme, involving federal government departments, the R .C.M .P.,
provincial police forces, laboûr unions, business, provincial governments, universities, and foreign agencies
; (b) secondment arrangements with foreign agencies should be approved b y
the Minister responsible for the security intelligence agency .
(76 )
WE RECOMMEND THAT the security intelligence agency :
(a) develop an improved career planning capability in order to effect
' greater specialization in'career paths ;
(b) ensure that there is close collaboration between line and staff personnel in the design and implementation of specialized career paths .
(77)
WE RECOMMEND THAT the number of job levels for intelligence
officers within the security intelligence agency be reduced .
(78)
WE RECOMMEND THAT the security intelligence agency establish a
number of positions designed for senior intelligence officers who would
have no administrative responsibilities .
(79)
WE RECOMMEND THAT security service training be redesigned so that
it is more . suitable for better educated, more experienced recruits . There
should be less emphasis on `parade square' discipline and `molding' behaviour and more emphasis on developing an understanding of political, legal
and moral contexts and mastering tradecraft techniques .
(80)
WE RECOMMEND THAT the security intelligence agency initiate a
variety of training programmes with an aim to exposing its members to
ideas from persons outside the agency .
.(81 )
WE RECOMMEND THA T
(a) managers in operational jobs take an active role in the design and
implementation of training and development programmes ; - ,
(b) opportunities for increased specialization be available for training an d
development staff.
(82 )
730
�WE RECOMMEND THAT
(a) security intelligence agency employees not be allowed to unionize, and
this be drawn clearly to the attention of each person applying to join
the agency ;
(b) the security intelligence agenc y
(i) adopt a managerial approach which encourages employee participation in decision-making ,
(ii) encourage the formation of an employee association, an d
(iii) tie agency salaries and benefits by â fixed formula to the Public
Service of Canada .
(83 )
WE RECOMMEND THAT
(a) employees of the security intelligence agency not belong to the Public
Service of Canada ;
(b) the employee benefits of the security intelligence agency be the same
as those enjoyed by federal public servants;
(c) portability of employee benefits exist between the agency and the
federal government ;
(d) pension portability arrangements between the federal government and
other organizations including other levels of government encompass
the security intelligence agency;
(e) for the purposes of being eligible to enter public service competitions,
employees of the security intelligence agency be deemed to be persons
employed in the Public Service.
(84)-
WE RECOMMEND THAT the security intelligence agency establish an
employee counselling programme based on the two principles of voluntary
usage and confidentiality of information given to the counsellors .
(85 )
WE RECOMMEND THAT the senior management of the security intelligence agency
(a) emphasize the practice of seeking local and informal avenues of
resolution of grievances before resorting to formal procedures ;
(b) monitor carefully the use of formal g r ievance proèedures as a possible
indicator of problem areas in current personnel policies ;
(c) establish a two-stage formal grievance procedure, involving a threeperson grievance board at the first stage, and an appeal to the Director
General at the second stage ;
(d) ensure that no member be penalized directly or indirectly as a result of
lodging a grievance .
(86 )
WE RECOMMEND THAT the security intelligence agency develop a
program for dealing with improper behaviour whic h
(a) emphasizes remedial action rather than punishment ;
731
�(b) requires the Director General, in the case of an alleged illegality, to
suspend an employee with pay and to refer the case to the Solicitor
General ;
(c) places responsibility for dismissal with the Deputy Solicitor General,
subject to the advice of the Director General and his senior management team;
(d) emphasizes the necessity of the security intelligence agency expending
every effort, in appropriate instances, to help dismissed employees find
new work ;
(e) provides for a procedure for relocating employees who are suspected of
being security risks to non-sensitive areas in other federal government
departments.
D . APPROACHES TO LEADERSHIP, ORGANIZATION
AND DECISION-MAKIN G
119 . To this point, we have concentrated on describing the kind of people who
should work in a security intelligence agency, and the appropriate set of
personnel policies - recruiting, training, career paths, and so on - so that the
`right' people are doing the `right' jobs . For some, this is the essence of good
management : problems of effectiveness, propriety and legality simply will not
arise as long as the organization has good people and keeps them productively
occupied . Unfortunately, the management of an organization is more complicated than this view suggests . People who are exemplary citizens in their
private lives - law-abiding, morally sensitive and public-minded - frequently
find it extremely difficult to withstand organizational pressures either to
participate or acquiesce in improper or illegal acts of other members of the
organization . Thus it is important to examine those features of an organization
which lead to illegalities and improprieties .
120 . In this section, we examine two dimensions of management : leadership
style, and some related principles of organization . The focus of both these
topics is how people within a security intelligence agency relate to one another
in making day-to-day decisions .
Leadership style
121 . For many, the word `leadership' conjures up images of strong-minded,
clear-thinking individuals giving incisive orders . We shall leave it to others to
argue whether such a leadership style is appropriate in any organization, even
an army in battle . We can state with some certainty that such a style, with its
reliance on obedience, is inappropriate for the kind of security intelligence
organization we are proposing . The thoughtful, mature, well-educated
individual who, we believe, is needed for security intelligence work is not likely
to tolerate such a style . Moreover, advocates of this approach to leadership
ignore an increasingly important aspect of modern organizations : they are
complex and their parts are highly interdependent . To function effectivel y
732
�within a security intelligence agency often requires getting things done by
working with other people with whom no superior/subordinate relationship
exists . In sum, a leadership style based on giving orders must give way to a
team approach where the emphasis is on shared decision-making, and where
control by superiors is largely replaced by self-control and self-direction, based
on a common understanding of shared goals . This is not to argue that giving
orders is never appropriate, only that there are often more effective means of
getting things done .
122 . A reading of the opening section of the Force's four-volume Administrative Manual would suggest that it is committed to the kind of leadership
approach we have recommended above . Section 6 of the chapter on "The
Principles of Policing and Management in the R .C .M .P ." is as follows :
6 . Police personnel at all levels should be given the opportunity to participate in the setting of goals and deciding the means of achieving them .
Managers should set an atmosphere wherein they can carry out their
responsibilities on the basis of mutual confidence, respect and integrity,
without simply relying on their authority or position .
123. The evidence we have heard in our hearings, the numerous informal
meetings we and our staff have had with members of the Force, and our
examination of file material all suggest that this principle is not as widely
followed within the Security Service, nor within the Force as a whole, as .it
should be . For example, the descriptions we have given in this chapter of
current personnel policies in such areas as discipline and recruit training
indicate an `obey or else' philosophy of leadership which is at odds with the
above principle . And consider this testimony from an officer in the Security
Service :
.. we knew we were confronted, among other things, with severe . . .
hierarchical authority problems . Younger members were very loath to
express their honest opinion when their seniors were present, because if they
.
were disagreeing with their seniors, some of whom thought we were in the
best of all possible worlds . .. they would be told off.
(Vol . 53, pp . 8620-8621 . )
124. We have found some evidence that a team approach to decision-making
is taken seriously within the Security Service . For example, we were impressed
by recent developments in the Service's planning process, which has evolved
into a well-integrated process offering opportunities for participation in planning and detailed target setting throughout the organization . And we have
spoken to a number of officers who were trying to develop a more participatory
approach in their units . Nonetheless, we believe considerably more progress in
this direction is required throughout the Security Service . In particular more
emphasis needs to be given in training courses to practising small-group
decision-making techniques so as to support such a leadership style .
125 . A review of Security Service files has illustrated the problems faced by a
source and his Security Service `handler' and gives a strong hint of the kind of
filters which can develop in an organization - filters which can distort the
flow of information to senior management . That such communication distortions should develop to reduce the effective operation of a security intelligenc e
733
�agency affords sufficient grounds for concern . That such distortions could, in
addition, keep from senior management information about existing or potential
improprieties and illegalities is intolerable . The adoption of the leadership style
we have advocated in this section - a style which assumes that conflict within
an organization can be a positive stimulus provided it is faced openly and
creatively - is one way to minimize the occurrence of communication
problems within the agency . Creation of only one category of employee, a
recommendation we made earlier in this chapter, is another means to achieve
this end . In addition, there are other managerial policies which move in the
same direction . For example, the agency should not have separate eating and
social facilities for its various levels as is now the case in the R .C .M .P . In our
view, such separate facilities tend to accentuate communication barriers within
the agency. Moreover, senior management should develop regular opportunities
for discussions with lower ranking employees whom they might not normally
see in the course of their work .
126. Yet another device to facilitate communication is to encourage ad hoc
groups established to examine particular problems, to include, when appropriate, staff from several management levels within the agency. Finally, when
senior managers deal with the work of an individual, that person, however
junior, should be present in the meeting where feasible .
Organizing principles
127 . Most who work in large organizations are struck at some point by the
inadequacy of an organization chart in showing how things really work . All
employees, even at low levels, have working relationships with others in
addition to their superiors, and these relationships shape .and modify their own
role and responsibilities to such an extent that behaviour within organizations
cannot be described solely in terms of the formal organization chart . At middle
and senior levels, interdependencies among organizational units become very
pronounced and require managers to spend significant portions of their time
working with others either `across' the pyramid or belonging to another
organization .
128. On several occasions in this and earlier chapters, we have recognized the
importance of these interdependencies and recommended specific structures to
deal with them . In our discussion of the security intelligence agency's mandate,
we recommended the formation of a revamped O .P .R .C ., whose composition
would include both members of the security intelligence agency and others
outside the agency, and whose function would be the review of proposals for
`full' investigations . In a similar vein, we have proposed that the Director
General and his senior managers act as a team so that agency decisions may be
tested against all the major viewpoints within the organization . These examples
illustrate the importance we place on the security intelligence agency's conscious structuring of its key decision-making forums so that countervailing
perspectives are brought to bear on important problems . The creative resolution of differences in viewpoint can produce decisions of high quality . There
will be less likelihood of poorly considered operations and policies .
734
�129 . As a final illustration of this organizing principle of countervailling
forces, we shall now consider how a security intelligence agency might go about
developing and implementing policies relating to personnel matters . One of the
dominant themes which arose in Commission interviews with R .C .M .P . personnel on personnel policies affecting the Security Service was the existence of a
high degree of acrimony, tension and frustration in the relationship between
those doing the operational work of the Service (i .e . those in `line' jobs) and
those responsible for Force-wide personnel policies (i .e . those in 'staff' obs) .
Line personnel believed that those in staff positions lacked a proper understanding of Security Service work, were overly narrow and specialized, were
too concerned with bureaucratic procedures and enforcing compliance, and, in
general, were unsympathetic about helping line people solve some serious and
pressing problems . Those in staff positions, on the other hand, tended to view
line personnel as parochial, unconcerned with broader Force-wide interests,
overly concerned with maintaining their independence, and guilty of a tendency
to blame staff people for problems they should solve themselves .
130. The antipathy in this staff/line relationship has manifested itself over
the last decade in a variety of ways which go beyond angry, memos and long
frustrating meetings . For example, we found several instances of outright
non-compliance with certain personnel policies . An even more common phenomenon was the expenditure of large amounts of employee time in devising
ingenious ways to get around or defeat certain policies (for example, Security
Service branches putting forward numerous proposals for organization changes
in order to deal with constraints imposed by the classification system) . Thè
situation we have described here is by no means unique to the R .C .M .P . Many
organizations, both in the private and public sectors, experience a similar
`guerrilla warfare' between staff and line employees .
131 . What can be done to minimize such problems? There appear to us to be
a number of ways in which much closer collaboration can exist between staff
and line components within a security intelligence agency . The most important
is the recognition throughout the organization that developing and implementing personnel policies must be a joint responsibility of both line and staff
managers . Moreover, there must be structures to reflect this sharing of
responsibility . Responsibility for personnel policy should be vested in a senior
committee composed of both line and staff managers . The advantage of this
arrangement is that it begins to remove the staff personnel from an- enforcement role, and yet provides them with a forum for exerting considerable
influence on the direction of the organization's personnel policies . ; For line
managers, such an arrangement means that they must become more active in
thinking about and formulating personnel policies and consequently more
committed to the end result .
WE RECOMMEND THAT the security intelligence agency develo p
(a) a leadership style which relies less on giving orders and obedience and
more on participation in decision-making ; an d
(b) training courses, especially in small group decision-making techniques, which will support such a leadership style .
(88 )
735
�WE RECOMMEND THAT, to minimize the likelihood of internal communication barriers developing, the senior management of the security
intelligence agency should
(a) eliminate separate eating and social facilities based on job levels
within the agency ;
(b) develop a regular forum for communicating with staff they would not
normally meet in the course of their work ;
(c) encourage ad hoc problem-solving groups, when appropriate, to include
staff from a variety of levels within the agency;
(d) encourage the attendance of junior ranking members when their work
is discussed .
(89)
WE RECOMMEND THAT the security intelligence agency include in its
key decision-making forums individuals who, because of their function,
have different perspectives on the problems to be considered .
(90 )
E . LEGAL ADVIC E
132 . An essential element in the structure of any government department or
agency is its legal se rv ices . The part played by the legal adviser is more or less
important depending on the role assigned to the department or agency . Because
of the delicate and sensitive work to be performed by the security intelligence
agency, as we have outlined it earlier in this part of our Report, and the
potential for infringement of legal rights . of individuals and organizations, it is
of the utmost importance that the agency receive independent legal advice of
the highest order and that it follow that legal advice scrupulously .
133 . In the past the Security Service of the R .C .M .P . obtained its legal
advice from the same sources as the rest of the Force, i .e . the Department of
Justice or the Legal Branch of the R .C .M .P . In Part X, Chapter 3, we shall
outline briefly the history of the Legal Branch of the R .C .M .P., and the
current status and role of that Branch, and set out some recommendations for
its future . Because we shall recommend a security intelligence agency separate
from the R .C .M .P .,• we propose here to deal with how that separate agency
should obtain its legal serv ices .
134. For legal advice to be reliable, the lawyer providing it must be as free as
possible from any external influence or pressures . This touchstone is a basic
tenet of the legal profession . A lawyer must be free to express his opinion
without fear that the content of that opinion might have an adverse effect on
him personally . This principle applies equally to private practitioners and
lawyers employed by the government . Recognition of this principle underlay
the recommendations of the Royal Commission on Government Organization
(1962) (the Glassco Commission) . That Commission stated :
Rotation of Justice lawyers into departments and back to the Department
of Justice should bring a fresh touch of reality to the oft-times academic
tone of Justice opinions and, at the same time maintain in the department s
736
�the appropriate aura of neutrality required in rendering impartial legal
advice .1 8
135 . There are characteristics of a security intelligence agency which give a
uniqueness to its legal requirements . Much of what it does is secret and in
many cases very few people have any knowledge of its operations . Of even
greater significance, most of the operations involve an intrusion into the lives of
others which goes beyond what is normally encountered or permitted in our
society . Earlier in this Report we defined the role of the agency and the powers
that we think should be given to it . We also dealt with the mechanisms we
think ought to be put in place to control the agency's activities . Underlying our
recommendations is the principle that the agency must act within the law at all
times . If the law is not adequate to allow the agency to perform its role it
should .seek to have the law changed . It should not under any circumstances
knowingly or negligently break the law . This has two consequences for the legal
services requirements of the agency . First, the agency requires legal advice, in
advance, with respect to certain aspects of its operations to ensure that they are
in conformity with the law ; and second, it requires legal advice as to the best
way to change the law if the law is not adequate to permit it to perform its
assigned duties . We will nowcônsider these two legal functions separately .
136 . The secrecy associated with operations gives a particularity to the advice
required . The 'need to know' principle, which we shall discuss in greater detail
in a later section of this chapter, can result in a down-grading of the
importance of questions of legality by those involved in the operations, who are
not experts in the law and who may be facing a set of pressures to collect
certain information . In addition, the, number of people outside the agency
having knowledge in advance of operations must be limited because of the risk
of compromise of the operations . Any examination of the legalities of operations carried out prior to the execution of such operations must, therefore, be
performed within the agency . We are strongly proposing to the government
that the legal advisor be placed in a key position to advise on legal matters . The
agency's legal adviser should be a member of the committee which authorizes
the agency to use the full range of its investigative methods against a . proposed
target . The legal adviser should also examiné each specific request for the
granting of a warrant to perform an intrusive technique, so as to ensure that
the application is in conformity with the law and the agency guidelines .
Further, he should scrutinize specific proposals for using certain other investigative techniques to ensure that those proposals meet agency guidelines . As
well as having a formal involvement in the approval process for sensitive
operations, the legal adviser should be available to give . advice in the planning
of such operations, prior to the approval stage . Members at every level in the
agency should be encouraged to consult with the legal adviser on all matters,
with full candour . In this way, potential legal problems may be avoided and the
morale of operational people will not suffer because of rejection of their
proposed operations at a later stage due to legal considerations . The advice o f
1e Royal Commission on Government Organization, Queen's Printer, Ottawa, 1962, Vol .
2, p . 420 .
737
�the . legal adviser as to the legality of an operation must be binding on the
agency unless a contrary opinion is given by the Deputy Attorney General of
Canada . Any knowledge by the legal adviser, either before or after the fact, of
any illegal act by the agency must be reported by him to the Deputy Attorney
General of Canada .
137 . The second requirement of the agency for legal advice as to how
inadequate laws ought to be changed, while in some respects similar to the
provision of such advice to any government department or agency, again has
some aspects unique to a security intelligence agency . The agency's legal
adviser requires a detailed knowledge of the agency's operations and techniques
to ensure that legislation which is drafted does not destroy the efficacy of the
agency's clandestine activities . Later in this Report we shall be recommending
that there be a special group of parliamentarians who would be kept informed
by the government with respect to security matters . The details and reasoning
behind some of the more sensitive aspects of legislative changes would be one
of the areas in which they would be so informed . In this area of legislâtive
change the legal adviser should counsel senior management of the agency in its
dealing with Ministers, senior officials in other government departments and
Parliamentary Committees, but he should not become the advocate for the
agency . Such a role would be consistent with the role played by Department of
Justice lawyers in `other departments and agencies of the government .
138 : In our opinion the legal advisers of the agency must be intimate with all
aspects of the agency's activities . This means that they must have several years
of continuous association with the agency . Because of the degree of secrecy
required we consider it advisable that such lawyers attempt to handle as much
as possible of the legal work without reference to any `outside' lawyers . For the
reasons mentioned previously about the benefits accruing from independent
legal advice, we think that the legal advisers to the agency should be members
of the integrated legal service of the Department of Justice . Since there will be
little or no review by other lawyers of the legal advice given by the agency
lawyers in advance of the execution of operations, it is imperative that such
lawyers be well-qualified and of mature judgment . We think it would not be
wise for a lawyer to make a career of being a legal adviser to the agency ;
however, we think it would,be reasonable to expect that any lawyer spend from
five to ten years in such a position . Obviously, he must be housed at the
security~intelligence agency's Headquarters and must be in full-time attendance there. The clear danger in these circumstances is that if he were to
consider it a lifetime career, notwithstanding that he is a member of the
Department of Justice, he might tend to lose his independence, either by being
co-opted to the agency's way of thinking through long-term association, or
because his career would be dependent upon the approval of him by the senior
management of the agency . For this reason we think that there should be a
limit on the duration of his services .
139 . Until recently, one member of the Legal Branch of the R .C .M .P .
worked full-time advising the Security Service of the R .C .M .P. In addition,
much of the time of the Department of Justice lawyer assigned to the
738
�R .C .M .P . was taken up with Security Service matters . (In Part X, Chapter 3,
we discuss recent developments concerning the R .C.M .P .'s Legal Branch .) We
are sure that .more than one lawyer will be required by the security intelligence
agency, and no doubt over time a system of staggering the appointments could
be worked out which would ensure that there would always be one lawyer
available in the agency who would be experienced in its work .
WE RECOMMEND THAT the legal services of the security intelligence
agency be provided by the Department of Justice, and that the Department
of Justice assign to the security intelligence agency well-qualified lawyers
of mature judgment in sufficient number to provide all of the legal service s
required by the agency .
(91 )
WE RECOMMEND THAT the lawyers assigned to the agency serve from
rive to ten years in that assignment and that there be a gradual staggering
of the appointments so as to ensure that there is always at least one lawyer
at the agency with several years' experience in its work .
(92)
WE RECOMMEND THAT the agency's legal advisers provide the agency
' with advice on the following matters :
(a) whether actions are in conformity with the law and agency guidelines ;
(b) the legality of each application for a warrant to perform an intrusive
technique and whether such application is in conformity with those
agency guidelines with respect to its use ;
(c) whether a proposal to use certain other investigative techniques is i n
conformity with the agency's guidelines .
(93 )
WE RECOMMEND THAT the advice of the legal adviser be binding on
the agency unless a contrary opinion . is given by the Deputy Attorney
General of Canada .
(94)
. WE RECOMMEND THAT the legal adviser report to the Deputy Attorney General of Canada any knowledge he acquires of any illegal act by any
member of the agency .
(95 )
WE RECOMMEND THAT the legal adviser counsel senior management
of the agency in its dealings with senior officials, Ministers or Parliamentary Committees with respect to the proposed legislative changes affecting
the work of the agency .
(96 )
F . INTERNAL AUDITIN G
140 . The R .C .M .P . defines audits as "official systematic examinations" to
" . . . assure senior managers that their policies are being observed" . The
practice of having audits conducted throughout the Force by a group on behalf
of the Commissioner began in 1953 . By the summer of 1977, an Audit Branch
with three units - a Management Audit Unit, Financial Audit Unit, and a n
739
�Administration and Personnel Audit Unit - was in place . The officer in
charge of this Branch reports to the Commissioner . Following the revelations
which gave rise to this Commission, Commissioner Simmonds and the Solicitor
General, Mr . Fox, announced the formation of an Operational Audit Unit,
which was added to the Audit Branch in early 1978 . Unlike the other units in
the Branch which have Force-wide responsibilities, this latter unit focusses
solely on the Security Service . In addition to the four audit units which form
the Audit Branch, the Security Service has its own audit unit, which began its
first audit in May 1978 . Of these five audit units, three are important for our
purposes - the Management Audit Unit and Operational Audit Unit in the
R .C .M .P .'s Audit Branch and the Security Service's own audit unit .
141 . The Management Audit Unit is the largest unit within the Audit
Branch . In 1979 it had a complement of 14 full-time regular members - 2
Superintendents, 2 Inspectors, and 10 Staff Sergeants . The objective of the
unit is to "assist all levels of management in the effective discharge of their
responsibilities" . To do this, the unit examines among other things the following : the use made of resources - personnel, financial, material ; administrative
and operational efficiency ; internal control mechanisms ; quality of communication ; and morale levels . This unit completed an audit of the Security Service in
1976 and another in 1979 . The aim is to have these audits done eventually on a
two-year cycle .
142. The Operational Audit Unit, established in early 1978 by the Solicitor
General and the Commissioner, has a mandate to examine all aspects of the
Security Service to ensure that its activities ar e
(a) legal ;
(b) within the mandate of the Security Service ;
(c) consistent with Force policy ;
(d) ethical and morally acceptable, and
(e) efficient and effective .
This unit has four full-time staff members - a Chief Superintendent, a
Superintendent and two Staff Sergeants . Commissioner Simmonds, in testimony before us, explained the rationale for establishing this unit . The Security
Service, unlike the other geographically based divisions within the Force, is
both a policy centre and an operations centre . It does not have a number of
Headquarters-based policy directorates `riding herd' over it as do the other
divisions . Hence, Commissioner Simmonds felt the need for " . . a small audit
.
team that reports directly to me and looks at the operations of the Director
General, because my responsibilities are large and I am busy and I can't be
spending every day looking at what he is doing . ." (Vol . 164, p. 25188) . The
.
unit is authorized to have unrestricted access to Security Service files, but is
not allowed to contact other agencies, police forces, or foreign governments . It
began its work by auditing several of the Headquarters branches in a very
extensive manner . In auditing the one operational branch, for example, the
auditors looked at over 700 file's at the outset, choosing some randomly and
others by asking for specific policy files and sensitive operational files . Afte r
740
�this file review, they then conducted a number of interviews . This audit took a
long time, some seven months, to complete . The audit of another Headquarters
branch took close to four months . The heavy emphasis on file review is in
contrast to the management audit, which relies almost entirely on interviews .
143 . Commissioner Nadon authorized the establishment of the Security
Service's own audit unit in August 1976 as part of the changes resulting from
the Security Service's achieving divisional status . The unit is headed by an
Inspector, who has two Staff Sergeants reporting to him . Its mandate falls into
three areas : operations, administration and planning . In the first area, operations, there is a clear overlap with the Operational Audit Unit described above .
For example, the staff in the Security Service unit asks all those interviewed
the following two questions concerning legality :
Are you involved in or do you know of any investigational practices which
might be of questionable legality ?
Are you certain that these practices have been suspended ?
In addition to asking these general questions, the audit unit samples files and
conducts interviews on the process of identifying groups and individuals to be
investigated and on the use of intrusive investigative techniques . The auditors
rely heavily on the intelligence collection goals established by the planning
process . Of particular concern to the auditors would be an investigation of a
group which does not relate to the yearly plan, and for which there is no
written authorization from Headquarters .
144. In examining an investigative technique, the audit unit when auditing a
large area command might spend up to one day going through every fifth file
and then following up with interviews . The function of the auditors is to
identify what appear to be questionable situations and ask for a second look,
often from the officer in charge of the particular head office branch . The
auditors do a similar combination of file reviews and interviews concerning the
use of intrusive techniques .
145 . In the planning and administration areas, there is considerable overlap
between the Security Service Audit work and the management audit of the
Audit Branch . The major difference is that the Security Service audit is more
detailed . For example, the Security Service auditors interview some 40 to 50
per cent of the members within a unit - almost double the corresponding
figure for the Audit Branch . Also, the Audit Branch does only a sample of the
various area commands and headquarters units . Consequently, the frequency of
these audits would be less .
146. There are several positive features to the Force's approach to auditing .
The subject of the audit always has an opportunity to respond to the auditors
prior to their submitting a report . The auditors do no more than identify
problems, and thus do not force solutions onto the unit being audited . Finally,
the audit reports are designed to identify positive as well as negative points .
Nonetheless, we have some serious misgivings about the current auditing
system as it affects the Security Service . Our approach to auditing has three
elements : first, the major responsibility for operational auditing should be wit h
741
�-an organization independent of the security intelligence agency ; second, there
should .be a small investigative unit within the security intelligence agency with
responsibility for handling complaints and for reviewing agency operations on a
more selective, less mechanical manner than is now the case ; and third,
managerial auditing should be replaced by more promising approaches to
organizational improvement and change . We shall enlarge on each of these
elements.
147 . 'In the next section of the Report, we will be recommending the
formation Of an independent review body (the Advisory Council on Security
and Intelligence) with broad responsibilities for auditing and reviewing the
activities of all agencies within the intelligence community, including the
security intelligence agençy . We shall be elaborating on the role of this agency
and the reasons for establishing it. Briefly, for our purposes here, there are two
fundamental . reasons for our preferring the major operational auditing responsibility to rest with an outside agency . The first is independence. During the
course of our inquiry, we have heard evidence about many questionable
practices - some of which we believe are contrary to, or at least not provided
for by the law - which were approved by the most senior levels within the
Force . We have little confidence that an audit unit based within the Force
would have necessarily identified these questionable practices . We have no
confidence that the work of an audit unit within the Force would have resulted
'in the practices, if identified, necessarily being brought to the attention of the
appropriate Ministers and officials . The lack of comment by any of the audit
units on the Force's handling of the Prime Minister's 1969 policy statement
adds weight to our concern . So does the following testimony of a former senior
Security Service officer on the audit group's access to documents relating to
mail opening practices :
Q• Would there be any way that the Audit Group, which, I assume, has
the continuing function, visiting various units - is there any way in
which it would have access to Exhibit B-22? [a telex dated September
23, 1977, containing Headquarters instructions to Area Commands as
to the permissibility of the examination of the outside of mail and
forbidding the opening of mail ]
A . I would expect it would have access to it if it had asked to see it ; but
like many things in the Security Service, and again, as I think I
explained yesterday, we operate on a need-to-know basis ; and because
of the very .sensitive nature of the CATHEDRAL operation, not only in
terms of its sensitivity security wise, but, quite honestly, because it is a
sensitivity in terms of illegalities, I would doubt very much whether it
would have been brought to the attention of the audit people, unless
they had asked for it .
(Vol . 7, p . 969 . )
148 . A second reason for preferring an outside agency to be responsible for
operational auditing is that clearly many of the problems we have been
investigating had roery much to do with the relationship of the Force to other
parts of government . An organization which is independent of the security
intelligence agency, its Minister, and the other major agencies making up th e
742
�intelligence community would be in a position to monitor these relationships
and point out problem areas .
149 . While urging that most of the operational, auditing responsibility be
lodged in an independent body, we believe that the security intelligence agency
should have a small investigative unit to carry out in-depth studies of operational activities which appear to involve questionable positions . This investigative unit should also be responsible, in most instances, for investigating public
complaints against members of the security agency . However, the independent
review body should be informed of all complaints and the agency's response to
them . Also, based on evidence before this Commission of several poorly
conducted R .C .M .P . internal investigations, we believe strongly that, the
independent review body should be empowered, in exceptional circumstances,
to investigate a complaint itself .
150 . As for the management audits, we believe that the benefits simply do
not match the costs . Senior management's involvement in such audits is
generally confined to reviewing the final report, and perhaps following up on a
small number of points . Thus, fundamental issues facirig' the organization
seldom get addressed . We also believe that most of thosè being audited view
management audits as nuisances, and are consequently not strongly motivated
to take the results seriously .
151 . One positive feature, however, of managerial auditing which should not
be lost, is having `outsiders' periodically come into an organization as catalysts
for change . But rather than performing the role of an expert who examines a
situation and prescribes changes for senior management, the `outsider' (either
an outside consultant or a member of some internal consulting group) would
have the task of helping those within the organizational unit identify their
pressing problems, understand why these problems exist, and develop solutions .
To be successful, such an approach has to reverse the conditions under which
auditing in the management area is unsuccessful . That is, senior management
has to be involved in a substantial way, committing both time and resources ;
there has to be a motivation to learn among .those involved in the exercise ; and
the learning of those within the organization requires progression, a series of
opportunities to explore and experiment with new concepts .
WE RECOMMEND THAT
(a) major responsibility for auditing the operations of the security intelligence agency for legality and propriety should rest with a new
independent review body . ( The functions of this body will be described
in a later chapter of this report . )
(b) the security intelligence agency should have a small investigative unit
for handling complaints and for initiating in-depth studies of agency
operations on a selective basis; and
(c) the security intelligence agency should not allocate resources for
managerial auditing, but instead should experiment with other approaches to organizational change .
(97 )
743
�G. INTERNAL SECURITY
152 . As we noted in the introductory section of this chapter, a feature which
distinguishes a security intelligence agency from other government organizations is the degree to which those within such an agency are preoccupied with
maintaining internal security . There is good reason for this preoccupation . As
one writer on intelligence organizations puts it ,
.
.. an insecure service is not merely useless ; it is positively dangerous,
because it allows a hostile agency to manipulate the penetrated organization, as the British, for example, manipulated German intelligence during
World War 11 . M15 turned German agents in Britain, used them to feed
false information to Germany, and thereby thoroughly confused the Germans as to the probable site and nature of the invasion of Europe . The
Germans would have done better with no agents in Britain at all . At the
very least they would have been jumpily alert, not knowing where the blow
was to land, rather than falsely confident . It might almost be said that the
better a service is, the more it is trusted by those for whom it works, the
greater the potential danger it represents to its own masters . It is simultaneously the first line of defense, and the weakest link . It is an instrument
perfectly designed for deception ; an intelligence service is as close to a
nation's vitals as a vault is to a bank's . There are enough horrible examples
of manipulation in the history of espionage to guarantee that intelligence
services will always look first to their own defenses . "
153. The primacy of security explains many of the more unusual characteristics of security intelligence work - the extreme sensitivity to what becomes
public about the organization, the tendency toward insularity and distrust of
those outside the organization, the intrigues of doubling and redoubling enemy
agents, and the clandestine meetings in `back alleys' . Moreover, the security
question lends an important psychological feature to relationships within the
organization . A fundamental assumption of all security services is that they
have been penetrated . To assume otherwise is to leave themselves vulnerable to
a high degree of manipulation . But this assumption leads those within the
agency to spend their lives suspended between doubt and trust, suspicious of
everyone including their friends, and making conscious choices about whom to
trust . Most people in other fields are never obliged to make such judgments
about their colleagues . In the security field the necessity to make these
judgments results in the development of strong bonds among colleagues .
154. The defences erected by a security intelligence agency to protect itself
are of various kinds . Perhaps the most important is the compartmentalization
of knowledge . Only those with a need to know should be privy to sensitive
information . A second line of defence is to screen carefully new employees
entering the agency and to provide some system for ensuring the continued
reliability of existing employees . And third, there are security procedures for
protecting the area in which the agency is housed, its information, and it s
19 Thomas Powers, The Man Who Kept the Secrets, Alfred A . Knopf, New York, 1979,
p. 66 .
744
�communications . We examine each of these defence systems in turn below . We
also review current Security Service procedures for conducting internal security investigations .
The 'need to know' principl e
155 . An employee of the Security Service has a need to know, if he requires
access to particular classified material in order to carry out his duties properly .
The following factors are relevant to deciding if an employee requires access :
I . Is there an absolute operational and/or administrative necessity to have
access ?
2 . Can the person contribute to the objective or operation by virtue of his
experience, rank special qualifications or attributes ?
3 . Can anyone else who is briefed to have access in the operation be used in
. order to limit the number to a minimum ?
4 . Is the person conversant with the security procedures devised to safeguard classified information ?
5 . Does he require further education on security procedures before being
granted access ?
156. Of the reasons cited for applying the `need to know' principle, by far the
most important is the need to minimize the damage of an unknown penetration
by an enemy agent . Other reasons for applying the principle include reducing
the likelihood of leaks, and lessening the danger that sensitive information may
become known through carelessness .
157. Those within the Security Service made clear to us that the principle
applies primarily to continuing operations and to current intelligence gained
from continuing operations . It would not appear to apply so strictly to
information about certain other facets of the Service - which could be
generally known by members of the Service but which should not be made
public .
158. The above description of the `need to know' principle gives little hint of
the difficulties in applying it and indeed, the potential abuses the principle can
lead to . The evidence before us and our own research of Service files suggests
that these can be substantial . Some of the more significant problems are
outlined below .
The principle assumes that files are classified correctly . Our impression,
gained over the course of three years, is that Service files tend to be
overclassified . The result is that the principle is not rigorously applied
because many regard the Secret and Top Secret designations as not
necessarily signifying highly sensitive information .
- There are difficulties in applying the principle consistently in matters
affecting several departments . We had one good example of this
problem in a matter affecting the R .C .M .P. and the Department of
National Revenue . (Vol . 50, p . 7995 . )
745
�The application of the principle can lead to feelings of frustration and
mistrust from employees who are excluded from knowing certain
information . They may feel their exclusion was based not on security
reasons but on other factors, such as a deliberate attempt to reduce
their influence in the agency .
Cooperation between two organizational units may be hampered by the
`need to know' principle . Security Service members cited several examples of two units working at cross purposes because vital information
was not shared between them .
Teamwork may be curtailed because of the principle .
The `need to know' principle may reduce the quality of training and
development within the agency. More junior members within a branch
will not be aware of many sensitive operations underway, and consequently their experiential learning will not be as rapid . Similarly,
certain types of instructive case material will not be available for formal
training reasons .
The quality of decisions may be lessened in certain instances because
the number of people who can comment on an operation is minimized .
The restrictions in the horizontal flow of information may mean that
normal peer pressure is not brought to bear on questionable acts .
Persons whose function it is to oversee or inspect operations may be
denied complete access to the necessary information to perform this
function . For example, as we noted earlier in this chapter a senior
Security Service officer testified before us that, because of the `need to
know' principle, certain audit groups within the Force did not likely
know about mail openings . (Vol . 7, .p. 969 .) The Church Committee in
the United States uncovered a similar set of examples .
The principle may be abused by some who use it as a rationale for
ignoring normal control procedures . One Security Serv ice member, for
example, who was involved in the taking of dynamite, told us that he
did not tell his superiors about the incident because of the `need to
know' principle . (Vol . 77, pp . 12404-5 . )
159 . What this list of difficulties, costs, and potential abuses suggests is that
a security intelligence agency should pay a great deal of attention to how the
_`need to know' principle is being applied . In our view, such is not the case in the
R .C .M .P . Security Service. We have found little written about the principle
and there appears to be only passing attention given to it in training courses .
Moreover there does not appear to us to be sufficient sensitivity within the
Service to the potential problems associated with the application of the
principle . We asked the Security Service to examine the `need to know'
principle with particular emphasis on its impact on managerial functions . A
key paragraph in the reply to this request was the following :
Our review of the subject indicates that in our mind what you are raising is
essentially a "non question" . Managers must manage, and in doing so must
adequately supervise the work of subordinates . To properly supervise, they
have a right to know what the subordinate is working on, how he is
proceeding and what he is gaining . "Need to Know" does not, therefore,
impact on the managerial function .
746
�160 . This reply appears to us to ignore a rather delicate set of judgments
which must be made constantly in the day-to-day workings of the agency . On
the one hand, an overzealous application of the principle will likely result in
reduced effectiveness and greater risks of questionable activities both being
undertaken and going undetected . On the other hand, if the principle is taken
too lightly, risks of security breaches are increased . The impression we have
gained through numerous discussions with Security Service members is that
over the last decade the balance has been gradually redefined within the
Service to stress an increasingly less rigid application of `need to know' . The
impact of our recommendations may continue this shift by involving more
people outside the agency, including Ministers and senior officials, in decisions
which affect agency operations . Having said this, we believe it important that
certain very sensitive agency information continue to be subject to a very strict
application of the principle . In our view, Ministers and senior officials should
be given this type of information only in the most exceptional circumstances .
Security screening for agency employees
161 . Responsibility for the Security Service's current screening for its own
employees rests with the Internal Security Branch established in 1971 .
162 . In addition to the Headquarters staff, there are security coordinators
connected with the area commands . Their duties mirror those of their Headquarters' côlleagues : security screening interviewing ; conducting investigations ;
ensuring that adequate security standards are maintained and so on . There is a
yearly conference of area representatives and their Headquarters' counterparts .
163 . As with the rest of the federal government, the Security Service's
procedures for screening its employees are governed by Cabinet Directive 35
(CD-35) . Approved in 1963, this directive outlines the security criteria for
rejecting applicants for employment in sensitive jobs and the procedures for
doing so . In a subsequent chapter of this Report we shall describe CD-35 in
more detail and the changes we propose to the system for screening public
servants . Suffice it to say here that three principles should apply to the security
intelligence agency : first, it should have a more stringent set of screening
procedures for its employees than the Public Service ; second, the agency should
have a less stringent set of conditiôns for releasing' an employee for security
reasons ; and third, the appeal process for the agency, while recognizing the
differences in its screening standards, should be the same as that of the Public
Service . These principles are premised on the belief that a security intelligence
agency is one of the most important targets within government for hostil e
foreign intelligence agencies to penetrate .
164 . In, addition to recommending these three broad principles, we can make
in this section a number of other, more specific recommendations concerning
screening procedures for Canada's security intelligence agency . We begin by
noting the emphasis the `Security Service now places on interviewing the
candidate for security clearances . Indeed, a portion of what the staff of the
Internal Security Branch do is security interviewing . This is not common
practice with the rest of the Public Service, and in a later chapter of this
Report, we shall be recommending that it become so .
-747
�165 . Despite the heavy emphasis on interviewing within the Branch, none of
its employees has any special training in this area (although a course now exists
for enhancing this skill), nor were they chosen for the job with this skill in
mind . This is another example of the inadequacy of the heavy reliance on a
generalist approach to careers within the Service . The qualities of a good
interviewer - perceptiveness, sensitivity, the ability to probe without appearing offensive, a capacity for empathy - are not common to everyone, nor can
they necessarily be taught . Selection for these jobs should be done with much
greater care .
166 . Another concern we have about current Security Service screening
procedures focusses on the decision-making process for rejecting applicants for
employment on security grounds. CD-35 can be interpreted to mean that
refusal to hire an applicant (from outside the Public Service) on security
grounds must be made by the head of the agency or the Deputy Minister . A
decision to fire an existing public servant on security grounds must be made by
the Governor in Council . In contrast, in the Security Service, a relatively junior
officer, has the responsibility for refusing on security grounds to hire a new
employee transferring from the Public Service or from within the Force . In
addition, the procedure in CD-35 for dealing with a security problem related to
an existing public servant is quite elaborate . Among other things, the Deputy
Minister or head of agency must personally interview the employee in question .
Furthermore, the employee must be " . . advised to the fullest extent possible
.
without jeopardizing important and sensitive sources of security information,
why doubt continues to be felt concerning his his loyalty or reliability" . In spite
of the provisions of CD-35 in the case of the Security Service, it is not Force
policy to disclose reasons for rejection on security grounds .
167 . We believe that the Deputy Solicitor General, on the advice of the
Director General, should take responsibility for refusing to grant a security
clearance . Such a decision can have a great impact on an individual's life and
should not be made lightly . Furthermore, the security intelligence agency
should comply with the provisions of CD-35 with respect to disclosure to the
employee as to the grounds for his rejection .
Other internal security procedures
168. The Security Service's approach to other aspects of internal security protecting the area in which the Service is housed, its information and its
internal communication systems - is similar to what we have documented
above . That is, the Service appears to place insufficient priority on these
matters and the quality of the analysis and innovative thinking which go on is
rudimentary at best .
169. Complaints we have examined simply reinforce many of the recommendations we have already made in the sections on need-to-know and security
screening . The security intelligence agency must assign greater importance to
internal security matters ; it should staff its Internal Security Branch with more
senior, better qualified personnel ; and it should improve its capacity for
analysis in matters relating to internal security . To do otherwise is to forfeit the
agency's claim of being the government's experts on security matters .
748
�Investigating breaches of securit y
170 . By breaches of security we mean the following : `leaks' of security
intelligence information to someone who will make the information public
(media employees, or a Member of Parliament) ; evidence of a possible spy or
spies within the security intelligence agency ; and a variety of other acts
resulting from carelessness on the part of agency employees, such as losing a
sensitive document . Of these, leaks of agency information present some difficulties which we now examine . Some leaks from public institutions have likely
been in the public interest, some, on the other hand, have been made on the
basis of self-serving motives . Moreover, leaks are an unreliable method of
controlling an institution like a security intelligence agency . They often involve
great risk and consequently tend to be sporadic . More importantly, leaks
sometimes force individuals to make difficult moral judgments, often in
emotionally charged situations . In essence, those contemplating leaking information must decide themselves, often with incomplete knowledge, whether the
benefits of publicizing certain information might outweigh the potential
damage . Finally, a security intelligence organization with a reputation for
susceptibility to leaks is likely to become less effective . It will have more
difficulty recruiting informers who may fear unexpected publicity . Also, foreign agencies may become less willing to give the agency information .
171 . Our approach is to encourage employees to disclose questionable activities of the security intelligence agency to the independent review body whose
make-up and functions we shall cover in more detail in a later chapter .
Provided with a convenient depository for such information, the individuals
involved in the disclosure will not be forced to make the difficult judgment
themselves about whether public disclosure is in the best interests of Canada .
(How the independent review body would deal with such information will be
covered in another chapter .) Moreover, we propose that no agency employee
should be punished or have his career retarded for disclosing information to the
independent review body. In this way, the personal risks of disclosure are
lessened .
172 . For those disclosures not made to the independent review body, we
recommend that the security intelligence agency launch an investigation which,
in cases involving very sensitive information, should include the police . As well
as attempting to discover those responsible for the leaks within the agency, the
investigators should seek to learn why these leaks occur . Such leaks are likely
signs of something unhealthy about the agency - poor recruiting practices,
employees at lower levels in the organization feeling cut off from senior
management, or other ineffective management and personnel practices .
173 . At this point, we should note another questionable facet of the Security
Service's current approach to internal security . That is the lack of clarity
concerning the role of the Internal Security Branch in investigating and
resolving breaches of security . The Branch is not fully informed about nor does
it not take an active role in many security investigations . Rather, responsibility
for initiating such investigations lies with the operational branches . The
Chairman of an R .C .M .P . task force, in the fall of 1979, recognized this same
problem
749
�and recommended that a unit be created with substantial authority and
responsibility to oversee all security related matters . This unit should .have
the capability and responsibility of research and it should investigate all
matters considered to be a threat to the security of the Security Service
including penetrations, leaks and personnel misbehaviour .
174. We concur with this recommendation, and see no reason why the unit
referred to by the task force should not be the Internal Security Branch, but
staffed with more senior people with specialized skills . We especially like the
idea that the Branch should assume a research capability .
WE RECOMMEND THAT the security intelligence agenc y
(a) review regularly how the `need to know' principle is being applied
within the agency and whether the balance between security on the one
hand and effectiveness on the other is appropriate ;
(b) ensure that the principle is being applied to primarily operational
matters ;
(c) ensure that the principle is not used as an excuse to prevent either an
auditing group or a superior from knowing about questionable acts ;
(d) improve its training programmes with regard to the rationale behind
and the application of the `need to know' principle .
(98)
WE RECOMMEND THAT screening procedures for security intelligence
agency employee s
(a) be more stringent than those employed for the Public Service ;
(b) ensure that the Deputy Solicitor General, on the advice of the Director
General, is responsible for denying a security clearance to an
individual;
(c) specify that the agency has a responsibility to advise an individual who
is not granted a security clearance why doubt exists concerning his
reliability or loyalty so long as sensitive sources of security information are not jeopardized .
(99)
WE RECOMMEND THAT the security intelligence agency have a less
stringent set of conditions than the Public Service for releasing an
employee for security reasons .
(100)
WE RECOMMEND THAT the security screening appeal process for
agency employees be identical to that of the Public Service, except for the
application of more demanding screening standards .
(101)
WE RECOMMEND THAT the security intelligence agency's internat
security branc h
(a) be staffed with more senior people who have the necessary interviewing and analytical skills;
(b) develop a research and policy unit which would keep track of and
analyze all security incidents of relevance to the agency;
750
�(c) participate in or be kept fully informed of all investigations relating to
I
security .
(102)
WE RECOMMEND THAT agency employees be encouraged to provide
information about questionable activities to the independent review body
(the Advisory Council on Security
and Intelligence),
and that any
employees who do so should not be punished by the agency .
(103 )
751
��CHAPTER 3
STRUCTURE OF THE SECURITY
INTELLIGENCE AGENCY :
ITS LOCATION WITHIN GOVERNMEN T
A. OUR APPROACH TO THE QUESTIO N
1 . Our major recommendation in this chapter will call for a security intelligence agency which is separate from the R .C .M .P . This new agency will be
markedly different from what the Security Service has been in the past . It will
be more closely integrated with the rest of government . It will be civilian in
character in that its members will not have the usual "peace officer" powers
nor will they necessarily be recruited primarily from the national police force .
Its management and personnel policies will be significantly altered so as to
attract a well-educated, widely experienced staff and keep them productively
occupied . As outlined in our discussion in Part V, the new agency will have a
comprehensive mandate approved by Parliament . It will have responsibilities
similar to those of the present Security Service, but with some important
differences . For example, there will be a shift in emphasis in the work of the
new agency : there will be less concentration on the writing of routine reports,
more emphasis on advising government about policy matters relating to the
agency's mandate, and on providing longer term `strategic' analyses concerning
security threats to Canada . In addition, the new agency will not have a
mandate to disrupt domestic political groups, either through "dirty tricks" or
through other measures with the same objective .
2 . We have not approached this question of where the security intelligence
agency should be located in government in any doctrinaire manner or with
preconceived ideas . None of us had any views on this issue before commencing
our work as Commissioners . Nor, during the course of our work, did we
discover an overarching principle which made our decision inevitable . What,
then, is our rationale for preferring a security intelligence agency outside the
R .C .M .P.? Very soon after we began our work as Commissioners, it became
abvious to us that, if we were to fulfill our terms of reference, we had to
propose to government a system for Canada's security intelligence function i system made up of several parts, including a mandate for the agency, . an
ipproach to personnel and management issues, and a set of policies and
)rganizational structures to ensure that the agency would be directed and
;ontrolled by government . As our work progressed and as the main parts of our
3roposed system took on increasing clarity, the question of the location within
;overnment of the security intelligence agency came into sharper focus . I n
753
�essence, the question was : Where within government should the security
intelligence agency be located so that thé security intelligence system which we
were proposing would best function? Our answer, based on several reasons, no
one of which is necessarily predominant, is that the agency should be under the
direction of the Solicitor General and his Deputy, but not within the R .C .M .P .
3 . In the section which follows, therefore, we develop the case for a separate
and civilian agency . Following this, we review the arguments that have been
made over several decades for retaining the security intelligence function
within the R .C .M .P . We isolate those factors which are potential problem
areas for a separate agency and suggest ways in which these can be overcome
successfully . In the final section, we advance several recommendations on how
our structural recommendations might be implemented .
B . THE CASE FOR A SECURITY INTELLIGENCE
ORGANIZATIO N
OUTSIDE OF THE R .C .M .P .
4. In this Report, we are advocating a myriad of changes to the security
intelligence function of government - changes which will affect every facet of
the Security Service's operations . We believe that a significant number of these
changes will be resisted by the R .C .M .P . if the Security Service remains within
the Force . As we demonstrated in Chapter I of this Part, the R .C .M .P. in the
past has vigorously resisted proposed changes which run counter to its deeply
held traditions and beliefs . Of the changes which the R .C .M .P . will have great
difficulty in accepting, there are two which we consider to be absolutely crucial
if the security intelligence agency is to perform effectively in a lawful and
proper manner. These are :
(a) implementing management, recruiting and other personnel policies
appropriate to a security intelligence agency ; and
(b) developing suitable structures and procedures to ensure that the security intelligence agency is under the direction and control of
government .
Implementation of change in these two areas would result in a new philosophy
emerging - a philosophy which would affect both the internal operations of
the agency and its relationships with the rest of government . It would be a
philosophy based on respect for the law and for other liberal democratic
principles which the agency was created to secure . It would also be a
philosophy based on a high regard for effectiveness in providing government
with good quality advice and information about security threats to Canada . We
examine the required changes in more detail below and explain why we are
convinced there is a better chance to achieve them in a separate agency .
Appropriate management and personnel policies
5 . In the last chapter, we recommended significant departures from current
management and personnel policies governing the Security Service, including
the following : the recruitment of more mature, more experienced, better-
754
�educated personnel with a variety of backgrounds in other institutions ; a new,
approach to career paths; a more participatory, less authoritarian• style of
management ; and substantially different training and development approaches :
What are the prospects for implementing these àppropriate personnel . and
management practices, if the Security Service were to remain within the
R .C .M .P .? We have considered several approaches . The first is changing the
Security Service along the lines we are proposing, but keeping it within the
Force together with the largely unaltered criminal investigation side. Attempts
over the past 25 years to fashion a Security Service substantially differènt from
the rest of the Force, documented in Chapter 1 of this Part of our Report, leavé
us highly skeptical about this option . The Force's failure to achieve substantial
implementation of the "separate" and "civilian" programme annôiinced• by
Prime Minister Trudeau in 1969 is particularly revealing . This history demônstrates the difficulties which any government would façe in attempting to
introduce changes which run counter to the long tradition of the R .C .M .P . It is
noteworthy that the current trend of the management of the, Force appears to
be in the opposite direction from what we consider to be desirable . The
Security Service is being integrated more closely with the rest of the R .C .M .P.,
and for that reason we think that attempts to create the . necessary changes
. '
within the Force would face almost insurmountable hurdles . .
6. Some might argue that establishing a senior * implementation team of
`outsiders', perhaps directed by a Minister, would ovèrcome any resistance
within the Force to the changes we havé outlined in the previôus chapter . Such
an implementation effort would probably help, but we doubt that much would
be accomplished without the enthusiastic support of the criminal investigation
side of the Force. For example, it would be difficult, if not impossible, for an
implementation team to impose a change in managerial approach ùpori the
Force's senior management, given that what is at stake is not so much a mattèr
of organization as a change of perceptions, attitudes, and values. Without such
a change, good experienced people from other parts of government would not
be attracted to jobs in the Security Service, nor would secondmént arrangements with other institutions be easily effected and maintained. If the implementation team should manage to effect a number of senior appointments
within the Security Service, the result would likely be an intensification of the
frustrations and, indeed, acrimony which now surround the relationship between the Security Sèrvice and certain units responsible for administratiqq
within the Force .
7 . Let us consider a second case - one in which the senior management of
the Force is enthusiastic about creating a Security Service substantially
different from the rest of the Force . What are the prospects for successful
implementation under this scenario? The probability is remote that two,quite
different organizations, one many times larger than the other, coûld co-exist
and prosper within the R .C .M .P . The Commissioner would be constantly
buffetted by pressures and complaints from members of the larger organization, and by their demands to know why certain aspects :of the security
intelligence agency - more rapid promotions, lateral entries from other
organizations, a more youthful management team, different attitudes toward s
755
�career paths and so on - could not be introduced into the criminal investigations side of the Force . Thus, enthusiasm about dramatically changing the
Security Service inevitably implies an equal willingness to change other
significant portions of the Force . It is always difficult for two quite different
organizations to co-exist within a single structure for any length of time .
Co-existence within the R .C .M .P . of two organizations such as we have been
describing is virtually impossible . Only if the senior management of the Force
were strongly to support the introduction of change, not only to the Security
Service but also to a significant portion of the criminal investigation side of the
Force, would we think it likely that appropriate personnel and management
policies could be successfully implemented . We have seen no evidence of such
support . Even if there were such a commitment, the very size of the organization, and its long traditions, would make the period of change a long and
painful one .
Direction and control by governmen t
8 . A key aim in the system of reforms we are proposing is to improve the
relationship between the security intelligence agency and other parts of government including Parliament, the Minister responsible for the agency, his Cabinet colleagues, the Deputy Solicitor General and other senior officials in
various departments and agencies concerned with security intelligence matters .
In Part V of this Report, dealing with the agency's mandate, we developed a
set of recommendations designed to place the agency's use of intrusive investigative techniques under closer scrutiny of the Solicitor General and senior
government officials from several departments . In Part VIII, where we focus
on how the security system is to be directed and reviewed, we further develop
this theme of integrating the security intelligence agency more closely with the
rest of government . In addition, we place great emphasis on a security
intelligence agency being independent of partisan politics . The challenge for
any liberal democracy is to achieve an effective security intelligence agency
which is simultaneously responsive to valid government direction and review,
and yet not used for partisan purposes .
9 . We believe that our proposed system of governmental direction and review
would work more effectively for a separate and civilian security intelligence
agency than for a Security Service within the national police force . We base
this belief on two reasons . First, there is an important difference in ministerial
involvement required for a security intelligence agency as compared with a
police force . This difference could lead to complications and abuses, should the
security intelligence agency remain within the R .C .M .P . Second, the traditional, and we believe unhealthy, semi-independent relationship which the
R .C .M .P . has enjoyed with government will not easily be changed . Consequently, a security intelligence agency, if it were not part of the R .C .M .P .,
would come under effective direction and control by government more quickly
with far less difficulties . We deal with each of these reasons in turn .
10 . It is clear that there are some similarities in the way in which a police
force and a security intelligence agency should relate to the rest of government .
These similarities are far from trivial . For example, the responsible minister
756
�and his colleagues, in the case of both a security intelligence agency and a
police force, should provide direction and guidance 'in at least the following
areas : legislation and generàl policy regarding the mandate and powers of these
agencies ; the level of resources allocated to these agencies, and how the
agencies propose to divide these resources among competing priorities (in the
case of a security intelligence agency, for example, between counter-subversive,
anti-terrorist and counter-espionage activities) ; policies and procedures concerning the use of intrusive investigative methods ; the liaison arrangements
which these agencies have within the Federal government, with other domestic
police forces and with foreign organizations ; and policies relating to internal
management and personnel .
11 . However, there is at least one fundamental difference in the way a police
force and a security intelligence agency should relate to government . It lies in
the manner in which Ministers and senior officials should be involved in
decisions regarding the groups and individuals to investigate and how such
investigations should proceed . In the case of a security intelligence agency, we
believe that Ministers and senior officials should be actively involved in such
decisions because of the ramifications these decisions can have on Canada's
system of government and on its relationships with other countries . Indeed, we
have proposed a formal, continually active, committee structure to deal with
such decisions, and we shall make other recommendations in Part VIII on the
role of Ministers . In the case of a police force, however, involvement by
Ministers and senior government officials in decisions about whom to investigate and how these investigations should be conducted should be on an
advisory basis only and limited to matters with significant policy implications .
There are not the same political and international concerns to dictate a need
for continuous governmental scrutiny . In addition, there are often more checks
and balances than in security intelligence work ; the courts, for instance,
provide one such check, albeit an imperfect one. Moreover, the degree of
secrecy is not nearly so pronounced, and this allows more scrutiny from news
media sources and pressure groups .
12 . In our view this fundamental difference in the relationship to government
causes a potential for unnecessary complications and increasing risks of abuse
if a security intelligence agency is included within a national police force . The
complications may arise because of the dual role the Commissioner of the
R .C .M .P . must play in dealing with Ministers and senior officials . It is not
difficult to envisage situations in which it would be unclear where security
intelligence interests end and police interests begin . Furthermore, Ministers
and officials who deal closely with the Commissioner on security intelligence
matters may find it tempting to extend this relationship into those police
matters where they ought not to be intruding .
13 . There is a second reason for believing that a security intelligence agency
separate from the R .C .M .P . will more likely develop the relationship recommended in this Report with both the executive and legislative branches of
government . The testimony before us of numerous Solicitors General, Deputy
Solicitors General and Commissioners has indicated that the R .C .M .P . has had
a semi-independent relationship with the Solicitor General's Department . It is
757
�our view - and we shall be making this argument in more detail in Part X,
Chapter 4 - that such a relationship should be changed . The present
relationship is unhealthy for the R .C.M .P ., which could benefit greatly from
the added help which those outside the Force could bring in dealing with
difficult problems facing the police, and it is unhealthy for the executive and
legislative branches of government, which should be holding the police more
accountable than is now the case . Changing the R .C .M .P.'s relationship with
government will not be a simple matter. As we noted in Chapter 1 of this Part,
past history suggests that the R .C .M .P . is not an organization that can be
changed easily, especially in matters involving Force traditions and deeply
ingrained attitudes . By separating the security intelligence agency from the
R .C .M .P., we believe that the type of relationship which the agency should
enjoy with government can develop more quickly with far fewer difficulties .
14 . We have an additional reason for advocating a separate and civilian
security intelligence agency . A police organization, especially one as large as
the R .C .M .P . (it is one of the largest police forces in the western world) with
responsibilities in municipal, provincial, and federal policing, is a powerful
institution in a liberal democratic country . The Force's senior managers have
access to sensitive information about many hundreds of thousands of Canadians . The investigative techniques for collecting this information, by their very
nature, impinge on personal freedoms . Then, too, a police force makes thousands of decisions each day, - about, for example, whom to investigate, and
whom to charge = which are of immense importance to the individuals
concerned . When a national police force is combined with a security intelligence agency, which operates more secretly and has even more potential to
damage the liberal democratic fabric of the country, it•appears to us that far
too powerful an organization has been created . There is a latent danger that
the public will perceive such a relatively large organization, which . has acquired
the status of a national symbol, as part of the essence of the state . If the
members of the organization come to share this perception, the myth may
become reality and its members may see their authority as autonomous from
and independent of Cabinet and Parliament, and thus set apart from the law .
Separating the security intelligence agency from the R .C .M .P. will reduce ; but
not eliminate, the potential for abuse that comes with sheer size . The effect of
separation will be even more significant than the reduction in numbers would
imply because the Security Service presents problems of democratic control
which are disproportionate to its size .
Trust in the R .C.M .P.
15 . There is an important corollary to our arguments thus far for a security
intelligence agency separate from the R .C .M .P . We believe that the questionable actions which we have been investigating - and these have been actions
by both the Security Service and the Criminal Investigations side of the Force
- have diminished significantly the trust that Canadians and their governments have in the R .C .M .P . The litany of such actions is a long one and has
been discussed fully elsewhere in this Report . The events include the following.
Since 1969, the Force has virtually ignored a publicly announced government
758
�policy concerning the Security Service : It has been far too secretive about its
liaison arrangements with foreign agencies . It has misled Ministers, causing
them, in turn, to mislead Parliament . Perhaps most 'seriously, although the
Force must not bear total responsibility, it tolerated, and indeed encouraged
through official policy, the widespread breaking of laws . Moreover, there is
evidence to suggest that senior members of the Security Service held back
information from Ministers and senior officials about questionable operational
practices .
16. In our opinion, the current Commissioner of the R .C .M .P . and many
others in the Force are working hard to restore this trust. Nonetheless, we
believe that the changes of the kind we are proposing in this Report - changes
which, in particular, will dramatically alter the Security Service - are
essential if the R.C .M .P. is to be restored to the high level of trust it enjoyed in
the past . Some of these changes are also required on the criminal investigation
side . Thus, in arguing that the R .C.M .P . will not satisfactorily implement the
necessary changes affecting the security intelligence side of its operations, we
are in essence saying that the Force, irrespective of the good intentions of its
current senior managers, will not succeed quickly enough in regaining the
requisite high level of trust to allow the new approach to security intelligence
activities to get off to a satisfactory start . A fresh start is needed, one based on
the establishment of a security intelligence agency separate from the R .C .M .P .
An ancillary benefit
~17 . An ancillary benefit of a security intelligence agency separate from the
R .C .M .P. is the potential for checks and balances to develop between these
organizations . One way in which those checks and balances cân develop is to
make one organization dependent upon the other to perform an important
function. Thus, we have recommended that the security intelligence agency not
have the powers of arrest, search and seizure normally granted to police
personnel ; and in addition, we have recommended that police personnél must
accompany security intelligence personnel in surreptitious entries under jûdicial warrant . Before performing such actions, police personnel will need to
assure themselves that the security intelligence agency is acting legally .
18 . Yet another important balancing between these agencies may occur at
both the policy and operational levels . Ministers and senior officials will have
the experience of one investigative agency to assess requests for increased
powers made by the other organization . For example, should the security
intelligence agency ask the Solicitor General to press his Cabinet colleagues to
widen the practice of using informers, then the Solicitor General can ask how
the national police force is managing without similar powers . The interests of
both organizations may sometimes coincide on these policy matters, but they
need not in all cases . At the operational level the Solicitor General will have
another channel of information to check the veracity of certain allegations
against either the R .C .M .P. or the security intelligence organization . If one
organization is involved in systematic law-breaking or improper acts, it is likely
that the other organization either will know about it or at least will have heard
rumours to that effect .
759
�An invalid reason for separatio n
19 . We believe that the case for separating the Security Service from the
R .C .M.P . is a formidable one . However, there is at least one prominent, but in
our view invalid, reason for a separate Security Service which has been
advanced over the past 25 years . This argument can be summarized as follows .
To be effective, a Security Service must perform illegal acts . A police force,
because its primary function is the enforcement of laws, should not be in the
position of having to break the law . Thus, the Security Service should not be
part of a national police organization like the R .C .M .P. Some believe that the
Royal Commission on Security in 1969 advanced this argument when it said
the following :
. . there is a clear distinction between the operational work of a Security
.
Service and that of a police force . A Security Service will inevitably be
involved in actions that may contravene the spirit if not the letter of the
law, and with clandestine and other activities which may sometimes seem to
infringe on individual's rights ; these are not appropriate police functions. ,
We shall leave it to others to argue whether or not the Royal Commissioners
were saying in this passage that the Security Service must inevitably break the
law . Indeed, we have some reason to believe that the Royal Commissioners
were not aware of the ambiguity in the phraseology . Suffice it to say here that
a number of people over this past decade, including a former Deputy Minister
of Justice, have invoked the Royal Commission when contending for a separate
Security Service (Vol . C66, pp . 9178-9200) .
20 . This argument is totally unacceptable, in our view, as a basis for creating
a separate and civilian security intelligence agency . As we argued in an earlier
chapter of this Report, there are certain principles, of which the rule of law is
one, that cannot be compromised for security reasons . A security intelligence
agency which does not feel itself bound to obey the law tends to destroy the
liberal democratic society it was created to protect . For this reason, this
argument for a separate security intelligence agency should be categorically
and publicly rejected .
C . REASONS ADVANCED FOR MAINTAINING THE
STATUS QUO
21 . Up to this point, we have described the major benefits to be gained from
separating the Security Service from the R .C .M .P . In this section we shall
canvass the main arguments advanced over the last decade for keeping the
Security Service within the Force . In summary form, these arguments are as
follows . A separate security intelligence agency
- will be more easily penetrated ;
- may become a `political' police ;
- will be less likely to act within the law ;
- will provide no stimulus for `reforming' the R .C .M .P . ;
' Report of the Royal Commission on Security ( 1969), paragraph 57 .
760
�will lessen, if not help destroy, the R .C .M .P .'s contribution to national
unity ;
will cut the close police-security link which is the envy of other
countries ;
will no longer have the advantages of belonging to a geographically
dispersed R .C .M .P. ;
will result in extra financial costs ;
will have difficulties gaining the level of co-operation from the public
now enjoyed by the R .C .M .P . ;
will have difficulties building up effective liaison arrangements with
domestic and foreign police and security agencies ;
will have difficulties in gaining the required co-operation from the
R .C .M .P .
Our objective in reviewing these arguments is to distinguish those with some
substance from those which we feel to be either unsound or insignificant . In
addition, we suggest how the effects of the substantive problems might be
minimized . We begin by examining a number of arguments, cited by others,
which we believe to be unsound .
Penetration oja separate civilian agency
22. As the reader may recall from Chapter 1 of this part of the Report, the
R .C .M .P ., as part of its critique of the report of the Royal Commission on
Security, argued that a separate civilian agency would be more easily penetrated than a Security Service within the R .C .M.P . The Force put this "argument
as follows :
It is also a fact that most western security and intelligence services have
been penetrated by the Communist bloc services . The R .C .M .P . attributes
the fact that the Directorate of Security and Intelligence is not penetrated
(a fact that is borne out by defector sources) largely to its attachment to
and recruiting from the R .C .M .P .
There are at least two problems in the way in which this argument is worded .
The first is that we believe it is dangerous in the extreme for a security
intelligence agency to assert that, at any given point in time, it is not
penetrated . It is impossible to substantiate such an assertion . Second, and
perhaps more serious, the argument as stated misleads the reader by failing to
mention that the R .C .M .P .'s Directorate of Security and Intelligence has been
penetrated . In the case that we examined closely, it was a regular member who
became an agent of a foreign service .
23 . Despite these problems, the R .C .M .P .'s argument clearly had an important impact in 1969 . Thus, Senator Mcllraith, who was Solicitor General at the
time the Royal Commission's Report was being considered by government,
testified as follows :
Q . . . my question is why did you not agree with the recommendation of
.
the Royal Commission [calling for a separate and civilian security
intelligence agency]?
761
�A. We gave it very careful consideration . It would mean an impossible task
in assembling in this country the number of civilians required to do the
job .
It would mean a shocking risk of penetration of the [Security and
Intelligence] service, and there are other reasons . . . That could be more
refined perhaps, but those are the main ones - personnel and staffing
and penetration .
The penetration item was very serious . In fact - well, those were my
views and that was very carefully considered, and the decision taken as
set out on June 26th [1969] to meet - to try to meet what seemed to
be back of what was bothering the Royal Commission and at the same
time cut off this awful risk of penetration and the awful difficulty of
getting adequate numbers of properly trained civilian persons .
(Vol . 119, pp. 18603-18604 . )
24. In the previous chapter, when we recommended the broadening of the
recruiting base for the Security Service much along the lines proposed by the
Royal Commission, we concluded that it had not been demonstrated that there
would be a significant increase in the risk of penetration . We noted, however,
in coming to this conclusion, that it is impossible to be definitive on this point
one way or the other . Current evidence, including the known penetration record
of the Security Service and the fact that many senior officers within the
Service do not take seriously the argument that penetration risks increase with
a civilian agency, suggests to us that this is an unsound argument for
maintaining the status quo .
The dangers of a'political' police
25. Some who oppose a security intelligence agency separate from the
R .C .M .P . argue that such an agency will be susceptible to becoming a partisan
arm of the political party in power . The result would be serious damage to our
liberal democratic society . According to this view, a security intelligence
organization within the R .C .M .P . will be less susceptible to this kind of abuse
because of the arm's length relationship to government which police forces
have traditionally enjoyed .
26. The main problem with this argument is that the solution - a police
force with an arm's length relationship to government - may produce
problems as serious as the partisan misuse of the security intelligence agency .
As we have argued several times in this Report, the need is to have a security
intelligence simultaneously under the direction and control of government, but
not used for partisan purposes . Our recommendations regarding the appointment and term of office of the Director General, the role of Parliament in the
governance of the security intelligence function, and the establishment of an
independent review body, all have been designed to provide safeguards against
partisan abuse . On the other hand, we have gone to great lengths, as witnessed
by our recommendations calling for a legislative mandate and a system of
controls of intrusive investigative techniques, to ensure that the security
intelligence agency is effectively controlled and guided by government . W e
762
�shall have much more to say on this topic in Part VIII of our Report when we
examine in more depth the roles of the_legislative and executive branches in the
security area .
27 . The system we are proposing, in which the security intelligence agency
receives guidance and direction in a . non-partisan, manner, is as relevant to an
agency within the R .C .M .P . as it is to an agency outside the Force . It would be
a grave error if the Security Service were to maintain the quasi-independent
relationship with government that it has enjoyed in the past . For reasons cited
earlier in this chapter, we believe that a separate and . civilian agency will
develop a healthier relationship with government than would a Security Service
within the R .C .M .P. The spectre of a civilian agency being more susceptible to
becoming a`political' police is an invalid one, provided that this agency is
operating within a carefully designed system of checks-and balances .
Acting within the la w
28. Another argument, the validity of which we seriously question, is that
members of a security intelligence organization who have had police training
and experience are more likely to act legally than those members of a civilian
agency who have never been policerrien . A former Solicitor General, Mr . Fox,
made this argument in the following way in testimony before us .
. . . it would seem clear to me that . .. if you do have this pool of experienced
police officers who have been brôught• up . in the tradition of a law
enforcement agency, who have spent a number of years, four or five years,
let us say, on the enforcement side, in specialized areas of the fight against
crime in general, and organized crime in particular ; and then, if you take
these people and say : well, from this point on, we are offering you a career
in the Security Service, and they, at that point, go through, you know,
another type of briefing or training- or schooling périod where the main
.
objectives of the Security Service side of the Force are brought out . . I still
think that that is the type of model, to my mind, which offers the greatest
possible guarantees [of a Security Service acting within the law . ]
(Vol . 160, p . 24462 . )
29 . The evidence before us prompts our questioning the soundness of this
argument . In examining the motives that led R .C .M .P . members to perform
questionable acts, we heard little or no evidence that their experience and
training in law enforcement acted as a brake or a check on their actions .
Consider this testimony of a Security Service officer involved in the R .C .M .P .'s
disruptive measures programme :
In the period 1971-72, when the operations known as CHECKMATE were
being contemplated by myself, I certainly didn't view my role in any way as
a layman . I saw mysélf as having certain responsibilities .
I saw myself as a policeman but, more particularly, I saw myself as a
member of the Security Service with certain responsibilities to deal with the
activities which were at that time, in our view, escalating in the country .
I felt that given that set of responsibilities as long as my actions in dealing
with it were responsible, were reasoned, Were measured, that I was quite
within propriety, if you like, to advance' them without any regard to
whether they were legal, lawful or unlawful .
763
�30. Testimony of many others within the Security Service who had police
training and experience leads us to three conclusions . The first is that any
government would be foolish to rely heavily on those with law enforcement
backgrounds as the cornerstone for ensuring that Security Service activities
were within the law . In making this assertion, we are not denying the
importance of proper training in the law . Rather, we are asserting that there
are many other factors to consider in designing an effective system of controls
for a security intelligence agency and that some of these factors may negate the
benefits of legal training : for example, training and experience in law enforcement work is of little significance if the agency tolerates, or even encourages,
its members to break the law in pursuit of agency goals . A second conclusion is
that a civilian security intelligence organization should be able to provide its
members with training in the law which is at least as good as, if not better
than, that which R .C .M .P . Security Service members have received in the past .
As we noted in the last chapter, training in the law for R .C .M .P . recruits at
Regina accounts for only 15 per cent of their time, and, until recently,
additional training in the law for Security Service members was rudimentary .
Finally, we wish to state a theme we shall develop several times in this Report :
training in the law for Security Service members, while useful, is no substitute
for the assignment of a lawyer from the Department of Justice to the Security
Service to provide legal advice and to scrutinize proposed investigations with
potential legal problems. This, to us, is a more critical factor in ensuring legally
acceptable behaviour and is relevant no matter where the security intelligence
function is located in government .
A stimulus for 'reforming' the R .C.M.P.
31 . Some argue that retaining the Security Service within the R .C .M .P . will
help to stimulate other segments of the Force to initiate managerial and
personnel policy reforms similar to those necessary for the Security Se rvice .
Mr . Richard French and Mr . André Béliveau, in a recent study completed for
the Institute For Research on Public Policy, make this case as follows :
There is an additional perspective which has rarely featured in discussion of
the issue of civilianization versus separation . It is that the kind of broadened recruiting and more flexible staffing and promotional policies essential
to the development of the Security Service are equally essential to the
managerial, policy formulation, and more sophisticated investigative functions of the criminal investigation side of the R .C .M .P . . . . The failures of
management and policy which have emerged on the criminal investigation
side prohibit complacency or inertia on that side . Separation would isolate
it from the model and stimulus of a civilianized Security Service. '
32 . We have already addressed this argument earlier in this chapter and,
therefore, need only summarize the main points of our discussion . It is beyond
our terms of reference to comment on the main premise on which this
argument is built - that portions of the criminal investigation side of the
Force require the same managerial and personnel reforms as are necessar y
2 Richard French and André Béliveau,
The R .C.M.P. And
The Management of
National Security, Montreal, Institute for Research on Public Policy, 1979, p . 71 .
764
�within the Security Service . Nonetheless, let us assume for the moment that
this premise is valid . In this case, we believe that it is illusory to expect that the
Security Service would give any significant stimulus to the rest of the Force
unless the Force's senior management were deeply committed to these fundamental reforms for the R .C .M .P . as a whole or 'a good portion of it . The
evidence of the past 25 years suggests that the Force's senior management has
been steadfastly opposed to such changes . We have seen no reason to suggest
that this position has changed significantly, if at all .
The National Unity questio n
33 . A common assertion is that the R .C .M .P . contributes to the national
unity objectives of the government in at least two ways .3 First there is the
Force's role as a symbol of Canada . The scarlet coated "Mountie" is familiar
to every Canadian and is an integral part of this country's international image .
A further contribution the Force makes to national unity, according to some, is
the example it sets of an institution in which people from all parts of Canada
work together for the general good, often far from their home towns or
provinces . Some who advocate retention of the Security Service within the
R .C .M .P . argue that there is a strong likelihood over the next decade that the
R .C .M .P . role in municipal and provincial contract policing will dramatically
diminish . If this were to happen, coupled with the Force's losing its security
intelligence function, they contend that an important contributor to national
unity would have been severely crippled .
34 . For many Canadians the R .C .M .P . no doubt contributes in an important
way to their sense of national identity . However, we do not believe that the
R .C .M .P .'s capacity to serve as a significant Canadian symbol is dependent on
the Security Service being part of the R .C .M .P. Rather, the more significant
contributor in this regard is the work of the R .C.M .P . in drug investigations,
and the contract policing role which results in large numbers of highly visible
Mounties dispersed across eight provinces . Moreover, disclosure of improper
and illegal conduct by the R .C.M .P . Security Service has probably been a
negative factor in terms of national unity .
35 . A second point we should make concerning this argument is this : even if
the R .C .M .P . eventually loses both its security intelligence role and part or all
of its contract policing role, we believe that there is still a viable and important
federal policing role . Every federal democracy of which we are aware has a
national police force, regardless of the country's constitutional make-up . For
Canada, a federal police force would have at least the following roles : enforcing
a number of federal government statutes ; policing the northern territories ;
investigating crimes with a national or transnational dimension (e .g . organized
crime, commercial crime, and crimes involving drugs) and providing certain
expensive and capital-intensive police services in the fields of education,
communication, and the forensic sciences . In short, the raison d'être of a
See, for example, the Task Force on Law Enforcement's Report, The R.C.M.P.
Provincial and Municipal Contracts, prepared by the Department of the Solicitor
General, 1978, pp . 23-24 .
765
�national police force is not contract policing, nor is it in security intelligence
work. Thus, there'is little likelihood, no matter how future constitutional talks
proceed, of Canada losing the R .C .M .P . as a national symbol .
Foreign comparisons
36. Over the past several decades, those on both sides of the question of
whether the Security Service should be part of the R .C .M .P . have used foreign
comparisons to bolster their case . Here, for example, is part of the R .C .M .P .'s
response to the recommendation of the Royal Commission on Security for a
separate and civilian security agency :
The Commission says "we think it probable that association of the security
function with the police role tends to make the work of the security
authorities more difficult" (para . 57 of the abridged version) . Just the
opposite is true . The police-security link is of daily value to both sides . This
is substantiated by the fact that Canada, the United States, and all the
larger countries of Western Europe except the United Kingdom, Greece,
and West Germany have a security service tied to a national police
organization .
37 . Our own research has taken us to several countries to learn about the
organization and governing patterns of the security intelligence function . We
have visited the United States, the United Kingdom, Australia and New
Zealand . In addition, our staff have gone to the Netherlands, West Germany
and France . All of these countries, except the United States, have a security
intelligence organization which is not part of a national police force . The usual
pattern is for the police forces to have special units to liaise with, and
sometimes support, the security intelligence organization in performing its role .
We found no evidence of any inclination to change the structural arrangements
in these countries . Nor did we find any evidence to suggest that these
arrangements had been controversial in the past . The prime exception to the
above pattern is to be found in the United States . But, because there are so
many agencies performing some security intelligence functions - the C .I .A .,
the F .B .I ., the National Security Agency, the Secret Service, and three
military intelligence services - exact parallels with Canada are difficult to
draw . No doubt the agency with duties most closely parallelling those of the
R .C .M .P . is the F .B .I . Nonetheless, the F .B .I ., a national police force with no
similar `contract' policing role, is very different from the R .C .M .P.
38 . Our overall conclusion from studying these foreign examples is that they
do not settle the question one way or the other . Our recommendation calling
for a security intelligence organization separate from the R .C .M .P . is not
based on evidence we have gathered from researching security arrangements in
foreign countries . But we do take comfort from the fact that variations of the
solution we are proposing for Canada have proved to be practicable in other
countries .
Efficiencies from a widely dispersed R.C.M.P .
39 . In the R .C .M.P .'s commentary on the recommendation of the Royal
Commission on Security, that there be . a civilian security se rv ice, the Forc e
766
�argued, among other things, that " . . . only the R .C .M .P . is spread sufficiently
widely across Canada to constitute an adequate service . . ." . Thus, if the
R .C .M .P . Security Service wished to conduct an investigation in a remote area
of the country, it could, according to this contention, call on members of the
local R .C .M .P . detachment already established in this remote area to conduct
the investigation . The savings realized would be in reduced transportation costs
and the reduction of time taken on the part of the investigator to conduct the
investigation . There would also be more likelihood of detection if someone from
another area were to appear suddenly in a remote community .
40. These arguments have some validity, but the actual savings involved
appear to be so small as to be . an insignificant factor in the decision about
where to locate the security intelligence function in government . Security
intelligence work is heavily oriented to the cities, and a separate security
intelligence agency would understàndably have personnel in all the major
urban centres of Canada . Moreover, if the investigation were a sensitive one, it
is likely that the Security Service personnel would do the investigation themselves, no matter how remôte the area . If our recommendation is accepted that
the responsibility for doing much of the routine security screening work should
be shifted elsewhere in government, then there should be even less need for
investigatory work in remote areas on the part of the security intelligence
agency . Finally, for certain investigations, the security intelligence agency
could continue to seek the co-operation of the R .C .M .P . or of the local police.
Financial costs of separation
41 . A variation on the efficiency argument dealt with above is to cite the
financial costs involved in actually separating the Security Service from the
R.C .M .P. and creating a new agency . In our view, this argument has'some
merit, at least in the period immediately following the decision to re-organize .
However, in the longer term, we believe that a separate and civilian agency will
be more efficient from a cost point of view than a Security Service within the
R .C .M .P . Let us enlarge on this argument .
42. There is no .doubt that the re-organization we are proposing would, in the
short run, involve extra financial costs . For example, costs would accrue in
establishing the, agency in accommodation separate from that of the Force .
Certain services now provided to the Security Serviceby the rest of the Force
would need to be established in the security intelligence agency, and there
would not likely be an immediate and corresponding decrease in the personnel
providing such services for the Force as a whole . Significant portions of the
time of senior managers from several organizations including the R .C .M .P .,
the security intelligence agency, the Solicitor General's Department and others
such as the Privy Council Office, Treasury Board, and the Public Service
Commission, would be consumed in planning the establishment of a separate
agency . Finally, both the R .C .M .P. and the security intelligence agency would
need to establish liaison units, at least for the first few years following the
structural change, and these units would increase overall costs. (We shall argue
later in this chapter that these liaison ..units should,be small .) The total of these
costs would not be large, given the relatively small size of the Security Service .
767
�For example, the senior financial officer of the Security Service has made a
rough estimate that in a separate agency it would be necessary to add 100
employees to the existing Security Service staff to perform administrative and
other functions now provided for the Security Service by other parts of the
R .C .M .P . He estimated that for the fiscal year 1977/78, these 100 extra
employees would have increased the Security Service's budget by $2 .8 million .
Thus, it would not be a large reorganization by Federal government standards .
Moreover, these re-organization costs, over time, would decrease rapidly, in
that, for example, the R .C .M .P. would be able to reduce its administrative
staff.
43 . The more important question, however, is what would happen to overall
costs in the longer term . We believe that the security intelligence agency we
are recommending, whether it is within the R .C .M .P . or separate from the
Force, has the potential of performing effectively with a significantly smaller
number of employees than the current Security Service . An agency separate
from the R .C .M .P . will likely reduce its size more quickly and to a greater
extent than would a Security Service within the R .C .M .P. Thus, the long-term
prospect is that a separate security intelligence agency will be more efficient .
44 . The potential for a much smaller security intelligence agency comes from
several sources . For example, we are recommending that certain Security
Service functions, such as much of its current efforts in investigating what we
call "revôlutionary subversion", not be performed at all . (As we recommended
in Part V, Chapter 3, the security intelligence agency could only monitor
activities falling under this category of "revolutionary subversion" but could
not launch full investigations unless there were evidence -of espionage, foreign
interference, or serious political violence.) Another example is the reduced role
in security screening . Other reductions in size can be realized by reducing
current overstaffing which the senior administrative officer in the Service
estimated was at least 5 per cent in late 1979 . In addition, by implementing the
personnel policy changes recommended by us in the last chapter, a security
intelligence agency should be able to reduce its size significantly . There are
many people in the current Service doing work which they do not like and are
not suited for . Without a detailed survey on a unit-by-unit basis, it is difficult
to make a firm estimate of just how small a new security intelligence agency
could become . Several former members of the Security Service, including very
senior ones, have suggested to us that a reduction in size by as much as
one-third to one-half is possible and desirable .
45. A separate security intelligence agency will be able to make these
reductions in size more quickly . Moreover, the reductions themselves will likely
be greater . We say this for several reasons . A separate agency should result (as
we shall point out later in this chapter) in an infusion of new senior managers,
who will not be wedded to current Security Service programmes and who will
scrutinize the existing activities of the Service more thoroughly than would the
existing group of senior managers . Second, and perhaps most important, the
personnel policy changes we are recommending, if they were to take place
within a Security Service which is part of the R .C .M .P ., would occur mor e
768
�slowly than in a separate organization . Thus, fewer economies over time would
be realized .
46 . We should emphasize that in advancing the above arguments we are not
calling for a ruthless approach in dealing with current Security Service
personnel . Nor, for that matter, are we suggesting that a smaller, more
efficient security intelligence agency can be realized by having the R .C .M .P .
accept unwanted personnel, thus itself becoming overstaffed and less efficient .
Rather, what we are suggesting is that attrition within the R .C .M .P., including
the Security Service, is large enough to accommodate over several years the
magnitude of personnel changes we are proposing, without a resultant overstaffing of either organization . (In the past three years members leaving the
Force were as follows : 1977 - 604, 1978 - 699 and 1979 - 774 . )
47 . We should discuss one additional point concerning the possible effects
that the creation of a separate and civilian agency will have on current Security
Service staff. Some might argue that most members of the Security Service do
not favour the creation of a new agency, and therefore employee morale will
suffer considerably . Those making this assertion might point to the 1976 survey
of Security Service members, referred to in Part VI, Chapter 1, where the
members were invited to select one of four options with respect to the future of
the Security Service . Of those who responded, 74% opted for choices which
would retain the Security Service in the R .C .M .P . The resultant poor morale,
it could also be argued, may lead, in turn, to increased costs and lowered
effectiveness in the new agency .
48 . We do not accept this line of argument, for the following reasons . First, it
is our impression based on many informal meetings with Security Service
members that a significant portion of Security Service employees would
happily become members of a separate and civilian agency . Indeed, we are
concerned about morale levels, especially among current civilian members, if
the Security Service were to remain in the R .C .M .P . Our impression is not
based on any scientific survey conducted by either this Commission or the
R .C .M .P. From our discussions with members of the Security Service we
believe that there is currently a much stronger desire for major structural
change than the 1976 survey might, at first blush, suggest . It is important to
remember that this survey was conducted prior to the revelations and attendant
negative publicity for the Force that gave rise to the creation of this Commission . In addition, we have more confidence in the face-to-face format of
informal meetings, where an individual's beliefs and the intensity with which
these beliefs are held can be examined in some depth, than in an impersonal
survey which forces a person to choose one of four options without giving him
the opportunity to explain his choice or to indicate how strongly he feels about
the matter . Our second reason for rejecting the argument that morale will
suffer under a separate and civilian agency arises out of our conviction - and
we shall be making a recommendation to this effect later in this'Chapter that no one should be pressured in any way to become a member of the new
agency . Current members of the Security Service who wish to remain in the
R .C .M.P . should be seconded to the new agency for a period lasting no longer
than two years . Under such an arrangement, we do not believe that moral e
769
�levels within the new agency would be unduly harmed even during the
transitional period when the new agency is being established .
Co-operation from the public
49. One cost of separating the Security Service from the R .C .M .P ., often
cited by Security Service members themselves, is that a new civilian agency
would not enjoy the same degree of public goodwill as does the R .C .M .P. Here
is how the authors of one recent study of the separation question, completed
within the Security Service itself, put this argument :
It is our perception that many members receive quick, and extensive
co-operation from the public (e .g. access to people, places, records, etc .)
once they identify themselves as police officers and as members of the
Force . There is considerable emotional support for the R .C .M .P . as' a
Canadian symbol which inclines many people to co-operate . Much'of the
co-operation also flows from the public perception that they have an
obligation to assist the police. Any'new organization concerned solely with
security intelligence would take some time to establish a parallel obligation .
50. We concur with this assessment but would add the qualifier that the
R .C .M .P .'s public goodwill is less of an asset in certain areas of the country most notably in the Province of Quebec - than it is in Western Canada, where
the Force's historical roots lie. How significant would be this loss of public
good will if the Security Service does separate from the R .C .M .P .? In our view,
the costs in terms of reduced effectiveness would not be large and would likely
diminish over time . A large majority of Canadians will be sympathetic to the
goals of a new security intelligence agency, especially one which is under the
control of government, has a clear legislative mandate, has a significantly
reduced role in investigating domestic subversion, and is prohibited from doing
"dirty tricks" . Over time, we see no reason why a separate civilian agency with
the type of personnel we are recommending in this Report could not develop an
excellent relationship with the public . Throughout our research of security
arrangements in other countries, we did not find officials anywhere bemoaning
the lack of public support for their civilian agencies . The targets of a security
intelligence agency - foreign spies, international terrorists, and violence-prone
domestic groups - do not have a large constituency of supporters in a liberal
democratic country .
Liaison with domestic and fbreign police and security agencies
51 . In its commentary on the Report of the Royal Commission on Security in
1969, the R .C.M .P . maintained that it had " . . built up meaningful liaison
.
with security services and police forces in foreign countries which could not be
readily acquired by a new service" . We believe that this assessment has some
merit, especially in the period immediately following the establishment of the
new agency . Indeed, this assessment could be extended to include the liaison
arrangements the R .C .M .P . now has with domestic police forces . Nonetheless,
we believe that a new agency could quickly develop as effective a set of
relationships with both foreign and domestic agencies as the R .C .M .P. now
appears to enjoy . As the authors of the recent R .C .M .P . study of the separation
issue, to which we referred above, noted :
770
�It has been maintained that foreign agencies (and security units of other
police forces) would be less inclined to share information'and co-operate
with a non-police agency . It is our view that solid relationships will quickly
develop based on need . It would be incumbent on a separate Security
Service to quickly develop a reputation for professionalism and to develop a
product which other organizations would deem valuable .
52 . Even in the period immediately following the establishment of the new
agency, it would appear to us that a number of steps could be taken .to reduce
the liaison problems which might develop . For example, as we suggested in
Part V, Chapter 8, the establishment of a special liaison unit to work with
domestic police forces might help the new agency better manage these important relationships . And, following the example of its Australian counterpart,
the new security intelligence agency might attempt to develop written agreements with major domestic police forces . These agreements would state how
the agency and the police force would liaise with each other, and secondly,
what types of assistance each could expect from the other . Perhaps the most
important factor, however, in determining the efficacy of these new liaison
arrangements and the speed at which they develop will be the Director General
of the security intelligence agency . It is essential that he be highly competent at
working with domestic police forces and foreign security intelligence agencies .
Co-operation with the R .C.M.P.
53 . Of all the domestic police forces, the R .C .M .P . will be the most important
in contributing to the overall effectiveness of a civilian security intelligence
agency . The size of the Force, its role in municipal and provincial policing, its
expertise in the forensic sciences, and the overlapping responsibilities of the two
organizations in such areas as security screening, V .I .P. protection, terrorism
and other forms of politically motivated violence areall factors which contribute to the importance of the security intelligence agency's relationship with the
R .C .M .P. A separation of the Security Service from the R .C .M .P . will be
received with hostility by some members of the R .C .M .P . and this may result
in considerable initial strains in the relationship between the two bodies .
Indeed, we consider a potential lack of co-operation between the Force and a
separate civilian security intelligence agency as the greatest risk involved in the
structural change we are proposing . It is imperative, therefore, that a number
of steps be taken to minimize the possible impact of a sour relationship .
54 . The Solicitor General and the Deputy Solicitor General would have a
tremendously important role to play in building an effective relationship
between these organizations . One of the primary reasons for our recommending
that both organizations remain within •the same ministry is to ensure that a
Minister and his deputy place high priority on developing an adequate level of
co-operation between them . The Solicitor General and' his Deputy can accomplish this in several ways . They should meet regularly and simultaneously with
the Director General and the Commissioner of the R .C .M .P . to review mutual
problems, especially those arising from the implementation of the new structural arrangements . They can help both organizations develop a written agreement, specifying how co-ordination' will be achieved . (Incidentally such an
agreement might serve as a model for formalizing the relationship between th e
771
�security intelligence agency and other Canadian police forces .) They can
encourage the movement of personnel between the two organizations - both
through secondments and on a more permanent basis .
55 . Co-ordination between the two organizations might also be enhanced,
especially in the period immediately following the formation of the civilian
agency, by the establishment of a liaison unit at least at the Headquarters level
within each organization . Their major responsibility would be to facilitate and
control the exchange of information between the two organizations . In addition, the R .C.M .P . members carrying on liaison duties should assist the
security intelligence agency in any of its operations requiring personnel with
police powers, but they should not have any other investigatory responsibilities
relating to security . The danger here is that security intelligence officers might
be tempted to ask staff within the R .C .M .P . liaison unit, whom they would
know well, to launch investigations which are outside the mandate of their
agency . The independent review body should be aware of this danger and
monitor closely the relationship between the two liaison units .
56 . Given their limited responsibilities, these liaison units need not be large .
Unfortunately, comparisons with other countries do not provide a basis for a
precise estimate of the number of employees required . According to a statement in the British House of Commons in 1978 4 by the Secretary of State for
the Home Department, Mr . Merlyn Rees, the number of Special Branch
personnel in all police forces in England and Wales numbered approximately
1,250. However, special branch work in England and Wales entails several
important responsibilities - V .I .P. protection, the collection of intelligence on
the activities of the Irish Republican Army, and the monitoring of people and
goods passing through British ports - which engage a large portion of special
branch personnel and which have no parallel for the R .C .M .P . liaison unit we
are suggesting . In addition, comparisons are difficult because of the basically
unitary nature of the British governmental system . In Australia, a unified
federal police force has been established only recently, and thus is not helpful
for our purposes . Each of two large and long established Australian State
police forces - one with 9,000 employees, the other with 7,000 employees has a small special branch . Even here, these special branches have responsibilities for V .I .P. protection, which, in the case of the R .C .M .P., are already
handled by 'P' Directorate .
57. Yet another way of ensuring that the R .C .M .P. and the security intelligence agency develop close ties with one another is to make them mutually
dependent . Thus, both organizations should have something to gain from
co-operation . One reason, for example, for recommending that intelligence
officers not have police powers is to ensure that the agency will need to rely on
the police, including the R .C .M .P., to perform effectively. The R .C .M .P., on
the other hand, will depend on the security intelligence agency for information
on espionage offences, international terrorism and V .I .P . protection . Perhaps
having the two agencies share foreign liaison personnel, especially for countrie s
° United Kingdom, Parliament, Debates, May 24, 1978, p . 1,718 .
772
�requiring only one person for both police and security intelligence work, is
another means of ensuring co-operation .
1
Conclusions
58 . In this section, we have reviewed the major considerations which argue
against separating the Security Service from the R .C .M .P . Most of these, in
our opinion, have little validity . Others, while valid, entail costs that do not
outweigh the benefits of establishing a separate and civilian security intelligence agency. Moreover, we believe that steps can be taken to minimize some
of these risks and problems associated with the structural change we are
recommending . In the last section of this chapter, we further consider ways to
implement this structural change effectively .
59. We have no illusions that removing the Security Service from the
R .C .M .P . will provide an iron-clad guarantee of future behaviour which is
proper, legal, and effective . Any organizational change carries with it certain
risks and potential problems . In addition, it is people who put shape and form
to organizational structures and breathe life into them . The organization we
are recommending to carry out the security intelligence function will changé
over time and there is no guarantee that all of these changes will be positive .
Finally, organizations are not autonomous compartments, unaffected by their
environment . As the evidence before this Commission has demonstrated, a
security intelligence agency is highly dependent on the system of laws and
directives within which it operates and on the structures and individuals
shaping its relationships with government . The agency is not likely to operate
effectively, legally, and properly if other parts of this system are badly askew .
60. Having admitted that no structure can provide absolute guarantees, we
should be clear that we still regard the location of the security intelligence
agency within government as an extremely important issue . It is not enough to
staff the agency with `good' people . Removing the security intelligence function
from the R .C .M .P . will improve significantly the prospect for creating a
security intelligence system for Canada which is effective, which is under the
direction and control of government, and which has a high regard for the
liberal democratic principles it is securing .
61 . As one way of signalling the adoption of a fresh approach to the operation
and control of Canada's security intelligence function, we recommend that the
separate and civilian security intelligence agency be given a new name . We
propose that the agency be called the Canadian Security Intelligence Service .
WE RECOMMEND THAT the Government of Canada establish a security intelligence agency, separate from the R .C .M .P., and-•'under the
direction of the Solicitor General and the Deputy Solicitor General .
(104)
WE RECOMMEND THAT this agency be called the Canadian Security
Intelligence Service.
(105)
WE RECOMMEND THAT the Solicitor General and the Deputy Solicitor General place high priority in developing ways to strengthen the
relationship between the security intelligence agency and
773
�(i) the R .C .M .P.
,
(ii) other Canadian police forces
( iii) foreign security agencies.
(106 )
D . IMPLEMENTATION OF STRUCTURAL CHANGE
62 . Our review of the aftermath of the Royal Commission on Security in
Chapter 1 of this part of the Report suggests to us the necessity of the
government developing an implementation plan if it is to get full value from
our Report . One of the first questions facing the government in developing such
a plan arises from our recommendation for the establishment of a separate
security intelligence agency . We think that this recommendation should be
dealt with as quickly as possible. Avoiding prolonged uncertainty among
existing Security Service staff is one reason for urging a speedy resolution to
this question . Another is that foreign liaison arrangements might suffer, should
there be an extended period of confusion about what is to happen to Canada's
security arrangements . While we think a failure to move quickly on this matter
may cause serious damage, still we think it desirable that this decision not be
made in, a way which precludes the requisite parliamentary and public
discussion .
63 . Once the decision to form the new agency has been announced publicly,
the next steps in the implementation of the new agency can proceed . We
propose that the Solicitor General be the Minister responsible for directing the
establishment of the new agency . To aid him in this task, the Solicitor General
should appoint an interdepartmental implementation team of officials, consisting of at least the following : the Deputy Solicitor General, the Commissioner of
the R.C .M .P., the head of the security intelligence agency and senior officials
from the Privy Council Office, Treasury Board, Department of Justice and the
Public Service Commission . This implementation team would likely require
support staff.
64. Following the establishment of the new agency, the next step would be
the appointment of a Director General by the Prime Minister . If arrangements
to establish a separate agency were to be made by executive decision before the
passage of the new Act, the new Director General would be appointed subject
to his confirmation under the terms of the statute . The Director General should
work closely with the Solicitor General and the implementation team to choose
the senior managers for the new agency . We believe strongly that some of these
senior managers should come from outside the R .C .M .P . The evidence before
us suggests that a Director General, unsupported by some senior management
from outside the R .C .M .P., might have difficulty in effecting quickly the type
of personnel and management changes necessary to put the new agency on a
sound footing .
65. With the appointment of the Director General and the senior management of the agency, the Solicitor General and his implementation team can
then turn their attention to the remaining staff of the present Security Service .
774
�As a first step, we believe that all of the Security Service's personnel, including
public servants, should be assigned to the new security intelligence agency but
they should retain their current status as either members of the Public Service
or members of the R .C .M .P . In effect, they would be seconded to the agency
for as long as two years, until either they have become full-fledged members of
the new agency or they have returned to take positions in the R .C .M .P . or the
Public Service . We believe that neither public servants nor members of the
R .C .M .P. should be forced to become permanent members of the new agency .
We also believe that, should they become members of the new agency, they
should not lose financial or other benefits they currently enjoy . Furthermore,
no one from the Security Service should be dismissed as a direct result of the
establishment of the new agency . We do not mean by this that everyone within
the Security Service will be guaranteed a permanent job with the new security
intelligence agency . Rather, we are suggesting that no one should lose his or
her job with the Government of Canada .
66 . In addition to determining the personnel needs of the new agency and
attending to the existing employees of the Security Service, those involved in
the implementation of the new agency will need to focus on other matters .
Some of these we have already mentioned in this chapter - for example,
ensuring the viability of liaison arrangements with foreign agencies and
.domestic police forces . Other concerns of the Solicitor General and his
implementation team will be the new physical location of the headquarters of
the new agency, the orderly transfer of files, the development of appropriate
personnel and management policies, and the establishment of the necessary
guidelines and internal control systems which we have outlined earlier in this
report .
WE RECOMMEND THAT the Cabinet make its decision quickly to
separate the Security Service from the R .C .M .P.
(107)
WE RECOMMEND THAT the Solicitor General be given responsibility
for implementing the establishment of the security intelligence agency . He
should appoint an implementation team to assist him, consisting of at least
the following : the Deputy Solicitor General, the Commissioner of the
R .C.M .P., the head of the security intelligence agency and senior officials
from the Privy Council Office, Treasury Board, Department of Justice,
and the Public Service Commission .
(108)
WE RECOMMEND THAT the Prime Minister appoint a Director General for the security intelligence agency .
(109 )
WE RECOMMEND THAT some of the senior managers for the ne w
agency should come from outside the R .C.M .P.
(110 )
WE RECOMMEND THA T
(a) existing staff of the R .C .M .P. Security Service be assigned to the new
agency but continue to belong to either the Public Service or the
R .C.M.P . for an interim period to be established by the Solicito r
775
�General . No current employees of the Security Service should be
forced to become permanent employees of the security intelligence
agency.
(b) no current member of the R.C .M .P. Security Service lose employment
with the federal government as a result of the establishment of the new
security intelligence agency .
776
�PART VII
A PLAN FOR THE FUTURE : SECURITY
SCREENIN G
INTRODUCTIO N
CHAPTER 1 : Security Screening for Public Service Employment
CHAPTER 2 : Immigration Security Screenin g
CHAPTER 3 : Citizenship Security Screening
777
��INTRODUCTION
1 . To diminish the risk posed by threats to Canada's security, the fedéral
government has established security clearance programmes for immigration,
for citizenship, and for positions with access to classified information in the
Public Service. To a large extent security clearance decisions are based upon
the information provided by the Security Service of the R .C .M .P ., the investigative agency responsible for the security screening programmes . In carrying
out this responsibility, the Security Service comes into contact with hundreds
of thousands of Canadians . In the course of a federal Public Service field
investigation, neighbours, friends, and employers may be approached . Almost
all potential immigrants are interviewed by R .C .M .P . liaison officers abroad,
and many are subsequently re-screened when they apply for Canadian citizenship. Because of the pervasiveness and the importance of the security screening
role, we are concerned that it be carried out both fairly and effectively . We
believe security screening is essential to the maintenance of the security of
Canada . Having said this, we concur with former Prime Minister Pearson
when he noted the importance of ensuring that "the protection of our security
does not by its nature or by its conduct undermine those human rights and
freedoms to which our democratic institutions are dedicated ." ,
2. Our primary concern in this part of our Report is with the role of the
security intelligence agency in the security screening process . Nonetheless, to
analyze this role properly, we must concern ourselves with the overall security
clearance programmes for the Public Service, immigration, and citizenship .
Changes in the role of the agency will have important implications for other
components in these programmes . In the following chapters we discuss each of
these three security clearance programmes .
' House of Commons, Debates, October 25, 1963, p. 4043 .
779
��CHAPTER 1
SECURITY SCREENING FOR PUBLIC SERVICE
EMPLOYMENT
3 . The objective of the Public Service security clearance programme is to
ensure that personnel with access to secret government information can be
trusted . In this chapter, we shall propose four major changes to this programme . First, we shall make recommendations aimed at reducing the number
of security clearances required in the Public Service . Second, we shall propose
that the security screening criteria for the Public Se rv ice be revised so as to
re fl ect the threats to security as we have defined them in Part V, Chapter 3 .
Third, we believe that the role of the security intelligence agency in the
security screening process should be modified to be more in keeping with the
agency's mandate and the type of personnel which it should attract . Finally, we
shall recommend several changes in the review and appeal process, the most
important being the establishment of an advisory body to be called the Security
Appeals Tribunal . This body would hear appeals and make recommendations
to Cabinet on security cases involving not only the Public Service but also
immigration and citizenship . Before elaborating on these proposed changes, we
begin with a brief historical overview of security screening in the Federal
Public Se rv ice .
A. HISTORICAL BACKGROUND
4. The need for a programme of clearance of Public Service employees was
first brought to the attention of the government in 1946, when Igor Gouzenko
revealed the presence of espionage activities in some of the highest and most
sensitive government positions in Canada . The Taschereau-Kellock Commission, established to investigate this communication of classified information to
agents of a foreign power, recommended "that consideration be given to any
additional security measures which would be practical to prevent the infiltration into positions of trust under the Government of persons likely to commit
acts such as those described in this Report ."' Priority was given to this
recommendation . In March 1948, a system of security screening was formalized in Cabinet Directive 4, and with it the basic pattern for security clearances
was established . The R .C .M .P. was instructed to screen all employees and
candidates for employment in security sensitive positions . The findings of these
security investigations were reported to the individual's department where the
decision to grant the security clearance would be made .
I Royal Commission on Espionage, 1946, p. 689 .
781
�5. At first there were no screening criteria, but the situation was soon
rectified . In April 1948, Cabinet Directive 4A was passed, prohibiting members or associates of the Communist Party or Fascist organizations from
employment in government positions of trust or confidentiality . In 1952,
Cabinet Directive 24 introduced a distinction between `loyalty' and `reliability',
which still pervades our screening criteria . Disloyalty involved membership in
the Communist Party, or belief in "Marxism-Leninism or any other ideology
which advocates the overthrow of government by force" . Unreliability, from a
security standpoint, referred to `defects' of character that might lead an
employee to be indiscreet, dishonest or vulnerable to blackmail .
6 . Soviet Premier Khruschev's pronouncements of "peaceful coexistence" and
a general easing of cold war tensions in the mid-1950s did not lead to a
reduction in security screening . On the contrary, Cabinet Directive 29, issued
in December 1955, was a firm restatement of the necessity for screening .
Access to classified information was now established as the rationale for
security screening . In addition, this Directive took the position that there could
be security risks involved even when there was no access to classified information, such as anti-democratic, foreign influence in organizations controlling the
mass communications media .
7 . With the change in the international climate 'there were indications that
the Soviet bloc intelligence agencies were altering their method of recruiting
spies abroad . A 1955 Royal Commission Report in Australia and two U .S .
Congressional Committees indicated that the Communist intelligence services
were relying upon the exploitation of the vulnerabilities of individuals rather
than their ideological principles . Homosexuality was a form of behaviour
thought to be particularly vulnerable to blackmail . Compromise techniques
followed by blackmail and attempted recruitment had been used by the Soviets
against several homosexuals in the Canadian government . As a consequence of
this change of tactics by the hostile intelligence agencies, the R .C .M .P.'s
Security and Intelligence Directorate began a Canada-wide programme of
collecting information about homosexuals .
8 . As the decade of the 1950s came to an end, the security screening role of
the R .C .M .P . came under public scrutiny . A series of attacks in the press and
Parliament began after the suicide of the Canadian Ambassador to Egypt, Mr .
Herbert Norman. It was alleged that R .C .M .P . information had been included
in the material upon which the U .S . Senate Internal Security Sub-Committee
based its charge that Ambassador Norman had been a Communist .3 It was in
this atmosphere of criticism that Prime Minister Pearson introduced new
security clearance procedures in the early 1960s . Cabinet Directive 35 (hereinafter referred to as CD-35), issued on December 17, 1963, was aimed at
reconciling the needs of security and the rights of the individual . With a few
modifications this document still forms the basis for the government's personnel security clearance procedures .
See Charles Taylor, Six Canadian Journeys; A Canadian Pattern, Toronto, House of
Anansi Press, 1977 .
782
�9. CD-35, a confidential document until declassified in 1978 during the
course of our public hearings (Ex . M-35), retained many of the features of the
previous screening directives, but made, several changes . One change it made
was to require greater frankness in dealing with employees whose reliability or
loyalty•was in doubt . Further, -it provided procedures for reviewing such cases
both within the responsible department or agency and, if necessary ; by a Board
of Review composed of three of the Députy Ministers who served on the
Security Panel . In addition, more specific criteria for assessing loyalty were
introduced . Confidence was not to be placed in individual s
. . . whose loyalty to Canada and our system of government is diluted by
loyalty to any Communist, Fascist or other legal or illegal political organization whose purposes are inimical to the processes of parliamentary
democracy . 4
These `loyalty criteria' refer specifically to :
3 . (a) a person who is a member of a communist or a fascist party or an
organization affiliated with .a communist or fascist party and having
a similar nature and purpose ;
(b) a person who by his words or his actions shows himself to support a
communist or fascist party or an organization affiliated with a communist or fascist party and having a similar nature and purpose ;
(c) a person who, having reasonable grounds to understand its true nature
and purpose, is a member of or supports by his words or his actions an
organization which has as its real objective the furtherance of communist or fascist aims and policies (commonly known as a front group) ;
(d) a person who is a secret agent of or an informer for a foreign power, or
who deliberately assists any such agent or informer ;
(e) a person .who by his words or his actions shows himself tosupport any
organization which publicly or privately advocates or practices the use
of force to alter the form of government .
10 . For the first time, specific `character defects' considered likely' to be
marks of `unreliability' were mentioned . Pursuant to paragraph 5 of CD-35,
unreliable individuals were not to hav e
. .. access to classified information, unless after careful consideration of the
circumstances, including the value of their services, it is judged that the risk
involved appears justified .
Included were :
(a) a person who is unreliable, not because he is disloyal, but because of
features of his character which may lead to indiscretion or dishonesty,
or make him vulnerable to blackmail or coercion . Such features may be
greed, debt, illicit sexual behaviour, drunkenness, drug addiction,
mental imbalance, or such other aspect of character as might seriously
affect his reliability ;
(b) a person who, through family or other close continuing relationship
with persons who are persons as described in pâragraphs 3(a) to (e )
° CD-35, December 18, 1963, paragraph 2 .
783
�above, is likely to be induced, either knowingly or unknowingly, to act
in a manner prejudicial to the safety and interest of Canada . It is not
the kind of relationship, whether by blood, marriage or friendship,
which is of primary concern . It is the degree of and circumstances
surrounding such relationship, and most particularly the degree of
influence that might be exerted, which should dictate a judgement as
to reliability, a judgement which must be taken with the utmost care ;
and
(c) a person who, though in no sense disloyal or unreliable, is bound by
close ties of blood or affection to persons living within the bordérs of
such foreign nations as may cause him to be subjected to intolerable
pressures. '
11 . Public dissatisfaction was expressed about the adequacy of the review
procedures for security screening . A Royal Commission on Security was
appointed in 1966, partly in response to these criticisms, and in particular to
the controversy surrounding the dismissal of postal employee George Victor
Spencer . The key security clearance changes recommended in the Commission's Report, published in 1969, were :
(1) Establishment of a Security Review Board to consider protests by
public serv ants, or person under contract whose careers are adversely
affected by denials of security clearance . 6
(2) Clarification of security policy with respect to separatism : the Royal
Commission stated tha t
"Separatism in Quebec, if it commits no illegalities and appears to seek its
ends by legal and democratic means, must be regarded as a political
movement, to be dealt with in a political rather than a security context .
However, if there is any evidence of an intention to engage in subversive or
seditious activities, or if there is any suggestion of foreign influence, it
seems to us inescapable that the federal government has a clear duty to take
such security measures as are necessary to protect the integrity of the
federation" . '
(3) Changes in the role of the R .C.M .P. Security Service : the investigative
agency should provide better documented reports to the departments
with comments on the validity, relevance and importance of information and a formal recommendation on whether or not to grant clearance . Field investigations should be conducted with much more tact
and imagination . '
(4) Extension of the scope of security screening: security screening should
be made universal for all employees in the civil service . It should no
longer apply only to persons who have access to classified material . 9
12 . The Royal Commission's recommendations were only partially implemented . The Security Review Board was not established . Prior to the submis-
s Ibid., paragraph 6 .
6 Report of the Royal Commission on Security, 1969, Recommendation 299(a) .
' Ibid., paragraph 21 .
8/bid., paragraph 56 and Recommendation 298(d) .
' Ibid., Recommendation 298(a) .
784
�sion of the Royal Commissions report, a limited `appeal' procedure had been
established in 1967, under section 7(7) of the Financial Administration Act .
This `appeal' procedure applied only to situations where a person was dismissed
from the Public Service on security grounds . In 1975' the Public Service
Security Inquiry Regulations were passed pursuant to that same section . These
regulations provided for the appointment of a Commissioner to hear appeals of
employees dismissed from the Public Service for reasons of security . The
Commissioner is empowered to make a recommendation to the Governor in
Council who has final authority in the matter . Contrary to the Royal Commission's recommendations, individuals who were transferred, or failed to obtain a
promotion or position, or who had had a contract terminated on security
grounds, were not provided with a right of appeal . Since the enactment of these
Public Service Security Inquiry Regulations, no Commissioner has been
appointed because no one has been dismissed from the Public Service for
security reasons . Several individuals, however, have resigned, and other cases
have been resolved by the Privy Council Office in favour of the employee .
13 . Contrary to the recommendation of the Royal Commission, Ministers and
their officials decided to include as a security rejection criterion involvement in
separatist activities of all 'kinds, even those which were legal and democratic .
We have already chronicled, in Part V, Chapter 3, the way in which the
development of this policy since 1969 impinged on the intelligence collection
programme of the Security Service . Suffice it to repeat here that this dilemma
was not resolved by the Cabinet decision on May 27, 1976 - a decision in
force today which reads :
The Cabinet decision of March 27, 1975 [which established the Mandate of
the Security Service] was not intended to alter the policy of the government
with respect to the screening of persons for appointment to sensitive
positions in the Public Service, namely that :
(a) information that a candidate for appointment to a sensitive position in
the Public Service, or a person already in such a position, is a separatist
or a supporter of the Parti Québecois, is relevant to national security
and is to be brought to the attention of the appropriate authorities if it
is available ; an d
(b) the weight to be given to such information will be for consideration by
such authorities, taking into account all relevant circumstances, including the sources and apparent authenticity of the information and the
sensitivity of the position .
14 . This decision did not resolve the practical problem of how the Security
Service was to produce such information for security clearance reports, given
that the Security Service was not authorized to monitor or investigate the Parti
Québecois or other democratic separatist groups . The key expression "if it is
available" has never been clarified by Cabinet .
15 . The role of the Security Service in carrying out security screening
investigations in the field has not been substantially modified since, .the 1969
report of the Royal Commission on Security . The civilian security service,
which the Royal Commission thought would be better equipped to carry out
personnel security investigations, was not created . Regular . members of th e
785
�Force, supplemented by approximately eight full-time special constables, now
do security investigations in the field .
16 . The format of reports has changed in accordance with the Royal Commission's recommendations . The Security Service began to write more extensive reports with comments on the validity, relevance and importance of the
`adverse information' provided . Until recently the reports included recommendations as to whether or not the candidate on whom the Security Service had
some `adverse information' should be granted a security clearance . The
R .C .M .P . adopted this latter practice with some reluctance .' The Force at first
wanted no role in the decision-making process and later wanted authorization
for what it felt was a significant change in its mandate . CD-35 authorized the
R .C .M .P . only to conduct investigations and report the facts :
The functions of an investigative agency are to conduct promptly and
efficiently such investigations as are requested by departments or agencies
to assist them in determining the loyalty and reliability of the subject of
investigation ; and to inform departments and agencies of the results of their
investigations in the form of factual reports in which the sources have been
carefully evaluated as to the reliability of the information they have
provided .1 0
As most departments found the R .C .M .P .'s advice helpful, the practice of
making recommendations continued until very recently when the R .C .M .P .
finally discontinued the practice, giving the lack of authorization as the reason .
17 . The role of the R .C .M .P . in security screening has been misconstrued
over the years . In Parliament the Security Service has been accused both of
making the actual security clearance decision and of doing nothing more than
supplying factual security screening reports ." Neither of these contentions has
been a correct representation of the role of the R .C .M .P. Security Service,
which has been investigating, reporting, and, until recently, recommending .
The recommendations had no binding effect . The final decision as to the
granting or withholding of a security clearance rested with the employing
department Nonetheless, the recommendations of the Security Service were
usually given great weight by the departments and agencies .
18 . Universal screening for the Public Service, recommended by the Royal
Commission on Security, has not been implemented . However, a very large
number of Public Service positions still require security clearance . In the ten
years prior to the Royal Commission on Security, the average annual number
of security screening requests was 43,700 . In the years 1972-77 the average
annual number was 67,602 . Much of this increase can be attributed to the
35-40 per cent increase in the size of the federal Public Service and to the
annual turnover of 12 per cent .
19 . We now turn to a detailed examination of this security clearance programme as it has developed over the last 35 years . We examine the types of
10 CD-35, paragraph 11 .
" House of Commons, Debates, January 24, 1979, p . 2517 .
786
�positions requiring clearance, the criteria applied, the roles and responsibilities
of the organizations involved and the review' and appeal procedures in place . In
each of these areas we shall make recommendations that we feel could improve
both the fairness and effectiveness of the programme .
B. EXTENT OF THE SECURITY CLEARANCE
PROGRAMM E
20. In this section, we look at whether federal government employees, Orderin-Council appointments and Members of Parliament should require a security
clearance . We also examine the issue of, updating and transferring security
clearances .
21 . To protect government information from unauthorized disclosure, some
form of screening mechanism is needed to ensure as far as possible that persons
who have access to that information can be trusted . It is also necessary to
ascertain the likelihood of employees attempting to subvert the institutions of
government from within or influence its policies to the advantage of foreign or
violence-prone organizations . However, excessive screening involves unnecessary investigations into the personal lives and political activities of individuals .
In our democratic system such investigations by the state should be confined to
what is clearly necessary .
Federal government employees
22 . According to the authorizing document for security screening, CD-35,
employees with access to three levels of classified information - Top Secret,
Secret and Confidential - require screening . A 1956 handbook of the Privy
Council Office entitled Security of Information in the Public Service of
Canada describes each of these three categories . Documents are to be classified
TOP SECRET when their security aspect is paramount, and when their
unauthorized disclosure would cause exceptionally g r ave damage to the
nation .
SECRET when their unauthorized disclosure would endanger national
security, cause serious injury to the interests or prestige of the nation, or
would be of substantial advantage to a foreign power . ( Such as : minutes of
Cabinet meetings ; defence matters not of vital strategic importance ; current
and important negotiations with foreign powers ; the national budget ; and
scientific, technical and military developments of substantial interest to a
foreign power . )
CONFIDENTIAL when their unauthorized disclosure would be prejudicial
to the interests or prestige of the nation, would cause damage to an
individual, and would be of advantage to a foreign power . ( Such as :
personal or disciplinary administrative matters, minutes of interdepartmental meetings, political and economic reports advantageous to a foreign
power, and the private views of officials . )
We have noted a tendency in the security community to overclassify documents . This tendency, which usually arises out of an abundance of caution,
appears to be merely part of a general trend throughout all areas of govern787
�ment . Each government department and agency is responsible for classifying
its own material, and the process of classification has not been subject to
careful control . Nor have uniform standards reflecting the meaning of the
original classifications been applied . This tendency to overclassify has contributed to overloading the security screening programme since the number of
cases requiring screening is related to the quantity of material classified .
CD-35 stipulates that there should be different screening procedures for
positions with access to the three classifications of information . A Top Secret
level clearance requires the most extensive screening :
(1) a subversive indices check ;
(2) a fingerprint criminal records check ;
(3) a field investigation .
23. For `secret' and `confidential' level clearances a subversive indices check
and a fingerprint criminal records check suffice . Although these levels do not
require a field investigation, one may be requested for cause . While overclassification of all three levels of clearance is of concern to us, it is the Top Secret
level clearance that is of greatest concern, since it calls for an automatic
investigation into the private life of an individual . In our opinion such
investigations should be prescribed only when absolutely necessary .
24. There is strong evidence to suggest that far too many investigations have
been required by departments and agencies . In 1978, 67,668 requests for
screening were sent to the Security Service, of which 2,405 were for Top Secret
clearances requiring a field investigation . Several other factors, besides overclassification, appear to account for the large number of Top Secret clearances
requested . First, the principle of CD-35, which bases screening requirements on
access to classified information, has not been strictly followed . Whole areas of
employment have been deemed to require Top Secret level clearance regardless
of whether each and every individual has direct access to information classified
Top Secret . For èxample, all employees of External Affairs who are eligible for
postings abroad must have Top Secret clearances . Career mobility, physical
proximity and ease of intra-office communications are the reasons often cited
to justify these high-level clearances .
25. Second, ever since the first security clearance directive in 1948, there has
been a tendency for government departments and agencies to transfer what
should normally be considered personnel staffing responsibilities to the security
investigative agency . Field investigations incorporate the checking of an applicant's credentials . In many instances it has become the practice to designate
positions as requiring a high-level clearance where there was not even an
indirect link to classified information . Two such examples are employees
working with valuable government assets, such as at the Mint, or on politically
sensitive programmes such as Canadian aid programmes abroad .
26. More precise and appropriate standards for identifying positions requiring security screening are needed . Assuming these standards are to remain tied
to levels of document classification, then the levels of classification must be
much more precisely defined and their application carefully monitored . Onc e
788
�precise classification standards are established, each government department
and agency must carefully identify those positions that require security screening . Similar standards should extend to government contracts .
27 . The screening programme for national security purposes should be differentiated from screening for the purpose of protecting valuable government
assets or politically sensitive information . In January 1979, Cabinet approved
in principle a classification scheme that made such a differentiation . Interim
measures have been introduced to confine security screening to positions of
national security relevance . The impetus for these interim measures was Part
IV of the Canadian Human Rights Act, which gives to individuals a right of
access to governmental information about themselves . Under section 54(1) of
the Act, security screening reports could not be exempted from access unless
they are related to "national security" .1z Hence, in March 1978, the Security
Service, conscious of a need to protect its information, announced that it would
no longer forward screening reports unless the department or agency affirmed
that the position was one requiring access to classified information . No
procedure has as yet been established for assessing the reliability of persons
selected for politically sensitive positions or positions with access to monetarily
valuable assets . Clearly, such a system is required ; however, as these positions
do not require an investigation of political activities threatening Canada's
security, they should not involve a security field investigation or a subversive
records check . Our view in this regard is different from that taken by the Royal
Commission on Security, which recommended a fingerprint and subversive
records check for all employees of the Public Service, whether or not they
would be likely to have access to classified material . If the occupant of the
position does not require access to classified information, the position does not
clearly entail a risk to security . In such cases, we feel the security intelligence
agency should not be involved in the selection process .
28 . Another personnel procedure that significantly adds to the number of
security screenings is the practice of requesting security reports on all or a
significant number of candidates for a position before the final selection . In our
opinion the selection of the successful candidate should precede any request for
screening . Such a procedure would reduce the number of security clearances
required and would therefore be less costly and less intrusive . More important,
however, if the security clearance investigation produces security relevant
information about the successful candidate, he has a greater chance of having
the report assessed with due consideration, rather than merely being struck
from the eligible list without explanation . We will discuss this review process
later in the chapter .
Order- in- Council appointments
29 . Security screening for senior positions in government presents a problem .
Although screening requirements are adhered to for lower-level positions in the
government, they have often been ignored for Order-in-Council appointments,
which include such high-level positions as heads and members of Agencies ,
1z S .C . 1976-77, ch .33 .
789
�Boards and Commissions, Deputy Ministers, Cabinet Ministers, Senators,
Judges, and Parliamentary Secretaries . Pursuant to the CD-35 these appointments are subject to the same security screening requirements as other
positions with access to classified information, with the one exception of
Confidential level clearances where, as Prime Minister Trudeau pointed out in
a memorandum for Cabinet Ministers in 1971, "it is neither feasible nor
desirable that prospective appointees be required to complete the Personal
History Form which is the basis of normal security clearance regulations" . In
such cases a check through the Security Service's records, based on the name
of the appointee alone, is substituted . In practice, however, these 'Cursory
Records Checks' have been used for all Order-in-Council appointments, even
those who have no access to classified information . With the exception of
Members of Parliament, there appears to be no justification for exempting
high-level government appointees who have access to classified information
from as thorough security screening as public servants . On the other hand, we
do not feel that there is any justification for conducting records checks on
appointments that do not entail any access to classified information or
material .
30 . As Mr . John Starnes stated in his evidence before us, the 'Cursory
Records Check' is both ineffectual and open to abuse (Vol . 104, pp . 16418-22) .
Before an appointment is made, a list of names is submitted to the Security
Service for a cursory check of its records; a response within a few hours will
often be requested . An effective records check cannot be done under pressure
of time and with no biographical data save the individual's name . Mistakes in
identity can be made and unsubstantiated rumour can be reported in place of
facts . The reporting of such information can have serious adverse effects on an
-individual's career for years . If the Security Service reports the results of a
'Cursory Records Check' verbally, there is no means of verifying later whether
adverse, information was ever passed on . Because of these problems, inherent in
the procedure, we consider that 'Cursory Records Checks' should be discontinued for all Order-in-Council appointments, with the exception of Members
of Parliament, whose situation we shall discuss below : Order-in-Council
appointments are some of the most important in government ; enough time
should be taken to conduct a proper security check if the position entails access
to classified information .
Members of Parliament and Senators
31 . We have recommended that screening standards be applied consistently
across government regardless of the status of the candidate . These recommendations cause us to consider whether or not the same principle should apply to
Members of Parliament and Senators with access to security relevant matters .
Normally Members of Parliament and Senators do not have access to classified
information . The exceptions are Cabinet Ministers and Parliamentary Secretaries who have access to such information through their departmental responsibilities and their role in Cabinet decision-making . If our recommendation
calling for a Joint Parliamentary Committee on Security and Intelligence is
accepted, the members of that committee will also have access to security
information .
790
�32 . It has been the practice to conduct 'Cursory Records Checks' on M .P .s
who are being considered for appointment as Parliamentary Secretaries . Sometimes, candidates for Cabinet positions have been screened through this same
procedure, but often the required Privy Councillor Oath has been considered
sufficient . The appointment of a Parliamentary Secretary who is to have access
to the operations of a ministry connected with national security matters and of
a Senator as a Cabinet Minister requires, in practice, a full records check but
no field investigation .
33 . Our opinion is that there should be a modified security screening for any
appointment of an M .P . or Senator to a position in which he will have access to
classified information . Because of the time pressures often involved, a modified
version of the present 'Cursory Records Check' will have to suffice . There is
less of a danger of mistaken identity with M .P .s than other Order-in-Council
appointments . The 'Cursory Records Check' is thus more acceptable in this
case . Nevertheless, the present procedure needs to be modified in order both to
increase its effectiveness and to avoid possible abuses . As much biographical
information as possible should be given to the security intelligence agency as
far in advance as is feasible . To broaden the coverage, criminal as well as
security intelligénce records should be checked . The Director General should
personally communicate all adverse information, recorded in writing, to the
Prime Minister or to the appropriate party leader in the case of a Member of
Parliament who is a membér of the opposition .
34 . Members of Parliament should also receive a security briefing on appointment to positions involving access to security classified information . This
procedure would be similar to that in effect in Britain since 1969 . On the
occasion of a first appointment, every British Minister is briefed by a, member
of the British Security Service on the threat posed by foreign intelligence
agencies in their attempts to compromise or suborn those with access to
classified information . The basic system of security to protect classified
information is also explained to the Ministers . A report of the British Security
Commission in 1973 recommended that no security screening procedure for
Ministers be introduced, but that the security briefings be expanded and that
the Prime Minister "should beâr in mind the desirability of satisfying himself
that there is no character defect or other circumstances which• would mean that
the appointment of that person would endanger security" ." This information
would be obtained through the Prime Minister's personal contacts, not the
British Security Service .
35. Appointees to Parliamentary Committees with access to classified information should also be subjected to a cursory security screening . In these cases,
however, only the members selected should be screened, not a list of potential
candidates . If significant security relevant information should come . to the
attention of the security intelligence agency about a Member of Parliament on
or about to be appointed to one of these committees, that information should be
reported to the leader of the party to which the individual belongs . Th e
" Cmnd . 5367, 1973, p . 11 .
791
�Members appointed to these Committees should also receive a briefing by the
security intelligence agency on security threats and the system established to
protect'public officials against such threats .
36 . Any Member of Parliament who feels that his career has been adversely
affected by a security report should have access to an independent review . The
Security Appeals Tribunal, which we shall describe in a later section, would
provide a recourse, not now available, against potential injustices .
Updating and transferability of security clearance s
37 . The scope of security screening involves not only the question of who
should be screened but how often they should be screened . At the present time,
there is a tacit understanding that security clearances will be updated through
subsequent vetting every five years . While it makes sense to review an
employee's security status at least every five years, it should not be necessary in
most cases to recheck the files of the security intelligence agency . If sufficiently
adverse information has come to the attention of the security intelligence
agency since the' last records check, it should already have been reported to the
personnel security officer in the department . The updating of clearances should
be the responsibility of this officer . An interview every five years with the
employee and a check with the immediate superior would only be considered
good management and an effective option to a full security vetting .
38 . When a person who has been security cleared is transferred to a different
department or agency, another evaluation of that person's security clearance is
required . Each department and agency is responsible for its own security
clearance decisions . Positions, even with the same security level of classification, might involve different levels or dimensions of security risk . The personnel
securitÿ officer in the department to which the public servant has been
transferred should assess the previous security screening report and interview
the candidate . A transfer should not necessarily imply the need for another
check of security intelligence records .
WE RECOMMEND THAT federal government positions requiring securitÿ screening be precisely identified according to clearly defined and
carefully monitored standards . Top Secret clearances should be reduced to
the minimum required to protect information critical to the security and
defence of the nation.
(112)
WE RECOMMEND THAT the security
intelligence agency not be
involved in screening or selection procedures established to ensure the
suitability of persons for those government positions that do not require
access to information relevant to the security of Canada .
(113)
WE RECOMMEND THAT the security
intelligence agency not be
requested to undertake a security screening before the final selection of a
candidate for a position requiring a clearance .
(114)
WE RECOMMEND THAT the Cursory Records Check for Order-inCouncil appointments be discontinued . Regular security screening proce-
792
�dures should be carried out for those appointed to positions requiring
access to security related information.
(115 )
WE RECOMMEND THA T
(a) there be security and criminal records checks for M .P.s and Senators
who will have access to classified information ;
(b) any adverse information be reported by the Director General to the
leader of the party to which the M .P. or Senator belongs ; an d
(c) the persons appointed receive a security briefing by the security
intelligence agency .
(116)
WE RECOMMEND THAT security clearances be updated every rive
years . This update should be the responsibility of a personnel security
officer in the department . It should not normally include a security records
check .
(117)
WE RECOMMEND THAT security clearances for candidates transferring between classified positions be re-evaluated by a personnel security
officer in the new department . A transfer should not necessarily include a
check of the security intelligence agency's records .
(118 )
C. SECURITY CLEARANCE CRITERI A
39 . The current security clearance criteria for Canada, found in the 1963
CD-35, reflect the concerns during the post `cold war' era . The only additional
criterion added in the past 17 years has been that of separatist affiliation or
association . These security clearance criteria are in need of revision . They do
not reflect current threats, nor are they consistent with the mandate proposed
by us for the security intelligence agency . Rather than specify Communist,
Fascist or separatist organizations, the rejection criteria should be confined to
the threats defined by Parliament in the statutory mandate of the security
intelligence agency . The mandate proposed by us is meant to encompass all the
threats to the security of the country . Any extension in the screening criteria
would place the security intelligence agency in the untenable, -position of being
required to give information in security screening reports that ' it has no
mandate to collect . This situation would create a very real danger that in order
to fulfill its screening mandate the security intelligence agency might extend its
investigatory mandate into areas otherwise prohibited . A specific consequence
of this proposal to confine rejection criteria is that the May 1976 Cabinet
Decision which we quoted earlier would have to be rescinded . Parti Québecois
or separatist affiliation or association per se should not be considered a security
concern . It may well be a personnel concern for such agencies as the FederalProvincial Relations Office, but information on such political affiliation should
not be requested of the security intelligence agency . Separatism may be a
threat to the federal structure of Canada but, as long as legitimate political and
non-violent means are employed, it is not a threat to the security of the
country, using security in the sense we have used it throughout this Report .
793
�40 . Past activities or associations should not necessarily be a bar to security
clearance : The granting or denial of clearance should depend upon - the
individual's currrent beliefs and the nature of the position for which the
individual is a candidate . For example, a person who flirted with Communism
as a youth should not necessarily be denied access to classified information,
though it may be imprudent to hire such an individual for the first time for an
extremely sensitive job that is directly related to the internal security operations of this country . We have consciously omitted past activities from the
security rejection criteria we recommend below . This is not meant to imply that
the security intelligence agency should stop reporting past activity and associations . Such information might well be necessary for the department to make a
clearance decision . There is a difference between the criteria and the evidence
needed to satisfy the criteria .
41 . Besides loyalty, there is another security clearance category listed in
CD-35 .'The so-called `reliability criteria' are concerned with the employee's
integrity, discretion and invulnerability to blackmail or coercion . There are
three sources of unreliability listed in CD-35 - features of character, associations with political security risks, and family in Communist countries - yet
only in the case of the second, associations with individuals listed under the
loyalty criteria, does CD-35 explicitly state that it is not the fact of the
association, itself, that is pertinent, but rather the circumstances surrounding
that association . According to paragraph 6(b) :
It is not the kind of relationship, whether by blood, marriage or friendship,
which is of primary concern . It is the degree of and circumstances surrounding such relationship, and most particularly the degree of influence
that might be exerted, which should dictate a judgment as to reliability, a
judgment which must be taken with the utmost care . . .
42. This type of qualifier should be attached to the other two criteria of
`unreliability' . Relatives and associations abroad should not necessarily be an
impediment to obtaining a security clearance . Greater consideration needs to
be applied in each case to ascertain the degree of influence that could be
exerted upon a candidate from relations abroad, before any decision to deny
clearance is made . Similarly, in order to calculate the possibility of a candidate
being indiscreet, dishonest or vulnerable to blackmail or coercion, it is not
sufficient merely to provide information about certain character traits such as
indebtedness, drinking habits, or sexual proclivities . Rather, there must be
evidence of a connection or a potential connection between these character
traits and a threat to Canada's security . For instance, for a homosexual
relationship or an extra marital affair to be of relevance to a security clearance
decision, there must either be evidence that the candidate is having this
relationship or affair with a person who is known or suspected to be a threat to
Canada's security or who is somehow connected with such a threat, or
alternatively, that the conduct of the candidate is such that it will make him
vulnerable to blackmail .
43 . Our view that character traits must be related, or potentially related, to a
security threat has important implications for the type of information that a
794
�security intelligence agency should collect aboût individuals . We, are very
concerned about the systematic collection of information on individuals solely
because such individuals exhibit a certain character trait . As we noted earlier,
there has been a concerted effort on the part of thé Security Service for over
two decades to collect information on homosexuals . This programme began as
-a result of reports in the mid 1950s that the Communist bloc Intelligence
Services were involved in operations to recruit homosexuals with access to
classified information . By the late 1950s a seven-man team was established to
investigate homosexuals in sensitive government positions . In 1960 a special
squad of investigators was established to interview homosexuals in Ottawa not
in the government . The Security Service in several other cities was also
- involved in investigating homosexuals . On* the basis of interviews and Morality
Squad records, the Security Service had, by the 1960s, a fairly thorough
knowledge of the members of the homosexual community . Because of the
effectiveness of these investigations the teams of investigators were gradually
reduced . Although in 1969 an amendment to the Criminal Code made a
homosexual act in private between two consenting adults no longer an offence,
the Security Service continued to collect intelligence on the homosexual
community . The security screening branch of the Security Service became
responsible for homosexual investigations . There is now one member of that
branch responsible for writing security reports on homosexuals and for directing the occasional field investigation .
44. The collection programme we have described is inconsistent with the
proper role of a security intelligence agency . That such a programme has not
been halted years ago is a striking illustration of an insensitivity about what the
Security Service ought to be securing . Moreover, it is illustrative of a poor
analytical capability within the Security Service . We believe that the~ security
intelligence agency should no longer systematically collect information on
homosexuals or for that matter on any group of people solely because they
exhibit a certain character trait . Such collection programmes do not conform
to the principles we established in Part V, Chapter 4 for opening and
maintaining files on individuals . The existing files on homosexuals that are not
relevant to security ought to be destroyed .
The Profumo affair: a case study
45. The principles we have developed in this section are consistent with those
enunciated by Lord Denning in 1964 in his Report on what was known as the
Profumo Affair . Lord Denning considered that when the police ( i .e . the police
carrying out their duty to enforce the criminal law) come across discreditable
incidents in the life of a Minister, they are not to report it - save . only if it
appears that the security of the country may be endangered . In this case, they
should report the information to the British Security Service . Experience in
recent years in Canada has been that the R .C .M .P . Security Service has
encouraged the police, particularly in the Ottawa area, to report "discreditable
incidents" to it on a much wider basis than Lord Denning's views, or our own,
would regard as proper .
795
�46. As for the British Security Service, Lord Denning said that it was a
. . . cardinal principle that their operations are to be used for one purpose,
and one purpose only, the Defence of the Realm . They are not to be used so
as to pry into any man's private conduct, or business affairs : or even into his
political opinions, except in so far as they are subversive, that is, they would
contemplate the overthrow of the Government by unlawful means . . .
Most people in this country would, I am sure, whole-heartedly support this
principle, for it would be intolerable to us to have anything in the nature of
a Gestapo or Secret Police to snoop into all that we do, let alone into our
morals .1 4
In the circumstances before him, Lord Denning found that the British Security
Service had two proper roles . One was "to defend the country against any
activities by or on behalf of Russian agents", and in particular those of a
Russian Intelligence officer named Ivanov . The second was to consider the
possibility that Ivanov might defect and help the British . Lord Denning found
that the British Security Service ha d
. . . confined themselves to the role I have described . They had, at one
critical point, carefully to consider whether they should inquire into the
moral behaviour of Mr . Profumo - they suspected that he had had an
illicit association with Christine Keeler - but they decided that it was not
their concern . It was a new problem for them to have to consider the
conduct of a Minister of the Crown, and they decided it by reference to the
principles laid down for them, to wit, they must limit their inquiries to what
is necessary to the Defence of the Realm : and steer clear of all political
questions . And this is what they did .
Lord Denning continued :
The only criticism that I can see of the decision is that the conduct of Mr .
Profumo disclosed a character defect, which pointed to his being a security
risk (e .g ., the girl might try to blackmail him or bring pressure on him to
disclose secret information) . But at the time when the information came to
their knowledge, his association with the girl had ceased . Captain Ivanov
had gone . And what remained was not sufficient to warrant an infringement of the principle that the Security Service must not pry into private
lives . At any rate, it was not such a risk as they should investigate without
express instructions .' s
Thus Lord Denning appeared to accept that, if Mr . Profumo's association with
Christine Keeler had not ceased, the Security Service would have been justified
in continuing to investigate or "pry into" Mr . Profumo's life because his
"character defect" made him a security risk .
47 . The recording of such information is acceptable when so obtained because
it may in due course be relevant to the investigation . But when the investigation is complete, if the information about the person's private life is no longer
relevant to any suspected security risk, it ought to be discarded . It is not clear
from the passage quoted what Lord Denning's view would have been if a
" Cmnd . 2152, 1963, paragraph 230 .
15 Ibid ., paragraphs 233 and 234 .
796
�Russian Military attaché had not been connected with Mr . Profumo's affair
with Christine Keeler . Where the illicit behaviour is connected with a foreign
intelligence agent its security relevance is clear as is the security intelligence
agency's mandate to investigate and, if the incident points to a security risk, to
report it . But what if there is no discernible relationship between the personal
behaviour and a subversive political activity, and the concern is simply that the
Minister is involved in circumstances which make him highly vulnerable to
blackmail? Should the security intelligence agency ascertain the reliability of a
report of such behaviour, and if they find it reliable, report it to the Prime
Minister? We believe that the agency should ascertain the reliability of such
information, and if it is reliable, report it to the Prime Minister in the case of a
Minister, or to the appropriate Deputy Minister in the case of a public servant
in a security classified position .
WE RECOMMEND THAT a person should be denied a security clearance only if there are
(1) Reasonable grounds to believe that he is engaged in or is likely to
engage in any of the following:
(a) activities directed to or in support of the commission of acts of
espionage or sabotage;
(b) foreign interference, meaning clandestine or deceptive action taken
by or on behalf of a foreign power in Canada to promote the
interests of a foreign power;
(c) political violence and terrorism, meaning activities in Canada
directed towards or in support of the threat or use of serious acts
of violence against persons or property for the purpose of achieving
a political objective in Canada or in a foreign country ;
(d) revolutionary subversion, meaning activities directed towards or
intended ultimately to lead to the destruction or overthrow of the
liberal democratic system of government;
or
(2) Reasonable grounds to believe that he is or is likely to become
(a) vulnerable to blackmail or coercion, or
(b) indiscreet or dishonest ,
in such a way as to endanger the security of Canada.
(119)
WE RECOMMEND THAT the existing Security Service files on homosexuals be reviewed and those which do not fall within the guidelines for
opening and maintaining files on individuals be destroyed .
(120 )
D . SECURITY SCREENING ROLES AND
RESPONSIBILITIES
48. The R .C .M .P . Security Service now plays a central role in the security
screening process . For Top Secret clearances, the Security Service initiate s
797
�three investigatory procedures : (1) it checks its own files for relevant information on the candidate, his relations and close associates ; (2) it requests the
criminal investigation side of the Force to do a fingerprint check of criminal
records ; (3) it does a field investigation . A Secret or Confidential level
clearance requires only the first two of these procedures, although a field
investigation can be initiated for cause . Based on the information it collects
from these investigations, the Security Service assesses the candidate from a
security standpoint and, until recently, advised the Department on whether or
not to issue a security clearance .
49. In this section, we shall propose that the security intelligence agency play
a much less central role in the security screening process . We shall recommend
the establishment of a pool of personnel security staffing officers under the
direction of the Public Service Cominission, the federal government's central
staffing agency . This pool of security staffing officers would be responsible for
initiating the necessary investigatory procedures, for actually doing the field
investigations and for liaising with and advising the departmental security
officers on security clearance matters . The role of the security intelligence
agency would be to provide the Public Service Commission's security staffing
officers with security relevant information from its files on a candidate and, in
some cases, to conduct an investigation in order to update or clarify certain
information on a particular candidate or a group to which the candidate
belongs . In addition, the agency should become an important source of advice
on both individual security clearance questions and more general matters
concerning the security clearance system as a whole . We elaborate on these
proposals by examining two aspects of the Security Services current role conducting field investigations and advising on security clearance matters .
Field investigations
50. We have four reasons for recommending the establishment of a pool of
security staffing officers, under the Public Service Commission, with primary
responsibility for initiating security screening investigations and actually doing
field investigations . First, security screening field investigations uncover information about the personal habits and activities of an individual, and rarely
disclose anything of an adverse nature relevant to the security of Canada .
Thus, field investigations are primarily 'a personnel function in a security
context, not a security intelligence function . By establishing a separate group
of people to perform these investigations, the government and the people of
Canada can have greater confidence that the security intelligence agency with
all of its intrusive investigatory powers is confining itself to gathering and
storing information which is relevant to its mandate . Under this arrangement,
there can be no possible excuse for a security intelligence agency to collect
information on a broadly defined group of people like the homosexual
community .
51 . A second'reason for our central recommendation in this section concerns
the control mechanisms we have established for the recruitment of human
sources by the security intelligence agency . We believe that the use of human
sources recruited and paid by the state must be carefully controlled lest thi s
798
�intrusive investigative technique seriously damage institutions vital to our
democratic beliefs . As we noted in Part III, Chapter 11, the . Security Service
has on occasion used the security clearance programme as a pretext for the
recruitment of sources on university campuses in order to circumvent existing
government control procedures . By assigning the field investigation function to
another agency, we believe that this type of abuse will be less likely to recur .
52 . Third, it is clear to us that a small security intelligence agency will
experience difficulties in properly staffing this security screening function . As
we noted earlier, much of the content of the job of a field investigator has little
to do with security intelligence; consequently, it will be difficult for the agency
to attract into this area security intelligence officers who have the background
and skills to do the work properly . For a competent and experienced security
intelligence officer, security screening does not have the attractions of many
other aspects of the agency's work . By placing this function in the government's central staffing agency, we believe that it will be easier to find
appropriate staff. The Public Service Commission will have the whole, of the
federal government from which to draw candidates . Moreover, given the
similarity of the screening jobs to personnel staffing work, there might be
employees within the P .S .C . itself who would be interested in spending part of
their careers in this function . Those who become security staffing officers
should be mature individuals well versed in the variety of political ideologies
relevant to Canadian society, sympathetic to the democratic principles which
the security screening process is designed to protect, knowledgeable about and
interested in human behaviour and the various methods used by foreign
intelligence agencies to compromise people, and above all competent at interviewing a wide variety of people .
53 . Finally, having another agency in addition to the security intelligence
agency with experience and expertise in the security screening function will
benefit government departments and agencies by providing two sources of
advice to draw from in making difficult security clearance decisions . Thus, on
difficult cases, it would be wise for departmental security officers to meet
simultaneously with members of both the security intelligence agency'and the
Public Service Commission security staffing pool to ensure that the assumptions of both agencies are carefully tested . This idea of introducing countervailing pressures into the security screening procedures parallels recommendations
we have made in other aspects of security intelligence decision-making in
government . We shall develop this general theme more fully in Part VIII .
54 . As an alternative to creating a pool of security staffing officers in the
Public Service Commission, we have considered the assigning of security
screening responsibilities to the departments themselves . In departments where
the volume of security work is relatively small, the Departmental Security
Officer is probably not the most appropriate person to conduct these security
screening interviews . While competent in the carrying out of departmental
security procedures, few Departmental Security Officers are highly skilled
personnel interviewers . Because we think it is essential to attain a consistently
high standard of security personnel interviews and verification of references
across departments, a pool of personnel security staffing officers should b e
799
�established within the Public Service Commission . These personnel security
staffing officers should be assigned responsibility for specific government
departments and agencies . If certain departments have the expertise and
resources to meet the standards of the personnel security staffing officers in the
pool, then these departments, through an arrangement similar to that now
maintained by the Department of National Defence, could carry out their own
security screening interview programme . We believe that the Interdepârtmental Committee on Security and Intelligence should be the body to decide which
departments should have responsibility for their own field investigations . In
making these decisions, this Committee should ensure that there is some means
of co-ordinating federal government screening activities so that these activities
are done consistently and competently across the government .
55 . While primary responsibility for field investigations should rest with the
security staffing officers in the Public Service Commission, there are occasions
when the security intelligence agency should also conduct field investigations
for security screening purposes . Such occasions would occur when there is a
trace or a hint of a kind of political activity on the part of a candidate that
would fall within the agency's mandate . It is essential that field investigations
of the security staffing officers not spill over into the investigation of political
activities which is under the mandate of the security intelligence agency . Thus,
the security staffing officers might become suspicious either because of a
remark by the candidate himself or because of a comment by one of his
referees . Alternatively, the security intelligence agency might have information
on its files about a candidate - information which is dated or ambiguous and
which consequently requires further clarification .
56 . In addition to recommending a change in the agency having primary
responsibility for the field investigations, we also propose changes in how field
investigations are conducted . The current field investigation is neither effective
nor appropriate as a method of meeting the security requirements of the
personnel clearance programme . While the philosophy of . the current investigative approach may well have been reasonably sound in 1948, from a practical
standpoint the procedure is no longer viable . The increased impersonalization
of society in the last 30 years has made it more difficult to obtain useful
information from neighbours and employers . The strength of the civil rights
sentiment has led to a growing reluctance on the part of employers and
educators to co-operate with the Security Service in the screening interviews .
With the advent of consumer protection legislation in the early 1970s, credit
bureau checks are no longer an effective way to obtain personal financial
information . Concern about maintaining the confidentiality of health records
has called into question the propriety of the R .C .M .P . obtaining such records
to investigate the "mental stability" of candidates for a security clearance . The
R .C .M .P .'s dissatisfaction with present field investigation procedures is evident
in this extract from a memorandum on security screening sent by Director
General Dare to the Security Advisory Committee, on October 18, 1979 .
We are satisfied that our enquiries are not producing information which is
specifically relevant to the security clearance process in over 98 per cent of
the routine field investigations conducted, although it may be of som e
800
�benefit in the staffing context . And we are equally satisfied that information produced in the other 2 per cent, which usually reflects adversely on
the character of the candidate, can be obtained by other means .
57 . We believe that one prerequisite for obtaining an adequate insight into a
person's reliability is an interview with a candidate, conducted by the Public
Service Commission's security screening personnel . Second, we propose that
the candidate name three referees whom the security screening officer might
interview in order to gain an insight into the character of the candidate . We
believe that this would be an improvement over the current practice of
interviewing neighbours or employers, who in many cases may scarcely know
the candidate . If the Public Service Commission security screening pool does
not find the list of referees provided by the candidate to be satisfactory, then it
stiould request additional referees as is the practice for other personnel
enquiries . It should also be free to interview other persons as it sees fit .
58. Both Top Secret and Secret level clearances should require an interview
of the candidate by the personnel security staffing officer . During the interview, the personnel security staffing officer should explain the security aspects
of the classified position to the candidate and try to elicit any hesitations he or
she may have about taking on such a position . The security staffing officer
should also attempt to assess aspects of the candidate's character that would
make the person particularly susceptible to blackmail or indiscretion . The
interview should occur after several referees have been interviewed for a
security reference . This timing would give the security staffing officer an
opportunity to discuss any doubts expressed by the referees .
59 . Mandatory interviews with candidates for Secret level clearances would
bring the requirements of a Secret level clearance close to those for a Top
Secret clearance . Until now the procedure for a Secret level clearance has been
the same as that for a Confidential level clearance . In the case of both these
lower level clearances, because there has been no field investigation there has
essentially been no check on the "reliability" of candidates, with the one
exception of the homosexual records checks . Reliability is an -important
criterion of screening, and should be included in Secret level clearaiices . An
interview with the candidate should help the various government departments
to assess this reliability . Interviews with the referees should not be necessary
for the Secret or Confidential levels of clearance .
60. This proposed change in the security screening procedure should meet
any international screening commitments Canada may have .
61 . We make one final comment on the field investigation procedures . Many
aspects of the current field investigation are actually personnel staffing functions . It is good employment practice to check a candidate's credentials .
Academic records and employment histories, now checked as part of a field
investigation, should become the responsibility of the personnel staff of the
various employing departments and agencies . Credit bureau checks can equally
well be carried out, if departments so desire, by personnel staffing officers .
801
�Advisory role
62 . We have already noted that the security intelligence agency should
provide advice to both departments and Public Service security staffing
personnel on security clearance cases, particularly those which call for careful
judgments . In performing this role, the agency may find it necessary, on
occasion, to clarify ambiguous or contradictory information or to update its
assessment of the activities of a particular individual or group. Such is the
current arrangement between the Security Service and the Department of
National Defence, and it is similar to what we understand is . the role of the
Security Service in Britain .16 Security intelligence officers should also provide
assistance to the Public Service Commission on request by assessing information the security staffing officers have collected through interviews with
candidates and their referees . If there is a difference of opinion between the
security intelligence agency and the security staffing officer as to whether or
not a security clearance should be granted to a particular candidate, the
Departmental Security Officer should ensure that the Deputy * Minister is
informed of this difference .
63 . In addition to advising on particular cases, the security intelligence
agency should develop a competent research capacity for the purpose - of
providing advice to government on a variety of general matters affecting the
security clearance programme including the following :
= information on the latest techniques used by foreign intelligence officers
to compromise people;
- the risks posed by individuals with certain character traits ;
- developments relating to security screening in other countries ;
- advice on policy changes to improve the government's screening
procedures .
The Security Service provides some advice in these matters but not to the
extent which we believe necessary . Given its relationships with foreign agencies, and given its experience in investigating foreign intelligence officers in this
country ; the security intelligence agency is the organization in government best
suited to provide such advice .
Criminal records checks
64 . To complete this portion of our review of the security screening process,
we turn to one final topic - the role of the R .C .M .P . in conducting a criminal
records check . A check of records of indictable offences (using fingerprints) is
part of the screening procedure for all full-time positions requiring a security
clearance . This requirement, explicit in CD-35, does not apply to contract
employees . Nevertheless, following the recommendation of the Royal Commission on Security that this fingerprint procedure be instituted for all those with
access to classified information, a practice has developed of requesting fingerprints from some contract personnel . Fingerprinting is usually requested fo r
16 See Cmnd . 1681, 1962, paragraph 70 .
802
�support staff and maintenance personnel on defence contracts, though not for
professional contract personnel such as lawyers and professors .
65 . The fingerprint check is inadequate as a procedure to help establish the
trustworthiness of an individual about to be granted access to classified
information . Only indictable offences and the `wanted list' are checked .
Summary offences, commercial fraud involvement or underworld or drug
culture connections will not necessarily be uncovered by the fingerprint check .
Intelligence on these other forms of criminal activity is collected in various
other files in the criminal investigative side of the R .C .M .P . To obtain a more
thorough verification of the absence of criminal activity these files should also
be checked . If a copy of the Personal History Form is necessary to check these
files, then such a form should be forwarded to the criminal investigation `side of
the R .C .M .P .
66 . Pardoned or vacated records should be respected in security screening and
should not be mentioned in security screening reports . The position we take in
this regard is contrary to that of the Royal Commission on Security, which
recommended that full criminal records should be available for security
clearances, regardless of decisions on vacating records in other contexts . A
pardon under the Criminal Records Act is granted when individuals, after a
conviction, have subsequently shown that they are responsible citizens and have
reintegrated into society . According to the National Parole Board the purpose
of such a pardon is "to remove the stigma that so often restricts or adversely
affects an individual's peace of mind, social endeavours, or career" ." To use
such a record for security clearance purposes would seem to contradict the
intent of the pardon procedure .
A summary
67 . At this point, it would be useful to illustrate how our proposed screening
system would function . Assumé that a competition has beenheld for a position
in-the Public Service with access to Top Secret information . The winner of this
competition (but not the other candidates), assuming that he was not . already
in a security classified position, would then undergo security screening . He
would fill out a personal history form and submit it along with the names of
three referees to the Departmental Security Officer, who, in turn, would
forward this information to the appropriate security staffing officer in the
Public Service Commission . This security staffing officer would request both
the R .C .M .P . and the security intelligence agency to do a records check on the
candidate. If the security intelligence agency had some indication in its records
of involvement by the candidate, his relations or close associates in activity
which fell within . its mandate, or there were some ambiguity about its
information, the agency might conduct an investigation to clarify or update its
records . Having received replies from the R .C .M .P . and the security intelligence agency on their records checks, the security staffing officer would
interview each of the three referees . (If the staffing officer believed that any of
these referees was unsatisfactory, he would request additional names from th e
" National Parole Board, Pardon under the Criminal Records Act, Ottawa, 1980, p.1 .
803
�candidate . He could also interview other persons as he saw fit except to seek
medical information .) Once these interviews were completed, he would then
interview the candidate himself, and, if appropriate, he would review with the
candidate any information that he had so far received . Given that the Deputy
Minister of a department is responsible for deciding whether or not to grant a
security clearance, the screening officer would summarize all security relevant
information which had come to light during the screening process and, in
addition, the officer would make a recommendation on whether or not to grant
a clearance . In difficult cases, the security staffing officer would consult with
the security intelligence agency (and possibly the R .C .M .P .) before making his
recommendation to the department . In his report, he would indicate the
recommendation of the security intelligence agency on the matter . This
information would be sent to the Departmental Security Officer who would
brief his Deputy Minister on difficult cases . The Deputy Minister, before
making his decision on such cases, would likely meet with the Public Service
Commission screening officer and the appropriate person from the security
intelligence agency . Should the Deputy Minister decide not to grant a clearance at this point, then the review and appeal process would begin . This process
is the subject of the next section of this chapter .
WE RECOMMEND THAT the federal government establish a pool of
security staffing officers under the direction of the Public Service Commission with responsibility for:
(a) carrying out security screening procedures on behalf of federal government departments and agencies ;
(b) conducting field investigations for security screening purposes;
(c) assessing the information resulting from the various investigatory
procedures related to security screening;
(d) providing departments and agencies with advice on whether or not to
grant security clearances .
(121)
WE RECOMMEND THAT Public Service Commission security staffing
officers be mature individual s
(a) well versed in the variety of political ideologies relevant to Canadian
society;
(b) sympathetic to the democratic principles which the security screening
process is designed to protect ;
(c) knowledgeable about and interested in human behaviour and the
various methods used by foreign intelligence agencies to compromise
people;
( d) competent at interviewing a wide variety of people .
(122)
WE RECOMMEND THAT the Interdepartmental Committee on Security
and Intelligence decide what departments or agencies should have responsibility for conducting their own security screening interviews and field
investigations.
(123 )
804
�WE RECOMMEND THAT the following changes be made to the field
investigation procedures :
(a) for Top Secret level clearances, the Public Service Commission security staffing officers should interview three referees named by the
candidate . If the list of referees provided by the candidate is not
satisfactory, then the Public Service Commission should request additional referees . The security staffing officers should also interview
other persons as they see fit, except to seek medical information ;
(b) for Top Secret and Secret level clearances, the Public Service Commission security staffing officers should interview the candidate ;
(c) good employment practices, such as checking a candidate's credentials, academic records, and employment histories should not be the
responsibility of security staffing officers ;
(d) in those departments and agencies which are responsible for conducting their own security screening interviews and field investigations,
the functions mentioned in (a) and (b) above would be performed by
their own security staffing officers .
(124)
WE RECOMMEND THAT the security intelligence agency have responsibility for :
(a) providing the Public Service Commission and departmental security
staffing officers with security relevant information from its files about
a candidate, his relations and close associates ;
(b) conducting an investigation when necessary to clarify information or
to update its assessment of a particular candidate or group relevant to
the candidate's activities ;
(c) advising the Public Service Commission and the employing department
or agency through the security staffing officer on whether or not a
candidate should be granted a security clearance ;
(d) advising the federal government on general matters affecting the
security clearance programme .
(125)
WE RECOMMEND THAT the R .C .M .P., as part of the security screening procedures in future, conduc t
(a) a fingerprint records check and ,
(b) a check of its various criminal intelligence records
for all persons with access to classified information .
(126)
WE RECOMMEND THAT pardoned or vacated criminal records not be
included in screening reports.
(127 )
E . REVIEW AND APPEAL PROCEDURE S
68 . The purpose of security screening is to ensure as far as possible the
protection of information the disclosure of which might endanger the security
805
�of the country . Nevertheless, the screening procedure must be sensitive to the
requirements of individual justice and fair treatment, requirements which are
essential to the very nature of the democratic system we are trying to protect .
CD-35 attempted to reconcile screening procedures for the preservation of
security with a review procedure that would protect the individual's rights and
interests . It has not been wholly successful . We begin this section by examining
some of the principal weaknesses of the review and appeal procedures contained in CD-35 . We then describe the nature of the changes necessary to
correct these weaknesses . Our major recommendation calls for the establishment of a Security Appeals Tribunal, an advisory body to hear appeals in the
areas of public service employment, citizenship and immigration .
Weaknesses of CD-3 5
69. CD-35 was a classified document until it was made public by us in 1978 .
Previously, persons whose careers and livelihoods were adversely affected
usually had no idea of the opportunities available under CD-35 to resolve
doubts as to their suitability for a position requiring a security clearance . Often
they would not even be told of their ineligibility for a position because they had
been denied a security clearance . As a first principle; therefore, the government
should publicize widely any future review and appeal procedures established
for security screening purposes . In addition, the Interdepartmental Committee
on Security and Intelligence should establish monitoring and control mechanisms to ensure that departments follow the review and appeal procedures .
70 . Another problem with the review procedures of CD-35 is that they are
not comprehensive enough . The contract employee has no right of review . Nor
does the applicant from outside the Public Se rvice . The Departmental Security
Officer may request a further specific investigation to resolve the doubts raised
over granting the clearance but there is no requirement to do so . Nor is there
even a requirement to inform an applicant of the reason he was refused the job .
The review procedures offer more protection for the individual who is already
an employee of the Public Se rv ice, but even here the protection is far from
complete, as the Ronda Lee case, which we summarize later in this section,
illustrates .
71 . Perhaps the most important weakness of CD-35, however, is the lack of
an effective and independent appeal mechanism, although it does provide for
some review procedures within the executive branch . According to CD-35, if
doubt has been raised about the advisability of allowing an employee access to
classified information and if the doubt cannot be resolved, or if further
investigation is inexpedient, the assistance of the employee should be sought in
an attempt to resolve the doubt . A senior officer of the department, after
consultation with the Security Service, shal l
interview the subject and inform him, to the fullest extent that is possible
without jeopardizing important and sensitive sources of security information, the reasons for doubt, and shall give the employee an opportunity to
resolve it to the satisfaction of the responsible department or agency .1 8
1e CD-35, paragraph 15 .
806
�Should the doubt remain, the department or agency is to withhold clearance
and consult with the Privy Council Office for assistance in determining
whether the employee can be informed of the situation and transferred to a less
sensitive position, or whether the employee should, be asked to resign, and, if he
refuses, be dismissed . Before dismissal is recommended to the Governor in
Council, two conditions must be met :
(a) the Deputy Minister or head of agency personally has- tô~ make a
complete review of the case, including interviewing the employee ;
(b) the employee musC be as fully informed as possible about the charges,
and allowed an opportunity to submit any information or considerations he thinks ought to be taken into account . "
72. There are some admirable features about these review procedures but the
lack of an independent appeal mechanism is a glaring weakness . To some
extent, the government has moved to correct this weakness . In 1975 the Public
Service Security Inquiry Regulations were adopted . According to these regulations, if the Deputy Minister has proposed that a person be dismissed from the
Public Service for reasons of security ; a Commissioner may be appointed . This
Commissioner has access to all files that he considers pertinent to 'the inquiry .
The Commissioner notifies the employee that he is about to .be dismissed and
discloses the circumstances and information necessary to acquaint the appellant with the nature of the charges, keeping in mind the constraints of security .
At the inquiry, the appellant, who may be represented by counsel, has a chance
to present further evidence, including calling witnesses . Upon conclusion of the
inquiry the Commissioner submits a report to the Governor in Council . It is
only by a decision of the Governor in Council that an employee can be
dismissed from the Public Service on security grounds .
73 . As we noted in section A of this chapter, no Commissioner has ever been
appointed . Since the enactment of the Public Service Security Inquiry Regulations, no one has been dismissed from .the Public Service for security reasons,
although some have resigned and others have been transferred or have had
their careers adversely affected . Many have been denied employment or
contract work . The last years for which figures are available, 1972 and 1973,
indicate that for these two years 103 were denied employment for various
reasons related but not necessarily confirmed as security factors, 6 resigned,
and 160 were denied access, of whom 66 were transferred .
74 . A recent case before the Federal Court of Appeal, that of Ronda Lee, a
public servant seeking a transfer into a position requiring a security clearance,
illustrates many of the shortcomings of the current review and appeal procedures for those persons whose careers have been, or are suspected of having
been, adversely affected by security procedures . Ms . Lee, the successful
applicant in an internal government competition for a position' with the
R .C .M .P ., was passed over in favour of another candidate because she received
an adverse security report . No attempt was made to resolve the doubts raised
about her . Ms. Lee appealed the decision to the Public Service Commission
Appeal Board, which determines if the merit principle has been applied in th e
" Paraphrased from CD-35, paragraph 1 7 .
807
�selection of successful applicants . The Board ruled that it had jurisdiction to
hear the case on the grounds that security clearance, a required qualification
for the position, was a merit consideration . The Board allowed the appeal
because the R .C .M .P ., as the hiring department, refused to disclose the
security information or the reasons for the decision to deny clearance . The
Attorney General of Canada appealed successfully to the Federal Court of
Appeal which held that the Public Service Commission Appeal Board had no
jurisdiction to inquire into the security clearance question .20 In an obiter
dictum, Mr . Justice Heald noted, however, that the fact that Ronda Lee had
not been afforded the opportunity, provided for in CD-35, to resolve the doubt
was a "disturbing" aspect of the case, possibly forming the basis for "relief to
be sought elsewhere" .
Required changes
75 . The case of Ronda Lee illustrâtes the need for improvements in the
procedures for reviewing security clearance decisions . The first step is to
improve the review procedures for handling adverse security reports within the
executive branch of government . We believe that senior officials should make a
significant effort to remove doubt about adverse security information and to
ascertain if some amicable settlement is not possible . The Interdepartmental
Committee on Security and Intelligence should prepare for the approval of the
Cabinet Committee on Security and Intelligence a set of internal review
procedures which would satisfy the following four points :
(a) The procedures must be comprehensive . They must provide for all
individuals, whether public servants or not, who have been, or who
suspect that they have been, adversely affected by the security clearance process .
(b) Decisions which adversely affect individuals for security reasons these could be decisions to fire a public servant, to deny promotion or
transfer to a classified position or to refuse to hire an individual should be made by the Deputy Minister of the department concerned
about the security problem .
(c) Befôre making such a decision, the Deputy Minister must provide the
individual in question an opportunity to resolve the reasons for doubt .
(d) Before making his decision, the Deputy Minister should consult officials in at least the Privy Council Office's Security Secretariat to seek
their advice on how the case should be handled .
76 . When all administrative efforts to resolve the situation amicably have
failed, the next step towards a more just security clearance procedure is~the
need to establish an appeal mechanism . The Royal Commission on Security
recommended such a body, but despite public avowals of support for the idea
from both government and opposition critics, the recommendation has bee n
20The reasons for judgment are now reported : Re Lee ( 1980) 31 N .R . 136 (Fed . C .A .) .
The case is now under appeal to the Supreme Court of Canada .
808
�only partially implemented . Dismissals from the Public Service for security
reasons and deportation orders against permanent residents on security or
criminal grounds are the only situations where an appeal mechanism has been
established . The establishment of a comprehensive security appeal procedures
is a pressing issue which has not been resolved . Prime Minister Trudeau noted
in the House of Commons on June 26, 1969, that the government duty to
ensure the security of the State, "perhaps more than any other, requires public
assurance that the measures taken in its discharge are not of a character which
could infringe the basic rights of individuals or be damaging to their careers
and reputations" .21 He continued :
For this reason, Mr . Speaker, the government, after careful consideration,
has decided to accept the commissioners' recommendation for the establishment of a Security Review Board . Full details of the scope, character and
operation of the board are still under consideration and these may differ in
some respects from the commission's recommendations . . .
It is their opinion that such a system of review might be required in the
three areas of employment, immigration and citizenship . The three basic
principles which they would apply are : first, that the individuals concerned
be gi`ven as many details as possible of the factors which have entered into
the decisions ; second, that the decisions of the Review Board could only be
advisory ; and third, that the importance of expertise and understanding in
security matters is such that the same board should review contentious
decisions in all of the three areas .
With these basic principles the government agrees .z z
77. We agree with these three principles for a security review board . We
would add a fourth principle . The review body should be composed of
individuals who are independent of the federal government in the sense that
they are not employed by a federal department or agency . We propose that a
Security Appeals Tribunal be established by statute to hear security appeals in
the three areas of Public Service employment, immigration, and citizenship . In
the following chapters we shall discuss in detail the appeal procedure for
immigration and citizenship . In the case of Public Service positions, an
independent review should be afforded all persons who have been, or who
suspect that they have been, adversely affected by federal government security
screening procedures, including Order-in-Council appointees, and Members of
Parliament . The Security Appeals Tribunal should replace and extend the
function of the Commissioner provided for in the Public Service Security
Inquiry Regulations . A Commissioner of the Public Service Commission has
stated publicly that the number of adverse security reports is small, "but the
problem is that the number of public servants who feel their careers have been
adversely affected is large" .23 We are also aware of a number of M .P .s who
believe their careers have been adversely affected by unjustified or erroneous
security reports .
21 House of Commons, Debates, June 26, 1969, p . 10637 .
22 Idid .
21 Ottawa Citizen, June 12, 1980 .
809
�78 . The Security Appeals Tribunal must disclose to the appellant as much
information as is possible without jeopardizing the security of Canada . One of
the principles of natural justice dictates that the accused know all the facts of
the allegations. However, insistence upon full application of this principle could
seriously harm the security of Canada through the disclosure of such vital
information as the identity of sources . The best compromise we can suggest is
that, in order to afford the appellant reasonable reassurance that the information which he is prevented from seeing has been classified on sound grounds,
the information should be reviewable by an independent Tribunal . As is
provided in the Public Service Inquiry Regulations and the Immigration Act,
the Tribunal must have the discretionary power to decide what information it
can disclose, although it should first consult the security intelligence agency or
the personnel security staffing officer as to why the information has so far been
denied to the appellant .
79 . The composition and procedures of this Security Appeals Tribunal should
reflect the independent nature of the review . The Tribunal should consist of
five members, of whom any three could compose a panel to hear appeals . The
chairman should be a Judge of the Federal Court of Canada . The other
members of the Tribunal should be appointed by the Governor in Council but
should not be,currently employed by a government department or agency . The
members of the recently established Australian Security Appeals Tribunal are
of similar independent calibre . The first president of the Tribunal, which
reviews public service, immigration and citizenship adverse security reports, is
a judge of the New South Wales Court of Appeal ; the second member is a
former chairman of the Australian Institute of Political Science, and the
remaining members, who may be involved depending upon the case being
heard, are a former Deputy Attorney General (as we would call him), a retired
Air Vice Marshal and a senior academic who is chairman of a "Migrant
Resources Centre."2 4
80 . As in the case of appeals against dismissal from the Public Service or for
deportation on security grounds, the Security Appeals Tribunal must have
access to all information pertinent to the case . It should be able to require any
person, other than the appellant, to supply relevant information and testimony .
The appellant should have the opportunity to give evidence, call witnesses and
be represented by counsel . The Australian Security Appeals Tribunal permits
the Australian Security Intelligence Organization a similar opportunity to give
evidence, although neither party may be present when the other is making his
or her case . This procedure could be added to the Canadian security appeals
process .
81 . The Security Appeals Tribunal, as we envisage it, would be only an
advisory body. The final decision on cases appealed to the Security Appeals
Tribunal should rest with the Governor in Council . At the conclusion of its
hearing the Tribunal should submit a written report and recommendation to
the Governor in Council .
20 Canberra Times, June 7, 1980 .
810
�82. It is very important that members of the Tribunal build up an expertise in
security screening matters . This is a major reason for recommending that the
Tribunal also hear appeals in those other security clearance areas - immigration and citizenship . To increase its expertise, the Security Appeals Tribunal
should also review all screening reports that do not go to appeal, but which
contain adverse information . These reports would be those which were sent to
departments by the security intelligence agency or by the personnel security
staffing officer, but which did not go to appeal because the Deputy Minister or
agency head decided to grant the clearance, or the clearance was denied and
the individual concurred with the reasons for denial . A review of these reports
(about 500 a year) would provide the Security Appeals Tribunal with an
overall view of the security screening information reported . The Tribunal
would therefore not be hearing appeals in a vacuum but in the context of other
adverse reports . The Tribunal should compile the results of these adverse
reports and report on them annually to the Interdepartmental Committee on
Security and Intelligence. In these annual reports, the Security Appeals
Tribunal should bring to the attention of the government any changes it
considers necessary in the security clearance process . The Tribunal, though not
responsible for policy changes in this area, will have one of the best vantage
points from which to assess the effectiveness and fairness of security screening
procedures .
83 . In our review of the security screening system, we were alarmed to find
that there was no one organization charged with the responsibility of monitoring the system and initiating policy changes . One manifestation of this
deficiency is the lack of a comprehensive, up-to-date set of statistics which
would allow year by year comparisons of such important indicators as the
number of people screened for each security classification, the number of
adverse reports, and the number of individuals adversely affected by the
screening procedures . We deal with the question of who should have responsibility for policy changes concerning security screening in Part VIII, Chapter 1 .
In essence, we shall recommend that the Cabinet Committee on Security and
Intelligence should have ultimate responsibility here and that this . Committee
should designate a lead Minister to monitor and initiate policy changes in areas
such as personnel security, physical security and emergency planning .
WE RECOMMEND THAT the federal government widely publicize any
review and appeal procedures established for security screening purposes
and that the Interdepartmental Committee for Security and Intelligence
establish monitoring and control mechanisms to ensure that departments
and agencies follow these procedures .
(128)
WE RECOMMEND THAT the Interdepartmental Committee for Security and Intelligence prepare for the approval of the Cabinet Committee on
Security and Intelligence a set of internal review procedures for adverse
security reports, to include at least the following points :
(a) the procedures must be comprehensive enough to include all individuals who might be adversely affected by security clearance procedures ;
811
�(b) decisions which adversely affect individuals for security reasons
should be made by the Deputy Minister of the department concerned
about the security problem;
(c) before making such a decision, the Deputy Minister should provide the
individual in question with an opportunity to resolve the reasons for
doubt ;
(d) before making his decision, the Deputy Minister should consult appropriate officials
in at
least the Privy Council Office's Security
Secretariat .
(129)
WE RECOMMEND THAT the federal government establish, by statute, a
Security Appeals Tribunal to hear security appeals in the areas of Public
Service employment, immigration, and citizenship . In the case of Public
Service employment all individuals who have been or who suspect that they
have been adversely affected by security screening procedures should have
access to the Tribunal . The specific responsibilities of the Tribunal concerning Public Service employment should be as follows :
(a) to advise the Governor in Council on all appeals heard by the Tribunal ;
(b) to review all adverse screening reports of the security intelligence
agency and the Public Service Commission's security screening unit ;
(c) to report annually to the Interdepartmental Committee on Security
and Intelligence about its activities and about any changes in security
clearance procedures which would increase either their effectiveness
or their fairness .
(130)
WE RECOMMEND THA T
(a) the Security Appeals Tribunal consist of rive members appointed by
the Governor in Council, any three of whom could compose a panel to
hear security appeals;
(b) the chairman of the Tribunal be a Federal Court Judge ;
(c) the other members not be currently employed by a federal government
department or agency.
(131)
WE RECOMMEND THAT the Security Appeals Tribunal disclose as
much information as possible to the appellant and that the Tribunal have
the discretion to decide what security information can be disclosed to the
appellant .
(132)
WE RECOMMEND THAT the procedures of the Security Appeals Tribunal be similar to those now established for appeals against the dismissal
from the Public Service or against deportation, with the added feature that
members of the security intelligence agency or personnel security staffing
officers be allowed to appear before the Tribunal to explain the reasons for
denying a security clearance .
(133 )
812
�CHAPTER 2
IMMIGRATION SECURITY SCREENIN G
A. HISTORICAL BACKGROUN D
1 . Canada is a country mainly composed of immigrants or their descendants,
but the desire to encourage immigration has become increasingly tempered by
selectivity in deciding who will be permitted to immigrate . Statutory rejection
criteria and screening procedures have been developed over the years to prevent
the immigration of individuals deemed undesirable for occupational, medical,
criminal, or security reasons. The numbers rejected for security reasons have
always been negligible - less than one per cent of the total number of
potential immigrants refused entry . Nevertheless, security rejections are sometimes highly controversial .
2 . Without attempting a complete review of changes in security-related
provisions of legislation relating to immigration, a brief survey of some of the
more important changes is helpful . As early as 1872 there was a prohibition
against immigrants who might be a security risk . That year an amendment to
the Immigration Act provided that "The Governor-in-Council may, by proclamation, whenever he deems it necessary, prohibit the landing in Canada of any
criminal, or other vicious class of immigrants, to be designated by such
proclamation" .' The Immigration Act of 1910 added to the prohibited classes :
" . . . any person other than a Canadian citizen [who] advocates in Canada the
overthrow by force or violence of the Government of Great Britain or Canada,
or other British Dominion, Colony, possession or dependency, or the overthrow
by force or violence of constitutional law or authority ."2 By 1923 immigrants
were required to have visas, and procedures for the examination of visa
applicants began to develop .
3 . Following World War II, the Canadian government was anxious to meet
domestic demands for labour, to facilitate family reunions and to contribute to
the relief of displaced persons in Europe . Recognition of the security problem
that this entailed led the Security Panel to recommend that the R .C .M .P .
provide assistance to the Immigration Branch (at that time under the Department of Mines and Resources) in the screening overseas of prospective
immigrants . This was not the first time the R .C .M .P . had been involved in
immigration : during the Yukon gold rush, they filtered out ill-prepared prospectors and suspected criminals at the Chilkoot and White Passes . It was,
' S .C . 1872, 35 Vict . ch .28, s .10 .
z S .C . 1910, Edw . VII, ch .27, s .41 .
813
�however, the first time that the R .C .M .P . had been asked to conduct such a
service abroad .
4 . In 1946, the first R .C .M .P . member was dispatched to London to join the
immigration vetting team, but it was not until 1959 that the R .C .M .P . Act was
amended to provide explicitly for such R .C .M .P . activity, by the addition of the
phrase "outside of Canada" to section 4 of the Act .3 As with the R .C .M .P .'s
other screening functions - in citizenship, and Public Service employment there was no- specific statutory authorization for the role of the Force in
immigration screening .
5 . An Order-in-Council, made in June 1950, resulted in an increase in the
flow of applications from the big European industrial areas . A huge backlog of
cases awaiting security clearance developed because of the increase in the
number of applications, and because many of the applicants were applying
from countries in which they had not been resident for a sufficient period of
time to permit the local authorities to provide the R .C .M .P . with adequate
information . To reduce the workload, from time to time security screening was
waived for various categories.
6 . The Immigration Act of 19524 governed Canadian immigration procedures
for the following 25 years . Section 5 of the Act listed the classes of persons who
were prohibited from admission to Canada . The following were considered
security risks :
(I) persons who are or have been . . . members of or associated with any
organization, group or body of any kind concerning which there are
reasonable grounds for believing that it promotes or advocates . . .
subversion by force or other means . . . except persons who satisfy the
Minister that they have ceased to be members of or associated with
such organizations, groups or bodies and whose admission would not be
detrimental to the security of Canada ;
(m) persons who . . . are likely to engage in or advocate subversion by force
or other means . . .
(n) persons concerning whom there are reasonable grounds for believing
they are likely to engage in espionage, sabotage or any other subversive
activity . . .
(q) persons who have been found guilty of espionage . . .
(r) persons who have been found guilty of high treason or treason against
or of conspiring against Her Majesty or of assisting Her Majesty's
enemies in time of war, . . .
Section 19 of the Act (renumbered section 18 in the 1970 Revised Statutes of
Canada), which was concerned with persons already in Canada, made subject
to deportation, on security grounds, persons who fell within the following
categories :
(a) any person, other than a Canadian citizen, who engages in, advocates
or is a member of or associated with any organization, group or body of
' S .C . 1959, ch .54 .
° R .S .C . 1952, ch .325 .
814
�any. kind that engages in or advocates subversion by force or other
means of democratic government, institutions or processes, as they are
understood in Canada ;
(c) any person, other than a Canadian citizen, who, if outside Canada,
engages in espionage, sabotage or any activity detrimental to the
security of Canada ;
7 . In 1962, an Order-in-Council was passed introducing the principle of
universal immigration to Canada for unsponsored applicants, although sponsored immigration remained geographically restricted .5 In practice,s immigration from countries where reliable information could not be obtained was
restricted simply by providing no facilities for the processing of applications in
such countries . By the mid-1960s, to meet urgent manpower needs, the Cabinet
opened up immigration opportunities still further by accepting changes in
security screening procedures . Automatic rejection criteria, such as Communist
Party membership, were eliminated for the sponsored immigrant and the
immigrant coming from a country controlled or influenced by the Communist
Party . At the same time, easier international travel and a growing tourist
industry led to a gradual removal of the visa requirement for most visitors . In
1967 an amendment to the Immigration Regulations allowed visitors to
Canada to remain permanently, subject to only slightly more difficult selection
criteria than those which applied to applicants abroad . It was considered at the
time that not many persons would take advantage of that provision, but in fact
thousands did so, and by 1970 one fourth of the landed immigrants were
persons who first came to Canada as visitors .
8 . The Immigration Appeal Board Act of 19676 created an appeal body
independent of the Minister and extended the right of appeal for persons
ordered deported, even at a port of entry . The Board was given power to set
aside deportation orders on compassionate grounds . The very fact that a person
was physically on Canadian soil determined his right of appeal, even if he had
entered Canada illegally . An unintended consequence of this change was that it
encouraged persons who might otherwise have had difficulty qualifying for
immigrant status to come to Canada, ostensibly as visitors, but with the full
intention of remaining . As such persons could now appeal deportation, the
Immigration Appeal Board was soon swamped with up to 400 appeals a month .
By the fall of 1970, a backlog of 4,000 cases had developed . Many of those
who, had they applied abroad, might have been prohibited on security grounds
from entering Canada as landed immigrants were thus able to remain, in
effect, immune to deportation for a long period of time . Immigration Appeal
Board procedures and departmental practice required that the appellants and
their lawyers were to have access to all information submitted at special
inquiries and appeal proceedings . . Sometimes this could jeopardize security
intelligence sources . If the R .C .M .P . refused to admit publicly that they had
such information, the appellant won his appeal to remain in Canada . In cases
where the appeal was based on compassionate or humanitarian grounds th e
5 White Paper on Immigration, 1964, section 95 "Security Screening", p . 36 .
6 S .C . 1966-67, ch .90 .
815
�alternative was that the Minister of Immigration and the Solicitor General
would sign a certificate pursuant to section 21 of the Act, stating that in their
opinion, based on confidential security reports, the Immigration Appeal Board
must allôw the deportation order or refusal of visa to proceed .
Recommendations of the Royal Commission on Security
9. In trying to resolve the dilemma between the need for security and the
rights of the individual, the Report of the Royal Commission on Security,
published in 1969, recommended both a tightening of security measures in
relation to immigration and the establishment of clearer, more consistent
security screening procedures for all categories of prospective immigrants . The
recommendations of the Commission that have been at least partially implemented can be summarized as follows :
(a) Changes in the role of the officers abroad: The maturity, quality and
training of both the R .C .M .P . and Immigration officers abroad should
be upgraded so that normally individual cases could be decided jointly
by these officers in the field . All cases of refusals for sponsored
immigrants, and all cases where the officers in the field could not
agree, should be reviewed in Ottawa by the Department of Manpower
and Immigration and the Security Service, and, at the option of either,
by the Security Secretariat in the Privy Council Office.
(b) Universal screening procedures and guidelines should be introduced for
all prospective immigrants without regard for relationship, sponsorship
or country of origin . Sponsors should also be screened . The same
rejection criteria should apply to both sponsor and immigrant . New,
universally applicable guidelines for rejection should be introduced .
(c) Review procedures require modification : Immigrants applying from
within Canada should not be entitled to an appeal against rejection on
security grounds . Sponsors whose relatives have been refused admission
on security grounds should have access to a review of that decision by a
security review board . Persons formally admitted as landed immigrants
should not be subject to deportation without full judicial appeal before
a body such as the Immigration Appeal Board . 7
10 . The first of these recommendations has been only partially implemented .
In May 1975, after extensive interdepartmental consultation, the Solicitor
General and the Secretary of State for External Afffairs, in an exchange of
letters, agreed upon revised and expanded terms of reference for R .C .M .P.
liaison officers abroad and contemplated a raising of their quality and status .
When considering the rejection of an independent potential immigrant on
security grounds, the liaison officer abroad confers with R .C .M .P . Headquarters before advising rejection to the Immigration officer in the field . The advice
is normally accepted but in case of disagreement the Immigration officer at the
foreign post can have the situation reviewed by Immigration Headquarters in
Ottawa . When the R .C .M .P. liaison officer advises rejection of an immigran t
' Report of the Royal Commission on Security, 1969, paragraph 300 .
816
�sponsored by a permanent resident or citizen of Canada, the case is automatically reviewed by Immigration Headquarters in Ottawa .
11 . The second recommendation has also only partially been implemented .
New security screening guidelines have been introduced, universal in application but different in substance from those proposed by the Royal Commission
on Security . Security screening is now required for nearly all immigrants
between the ages of 18 and 70 except in certain tightly circumscribed cases of
urgency, or for humanitarian considerations . These new security screening
guidelines were approved by Cabinet in March 1975 at the same time as
approval was given to what has come to be known as the Security Service's
`mandate' . These guidelines were essentially similar to that mandate, with two
additions :
Persons who hold, or have held, positions of executive responsibility in any
organization, group or body which promotes or advocates the subversion, by
force or violence or any criminal means, of democratic government, institutions or processes, as they are understood in Canada .
Persons who engage in deliberate and significant misrepresentation or
untruthfulness during any personal interview or in the completion of
documents for immigration purposes, if such misrepresentation or untruthfulness has a bearing on background enquiries relating to admissibility to
Canada .
12 . The new guidelines served as the criteria for security screening and
rejection until the Immigration Act, 1976, established the classes of people
inadmissible to Canada for security reasons . Pursuant to section 19(1) of the
Act these are:
(e) persons who have engaged in or who there are reasonable grounds to
believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in
Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the
national interest;
(f) persons who there are reasonable grounds to believe will, while in
Canada, engage in or instigate the subversion by force of any
government ;
(g) persons who there are reasonable grounds to believe will engage in acts
of violence that would or might endanger the lives or safety of persons
in Canada or are members of or are likely to participate in the
unlawful activities of an organization that is likely to engage in such
acts of violence ;'
The Act also dealt with the deportation, on security-related grounds, of
non-Canadian citizens already in Canada . Section 27(1) covered any permanent resident who
(a) if he were an immigrant, would not be granted landing by reason of his
being a member of an inadmissible class described in paragraph
B S .C . 1976-77, ch ;52 .
817
�19(1)(c), (d), (e) or (g) or in paragraph 19(2)(a) due to his having
been convicted of an offence before he was granted landing ,
or
(c) is engaged in or instigating subversion by force of any government,
Section 27(2) dealt with any person, other than a Canadian citizen or a
permanent resident who
(a) if he were applying for entry, would not or might not be granted entry
by reason of his being a member of an inadmissible class other than an
inadmissible class described in paragraph 19(1)(h) or l9(2)(c) ,
or
(c) is engaged in or instigating subversion by force of any government,
13 . The differences between these statutory security criteria and those of the
1952 Immigration Act reflect the change in the international environment .
Concerns with treason and wartime activities against Her Majesty's allies have
shifted to acts of violence and terrorism . Any likelihood of an act . of violence,
whether or not politically motivated, which might endanger the safety of
Canadians, is now a ground for rejection .
14 . In 1972, changes in the Immigration regulations were passed which were
designed to eliminate the practice of applying for landed status from within
Canada . However, visitors and persons on student and temporary work visas
who had relatives in Canada continued to apply, many of them successfully . In
1973 the Immigration Appeal Board Act was amended to remove the right of
appeal from all but permanent residents, refugees, persons in possession of
visas, and Canadian citizen sponsors .
15. That part of the third recommendation of the Royal Commission on
Security, which proposed that permanent resident deportation cases involving
security should be heard by the Immigration Appeal Board, was not accepted .
Instead, under section 42 of the Immigration Act, 1976, a new advisory review
body, the Special Advisory Board (S .A .B .), was created :
(a) to consider any reports made by the Minister and the Solicitor General
pursuant to subsection 40(1) ; and
(b) to advise the Minister on such matters relating to the safety and
security of Canada . . . as the Minister may refer to it for its
cons ideration . '
16. This Board is in some ways similar to the Security Review Board
proposed by the Royal Commission on Security . However it does not hea r
' Ibid . Subsection 40(1), considered later in the text, reads as follows :
40 . (1) Where the Minister and the Solicitor General are of the opinion,
based on security or criminal intelligence reports received and considered
by them, that a permanent resident is a person described in subparagraph
19(1)(d)(ii), or paragraph 19(1)(e) or (g) or 27(1)(c), they may make a
report to the Chairman of the Special Advisory Board established pursuant
to section 41 .
818
�sponsored immigration rejection cases, but rather acts as adviser in these cases
to the Minister responsible for Immigration . Under section 42(a) it does hear
evidence in cases concerning permanent residents whom the Minister of
Employment and Immigration and the Solicitor General are seeking to have
deported on security grounds where the public disclosure of such evidence
would endanger national security . The S .A .B . has received only one report
made by the Minister and the Solicitor General under .section 40(1) . It has
acted in its security advisory function under section 42(b), advising the
Minister on contentious security screening cases .
Special immigration security procedure
17 . In the decade that followed the report of the Royal Commission on
Security, the staging of the Summer Olympic Games in Montreal in 1976 had
a permanent effect on immigration security policy and procedures . Provisions
similar to those contained in the Temporary Immigration Security Act, which
allowed visitors to be turned back at a port of entry or deported without a
formal inquiry, have been incorporated into the Immigration Act, 1976, but
modified to provide for a hearing by a departmental adjudicator .
The Immigration Act, 1976
18 . The new Immigration Act, passed in 1977, came into force in April 1978 .
It refl ected a 1975 Green Paper suggestion that immigration legislation should
embody a more positive approach . The negative `gate keepers' stance of
previous legislation was replaced by a more positive emphasis on the reasons
and means for admittance ;only two of the 10 immigration objectives stated in
section 3 of the Act are concerned with safeguarding public order and security .
As one commentator noted, the legislatio n
. . attempts to strike a balance between administrative efficiency and
.
respect for civil liberties . It accords the government increased power to deal
with terrorists, subversives, criminals and those seeking to circumvent
immigration laws ; at the same time, it offers increased protection to the
individual in a number of areas - refugees, the adjudication system,
alternatives to deportation, and arrest and detention .1 0
19 . We now turn from this chronology, which has attempted to place present
immigration security policy in a historical perspective, to a critical analysis of
the present system of immigration security screening, including its scope, the
criteria for security rejection, the role of the R .C .M .P . in the screening process,
and the appeal mechanisms available . .
B. THE EXTENT OF IMMIGRATION SECURITY
SCREENIN G
20. The screening of aliens crossing a national frontier can still be considered
the first line of defence in a country's security programme, but in today's
fast-shrinking world it is a decreasingly effective barrier . Given this changin g
10 Warren Black, "Novel Features of the Immigration Act, 1976" ( 1978) 56 Can . Bar
Rev., 56 .
819
�situation, should there continue to be security screening of people who wish to
visit or immigrate to Canada? We feel that the answer to this question must be
in the affirmative . A total elimination of security screening of applicants would
not be desirable for this country, since Canada is likely to maintain relatively
high levels of immigration in the future . Moreover, unlike many European
countries, Canada does not have an extensive system of internal controls, with
flexible deportation procedures and extremely stiff citizenship requirements,
making it relatively easy to remove undesirable foreigners .
21 . As we indicated earlier, nearly all persons between the ages of 18 and 70
wishing to immigrate to this country are subject to security screening . While
there appears to be no reason to modify the universal nature of the screening
for potential permanent residents, there are some problems with the selectivity
of the screening for visitors and refugees .
Permanent resident s
22. There is one change in the screening for permanent residents that should
be considered . The practice should provide that the security liaison officer
abroad is involved in the process of deciding whether screening should be
waived on humanitarian grounds .
Visitors and temporary resident s
23 . There are at present two situations in which persons coming to Canada as
visitors or temporary residents must undergo a security screening process . They
are if a person is from a country whose citizens require a visa to visit Canada,
or if a person arrives in Canada and then applies for permanent resident status .
Visas are not required to enter Canada except in the case of citizens of certain
designated countries . All individuals applying for visas to come to Canada from
these countries require screening by the R .C .M .P . Security Service . For
citizens of other countries there is normally no security screening of applicants
for temporary permits unless an applicant has a record of refusals from the
post abroad or the applicant's name appears in the Immigration Index of
individuals whose entry into Canada is undesirable for security reasons .
24 . In the past the Security Service has insisted on applying the same
screening criteria to applicants for visitor's visas as are applied to applicants for
permanent residence, even though the holder of a visa may be visiting Canada
for a very short period of time. One reason for this practice is that a great
many visitors and holders of permits (commonly referred to as Minister's
permits) apply for permanent status after they arrive in Canada . For instance,
14,288 of the 111,899 persons granted permanent residence status in 1979
arrived in Canada as visitors or on Minister's permits . The screening prerequisites when an individual applies from within Canada are the same as for a
person applying from abroad, but if an applicant already in Canada does not
pass the security requirements, the Minister is then faced with the option of
deportation, with a possible public outcry, or waiving the security objection .
Another reason that the Security Service has applied screening criteria to visa
applicants which are identical to those which are applied to applicants for
820
�permanent residence is that some temporary residents prolong their .stay in
Canada by repeatedly having their visitor's status in Canada extended .
25 . We think it is inappropriate to apply security criteria in exactly the same
way to temporary visitors as to applicants for permanent residency . The
reasons for the existing practice, in our view, can be satisfied by two changes in
procedure . First, when the security intelligence agency has information about
an individual which would justify his rejection if he were an applicant for
permanent residency but not justify denying him the right to visit Canada for a
limited period, then a non-renewable visa should be issued . Second, those who
have obtained temporary permits and have not been screened should be
subjected to normal security screening if they apply for a renewal of their visa .
Applications for renewal could be sent to the security intelligence agency for a
records check (and to the R .C .M .P . for a criminal records check) . Alternatively, a, less thorough but possibly less costly system would be one of `stop-notices' .
A visa would not be extended automatically if the security intelligence agency
has notified Immigration officials that a temporary resident is a security risk .
There is already provision for a system similar to this `stop-notice' procedure in
the Immigration Act . Under section 27(2) of the Act reports can be written to
the Deputy Minister of Employment and Immigration when a temporary
resident has been engaging in criminal or subversive activities . I I
Refugees
26 . The desire to deal expeditiously and humanely with large numbers of
homeless and persecuted refugees has inevitably meant a relaxation of security
screening requirements .
27. Canada has gained a humanitarian image internationally because of thé
large number of refugees it accepts . For example, Canada accepted twice as
many Chilean refugees as any other two countries combined . Canada's receptiveness to the victims of political repression is reflected in the Immigration
Act, 1976, in which the refugee is designated a separate class for whom special
admission standards may be established . Following the United Nations Convention and Protocol Relating to the Status of Refugees, the Immigration Act,
1976, defines a Convention Refugee as any person who cannot return to his
own countr y
by reason of well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion ., '
28. The Immigration Act, 1976, provides for flexible procedures in which
each refugee situation can be treated on its merits . Under sections 6(2) and
115(1)(e) of the Act special regulations can be written to facilitate the entry
into Canada of a particular group of refugees or quasi-refugees . While these
procedures cannot override the definition of inadmissible classes in section 19,
they can provide for a modification of the way in which the security criteria are
applied . While such flexibility is desirable, there is a danger that in the
turbulent atmosphere of an international crisis, decisions might be made t o
" S .C . 1976-77, ch .52 .
12 Ibid.
821
�reduce screening without an adequate consideration of the implications for the
security of Canada .
29 . We think it is possible to retain the humanitarian and flexible procedures
now established while at the same time reducing the potential risk inherent in
accepting large numbers of refugees as immigrants . The Contingency Refugee
Committee should be reinstated as a special task force under the Interdepartmental Committee on Security and Intelligence to ensure that there is a
continuing and current assessment of potential refugee situations, ready for use
by the government . The security intelligence agency should contribute to this
committee . In co-operation with other government departments and agencies,
it should help to prepare security profiles of countries which appear likely to
generate refugee situations . Then, if a crisis occurs, the government could take
time to balance humanity and security in making its decisions .
30. Convention Refugees should not routinely be subjected to a security
screening interview on arrival in Canada even if they have not been subjected
to the full security screening process abroad .
31 . Another reason for prohibiting routine screening interviews of Convention
Refugees after their arrival in Canada is that the information might be used
for other purposes .
WE RECOMMEND THAT the security intelligence liaison officer at the
post abroad be involved in any decision, on application for permanent
residency, to waive immigration security screening for humanitarian reasons or in cases of urgency.
(134)
WE RECOMMEND THAT the security screening rejection criteria
applied to visa applicants reflect the temporary nature of their stay . Where
appropriate, non-renewable visas should be issued for applicants who could
not pass the security criteria for permanent immigration .
(135)
WE RECOMMEND THAT applicants for the renewal of temporary
permits or visas be required to undergo the security screening process .
(136)
WE RECOMMEND THAT the humanitarian and flexible procedures for
dealing with Convention Refugees remain, but that the security intelligence
agency, in co-operation with other government departments and agencies,
help prepare regular threat assessment profiles of potential refugee situations for the Contingency Refugee Committee, which should be revived .
(137)
WE RECOMMEND THAT the security intelligence agency, hold security
screening interviews with Convention Refugees after their arrival in
Canada, not as a matter of course, but only for cause .
(138 )
C . IMMIGRATION SECURITY CRITERI A
32. As we have seen, the Immigration Act, 1976, introduced new definitions
of the classes of persons to be denied admission to Canada on security grounds .
822
�These new statutory security criteria (set out in full in . section A of this
chapter) are too broad, and are inconsistent with the definition of threats to the
security of Canada which we proposed earlier in this Report should be the basis
of the statutory mandate of the security intelligence agency .
33 . It could be argued that because screening for immigratiôn purposes is our
first line of defence, the security rejection criteria should be more extensive
than those for other screening functions . We do not agree . If the criteria
governing immigration screening are wider than thôse which define the basic
mandate of the security intelligence agency, the agency will, 'in effect, be
authorized to seek intelligence from foreign agencies that it is not empowered
to collect in Canada . This would violate one of the principles which we have
recommended should govern the security intelligence agency's relations with
foreign agencies . Therefore, to avoid ambiguity and inconsistency, we recommend that the Immigration Act be amended so that the criteria for denying
admission to Canada on security grounds are consistent with the definition of
threats to the security of Canada found in the statutory mandate of the
security intelligence agency .
34 . There is a need for 'administrative guidelines to interpret the statutory
criteria and designate specific areas of security concern . There have been three
separate sets of such guidelines approved by Cabinet in the past . The existing
guidelines; established prior to the Immigration Act, 1976, are in some respects
inconsistent with the new statutory criteria•. They should be made consistent
with the proposed amended statutory criteria .
35. Administrative guidelines of,this kind should be subject to a process of
periodic review and adjustment -in,order .to reflect changes in the perception of
security threats . This did not always happen in the past. It took nearly 20 years
before the guidelines differentiated between the security risk entailed by
Communist Party membership in the Communist bloc countries and those of
western European countries . Participation in political violence abroad, especially, requires careful analysis : the context in . which the violence took place is
important in any consideration of whether an individual would constitute a risk
to the security of Canada . Carefully drafted guidelines should assist the
security intelligence agency to determine what is pertinent for immigration
security clearance pur.poses :
WE RECOIVIMEND THAT section 19(1)(e), ( f) and ( g) of the Iirimigra=
tion Act be repealed and the following substituted:
19 . (1) No person shall be granted admission if he is a member of any o f
the following classes: `' •
(e) persons who it is reasonable to believe will engage in any of the
following activities:
(i) activities directed to or in support of the commission of acts of
espionage or sabotage;
(ii) fôreign interfereôce, meaning clandestine or deceptive action taken
by or on behalf - of a foreign power in Canada , to promote the
interests of a foreign,power;
.
.
823
�(iii) political violence and terrorism, meaning activities in Canada
directed towards or in support of the threat or use of serious acts
of violence against persons or property for the purpose of achieving
a political objective in Canada or in a foreign country .
(iv) revolutionary subversion, meaning activities directed towards or
intending ultimately to lead to the destruction or overthrow of the
liberal democratic system of government .
(139)
WE RECOMMEND THAT administrative guidelines to interpret the
statutory classes of persons denied admission to Canada on security
grounds be drafted for Cabinet approval .
(140 )
D . ROLE OF THE SECURITY INTELLIGENCE AGENCY
IN IMMIGRATION SCREENIN G
36 . R .C .M .P . liaison officers are stationed at 28 Canadian posts abroad .
These officers are responsible, amongst their other duties, for the security
vetting of all applicants for permanent immigration to Canada . Liaison officers
check the records at the post and request criminal and security information
from the local police and security intelligence agencies, and at times from other
foreign agencies, and assess the security relevant information .
37 . There is a danger in the immigration screening process of placing too
great and uncritical reliance on foreign agency information . The information
received must always be carefully analysed in the context of the political
circumstances of the country providing it . No foreign agency should be
considered a`reliable source' in the sense that its reports can be accepted
uncritically . The interests and perceptions of foreign nations will often differ
from those of Canada, and their interpretation of data may well reflect those
differences . The security intelligence agency liaison officers and the analysts at
Headquarters must be sensitive to the shades of difference between foreign and
Canadian concerns . One of the reasons an effective and knowledgeable review
body is needed to review the evidence supporting denials of security clearance
in immigration cases is the fact that frequently the evidence will be based on
reports from foreign agencies .
38 . The security and criminal intelligence required to determine whether the
criteria of the Immigration Act are met is not always available . There are
several countries, for instance, that do not permit the reporting of criminal
information about their citizens to any foreign agency . To authorize the
Canadian security intelligence agency to establish a paid source or otherwise to
break the laws of a foreign country to obtain the required screening intelligence
in those countries would be unacceptable . In these situations Canada should
endeavour to establish arrangements for obtaining the intelligence through
government to government negotiations . If inter-governmental agreement
cannot be reached, the onus should be placed upon the immigrant, personally,
to provide the Canadian immigration officials with documentation guaranteeing that he or she has no criminal record, or as in the case with immigratio n
824
�from Communist countries where security intelligence is not available, the
requirement of intelligence for the particular criteria in question could be
waived .
WE RECOMMEND THAT officers from the security intelligence agency
carry out immigration security screening functions abroad . If they are
tasked to obtain criminal and other intelligence pertinent to the suitability
of an immigrant, they should pass it on to the Immigration Officer for
assessment .
(141)
WE RECOMMEND THAT the security intelligence agency cross-check
immigration screening information received . The security intelligence
agency should assess the information on potential immigrants received
from a foreign intelligence agency in the light of the political concerns and
interests of the country of the providing agency.
(142)
WE RECOMMEND THAT the security
intelligence agency not be
authorized to transgress the laws of foreign countries in order to obtain
intelligence for immigration screening purposes.
(143)
E. IMMIGRATION APPEAL PROCEDURE S
39 . Immigration appeal procedures deal with appeals against certain removal
orders and decisions refusing applications for or by sponsored (family class)
immigrants . The Immigration Appeal Board (I .A .B .) hears such appeals
against removal orders and decisions made by the Canada Employment and
Immigration Commission . The I .A .B . can determine appeals based on questions of fact or of law and also has power to overturn a removal order or
decision if it considers that there are humanitarian grounds for doing so .
However, according to section 83(1) of the Immigration Act, 1976, the I .A .B .
cannot overturn a removal order on humanitarian grounds or a sponsored
immigrant application refusal on any grounds if the Minister of Employment
and Immigration and the Solicitor General co-sign and file a certificate with
the Board "stating that, in their opinion, based on security or criminal
intelligence reports . .. it would be contrary to the national interest for the
Board . . ." not to dismiss the appeal .1 3
40 . In our opinion the criterion of "contrary to the national interest" used in
section 83(1) is not appropriate to decide matters involving security . The words
are too vague and imprecise . We think that with respect to security matters the
phrase used ought to be "contrary to national security", and this phrase should
be defined as having the same meaning as we have recommended for the
definition of threats to security in the statute governing the security intelligence agency . This would be consistent with the wording in section 40(9) of the
Act which covers similar appeals with respect to permanent residents .
41 . Pursuant to section 39 of the Immigration Act, 1976, in security cases
involving any person other than a permanent resident or Canadian citizen, a
"/bid, s .83(1) .
825
�person may be ordered deported by certain immigration officials if the person
is named in a certificate signed by the Minister of Employment and Immigration and the Solicitor General and the certificate is filed with the official
stating that "in the opinion of the Minister and the Solicitor General, based on
security or criminal intelligence reports . . which cannot be revealed in order to
.
protect information sources . . ."'° the person falls within the categories described
in paragraph 19(1)(d), (e), (f) or (g) or paragraph 27(2)(c) of the Act . Four
such certificates, which are conclusive, were signed and filed in each of 1978
and 1979 .
42 . The provisions of section 39 of the Act do not apply to Canadian citizens
or permanent residents . When the deportation of a permanent resident is
proposed on security grounds, and the evidence cannot be presented at an open
inquiry, a different procedure is followed : a report under section 40(1) of the
Act is made by the Solicitor General and the Minister of Employment and
Immigration to the Chairman of the Special Advisory Board . Section 40(1)
reads :
40 . (1) Where the Minister and the Solicitor General are of the opinion,
based on security or criminal intelligence reports received and considered
by them, that a permanent resident is a person described in subparagraph
19(l)(d)(ii), or paragraph 19(1)(e) or (g) or 27(1)(c), they may make a
report to the Chairman of the Special Advisory Board established pursuant
to section 41 .
43 . The Special Advisory Board, as we noted in section A of this chapter, has
two functions, one of which is considering reports by the Ministers alleging a
permanent resident's deportability on security grounds based on confidential
evidence . Upon receiving such a report the Board follows an appeal procedure
similar to that used by a Commissioner appointed under the Public Service
Security Inquiry Regulations to deal with security dismissals from the Public
Service . The Special Advisory Board in dealing with a report, can request all
relevant information and ca n
determine what circumstances and information should not be disclosed on
the ground that disclosure would be injurious to national security or to the
safety of persons in Canada .1 5
The Board may decide at any time that there is nothing in the information
before it the disclosure of which would endanger "national security or the
public safety of persons in Canada",16 and in such a .case it must terminate its
proceedings so that the case can be heard through the regular channels of
inquiry and appeal to the I .A .B . or the Federal Court .
44 . Under section 40(4) of the Immigration Act, when the Board has
determined what information can be disclosed to the individual concerned, it
notifies him of the proposal to deport him and informs him as fully as possible
about the circumstances and the nature of the allegations . The individtial has
the right to a hearing, to be held in camera . He has the right to be represented
14 Ibid., s .39.
'S Ibid., s .40(2)(b) .
16 Ibid., s .40(8) .
826
�by counsel, to call witnesses and to present evidence . At the conclusion of the
hearing the Special Advisôry Board makes a report to the Governor in Council,
for consideration as to whether to make a deportation order . In our view this
role of the Special Advisory Board should be transferred to the Security
Appeals Tribunal which we recommended should be created .
45 . There is a further appeal route for all persons facéd with deportation .
Section 28 of the Federal Court Act" allows an appeal directly to the Federal
Court, bypassing the I .A .B . In such an appeal against deportation, where the
deportation order had been made on sensitive security grounds, an appellant
would likely encounter substantial difficulty, either because the Solicitor
General would object to the production of evidence by signing an affidavit
under section 41(2) of the Federal Court Act, or because the provisions of
section 119 of the Immigration Act would be invoked . Section 119 reads :
119 . No security or criminal intelligence report referred to in subsection
39(t), 40(1) or 83(1) may be required to be produced in evidence in any
court or other proceeding .1 e
46 :• We do not feel that an appeal to the Federal Court of Canada is the most
appropriate way of reviewing the security aspects of deportation cases involving
persons who are neither 'citizens nor permanent residents . In such cases a
section 39 certificate is more than a ministerial affidavit certifying that a
document con tains evidence that would be injurious to national security ; it is
"proof of the matter therein", i .e . that, based on security or criminal intelligence reports, the person meets the criteria in the Act for rejection or
deportation . We think that the most, appropriate agency for reviewing the
reports relied upon in the exercise of ministerial power under section 39, is the
Security Appeals Tribunal with its expertise in security matters and full access
to security reports . As we recommend above, this Tribunal should absorb the
functions of the Special Advisory Board in relation to appeals of permanent
residents . In this way the proposed Tribunal will combine the functions of
appeal for both permanent and non-permanent residents . We are not recommending that individuals be given a right to appeal personally to this body only that there should be some indepéndent review of the evidence. The same
review body that examines deportation orders against permanent residents
should be responsible for this review . In that way there will be consistency in
decisions and an experiential base to draw upon .
47 . The Security Appeals Tribunal should also review all cases in which,
although the security intelligence agency has recommended deportation or
denial of admittance or status, the responsible Minister has chosen not to
follow the advice . As with recommended denials of security clearance for the
public service, this review function will help to inform the Security Appeals
Tribunal of the rejection procedure as a whole .
WE RECOMMEND THAT the criteria in s.83(1) of the Immigration Act,
as far as they relate to security matters, be amended to read "contrary to
national security" .
(144 )
" R .S .C . 1970, ch .10 (2nd Supp .) .
1e S .C . 1976-77, ch .52 .
827
�WE RECOMMEND THAT the responsibilities of the Special Advisory
Board under subsection 42(a) of the Immigration Act be transferred to the
proposed Security Appeals Tribunal.
(145)
WE RECOMMEND THAT the ministerial certificates for the deportation
of temporary residents and visitors continue to be considered as proof, and
hence not subject to appeal, but that the security or criminal intelligence
reports upon which the deportation decision is based should be subject to
independent review by the same body that reviews the evidence in the case
of permanent residents, namely the Security Appeals Tribunal .
(146)
WE RECOMMEND THAT the Security Appeals Tribunal review all the
security reports written by the security intelligence agency where the
recommendation for deportation or denial of permanent residency status or
admittance was not followed by the Minister .
(147 )
828
�CHAPTER 3
CITIZENSHIP SECURITY SCREENIN G
A . HISTORICAL BACKGROUN D
1 . The granting of Canadian citizenship can no . longer be considered a
privilege bestowed by prerogative of the Crown . Successive legislation has
made the granting of citizenship the responsibility of the Citizenship Courts .
Citizenship is a right that can be claimed after three years by . any immigrant,
18 years or older, who has been legally admitted into Canada on a permanent
basis, who has an adequate knowledge of Canada and one of its official
languages, and who is not subject to a list of specific prohibitions ( for example,
an immigrant who is an inmate in a penitentiary cannot become a Canadian
citizen) . For reasons of security and public order, however, the government still
retains discretionary power to reject an applicant for Canadian citizenship .
2 . For almost 50 years, the R .C .M .P. has been supplying the government
with security and criminal information on citizenship applicants . Under the
Naturalization Act of 1914 an arrangement was established between the
R .C .M .P. and the Department of the Secretary of State . By World War II, the
R .C .M .P. was systematically investigating the character and background of all
applicants for what was then called naturalization . Criminal and subversive
indices were checked, an inte rv iew was held with each applicant, and reports
were sent to the Department of the Secretary of State. The Canadian Citizenship Act of 1947 made no explicit provision for the security screening ; the
practice that had developed through the years continued under section
10(1)(d), which required that an applicant for citizenship be "of good
character" .' Linder this Act, the Minister was given final authority to approve
or deny an application for citizenship.
3 . In January 1951, an interdepartmental Citizenship Advisory Committee,
consisting of representatives from External Affairs, Citizenship, and the Privy .
Council Office, with the R .C .M .P . as observers, . was established . The Committee began to examine all adverse reports submitted by the R .C .M .P . and to
advise the Minister whether a citizenship certificate should be granted ._ The
following month, Cabinet agréed upon criteria for the rejection of citizenship
on security grounds . An applicant described as a member of a Fascist,
Communist or other revolutionary organization would be rejected, as would
applicants who were members of a Communist front organization .
' S .C . 1946, ch .15 .
829
�4 . Heavy immigration in the late 1940s and early 1950s affected the citizenship screening procedure . The R .C .M .P. could not process what amounted to a
threefold increase in citizenship applications . As a result, in 1954, the criminal
records check was eliminated . Less than one per cent of enquiries turned up
evidence of a criminal record, and it was felt that the examination by the
Citizenship Judge, local knowledge of the individual in smaller communities,
information received from Clerks of the Court and other interested parties,
togèther with the reports received from the Immigration Branch, would
identify most individuals who might have criminal records .
5. A more lenient attitude to the granting of citizenship developed in the
early 1960s and steps were taken to reduce the detail involved in the application of security criteria .
6. The Royal Commission on Security concurred with the trend to reduce the
stringency of the citizenship security criteria . The Commission's Report concluded that possession of citizenship only marginally increased the capabilities
of a Canadian resident in the field of espionage and subversion .2 Hence, the
Commissioners argued, there is "an element of unfairness in denying citizenship to an individual who has been a resident of Canada for five years when his
actions have not been illegal and represent no immediate and direct threat to
the security of Canada ." '
They suggested that :
. . as a general rule citizenship should be withheld only for actual
.
illegalities or criminal acts ; in the area of security, these would include
espionage, treason and similar offences . Membership in communist organizations or even of the Party itself, however, should not constitute causes for
rejection . "
7. Nevertheless, the Commission thought that despite this general rule there
would- be some cases in which the applicant would constitute a significant risk
to security, even though not involved in an illegal activity . In such cases the
Minister should exercise discretion in refusing citizenship on security grounds .
The Report recommended that :
. . the grant of citizenship should normally be refused on security grounds
.
only if actual illegalities or criminal acts have been committed and proved
in court, and not merely for membership in subversive associations or even
the Commûnist Party . However, WE RECOMMEND that ministerial
discretion should be retained to deal with certain cases in which it may
remain appropriate to withhold citizenship for particularly significant security reasons . All persons whose applications are rejected on security grounds
should have access to the Security Review Board . '
8. "Significant security risk" was left undefined by the Royal Commission
except in the negative sense that the category did not include those who merely
hold "membership in subversive associations or even the Communist Party ."6
The Commission's recommendation was therefore difficult to implement . Th e
Report of the Royal Commission on Security, 1969, paragraph 154 .
Ibid., paragraph 155 .
' Ibid.
3 Ibid., paragraph 301 .
6 Ibid.
830
�Cabinet finally decided in 1973 that security clearance should remain a
requirement for .obtaining citizenship . The Interdepartmental Committee on
Citizenship (formerly the Advisory Committee on Citizenship) drew up a new
list of criteria, which, although never formally approved by Cabinet, remained
until recently the basic working criteria for citizenship security screening .
According to those criteria the R .C .M .P . were to report :
(I) Persons known or strongly suspected to be involved in espionage
activities .
(2) Persons known or strongly suspected to be terrorists .
(3) Persons actively engaged or prominently involved with violence-prone
organizations .
9 . The .new Citizenship Act .was assented to by Parliament on July _16, 1976,
and proclaimed on February 15, 1977 .' Although there was no specific mention
of screening, the new Act had a direct effect on the R .C .M .P . Security Service .
Sections 19 and 20 dealt with probation and criminal records, while section 18
was concerned with secnrity . Subsection 18(1) reads as follows :
18 . (1) Notwithstanding anything in this Act, a person shall not be
granted citizenship under section 5 or subsection 10(1) or be .issued a
certificate of renunciation under section 8 if the Governor in Council
declares that to do so would be prejudicial to the security of Canada or
contrary to public order in Canada .
10. Since the Act came into effect, the Security Service has again undertaken
criminal records checks for all applicants for citizenship and the Intérdepartmental Committee, now called the Interdepartmental Advisory Committee on
Citizenship, has begun to meet again . This Committee has drawn up new
screening criteria, which were ratified by Cabinet in December 1979 . Before
examining these criteria we turn to an evaluation of the present citizenship
screening procedures .
B.
-
THE. ROLE OF .A SECURITY INTELLIGENCE
AGENCY IN CITIZENSHIP SCREENIN G
11 . In 1979,,-the Security Service carried out subversive and criminal records
checks on each . of the 130,000 applicants for Canadian citizenship . Although
the results suggested a seemingly low return for the effort expended, the
efficacy of the citizenship . screening programme must be evaluated in the
context of the protection it affords the security of Canada .Likely, knowledge
that there is a screening process is in itself a deterrent to applications by those
who suspect that they will be rejected on security grounds .
12 .We agree with the Royal Commission on Security that the security risk in
granting citizenship is 'margiital, yet it must be itoted that a Canadian citizen
cannot be deported, except under the, War Measures Act . Thus, if citizenship is
granted to an individual engaged in activities considered threatening to th e
' S .C . 1977-78, ch .22 .
831
�security of Canada that person can virtually never be deported . Moreover, a
Canadian passport provides the possibility of travelling to most parts of the
world ; hence, advantage could be taken of a Canadian passport to facilitate
either international terrorism or espionage activities . Furthermore, security
implications accompany some of the rights and opportunities afforded a
Canadian citizen in the approximately 90 federal statutes and more than 500
provincial statutes that contain references to the requirements or privileges
dependent on citizenship . These restrictions to some extent protect various
internal processes critical to our democratic state. For instance, only Canadian
citizens can legally vote or run for office in federal, and some provincial and
municipal elections, and a number of professions, including the law societies of
the provinces, require citizenship .
13. These security ramifications of the granting of citizenship may be minor
but they establish a need to retain the discretionary power, found in the
Citizenship Act, to reject application for citizenship on security grounds . We
agree with the Royal Commission on Security that normally a person should
not be rejected for security reasons unless an actual illegality or criminal act
has been committed . Further, we feel that, if an individual is seen to be a
serious security risk, deportation, rather than the rejection of citizenship,
should ensue . As we discussed in Chapter 2 of this part of the Report, in the
past, deportation of persons reported to be security risks was difficult as it
required a public hearing . Because members of the Security Service, anxious to
protect the source of their information, were often reluctant to present their
evidence at these public deportation hearings, deportation could not proceed .
Under the Immigration Act of 1976 these deportation difficulties have been
rectified . There is provision for reporting security risks (section 27(1) and (2)),
for the deportation of non-permanent residents without appeal (section 39) and
for in camera hearings by a Special Advisory Board for the deportation of
permanent residents (section 40) .a Given these changes, we feel that the
security intelligence agency should report relevant security information concerning permanent residents applying for citizenship, not only to the Citizenship Branch but to the proper Immigration authorities, for the purpose of
deportation . Deportation is a much more effective means of counteracting a
significant security problem than is rejection of citizenship . If the threat posed
by the applicant is not sufficient to warrant deportation, yet still of significant
concern, the security intelligence agency should send a report to the Registrar
of Citizenship for rejection purposes .
14. The R .C .M .P . Security Service has no formal authorization to screen
applicants for Canadian citizenship . The origins of the procedure, now obscure,
were developed some time prior to the passage of the 1947 citizenship
legislation . The 1975 Cabinet Directive on the Role, Tasks and Methods of the
R .C .M .P . Security Service did not mention citizenship screening or any of the
other screening functions of the R .C .M .P . Other Cabinet Directives authorize
security screening for classified positions in government and for immigration,
but in the case of citizenship no such formal directive exists . Formal authoriza8 S .C . 1976-77, ch .52 .
832
�tion is needed for the security intelligence agency's role in providing information about applicants for citizenship who might threaten the security of
Canada . This authorization should be included in the statutory mandate given
the security intelligence agency .
15. The citizenship security screening procedure now in place is cumbersome .
Many hours of routine paperwork are required within the Citizenship Registration Branch of the Secretary of State's Department and within the Security
Service to check all citizenship applications against Security Service records .
When adverse information is found, the Security Service screening officer
discusses the case with intelligence officers concerned with that area of
subversive activity. If the case is considered of significant security concern, an
adverse report is .written to the Citizenship Registration Branch .
16 . Despite its cumbersome quality, we recommend that the procedure be
retained . We have considered recommending other procedures, such as having
the security intelligence agency assess citizenship rejection in the same manner
as it now assesses the possibility of deportation . When an individual, otherwise
eligible for citizenship, comes to the attention of the agency, an assessment
could be made as to whether the rejection of citizenship is warranted . If so, the
individual's name could be sent to the Citizenship Registration Branch . When
such a person applies for citizenship, the name would be found on the list and
the Citizenship Registration Branch would notify the security intelligence
agency . The agency would then evaluate the case and decide whether or not to
recommend denial of citizenship on security grounds . This procedure would
involve an active analysis of information and as such,,we feel, would be more
appropriate for a security intelligence agency than the passive and routine
processing of thousands of files such as is involved in the current citizenship
security screening programme . Nevertheless, on balance, we have decided that
the present system is preferable . The alternative which we considered would
require the security intelligence agency to supply the Citizenship Registration
Branch with a list of names, and there is always the danger that such a list
would not be secure . Leakage of the names on the list could result in
unnecessary damage to the reputations of the individuals implicated or to
current operations of the security intelligence agency .
17 . While the procedure is cumbersome, the cost of the present programme is
not a serious factor . The annual cost is approximately $163,000, or $1 .30 per
case .9 The present system, moreover, allows a screening of all citizenship
applicants, which ensures that the security intelligence agency is aware of
applications for citizenship by anyone about whom they have an active concern .
Finally, the deterrent effect alone of such a universal screen may be sufficient
grounds for keeping the procedure in place . Residents, otherwise eligible, may
refrain from applying for citizenship if they believe that in so doing their
activities will be reviewed by the security intelligence agency .
18. A Security Service citizenship screening procedure that should be discontinued is the check of criminal records . Not only is the present . procedure
9 This is the combined figure from both the R .C .M .P . and Citizenship Registration
Branch, $98,000 from the former and $65,000 from the latter . It includes both
man-hours and postage .
833
�inefficient but it is outside the function of a security intelligence agency. In
1954, the R .C .M .P . stopped routine criminal records checks because criminal
information on citizenship applicants could be obtained from immigration
statistics and other sources . This system of criminal records checks should be
reinstated . Information on the criminal activity of permanent residents is
centralized for deportation purposes within the Canada Employment and
Immigration Commission (for the purpose of `section 27(1) reports') . Notification, applicable for three years, on such individuals could be supplied to the
Citizenship Branch by the Enforcement Branch of Immigration . The procedure
would be similar to the deportation notices already sent by the Immigration
Regional Offices to fulfill the requirements of section 5(e) of the Citizenship
Act .
19. Screening of citizenship applicants is a service provided by the Security
Service to government . As we noted in Part V, Chapter 6, we have heard
evidence as to one case in which the Security Service provided this service in a
questionable manner . In this case the security objection was waived unilaterally. by the Security Service without informing the other departments of government, so that citizenship would be granted, the aim being to discredit the
applicant's standing with a foreign intelligence service (Vol . 171, pp . 12348489 ; Vol . 172, pp . 123507-13) . It is possible that at times one security concern
may override another ; however, we feel that in such circumstances the security
intelligence agency should inform its Minister, who should in turn inform the
Minister responsible for citizenship . The security intelligence agency should
not unilaterally deviate from the citizenship rejection criteria .
WE RECOMMEND THAT the discretionary power of the Governor in
Council to reject citizenship on security grounds be retained . Upon receiving a request for citizenship screening, the security intelligence agency
should report any significant security information, not only to the Citizenship Registration Branch for the rejection of citizenship, but also to th e
appropriate immigration authorities for deportation purposes .
(148 )
WE RECOMMEND THAT the security intelligence agency continue to
screen all citizenship applicants .
(149 )
WE RECOMMEND THAT the security intelligence agency no longer
process criminal record checks on citizenship applicants .
(150)
WE RECOMMEND THAT when the security intelligence agency feels
that a competing security concern should take precedence over its security
screening role in citizenship the Minister responsible for the security
intelligence agency and the Minister responsible for the citizenship security clearance should be informed .
(151 )
C . CITIZENSHIP SECURITY CRITERI A
20 . There are several different levels of citizenship security rejection criteria .
At the most general level, section 18(1) of the Citizenship Act states , that
citizenship is not to be granted if "the Governor in Council declares that to d o
834
�so would be prejudicial to the security of Canada or contrary to the public
order in Canada" .1 0
21 . In 1960, membership per se in Communist front organizations was no
longer considered cause for rejection . The Royal Commission on Security in
1969 also recommended that membership in the Communist Party itself should
not be grounds for rejection . In 1973, the Interdepartmental Committee on
Citizenship drew up new rejection guidelines, in which three criteria espionage, terrorism and membership in violence-prone organizations - were
mentioned ; subversion was notably absent . We believe that what we earlier
referred to as "revolutionary subversion" should be included in the citizenship
rejection criteria .* We would like to make it clear that, with regard to this
criterion, the applicant should be judged on his merits rather than being judged
by label alone .
22 . On the whole, it is the applicant's activity in the years since immigration
that is pertinent to the rejection of citizenship on security grounds . There
should be, however, as in the present criteria, enough flexibility to permit
rejection if the security intelligence agency is concerned that an individual may
be lying low, awaiting citizenship before commencing activities that would be
detrimental to the security of Canada .
23. Beyond the citizenship security rejection criteria is the R .C .M .P .'s interpretation of the Interdepartmental Committee's guidelines . In our opinion,
there are discrepancies between the interpretation and the guidelines discrepancies which have not been corrected .
24 . A series of Security Service misinterpretations of government guidelines
is of concern to us . Also of concern to us is the R .C .M .P . description of
terrorists as "members or active supporters of . . . guerrilla or liberation organizations" . There are many liberation and even guerrilla movements around the
world fighting for the same principles of democratic government that we desire
to protect in Canada . It has been said that "one man's terrorist is another
man's freedom fighter" . The objective of the terrorist act must be taken into
account by the security intelligence agency ; there should be no automatic
assumption that an applicant who committed such an act in another country is
likely to behave similarly in Canada or even to plan from Canada another act
of violent political coercion in his homeland . Reports recommending the
rejection of citizenship should reflect such considerations . In future, any
interpretation by the security intelligence agency of government guidelines on
security screening criteria should be reviewed and approved by the Minister
responsible for the agency before distribution to other Ministers or interdepart=
mental committees .
25 . Section 18(1) of the Citizenship Act gives to the Governor in Council
discretionary power to refuse citizenship on two grounds - security and public
order . There are explicit Cabinet-approved guidelines for security, but none for
10 S .C . 1977-78, ch .22 .
*The Chairman has filed a minority report on this point .
835
�public order . Consideration should be given to what encompasses public order,
and rejection guidelines should be drawn up accordingly . Offences against
public order in the Criminal Code include such crimes as treason, sedition,
sabotage, duelling and piracy . These offences do not include venality of
character . In previous legislation "moral turpitude" and a statutory list of
other reprehensible behaviour had excluded less desirable immigrants, while
"good character" was a statutory requirement for citizenship . These prohibitions were removed when both the Citizenship and Immigration Acts were
liberalized in the mid-1970s . The Security Service has continued to provide the
Citizenship Registration Branch with reports on reprehensible behaviour . As
this sort of behaviour does not meet the security guidelines these individuals
are granted citizenship . In future, the security intelligence agency should not
be involved in reporting on public order offences or reprehensible behaviour
that fall outside its mandate . Information on public order offences not included
in the mandate of the security intelligence agency must be obtained from
criminal records .
WE RECOMMEND THAT a person be denied citizenship on security
grounds only if there are reasonable grounds to believe that he 'is engaged
in, or, after becoming a Canadian citizen, is likely to engage in, any of the
following activities :
(a) activities directed to or in support of the commission of acts of
espionage or sabotage ;
(b) foreign interference, meaning clandestine or deceptive action taken by
or .on behalf of a foreign power in Canada to promote the interests of a
foreign power ;
(c) political violence and terrorism, meaning activities in Canada directed
towards or in support of the threat or use of serious acts of violence
against persons or property for the purpose of achieving a political
objective in Canada or in a foreign country ;
(d) revolutiona ry subversion, meaning activities directed towards or
intended ultimately to lead to the destruction or overthrow of the
liberal democratic system of government;
(152 )
WE RECOMMEND THAT any security intelligence agency interpretation of government security screening guidelines be reviewed for approval
by the Minister responsible for the agency . Approval to apply the guidelines
or to distribute them to other Ministers or interdepartmental committees
should not be given until the Minister has satisfied himself that there are
no discrepancies between the guidelines and the agency's interpretation .
(153 )
WE RECOMMEND THAT guidelines be drawn up and approved by
Cabinet interpreting the phrase "contrary to public order" as a ground for
the rejection of citizenship ; but that the security intelligence agency not be
responsible for reporting information concerning threats to public order or
reprehensible behaviour unless those thréats fall within its statutory
mandate.
(154)
836
�D . APPEAL PROCEDURE S
26 . There is no appeal against a decision to reject an application for
citizenship on security grounds . Section 18 of the Citizenship Act states :
18 . (1) Notwithstanding anything in this Act, a person shall not be
granted citizenship under section 5 or subsection 10(l) or be issued a
certificate of renunciation under section 8 if the Governor in Council
declares that to do so would be prejudicial to the security of Canada or
contrary to public order in Canada .
(2) Where a person is the subject of a declaration made under
subsection (1), any application that has been made by that person under
section 5 or 8 or subsection 10(1) is deemed to be not approved and any
appeal made by him under subsection 13(5) is deemed to be dismissed .
(3) A declaration made under subsection (I) ceases to have effect two
years after the day on which it was made .
(4) Notwithstanding anything in this or any other Act of Parliament,
a declaration by the Governor in Council under subsection (1) is conclusive
of the matters stated therein in relation to an application for citizenship or
for the issue of a certificate of renunciation . "
27. An appeal is allowed to the Federal Court of Appeal against rejections by
Citizenship Judges on other grounds . An argument has been made that an
appeal against rejection on security grounds is not necessary since rejection is
not final but is merely a two-year deferral, and the cost to the individual is only
one of delay and inconvenience . Yet, the individual's reputation can be
seriously damaged and the delay may be interminable . Moreover, given that
the grounds for dismissal may be mere suspicion, it seems only just that a
person who has been a resident of Canada for three years should be able to
have his case reviewed and tell his side of the story . A Federal Court of Canada
decision in 1973 supports this position . The Court ruled that Mr . Tanasic
Lazarov's application should be referred back to the Secretary of State for
reconsideration and that the applicant was to be given an opportunity to be
heard . The fact that a citizenship applicant has no opportunity to dispute the
security appraisal was, in the words of Mr . Justice Thurlow, "shocking to one's
sense of justice" . 12 In the end, Mr . Lazarov reapplied for citizenship, which was
granted without a hearing .
28 . We agree with the recommendation of the Royal Commission on Security
that persons denied citizenship on security grounds should have the right of an
independent review . These cases should be heard by the Security Appeals
Tribunal we have recommended earlier in this part of the Report . After the
Minister has taken the advice of the Interdepartmental Advisory Committee on
Citizenship and has recommended rejection of citizenship to the Governor in
Council, the applicant for citizenship should be able to request that his case be
heard by the Security Appeals Tribunal . The procedure of the Tribunal should
be the same as that followed in cases of a denial of security clearance in the
Public Service, or for the impending deportation of a permanent resident . Th e
" Ibid.
12 Lazarov v . Secretary of State [1973] F .C .R . 940 .
837
�Tribunal should report its findings to the Governor in Council for a final
decision . In addition to reviewing cases in which a denial of citizenship for
security reasons is proposed, the Tribunal should also review the reports of the
security intelligence agency that do not lead to a recommendation of denial .
This review procedure, consistent with the Tribunal's review function in other
areas of screening, would increase the base of experience of its members, thus
enabling the Tribunal to hear citizenship appeals with the benefit of the
perceptions gained not only in previous appeals but also from knowledge of
cases that did not go to appeal . This review procedure would also provide an
independent overview of citizenship security screening procedures .
WE RECOMMEND THAT any applicant recommended for denial of
citizenship on security grounds be able to appeal that decision to the
Security Appeals Tribunal . The Tribunal should follow the same procedures of appeal and review as for recommended denials of public service
and immigration security clearances .
(155 )
838
�PART VII I
A PLAN FOR THE FUTURE : DIRECTION AND
REVIE W
OF THE SECURITY INTELLIGENCE SYSTE M
INTRODUCTIO N
CHAPTER 1 : Internal Governmental Controls
CHAPTER 2 : External Controls
839
��INTRODUCTION
1 . Maintaining an acceptable system of government control and review of
security and intelligence activities poses a serious challenge to a democracy .
Among these activities, those related to security must, in particular, often be
conducted with great secrecy . Therefore, it may be difficult to provide direction and control in a manner which is consistent with the principles of
democratic government . We perceive the difficulties, but we do not concede
that the principles must be compromised . Where a choice must be made
between efficiency in collecting intelligence and the fundamental principles of
our system of government, the latter must prevail . It would be a serious
mistake - indeed a tragic misjudgment - to compromise our system of
democratic and constitutional government in order to gather information about
threats to that system : this would be to opt for a cure worse than the disease .
2. Earlier in the Report we proposed one important step towards a more
democratic system of direction of the security intelligence organization : an Act
of Parliament establishing the organization and defining in general terms its
functions and powers . We have also emphasized how important it is to ensure
that responsible Ministers give direction on the policy issues which will
inevitably arise in carrying out a general statutory mandate . In Chapter 1 of
this part of our Report we shall consider in more detail the mechanisms and
relationships needed within government to provide this policy direction . In an
adequate system of government direction and control not only must there be
ministerial knowledge and direction of the security agency's operation involving significant policy decisions, but there must also be collegiality and countervailing powers . Security matters, as we emphasize throughout this Report,
raise issues requiring thoughtful and balanced political judgment . No single
Minister should be left with sole responsibility for security matters .
3. However, a thorough-going and well balanced system of government
control and direction of a security agency is not enough, in our view, to satisfy
the requirements of democracy . We believe there is also a need to bring to bear
on the government some checks and balances from external sources . The
modern history of western democracies has revealed that there is a danger of
secret intelligence agencies being used by the government of the day for
narrowly partisan purposes or to serve the personal interests of political leaders
rather than the security of the nation . To avoid this danger and to strengthen
public confidence in the integrity of security intelligence operations and their
direction by government, provision must be made for independent review of
security activities . One element of independent review is the Security Appeals
Tribunal we proposed in Part VII to hear appeals in security clearance cases .
Also, in Part V, we proposed that judicial approval be required for the use of
certain intrusive techniques of investigation . In Chapter 2 of this part of the
Report we shall propose some additional elements of external review .
841
�4. Before presenting our detailed proposals as to various institutions and
offices involved in the direction and review of security intelligence activities, we
think it worthwhile to provide a short outline of all the elements in the system
we propose . The outline will show clearly how the various components of the
system interact .
5 . The main elements in the system we propose for government direction and
independent review of the security intelligence agency are as follows :
(a) Parliament should express its will in statutory form as to the functions
and powers of a security intelligence agency and the means of directing
and reviewing its activities .
(b) Within the statutory framework established by Parliament, general
policy as to the agency's methods and intelligence collection priorities
should be established and reviewed by the Cabinet . (c) The Cabinet, the Privy Council Office and interdepartmental committees should be responsible for the co-ordination of security and intelligence activities, including the development and implementation of
personnel and physical security policies and the provision of assessments of intelligence reports to government consumers .
(d) The Prime Minister's responsibility for national security has some
special dimensions . He should continue to chair the Cabinet Committee on Security and Intelligence and be consulted on security issues of
major importance.
(e) The Secretary to the Cabinet and the staff in the Privy Council Office
should-assist the Prime Minister in discharging his responsibilities with
regard to security and intelligence . They should also assist the Cabinet
in co-ordinating the activities of the intelligence agencies and in
developing and implementing policy on an interdepartmental basis with
respect to personnel and physical security .
(f) The Solicitor General of Canada should .continue to be the Minister
responsible for the security intelligence agency . He should be responsible for ensuring that government policy with respect to the security
intelligence agency is carried out and should take the lead in initiating
changes in government policy and legislation governing the security
intelligence agency .
(g) The Deputy Solicitor General should be the Minister's deputy with
respect to all aspects of direction and control of the agency . With the
assistance of the Departmental staff and the Director General of the
agency, he should be in a position to give the Minister informed advice
on all aspects of the security intelligence agency's activities.
(h) The accountability of the agency, both to the Cabinet and to Parliament, must be ensured by an effective system of communication . It
should operate within the agency and also between the Director
General of the agency and the Deputy Solicitor General and the
Solicitor General to ensure that the Minister is informed of all those
activities which raise questions of legality or propriety .
(i) An effective system of control on security intelligence expenditure and
efficiency must be maintained by the Treasury Board through its
Secretariat and the Comptroller General and the Auditor General .
842
�(j) Parliament's function of scrutinizing the activities of the security
intelligence agency must be facilitated by a joint parliamentary committee on security and intelligence which can examine the activities of
the agency in camera .
(k) An Advisory Council on Security and Intelligence should be estab- .
lished to assist the Minister, the Cabinet, and Parliament in assessing
the legality, propriety, and effectiveness of the security intelligence
agency . It should be made up of capable people who will command the
respect of Parliament and the public . It should have no executive
powers, but should have an investigating capacity . It should report any
findings of illegality or impropriety to the responsible Minister . It
should also report at least annually to the joint parliamentary committee on security and intelligence .
(I) A Security Appeals Tribunal should be established to review situations
in which individuals wish to challenge security clearance decisions in
the areas of public service employment, immigration and citizenship .
The conclusions of this review process should be reported as récommendations to the Cabinet .
(m) Where Parliament has empowered the security intelligence agency to
collect information by methods not available under law to the ordinary
citizen, a judge of the Federal Court of Canada should determine, on
an application approved by the Solicitor General of Canada, whether
the conditions established by Parliament for the use of such techniques
are satisfied in each case .
(n) Members of the security intelligence agency must not be above the law .
Evidence of illegal activity by members or their agents must be
submitted to the appropriate Attorney General who is responsible for
deciding what further steps should be taken with regard to prosecution .
(o) The internal security of Canada must not be treated as a water-tight
compartment under exclusive federal jurisdiction . Arrangements
should be established for ensuring that the federal Minister and
officials responsible for security intelligence activities meet with other
levels of government on a regular basis to ensure mutual understanding
and co-operation .
(p) Ministers and Parliamentarians with responsibilities relating to security and intelligence should endeavour to provide the public with all
information possible about the security of Canada, the threats to it and
steps taken to counter those threats so that a more informed public
opinion can address with some understanding the major issues relating
to the work of a security intelligence agency .
843
��CHAPTER 1
INTERNAL GOVERNMENTAL CONTROLS
A . ROLE OF THE CABINET AND
INTERDEPARTMENTAL COMMITTEE S
6 . The Parliament of Canada must establish the basic `charter' of the security
intelligence agency, but this charter will inevitably require important policy
decisions in its implementation . Such decisions require answers to the
following :
What should be the priorities of the agency in collecting intelligence?
How can its capacity to serve the needs of the government be improved?
How can its performance better meet the intention of Parliament and the
concerns of the public ?
In our system of . government the Cabinet must be responsible for determining
these policy questions, subject always to its accountability to Parliament .
7 . We recognize that the amount of time the Cabinet can devote to any
subject, even national security, is quite limited . But we would emphasize that
because security issues so often involve the balancing of conflicting policy
interests and social values, it is highly desirable that important policy matters
in this field be subject to a collegial decision-making process . In the past, the
participation of the Cabinet and Cabinet Committees has occurred mostly
during periods of crisis . We think it important that the Cabinet should be
involved in the policy-making process in normal times .
8 . The assignment of much of the detailed policy work of Cabinet to
specialized Cabinet committees has become a permanent feature of Cabinet
government in Canada . Such committees have the advantage of making it
possible for the Ministers whose departments are most involved in a particular
policy to devote more attention to its development than could the full Cabinet .
Also, meetings of Cabinet committees permit interaction between senior government officials and Cabinet Ministers which is not possible at meetings of
the full Cabinet . The advantages of using specialized Cabinet committees can
be realized in the field of security and intelligence through the Cabinet
Committee on Security and Intelligence which has existed since 1963 .
9. This Committee has not met on a regular basis to consider policy matters
in relation to security and intelligence . Instead it has dealt with particular
issues which are referred to it, usually by the Interdepartmental Committee on
Security and Intelligence. As we shall see shortly, that Interdepartmenta l
845
�Committee has not been able in recent years to develop policy .proposals in
most of the areas under review to the point of submitting them for consideration by the Cabinet Committee . This is one reason why meetings of the
Cabinet Committee on Security and Intelligence have been relatively infrequent . Between 1972 and mid-1980 it has met 20 times .
10 . We think that one matter which the Cabinet Committee should deal with
on a regular basis is the establishment of the government's intelligence
priorities . When the Committee meets for this purpose, its membership should
be expanded to include Ministers whose departments are the principal consumers of foreign and domestic intelligence as well as those whose departments are
involved in intelligence collection . The Committee should review the performance of the security intelligence agency along with other components of the
intelligence community to ensure that government departments and agencies
are receiving useful intelligence products . The Committee's assessment of
intelligence priorities should be reflected in the budget allocations for the
various intelligence and security functions of government . For some years now
the 'Treasury Board has been trying to establish a satisfactory method of
identifying expenditures on security and intelligence . As soon as such a scheme
is arrived at, the Cabinet Committee should be asked to make budget recommendations to those government departments with responsibilities in security
and intelligence . An improvement in the Cabinet Committee's capacity for
deciding intelligence priorities depends very much on the assistance which it
can receive from the Interdepartmental Committee on Security and Intelligence in identifying the government's intelligence needs . We shall make a
number of specific suggestions in this chapter designed to improve this aspect
of the interdepartmental committee system .
11 . The 1975 Cabinet Directive on "The Role, Tasks and Methods of the
R .C .M .P . Security Service" stated tha t
(b) the R .C .M .P . Security Service be required to report on its activities on
an annual basis to the Cabinet Committee on Security and
Intelligence ;
There have been two reports so far : the first covered the 1976 calendar year
and the second covered the period from January 1977 to April 1979 . We were
told the second report was delayed because the R .C .M .P . Security Service
decided to change the time basis for its annual report from calendar year to
fiscal year, and because a special task force was examining the interpretation
of terms in the 1975 Cabinet Directive . We think this delay is regrettable . A
report once a year is the minimum required to keep the Cabinet Committee on
Security and Intelligence adequately informed about the security intelligence
agency's activities . Preferably, there should be reports twice a year . The quality
of the second report is a distinct improvement over the first . It contains a good
deal of information about the nature of security threats and targetting decisions, but has much less to say about methods of investigation and countering .
A dramatic reduction in security screening activity is reported but not
explained . The report could be improved by focussing more directly on policy
issues which should be of concern to the Cabinet . Shifts in the allocation of
resources to target areas should be indicated as these should reflect changes i n
846
�intelligence priorities . Legal implications of operational practices which indicate a, need for legislative change should be identi6ed ; The report should also
refer to serious difficulties encountered in relationships with foreign agencies,
provincial . .or- municipal authorities, or'-with, other federal : departments or
agencies .
12. .- Since its .inception, the Cabinet Committee on Security and Intelligence
has been chaired by the Prime Minister . The Prime Minister's responsibility
for national security has some .special dimensions which•set it aside from his
other . basic . responsibilities and create the need for him to chair the Cabinet
Committee during .discussions of major issues' in this area . Weaknesses in, the
internal security system can have drastic çonsequences for the well-being of the
nation . The secret, intrusive nature of security work makes it dangerous to
permit any, Minister to become overly dominant in this field . The:consideration
of intelligence needs should be a balanced process free from domination by any
single government department . It is .doubtful that any other area of government activity has as much potential for damaging civil .liberties . For all of these
reasons we think it essential that- the Prime Minister continueto be chairman
of the Cabinet Committee on Security and Intelligence, and should chair the
Committee when it deals with matters of -great - urgency or major policy
questions, or when the Committee determines the government's intelligence
requirements . But there- should be a vice-chairman who could chair the
Committee when such matters as administrative changes in security screening
or protective security are being considered . The -Solicitor General might be the
appropriate Minister to serve as vice-chairman .
WE RECOMMEND THAT the Cabinet annually determine the government's intelligence requirements .
(156)
WE RECOMMEND THAT the security intelligence, agency prepare at
least annually a report on its activities for submission to the Cabinet
Committee on Security and ' Intelligence and that this report include an
analysisof changes in security threats, changes in targetting policies,
serious problems associated with liaison arrangements and legal difficulties
. arising from .operational practices .
(157) .
WE RECOMMEND THAT the Prime Minister be the chairman Of the
Cabinet Committee on Security and Intelligence and have the assistance-of
-"a vice-chairman:
„- ,
.
. •
(158 )
•'B . ROLE OF THE PRIVY COUNCIL OFFICE '
. AND INTERDEPARTMENTAL CÔMIVIITTEES .
. . •. : ., .
.
,
.
13 . Bécause of the central role .which the : Prime Minister must : play in policy
relating - to Canada's : internal security and the need for balanced 'direction and
central : cô=ordinatiôn, . the Privy • Council . Office must continue , to play an
, important,role in security and -intelligence matters . The Privy .Council - Office is,
in effect,•the .Prime Minister's department . One of its principal functions .is•to
:act. 'as a 'central coôrdinator - for government activities . .It serves - as - .the
847
�secretariat for the Cabinet and Cabinet committees and provides advice to the
Prime Minister on the various matters with which he must deal . The Secretary
to the Cabinet (who is also the Clerk of the Privy Council) is the deputy
minister of the Prime Minister and as such is considered to be the senior public
servant in the Government of Canada . The Secretary to the Cabinet chairs the
Interdepartmental Committee on Security and Intelligence . This is the Committee of senior officials at the Deputy Minister level which is responsible for
developing most of the policy proposals considered by the Cabinet Committee
on Security and Intelligence . An Assistant Secretary to the Cabinet for
Security and Intelligence reports to the Secretary to the Cabinet and heads the
Privy Council Security and Intelligence Secretariat .
14 . The recommendation of the Royal Commission on Security that a
considerably enlarged Privy Council Office Secretariat develop and implement
security policy has not been implemented . The group of officials in the Privy
Council Office devoted to security and intelligence matters continues to be
quite small . In addition to the Assistant Secretary to the Cabinet for Security
and Intelligence, there are, on the security side, a security policy adviser and
two officers who are responsible for personnel and physical security within the
Privy Council Office . On the intelligence side of the Secretariat, there are
currently four officers seconded from the Departments of External Affairs,
National Defence and the R .C .M .P. These officers, under the direction of the
Intelligence Advisory Committee, perform the staff work involved in collating
intelligence reports and preparing material which is distributed to several
departments and agencies of government . In addition, the seconded staff
participatés in working groups that prepare long-term intelligence assessments .
15. We see no reason to change the basic responsibilities or the size of the
Privy Council Office's Security and Intelligence Secretariat . The Privy Council
Office should play a co-ordinating, not an operational role, in this as in other
fields . The Bureau of Intelligence Assessments which we recommend below
should not be part of the Cabinet secretariat, although reporting - through
the Secretary to the Cabinet - to the Prime Minister . That Bureau would
relieve the seconded intelligence officers in the Privy Council Office of any
responsibilities they now have for the preparation of long-term intelligence
estimates, but not of their work as it relates to current intelligence . The central
co-ordinating role of the Privy Council Office requires that the Secretary to the
Cabinet devote a significant portion of his time to security and intelligence
matters . His responsibilities in this field are already considerable . Our recommendations for strengthening the interdepartmental committee system and
establishing a Bureau of Intelligence Assessments will increase the responsibilities of the Secretary to the Cabinet in this area . So will his work in
co-ordinating the implementation of this Report . On the basis of our discussions here and in other countries which have a parliamentary and cabinet
system of government, we estimate that as much as 10 per cent of the
Secretary's time might be spent, particularly in the next few years, in dealing
with security and intelligence policy .
WE RECOMMEND THAT the Privy Council Office Secretariat for
Security and Intelligence continue its existing functions with the exception
848
�of any responsibilities its seconded staff now has for the preparation of
long-term intelligence estimates and that the Secretary to the Cabinet
devote a considerable amount of time to security and intelligence matters .
(159 )
The Interdepartmental Committee Syste m
16 . In Part II of our Report we traced the development of the system of
interdepartmental committees which deal with security and intelligence matters . It will be recalled that this committee system was reorganized in 1972 .
The principal components of this system are :
- The Interdepartmental Committee on Security and Intelligence
(I .C .S .I .) chaired by the Secretary to the Cabinet and composed of the
Deputy Ministers of the principal departments involved in security and
intelligence activities and the Commissioner of the R .C .M .P . Its secretary is the Assistant Secretary to the Cabinet for Security and
Intelligence .
- A subcommittee of I .C.S .I ., known as the Security Advisory Committee (S .A .C .), chaired by the Assistant Deputy Solicitor General who is
the head of the Police and Security Branch in the Solicitor General's
Secretariat . The Committee is composed of senior departmental officials responsible for security matters including the Director General of
the R .C .M .P . Security Service .
- Another subcommittee of I .C .S .I ., known as the Intelligence Advisory
Committee (I .A .C .), is chaired by the Deputy Under Secretary of State
for External Affairs (Security and Intelligence) and composed of senior
officials including the Director General of the R .C .M .P . Security
Service .
17 . The principal activity of the Security Advisory Committee has been to
develop policy with respect to the security of information, government property
and personnel . In recent years it has also taken on a responsibility in relation to
security intelligence : the preparation and distribution of the weekly report on
threats to internal security. The reports are based primarily on information
received from the R .C .M .P. Security Service, with occasional contributions
from the Department of National Defence . The group which drafts reports is
chaired by a member of the Police and Security Branch in the Solicitor
General's Department, and the final product is approved by key members of
the Security Advisory Committee . The Intelligence Advisory Committee supervises the collation of reports received from various departments and agencies
and the production of papers . Most of the staff work in this collation and
analysis process is done by the officials seconded to the Privy Council Office .
18. Virtually everyone who discussed the interdepartmental committee
system with us, including those who participate in it, said that though the basic
structure of the system is sound it is not working as well as it should . Our own
study of this system has identified two major shortcomings . First, in the area of
security policy, while a great deal of time and effort has been devoted by the
Security Advisory Committee and its network of subcommittees to such
matters as security clearance policy, the system of classifying government
documents and emergency planning arrangements, few of these matters hav e
849
�been finally resolved . Second, the process of providing government departments
with useful assessments of intelligence received from collecting agencies needs
to be strengthened . We shall deal with each of these issues in turn .
Security policy and co-ordinatio n
19 . . Turning first to security policy, our review of the performance of the
Security Advisory Committee (S .A .C .) over the last eight years revealed a high
degree of frustration . In 1972, the Chairman of the S .A .C . presented to the
Interdepartmental Committee on Security and Intelligence (I .C .S .I .) a list of
priority items in the area of security policy which required resolution . The
I .C .S .I . approved the list and the S .A .C . went to work . Eight years later some
of the, most important items on the list remain unresolved . For instance the
redrafting of Cabinet Directive 35 governing security screening in the Public
Service has been under way since 1973, but despite numerous drafts and
re-drafts, a new directive has still not been adopted . In Part VII we noted how
the failure of the Committee system to develop a new method for classifying
government information has impeded the reform of the security screening
mechanisms . In Part IX we shall describe the failure of the Committee system
to develop policy on emergency security matters . Both these failures have had a
direct impact on the R .C.M .P . Security Service as they have left that organization without comprehensive, up-to-date policy directions in several areas . ,
20. We think that one of the factors which accounts for the ineffectiveness of
the Çommittee system with regard to Security policy is the poor 'linkage
between Deputy Ministers on the senior committee (I .C .S .I .) and the members
of the junior committee (S .A .C .) from some departments or agencies . Some of
the security officials who represent their departments on the Security Advisory
Committee do not have a direct reporting relationship with their Deputy
Ministeis . The discussion and proposals at the S .A .C . level too often focus on
the intricacies of administration rather than on fundamental policy . As a result
the proposals of this Committee do not have a receptive audience in the senior
Committee .
21 . We recommend that in the future the initiative in policy issues such as
personnel security, physical security and emergency planning not be delegated
to a junior committee. Leadership in determining which security policy issues
need resolution, in assigning policy problems to the S .A .C . and in monitoring
the impact of security procedures, must be exercised by Ministers and Deputy
Ministers . The Cabinet and Interdepartmental Committees on Security and
Intelligence should establish clear mandates with firm completion dates for
working groups at the S .A .C . level . Leadership at the Cabinet level requires
the designation of a lead Minister for policy in this area . The Solicitor General
would seem to us to be the logical Minister to be designated for most security
policy matters . In section C of this chapter we shall discuss his rôle as the
Minister responsible for the security intelligence agency .. There we shall argue
that the Solicitor General must continue to have within his Department, and
outside the security intelligence agency itself, a nucleus of personnel to advise
him on security matters . The Assistant Deputy Solicitor General who heads the
Police and Security Branch in the Solicitor General's Department should b e
850
�one of the most knowledgeable senior officials in the federal government on
security matters . It makes good sense for the person who holds this position to
continue to chair the Security Advisory Committee . There may be some areas
of security policy in which a department other than the Solicitor General's
Department has a more direct operational responsibility (for instance, security
screening for the Public Service) in which case the Minister responsible for
that department should be designated as the Minister responsible for bringing
forward policy proposals to Cabinet . The important point to bear in mind is
that adequate Cabinet attention to the various elements of security policy will
be ensured by assigning responsibility for each element to one or more
Ministers .
22 . The Secretary to the Cabinet and the Assistant Secretary for Security
and Intelligence must continue to play the primary role in overseeing and
co-ordinating the committees or working groups of security experts . It is
through the work of these interdepartmental groups co-ordinated by the Privy
Council Office that the perspectives - philosophical and technical - of the
different departments and agencies must be brought to bear on the resolution
of security problems . More effort should be made through this central coordinating mechanism to learn how security policies are working . In particular
it is important for the Privy Council Office to be able to keep the Minister
responsible for the security intelligence agency well informed about the impact
that the agency's work is having on the security clearance process . How often
are persons being denied a security clearance? For what reasons? Are the
departments following the recommendations of the security intelligence
agency? If not, why not? What major breaches of security have occurred in
government? What is their cause? It is on questions of this kind that the
central machinery of security policy' co-ordination should focus . No time
should be spent on routine meetings which are not channelled towards solving
policy problems recognized as reasonably urgent and in need of resolution by
Deputy Ministers and Ministers .
WE RECOMMEND THAT the Cabinet and Interdepartmental Committees on Security and Intelligence assume active responsibility for determining those security policy issues which require resolution and, where necessary, instruct the Security Advisory Committee or working groups of
officials to prepare draft proposals for submission by stipulated deadlines .
(160)
WE RECOMMEND THAT one or more Ministers be clearly designated
as responsible for bringing forward policy proposals to Cabinet on all
aspects of security policy, and that the Solicitor General be the Minister
responsible for the development of policies . governing the work of the
security intelligence agency .
(161)
WE RECOMMEND THAT the Secretary to the Cabinet and the Assistant Secretary to the Cabinet for Security and Intelligence continue to be
résponsible for overseeing the interdepartmental co-ordination of security
policies and that more emphasis be given to analyzing the impact of
security practices
government .
and policies on the departments and agencies of,
(162 )
851
�Intelligence policy and co-ordinatio n
23. Turning now to the committee system's role in formulating policy with
regard to intelligence priorities and in co-ordinating intelligence activities, we
think improvement is needed in two areas . First, there is a need for a more
effective process of identifying intelligence requirements for the Cabinet and
ensuring that these requirements have a direct and significant impact on the
work of the collecting agencies . The identification of the requirements entails
closer collaboration with the consumers, or users, of intelligence . A second area
of improvement concerns the analysis of the intelligence received and its use by
the intelligence consuming departments and agencies of government . The
structural changes which we shall recommend are directed towards realizing
improvements in these closely connected areas .
24 . We think that the logic which led to the amalgamation of security and
intelligence at the Deputy Minister level in 1972 (i .e . in I .C .S .I .) should now
also be applied to the central collation and assessment of intelligence . Under
the present system, domestic security intelligence and foreign intelligence are
dealt with separately : the Security Advisory Committee collates and prepares
assessments of current security intelligence, the Intelligence Advisory Committee does the same for foreign intelligence . As we have pointed out many times
in this Report, many of the threats to Canada's internal security have
international dimensions . The collation and distribution of reports about such
threats should not be split up into foreign and domestic compartments . Thus,
we think that the intelligence assessment and dissemination functions of the
Security Advisory Committee should be transferred to the Intelligence Advisory Committee .
25 . Some changes should be made in the structure of the Intelligence
Advisory Committee to enable it to function more effectively as a central
co-ordinating body for intelligence activities . This central co-ordinating work
must not be dominated or be perceived to be dominated by one or two
departments of government . It is essential that the perspectives of the various
collecting departments be reflected in the intelligence products the government
receives . We think what might be referred to as the "confederal" character of
this process will be enhanced if the Intelligence Advisory Committee is chaired
by the Assistant Secretary to the Cabinet (Security and Intelligence) rather
than by the Deputy Under Secretary of State for External Affairs (Security
and Intelligence) . In the past, the Department of External Affairs and the
R .C .M .P . have had their differences in assessing the significance of security
threats . These differences are inevitable and, indeed, their expression in the
intelligence process provides a desirable element of countervailance . These
differences, however, should not be resolved by one department having more
influence than the other on the intelligence assessment process . That is why we
think the official who presides over this process should be someone who reports
to the Secretary to the Cabinet and the Prime Minister .
26 . The membership of the I .A .C . should represent the community of intelligence producers and its major customers . If our recommendation to establish a
security intelligence agency separate from the R .C .M .P . is adopted, th e
852
�Director General of the new organization should certainly be a member of the
Committee just as the Director General of the present Security Service is a
member of the I .A .C . The R .C .M .P . should continue to be represented on the
Committee as a major consumer of security intelligence and because of its
liaison with the security intelligence agency . We think, too, that there should
be better representation of the economic departments of government on this
Committee. Certainly the Department of Finance should be represented, as
well, perhaps, as the Departments of Industry, Trade and Commerce, and
Energy, Mines and Resources . The central assessment of intelligence needs and
intelligence products has tended to focus on political and military intelligence .
We think this emphasis is too narrow and that as a result the Government of
Canada does not make the best use of the information at its disposal . The
integration of economic intelligence into the overall intelligence requirements
and priorities may contribute to a less narrow intelligence community, and one
perhaps more aware of the benefits to be gained from the intelligence machinery . In addition, the Treasury Board should be represented on the Committee in order to assist it in monitoring the costs of the different components of
the intelligence system .
27 . With these additions to the membership and with the integration of
security intelligence analysis, we think that the Intelligence Advisory Committee should continue with its present functions . One of these functions is the
production of current intelligence - analyzed information on events to assist
short-term decision-making. At present, the support staff of the Committee
who do most of the work in drafting papers is constituted by a small group of
officers seconded to the Privy Council Office, usually from the Departments of
External Affairs and National Defence, and from the R .C .M .P . Under our
suggested reforms this group would remain in the Security and Intelligence
Secretariat of the Privy Council Office under the supervision of the Chairman
of the Intelligence Advisory Committee . Its work in current intelligence would
follow the requirements and priorities as defined by the Committee and as
approved by the Interdepartmental Committee on Security Intelligence . With
the suggestions we have made for greater integration between producers and
consumers of intelligence, and for a broader definition of intelligence requirements, the current intelligence function would expand to include security
intelligence and economic intelligence in addition to political and military
intelligence .
28. While these changes in the functions and structure of the Intelligence
Advisory Committee will improve the collation and distribution of current
intelligence, this in itself is not enough . The aim of intelligence is to provide
information needed for informed decision-making by government . In addition
to current intelligence, there is a need for longer term, strategic estimates
assessing the likelihood that certain situations will exist or that certain events
will occur . The aim of such assessments or estimates is to attempt to reduce the
inevitable degree of uncertainty in making calculations about future situations .
A former Deputy Director of the C .I .A . has written that of "all the different
duties devolving on the C .I .A ." as a result of the National Security Act
" . . . the preparation and dissemination of national estimates is the mos t
853
�difficult, the most sophisticated, the most important ."' Maintaining a current
intelligence function and providing intelligence estimates provide the policymaker with information of use both in the short-term and in the longer term .
The existing interdepartmental committee system produces the occasional
long-term assessment, but we think the government's intelligence capacity in
this area needs strengthening . As for the domestic scene, our examination of
the intelligence situation with respect to separatist terrorism in Quebec during
1970 and afterwards leads us to draw the following inference . There are
indications that there was a deficiency in the machinery available to do
strategic long-term assessments within government of intelligence received
from various sources, including the Security Service .
29 . The lack of an interdepartmental security and intelligence assessments
programme singles Canada out from its close allies . A recent Australian Royal
Commission on Security and Intelligence recommended the establishment of
an assessments agency .2 Mr . Justice Hope, who headed the Australian Royal
Commission, found that in that country the assessment process suffered from
too great control by the Defence Department and the Department of Foreign
Affairs .' He also concluded that other departments of government did not take
any real part in setting intelligence targets and priorities .° He found, too, that
there was a lack of definition of roles and co-ordination which affected the
collectors of intelligence .' As was the case in Canada for much of the post-war
period, Mr . Justice Hope thought that too little emphasis had been placed on
non-military intelligence,6 and the Royal Commission proposed a centralised
assessment function .' Our review of the co-ordination of intelligence policy in
Canada has drawn us to some similar conclusions, including the need for a
centralized assessments body . The Australian body, which emerged as a result
of the Royal Commission's recommendations is called the Office of National
Assessment (O .N .A .) . Its functions and personnel arrangements are laid out in
the Office of National Assessments Act, 1977, that governs its operations .
30 . With these examples, and bearing in mind our criticisms of the intelligence analysis function as presently constituted, we propose the creation of a
Bureau of Intelligence Assessments . The Bureau should be centr ally located in
the Privy Council Office, but separate from the Security and Intelligence
Secretariat . The functions of the Bureau would be to produce intelligence
assessments under the direction of the Interdepartmental , Committee on Security and Intelligence and in line with the requirements and priorities set by the
Intelligence Advisory Committee and approved by the Interdepartmental and
the Cabinet Committees on Security and Intelligence . Following the Australia n
Ray S . Cline, Secrets, Spies and Scholars : Blueprint of the Essential C.I .A .,
Washington, Acropolis Books, 1976, p . 135 .
z Australia, Third Report of the Royal Commission on Intelligence and Security (The
Hope Report), Abridged Findings and Recommendations, Canberra 1978, para . 67 .
Ibid., para . 67 .
° Ibid., para . 48 .
S Ibid., para . 51 .
61bid., para . 53 .
Ibid., para . 59 .
'
- ,
854
�model, we think the Bureau should have a nucleus of its own intelligence
analysts augmented by officers seconded from the departments and agencies of
government with responsibilities for security and intelligence matters . It should
be headed by a Director General, an individual with experience in the
assessment of intelligence . We think he should report to the Prime Minister
through the Secretary to the Cabinet and should be a member of the I .A .C .
31 . It is our belief that the confederal character of the intelligence community should be retained in the work of the Bureau . Much of its work should be
carried out by working groups devoting their time and energies to specific
topics . In the preparation of papers on a subject which is likely to be perceived
differently by different departments of government, it would be wise to ensure
that representatives of these departments are included, or are consulted by the
working group . Departments with intelligence collecting functions must have
the opportunity to present their views to government if they dissent from the
assessment presented in a paper prepared by the Bureau . To provide for this
opportunity, consideration should be given to providing a clause in the legislation establishing the Bureau, similar to section 8(3) of Australia's Office of
National Assessments Act 1977 . That section requires that, where consultation
with departments has not produced a consensus, the Director Genera l
shall forward to each person to whom the assessment is furnished a
statement setting out the matter or matters in respect of which the
difference of opinion has arisen .
32 . It must be emphasized that the Bureau of Assessments would not be an
intelligence collecting agency . Its function would be confined to using the
intelligence collected by other departments and agencies of the Canadian
government and that obtained from other sources, and combining this with the
best available public sources of information to produce long-term assessments
of threats to Canada's security and vital interests . Nor would the Bureau be a
substitute for developing a strong analytic capacity within the security intelligence agency . As we have explained earlier, analysis is an essential ingredient
of the operational work of an effective security intelligence agency . The
agency's products must include short-term and long-term assessments of
security threats . These reports would often be used by the Bureau in its work .
In addition intelligence officers from the agency would frequently be members
of groups working under the Bureau's auspices on long-term estimates . l
33 . The Bureau should also make an important contribution to the process of
developing intelligence priorities . From its preparation of assessments it will be
in a position to identify shortcomings in the information or intelligence held by
government and, therefore, to help define the requirements and priorities of the
intelligence community .
34 . But the primary responsibility for developing annual intelligence priorities should continue to rest with the Requirements and Priorities Group which
functions under the supervision of the Intelligence Advisory Committee . The
Assistant Secretary to the Cabinet (Security and Intelligence) should forward
that group's recommendations to the Chairman of the I .C .S .I . The intelligence
requirements for security and foreign intelligence, including economic intelli855
�gence identified by the Bureau, should be integrated with the I .A .C .'s list of
intelligence requirements and be subject to discussion in an interdepartmental
environment, as well as to review by the I .C .S .I . and the Cabinet Committee on
Security and Intelligence . The links that exist between assessments and the
definition of priorities and requirements, together with the close links that exist
between current intelligence and intelligence assessments will, we think,
require a close working relationship between the Assistant Secretary to the
Cabinet and the Director General of the Bureau of Assessments . Also the
participation of the Solicitor General, the Deputy Solicitor General, and the
Director General of the security intelligence agency at each stage of the
process should ensure that the intelligence requirements established by the
government are reflected in the operational priorities of the security intelligence agency.
WE RECOMMEND THAT the collation and distribution of security
intelligence now carried out by the Security
Advisory Committee be
transferred to the Intelligence Advisory Committee and that the work of
the Intelligence Advisory Committee in collating current intelligence and
advising on intelligence priorities be broadened to include security intelligence and economic intelligence .
(163)
WE RECOMMEND THAT the
chaired
Intelligence
Advisory Committee be
by the Assistant Secretary to the Cabinet (Security and
Intelligence) .
(164)
WE RECOMMEND THAT the membership of the Intelligence Advisory
Committee include, among others, the Director General of the security
intelligence agency, the Commissioner of the R .C .M .P. and representatives
of the Department of Finance and the Treasury Board .
(165 )
WE RECOMMEND THAT a Bureau of Intelligence Assessments be
established to prepare estimates of threats to Canada's security and vital
interests based on intelligence received from the intelligence collecting
departments and agencies of the government and from allied countries and
that it be under the direction of a Director General who reports to the
Prime Minister through the Secretary of the Cabinet .
(166 )
C . MINISTERIAL DIRECTIO N
35 . A discussion of the ways in which the security intelligence agency should
be directed by its Minister and the Prime Minister entails a study of how the
agency should itself relate to the responsible Minister and to the Prime
Minister . It also requires a determination of who ought to be the responsible
Minister and how those reporting to him on security matters ought to be
structured . Confusion and controversy in the past as to precisely what role
ought to be played by the Prime Minister, the Solicitor General, the Deputy
Solicitor General, the Commissioner of the R .C .M .P . and the Director General
of the Security Service not only have been responsible for wasted time and
856
�energy but also have contributed to the creation of an environment in which
many of the activities which have been investigated by us have been allowed to
take place . Direct and clear lines of responsibility and reporting relationships
can go a long way to preventing future abuses .
36. Before embarking on an examination of what the extent of ministerial
direction ought to be and how it ought to be effected, a brief look at
developments in the past and the current status will -make clear what changes
ought to be made and what pitfalls ought to be avoided in the future .
Legalbackground
37 . As a starting point it is useful to recall the legal basis for the existence of
the Security Service . Section 18 of the R .C .M .P. Act" sets out the duties of
members of the Force who are peace officers :
18 . 1t is the duty of members of the Force who are peace officers, subject to
the orders of the Commissioner ,
(a) to perform all duties that are assigned to peace officers in relation to
the preservation of the peace, the prevention of crime, and of offences
against the laws of Canada and the laws in force in any province in
which they may be employed, and the apprehension of criminals and
offenders and others who may be lawfully taken into custody ;
(b) to execute all warrants, and perform all duties and services in relation
thereto, that may, under this Act or the laws of Canada or the laws in
force in any province, be lawfully executed and performed by peace
officers ;
(c) to perform all duties that may be lawfully performed by .peace officers
in relation to the escort and conveyance of convicts and other persons
in custody to or from any courts, places of punishment or confinement,
asylums or other places ; an d
(d) to perform such other duties and functions as are prescribed by the
Governor in Council or the Commissioner .
Thus it will be seen that the Governor in Council is authorized to specify
"other duties and functions" but only with respect to those members "who are
peace officers" .
38 . Section 21 of the Act gives the Governor in Council further authority to
make regulations and also gives the Commissioner authority to make rules in
precisely the same areas, exclusive of the power to make regulations generally .
It reads :
21 . (1) The Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of
the Force and generally for carrying the purposes and provisions of this Act
into effect .
(2) Subject to this Act and the regulations made under subsection (1), the
Commissioner may make rules, to be known as standing orders, for the
organization, training, discipline, efficiency, administration and good government of the Force .
I R .S .C . 1970, ch .R-9 .
857
�39. Pursuant to its regulation making powers, the Governor in Council passed
the R .C .M .P . Regulations,9 regulation 24 of which provides the only specific
authority for the maintenance and operation of a Security Service, in the
following terms :
24 . In addition to the duties prescribed by the Act, it is the duty of the
Force :
(e) to maintain and operate such security and intelligence services as may
be required by the Minister .
One other mention of the Force's security role used to be found in regulation
110 of the same Regulations where provision was made for the position of the
Director General . It stated :
110 . No person shall be appointed a civilian member unless he is of good
character and physically fit to perform the duties of the position to which
he is appointed and to perform one of the following duties :
r . Director General - Security and Intelligence .1 0
That provision was dropped in the consolidation of the Regulations in 1978 .
40. On this legal base is built the edifice of the R .C .M .P . Security Service . In
our opinion this legal foundation is not firm . It is at least doubtful whether, the
Act having delegated authority to the Governor in Council to make regulations
(sections 18 and 21), the Governor in Council can then sub-delegate that
authority by Order-in-Council to the Minister [regulation 24(e)] ." Had the
duties been assigned directly by the Commissioner of the R .C .M .P . under the
powers of prescription granted to him under section 18(d) of the Act this
difficulty might have been avoided . However, even in that case the Commissioner's powers are limited to prescribing the duties and functions of members
"who are peace officers", and therefore would not extend to the civilian
members of the Security Service, one of whom is the Director General . In
addition, the Commissioner's assignment of responsibilities to the Security
Service might have excluded the direct involvement of the Minister .
41 . Even assuming that the R .C .M .P . can in fact legally be assigned duties
and functions in the security field, there are further legal problems with respect
to the way in which those duties and functions have been assigned . In Part II,
Chapter 2, we defined the present role assigned to the Security Service . Much
of that role has been assigned by Cabinet Directive or by Record of Decision of
Cabinet . Neither of these methods is provided for in the R .C .M .P. Act or
Regulations, and therefore neither would appear to possess any statutory legal
authority . It might be argued that the Cabinet was acting under prerogative
authority of the Crown but it is at least debatable whether any such prerogative remains, Parliament in the R .C .M .P . Act having provided the means by
which the Crown may direct the R .C .M .P . - by regulations or by the Solicito r
' C .R .C ., ch .1391 .
10 P .C . 1969-14/2318 .
" A/G Can . v . Brent (1956) 2 D .L.R . (2d) 503 (Supreme Court of Canada) .
858
�General's direction .1z Since the Solicitor General is a member of the Cabinet, it
also could be argued that the Cabinet directions (for example, the Cabinet
Directive of March 27, 1975) are in fact his directions under regulation 24(e)
as he is a member of the Cabinet, but this seems to be a rather imprecise way
of dealing with the matter .
42 . Setting aside the problems mentioned above relating to the legal assignment of security duties and functions to the R .C .M .P., we turn to an examination of the legislation as it affects the responsibilities of the key participants .
Our purpose here is simply to point out the problems in the current legislation
as they affect ministerial direction in the security field . It must be borne in
mind that when we speak here of the Commissioner of the R .C .M .P . we are
considering him in his capacity as the person responsible for the Security
Service, the Director General of the Security Service being simply the Commissioner's deputy for that purpose . We shall be analyzing these latter
problems, as they relate to the policing role of the R .C .M .P . in Part X, Chapte r
4.
43 . Our present examination requires an analysis of the legal relationships
between the Commissioner, the Solicitor General and the Deputy Solicitor
General . This has been a vexing problem, at least since the creation of the
Department of the Solicitor General, and has been a major contributing factor
to the present difficulties of the Security Service . Prior to January 1, 1966, the
R .C .M .P. reported to the Minister of Justice . In 1965 the government of the
day decided that a new department should be created under an already existing
Minister of the Crown, the Solicitor General . There were at least two reasons
for this decision . First, it was felt that the Minister of Justice was overburdened
with responsibilities, departmental and otherwise, and consequently was unable
to give proper consideration to all of them : in addition to his normal departmental duties, the Minister of Justice was also the Minister responsible for the
Canadian Penitentiary Service, the National Parole Board and the R .C .M .P . It
is clear that by 1965 the R .C .M .P . was receiving little direction or guidance at
the ministerial level . Nor did it appear to be seeking any . Although the
R .C .M .P . was not dissatisfied with a relationship which enabled them to
operate in a semi-autonomous fashion, the lack of supervision and civilian
control was considered by the government to be undesirable . It was believed
that one consequence of transferring responsibility for the R .C .M .P . to a
Minister with fewer responsibilïties would be more direction given by the
Minister in security matters . The second reason for the creation of the
Department of the Solicitor General was -a growing awareness on the part of
the government that there was a theory of "social defence" in the system of
criminal justice which had a logic to it and required more attention . This
theory looked at the path of a criminal from detection and apprehension,
through conviction and detention, to parole . There is, according to the adher1z In Attorney General v . De Keyser's Royal Hotel [1920] A .C . 508 the principle was
established that the conferment of statutory powers upon the Crown may prevent the
Crown from using prerogative powers which otherwise would have been available to
it : Wade and Phillips, Constitutional and Administrative Law, London, Longman, 9
ed ., 1977, p . 239 .
859
�ents to the theory, a need to tie the components together to ensure that full
consideration is given to the impact in one area of any change made in another
area . It was determined, however, that in order to protect the rights of the
individual prior to conviction there was one aspect that ought not to be too
closely tied in with the others . That was the prosecutorial role . Thus it was
decided that the police, penitentiaries and parole should be placed under one
Minister who would have enough time to integrate them and develop them as a
system . At the same time, by removing them from the Minister of Justice, the
direct connection with the prosecutorial function would be severed .
44 . As is usually the case with government reorganizations, the necessary
steps to accomplish the reorganization were taken in advance, with the
forthcoming legislation in mind . On December 22, 1965 an Order-in-Council
was passed,13 to be effective January 1, 1966, which transferred to the Solicitor
General responsibility for supervision of the R .C .M .P . and for control or
supervision of the Canadian Penitentiary Service as well as the powers, duties
and functions of the Minister under the relevant Acts, including the National
Parole Act . The Order further provided that, pursuant to section 2(1) of the
Civil Service Act, the Commissioner of the R .C .M .P., the Commissioner of
Penitentiaries and the Chairman of the National Parole Board were each
designated as deputy heads for the purposes of that Act . This latter designation
was necessary because, although there was a new Minister responsible for the
agencies, he had no department or deputy minister, both of which required
legislation to bring them into existence . This was the embryo Department of
the Solicitor General, which came into being when the Governmént Organization Bill was passed in 1966 . That Bill included the Department of the Solicitor
General Act,14 which became law on October 1, 1966 . (In Part II, Chapter 2,
section E, we described the creation of the Department, which was based on
"The Swedish Ministry" concept . )
45. There appears to have been no effort to make the provisions of the new
Department of the Solicitor General Act compatible with those of the existing
R .C .M .P . Act . Nor was any effort made in the legislation to define clearly the
responsibilities of the different positions involved . Section 4 of the Department
of the Solicitor General Act sets out the "normal" ministerial powers of the
Solicitor General vis-à-vis the R .C .M .P . :
The duties, powers and functions of the Solicitor General of Canada extend
to and include all matters over which the Parliament of Canada has
jurisdiction, not by law assigned to any other department, branch or agency
of the Government of Canada, relating to . . .
(c) the Royal Canadian Mounted Police .
This section does not say what the Solicitor General's duties, powers and
functions are in relation to the R .C .M .P. It simply states that he has those
duties, powers and functions falling within federal jurisdiction "not assigned by
law" to any other federal "department, branch or agency" . One consequence of
this section is that if any other statute assigns duties, powers or functions to th e
" P .C . 1965-2286 .
'a R .S .C . 1970, ch .S- 1 2 .
860
�Minister responsible for the R .C .M .P . then the "Minister" referred to is the
Solicitor General . An example of this would be section 54 of the Canadian
Human Rights Act15 which empowers a Minister to exempt databanks . In
relation to the R .C .M .P . databanks the "Minister" is therefore the Solicitor
General .
46. Difficulties arise when section 4 of the Department of the Solicitor
General Act is examined in conjunction with the R .C .M .P . Act . To the extent
that any power, duty or function can be said to be assigned by the R .C .M .P .
Act to another department, branch or agency, that power, duty or function will
be excluded from those of the Solicitor General . There are certain sections of
the R .C .M .P . Act which appear to fall clearly within that category - for
example, the authority given to the Treasury Board in sections 6(2) and 7(2) of
the Act to prescribe the maximum number of officers and members in the
Force . But what of the powers assigned to the Commissioner of the R .C .M .P.?
Section 5 of the Act16 provides :
The Governor in Council may appoint an officer to be known as the
Commissioner of the Royal Canadian Mounted Police who, under the
direction of the Minister, has the control and management of the Force and
all matters connected therewith .
Do the words "control and management" cover all the activities of the
R .C .M .P . or are they limited to administrative matters? If the words are so
limited, what respective roles do the Minister and the Commissioner play in
activities not covered by the limitation? And do the words "all matters
connected therewith" refer to "the Force" or do they refer to "the control and
management of the Force"? And what is the meaning of the French version of
section 5 which does not appear to say the same thing as the English version?
We shall discuss this question of the meaning of section 5 in greater detail in
Part X, Chapter 4, when considering the powers of the Minister and the
Commissioner on the policing side . Certain other areas of authority are dealt
with specifically in the R .C .M .P . Act . For example, the Governor in Council
and the Commissioner are given specific authority in section 21, previously
cited . Further, by virtue of section 7 of the Act the Commissioner is given
authority to appoint members other than officers . Presumably under either of
those sections, and others similar to them in the Act, the Commissioner does
not fit the category of a "department, branch or agency of the Government of
Canada" as contained in section 4 of the the Department of the Solicitor
General Act . If that assumption is correct, is the Commissioner subject to the
authority given to the Minister in section 4? If the Commissioner does not fall
within the exclusions found in section 4 then what legal reason was there for
not amending section 5 of the R .C .M .P . Act which gives the Minister a specific
power of "direction" in relation to "control and management"? The only other
section of the R .C .M .P. Act which purports to give the Minister authority to
perform an act is section 20(1) . That section empowers the Minister, with the
approval of the Governor in Council, to contract with a province to provid e
15 S .C . 1976-77, ch .33 .
16 R .S .C . 1970, ch .R-9 .
861
�policing by the R .C .M .P . or, with the approval of the Lieutenant Governor in
Council of a province, to contract with a municipality for the same purpose . It
will be noted that this section simply adds to the powers of the Minister and
does not purport to affect his relationship with the Commissioner .
47. Short of statutory amendment, we do not think there can be any
reasonable answer given to the various questions we have posed . We think that
all the necessary amendments should be made to make it clear, beyond any
doubt, that the Minister has full power over all activities of the security
intelligence agency . We shall set out in Part X, Chapter 4, our views as to what
the Minister's powers ought to be with respect to the R .C .M .P .'s policing role .
We do not consider that any restrictions which should be placed on ministerial
direction of peace officers should in any way be intended to derogate from the
powers of the Minister in connection with the duties of the security intelligence
agency. We shall expand on this shortly, but first we shall look briefly at the
legal status of the Deputy Solicitor General in relation to the R .C .M .P ., a
relationship which, as we have already mentioned, applies to the Security
Service .
48 . Section 23(2) of the Interpretation Act" reads as follows :
(2) Words directing or empowering a Minister of the Crown to do an
act or thing, or otherwise applying to him by his name of office, include a
Minister acting for him, or, if the office is vacant, a Minister designated to
act in the office by or under the authority of an order in council, and also
his, successors in the office, and his or their deputy, but nothing in this
subsection shall be construed to authorize a deputy to exercise any authority conferred upon a Minister to make a regulation as defined in the
Regulations Act .
In the absence of anything to the contrary that section would appear to make it
clear that whatever statutory authority the Solicitor General has with respect
to his office is also granted to the Deputy Solicitor General, exclusive of the
power to make regulations . The authority thus acquired by the Deputy
Solicitor General would normally extend to the R .C .M .P. However, since at
least 1965 the Commissioners of the R .C .M .P. have consistently taken an
opposite view . In their opinion the Deputy Solicitor General does not stand
between them and the Solicitor General for any purpose whatsoever . It has
been, and continues to be, contended by them that the Commissioner is the
deputy head (in the sense of being the Deputy Minister) of the R .C .M .P . for
all purposes . They have argued that, with respect to section 23(2) of the
Interpretation Act, it is the Commissioner who is the "deputy" in relation to
the R .C .M .P . Some legal support for this position can be found in both the
legislation and two Orders-in-Council .
49. The statutory support arises out of the changes in relevant legislation .
The North-West Mounted Police Act, 1873, provided that :
The Department of Justice shall have the control and management of the
police and all matters connected therewith : but the Governor-in-Counci l
" R .S .C . 1970, ch .1-23 .
862
�may, at any time, order that the same shall be transferred to any other
Department of the Civil Service of Canada . . 1 1
That Act also made the Commissioner of the Force "subject to the control,
orders and authority of such person or persons as may, from time to time, be
named by the Governor-in-Council for that purposé" .19 These sections clearly
envisaged that the Force was not merely under the Minister but that the
"control and management" belonged to the "Department" . Just over twenty
years later this formula had changed . It then provided that "such member of
the King's Privy Council for Canada as the Governor-in-Council from time to
time directs, shall have the control and management of the Force and of all
matters connected therewith" .20 By 1959, the-relevant sections of the R .C .M .P .
Act had adopted the present wording of section 5 which speaks of the
Commissioner having "control and management" under the direction of the
"Minister" . The Minister at that time was the Minister of Justice . There is no
mention of any departmental involvement . It is argued that this removal of
explicit statutory departmental jurisdiction, when coupled with the •other
statutory powers bestowed on the Commissioner in the R .C .M .P . Act, gives the
Commissioner deputy head status .
50 . Further support for the proposition is found in two Orders-in-Council .
The first of these was the one mentioned earlier which was passed on
December 22, 1965 .21 It designates the Commissioner as the "deputy head" of
the R .C .M .P. for the purposes of the Civil Service Act . The second was passed
on October 5, 196722 and designates the Commissioner as "deputy head" for
the purposes of the Public Service Employment Act .' That latter Act had
replaced the Civil Service Act which had been repealed .
51 . But neither the R .C .M.P . Act nor the two Orders-in-Council, nor any
other statute or statutory instrument, makes the Commissioner the deputy of
the Minister for the purposes of section 23(2) of the Interpretation Act,
thereby giving the Commissioner the full powers of a deputy with respect to the
R .C .M .P . None of the other principal Acts which organize the legal status and
powers of the constituent parts of the Public Service and their chief executive
officers designates the R .C .M .P . as a "department" . The Public Service Staff
Relations Act '23 by virtue of the definition of "Public Service" in section 2 and
the listing of the R .C .M .P . in Schedule I to the Act, does make the R .C .M .P. a
separate "portion" of the Public Service . That same definition has been
incorporated, by reference, into the Public Service Employment Act .24 But
there is no designation of the R .C .M .P . as a "department" as distinct from a
"portion" of the Public Service .
18 36 Vict ., ch .35, s .33 .
"36 Vict ., ch .35, s .l I .
20 57-58 Vict ., ch .27, s .3 .
21 P .C . 1965-2286 .
22 P .C . 1967-1898 .
23 R .S .C . 1970 ch .P-35 .
24 R .S .C . 1970, ch .P-32, section 2(1) .
863
�Attempts at resolution of the proble m
52 . It is not our intention to try to come to a conclusion as to the current legal
status, within government, of the R .C .M .P . and its Commissioner . Our purpose
in cataloguing the legal problems set out above is simply to show that a very
real problem does exist . The lines of disagreement were drawn very shortly
after the creation of the Department of the Solicitor General . Ministers who
held the Solicitor General portfolio in the early days of the Department took
different views as to what role should be played by the Deputy Solicitor
General and the Commissioner . Mr . Ernest Côté, who was the second Deputy
Solicitor General, serving from December 15, 1968 to July 31, 1972, spent a
great deal of time and effort trying to resolve the problem . It was his position
that the Deputy Solicitor General was the "alter ego" of the Solicitor General
for all purposes (Vol . 307, pp . 300, 752) . According to Mr . Côté, his position
was strenuously resisted by the Commissioner of the day (Vol . 307, pp . 300,
745) .
53 . On January 27, 1971, shortly after Mr . Goyer was appointed Solicitor
General, * the Prime Minister wrote to him with his views as to what the
relationship ought to be between the Deputy Solicitor General and the heads of
the R.C .M .P., the Canadian Penitentiary Service and the National Parole
Board . The Prime Minister suggested that the problems be reviewed with the
purpose of finding some solutions . He said :
To begin with, you must endeavour to foster within these three
components of your Department a spirit of understanding and solidarity
which has hardly been encouraged by their long-established hierarchical
structure and independence . The senior officials, in particular, seem suspicious of and distant with both one another and the Deputy Minister . This
behaviour has prevented them from developing bonds of trust and a spirit of
understanding and solidarity - elements which are essential to the smooth
operation of the Department .
This problem could no doubt have been resolved at the outset by
unifying the three agencies under a single firm authority, instead of
allowing them to develop their own structure and autonomy . The decision
made at the time was a sound one which complied with the desire to work
out an arrangement that, while guaranteeing the exercise of central authority, permitted the existence of a decentralized administration . This decentralized structure was to remain under the overall authority of the central
body which was responsible for allocating resources . It had been anticipated
that, under the supervision of the Deputy Minister, the authority exercised
by the departmental team would be firm enough to foster confidence and
co-operation within these three agencies without diminishing unduly the
autonomy they needed .
Therefore, in my opinion, the solution lies not in carrying out a total
merger of the Department's components but rather in ensuring mutual
co-operation and co-ordination . Contrary to current practice, in order to
manage the affairs or allocate the resources of your Department, your
Deputy Minister must have at his disposal all the information needed to
advise you or, as required by his duties, to act for you in any matter . He
must also be able to rely on the full co-operation of the officials responsible
for each of the agencies .
864
�Therefore, I ask you to take into account the measures advocated many
times by your predecessors - specifically, the idea that the three departmental agency heads should refer all departmental matters to you through
your Deputy Minister . In this regard, it would no, doubt be advisable to
review Orders-in-Council 1965-2286 and 1967-1898, the terms of which
inevitably complicate relations between your Deputy Minister -and the
departmental agency heads . I feel that it is important to seek the most
acceptable solutions with respect to relations between your officials as well
as to management, personnel and the budget . Your Deputy Minister could
submit these problems to the Committee of Senior Officials which could
study them and suggest a way of resolving them .
In my opinion, measures of this kind would help to improve the
operation of your Department . I do not think there is any need to pursue
matters further and apply the Government Organization Act, 1966, in
accordance with the original intent . Your task is rather to establish clearly
that you are counting on and require everyone's co-operation, that your
Deputy Minister will frequently act on your behalf, that it is through him
that you are seeking to obtain the necessary co-operation, and that you are
expecting him, in his turn, to act in a manner which will not undermine the
leadership, authority and responsibility of the departmental agency heads .
Ideally, the Deputy Minister and the agency heads should work together as
a team in a spirit of openness, understanding and good will . The climate
which must be established within your Department would be undermined
by the imposition of strict hierarchical relations on either side . In my view,
a good way of fostering a climate of this kind - one which I hope you will
often resort to - is to invite study groups and task forces set up within your
Department to participate in the formulation of new policies . Their combined efforts could not help but increase the effectiveness of their activities . ,
54. In the Spring of 1971 the problem was referred to a Committee of senior
officials, chaired by the Secretary to the Cabinet, but no resolution was
forthcoming from that Committee by the time Mr . Côté left office . The
Treasury Board and the Public Service Commission were both treating the
Commissioner as a deputy head and the R .C .M .P . was acting as a department
of government completely independent of the Department of the Solicitor
General, although reporting to the same Minister .
55 . The result of this autonomy of the R .C .M .P . was that the Solicitor
Gèneral was not able to obtain any independent advice or guidance from his
Deputy Minister on police or security matters . When Mr . Goyer became
Solicitor General he initiated the practice of having the Deputy Solicitor
General present at all his meetings with the Commissioner and the Director
General except when warrants for electronic surveillance were being considered . But simply having the Deputy Solicitor General present at meetings
did not solve the problem of how the Solicitor General was to examine and
analyze all the information which was being passed to him by the R .C .M .P .,
particularly on the security side . It was in part to alleviate this problem that a
group was set up in the Secretariat of the Department of the Solicitor General
to analyze and assess information received from the Security Service and to
advise the Solicitor General with respect to it, and when appropriate, to report
the information within government . That group was created on May 14, 197 1
865
�and was called the Security Planning and Research Group (SPARG) . It was
not its role to monitor the activities of the Security Service, nor did it have any
authority to get information from the Security Service if the latter refused to
provide it . Indeed, from the outset SPARG was denied access to operational
files by the Security Service and only has such access now in connection with
its review of applications by the Security Service for warrants for electronic
surveillance . SPARG was set up with the approval of the Director General of
the Security Service, although he would have preferred to see it located in the
Privy Council Office. With respect to the work of the Security Service,
SPARG performed a service essentially confined to handling the liaison
between the Security Service and the Minister . That SPARG worked successfully in this limited role was manifested by the extension of its mandate, at the
request of the R .C .M .P ., to include police matters . When that occurred its
name was changed to the Police and Security Planning Branch ( PSPB), which
was subsequently modified to the Police and Security Branch (PSB) .
56. We have described the development and current role of SPARG in Part
II, Chapter 2, section E, in discussing the place of the Department of the
Solicitor General in the security system of the government . We therefore
simply wish to repeat here that PSB, the successor to SPARG, is the centre
within the Department of the Solicitor General in which the security policy
advice to the Minister originates and it has all the limitations which we
previously discussed .
57 . Over the past few years a modus vivendi has been worked out between
the Solicitors General, Deputy Solicitors General and Commissioners of the
R .C .M .P . based on the "ministry" concept which we have described in Part I1,
Chapter 2 . It is now understood that the Deputy Solicitor General is the
principal adviser of the Solicitor General . He is responsible for coordinating
the development of policies and legislation . He is also responsible in large part
for federal-provincial relations and for the organization of meetings with the
provinces at the level of Ministers and senior officials . He is also, of course, the
deputy head of the Secretariat of the Department . The Commissioner is the
deputy head for purposes of the R .C .M .P . and is responsible for its operations .
He therefore reports directly to the Solicitor General on operational matters .
We are advised that, because the Deputy Solicitor General is the principal
adviser, he is present, except on rare occasions, at all meetings between the
Solicitor General and the Commissioner and he sees all correspondence and
documents between them . A very recent change is that the Deputy Solicitor
General is now present when the Director General is seeking warrants for
electronic surveillance . Working together, the Commissioner concentrates on
operations and the Deputy Solicitor General's emphasis is on overall policies
and directives, legislation and research . That this current system was for some
time an uneasy truce can be seen by the attempts of the R .C .M .P . to revert to
previous practices when the Solicitor General's portfolio changed hands from
Mr . Goyer to Mr . Allmand on November 27, 1972 . Mr . Goyer had insisted
that the Deputy Solicitor General be involved in all dealings with the R .C .M .P .
(Vol . 120, pp. 18831-32) . After Mr . Allmand assumed office, the Force was
reluctant to include the Deputy in some matters and Mr . Allmand had to insist
that they do so (Vol . C71, p . 9924 et seq .) .
866
�Proposed role of the Ministe r
58 . Having examined the present situation we turn now to our proposals as to
how ministerial direction ought to be exercised with respect to the new security
intelligence agency which we advocate be created . The main question is
whether the Minister should be limited in any way as to the matters over which
he should have the power of direction . The argument in favour of limitation is
based on the very real concern that the Minister might give a direction based
on improper considerations . For example, the Minister might direct that
surveillance take place in order to harass a political opponent or direct that
surveillance not take place in order to protect a personal friend . Direction
based on partisan or political considerations is clearly wrong, but in our view
the protection against such improper direction can be achieved otherwise than
by making the Director General independent of ministerial direction . In
Chapter 2 of this part of the Report we shall be recommending the creation of
an independent review body, one of whose prime responsibilities will be to
provide protection against improper direction by investigating and reporting to
a Parliamentary Committee any . .instances that it finds of such improper
direction . Were there no such protective mechanism we could see some merit
for restricting the Minister as has been done in Australia .25 However, even then
we would be very concerned about placing independent authority in the hands
of the Director General, a non-elected official responsible to no one for the
exercise of that authority . We have discussed this question in greater detail in
Part VI, Chapter 2 .
59 . It has been suggested, both in evidence before us and in statements
elsewhere, that there should be limitations on the power of direction of the
Minister based on a perceived dichotomy between policy and operations . For
example, consider the following evidence given to the Commission by the
present Commissioner of the R .C .M .P .
A . . . . The Minister's role, I suppose, the most basic - really as I
understand it, is really a policy role . Not an operational director in any
sense ; although when you are in the security areas, he gets very close to
operations, because he does control your warrants, and you produce the
intelligence product, if you want, which is the papers that are produce d
25
Australian Security Intelligence Organization Act,
follows :
1979, section 8(2) reads as
In the performance of his functions under this Act, the Director General is
subject to the general directions of the Minister, but the Minister is not
empowered to override the opinion of the Director Genera l
(a) on the question whether the collection of intelligence by the Organization concerning a particular individual would, or would not, be justified
by reason of its relevance to security ;
(b) on the question whether a communication of intelligence concerning a
particular individual would be for a purpose relevant to security ; o r
(c) concerning the nature of the advice that should be given by the
Organization to a Minister, Department or authority of the
Commonwealth .
867
�as a result of your work, which is for the purpose of government, and so
on . Thus, they are in a position where they can see what you are doing,
and ask questions and one thing or another, which is, I think, their
proper role .
Q . But if you are a deputy head for certain matters, if the policy of the
Force is issued under your signature, be it the criminal investigation
side or the Security Service side, now, you say the Minister has control
over policy . What is there left for him ?
A . Well, you know, perhaps a definition of policy is needed . I think, you
know, to me, policy - I suppose the law itself is the ultimate expression
of policy . And under the law, there are various directives and orders
and Cabinet directives, and something or another, all of which are
reflections of government policy . And then, you get down to what we in
the Force sometimes call policy, which is really not government policy
in the broad sense . It is operational directives and policies to guide our
operations and so on . And even that comes in a variety of levels, if you
like .
Now, the Minister has great responsibility for the first area that I
spoke of: proper laws, proper guidance in the broad sense, and one
thing and another . But much less when it comes to the directing of the
Force . There are also many other policies in the Force, particularly in
the administrative side, that flow out of directives that are not in the
control of the Minister at all : Treasury Board Directives with respect
to many operations all across government, and so on, from which we
develop directives in the Force, and so on . So, the problem in using
simple words like policy, is to know exactly what we are talking about .
(Vol . 164, pp. 25214-6 . )
Prime Minister Trudeau has made the same distinction in explaining his
government's approach to security matters . He said ,
We in this government and I believe it was the case with previous
governments, have removed ourselves from the day to day operations
of the Security Services . . . We just make sure that the general
.
directives are those which issue from the government and the example
of that kind of directive was given in the guidelines of March 1975 . 2 6
60. In our view such a distinction between policy and operations leads to
insurmountable difficulties in application, and even worse, it results in whole
areas of ministerial responsibility being neglected under the misapprehension
that they fall into the category of `operations' and are thus outside the
Minister's purview . This neglect has been apparent in what might be called the
policy of operations - those policies which ought to be applied by the Security
Service in its methods of investigation, its analysis of the results of investigations and its reporting on those results to government . All policies of operations
must receive direction from the ministerial level . For instance, whether or not a
particular new foreign target ought to be the subject of surveillance and, if so,
what methods of surveillance ought to be employed are questions which
Ministers should decide as a matter of policy even though such a decision could
clearly be described as involvement in operations . Policy and operations in the
26 House of Commons, Debates, November 2, 1977, p . 568 .
868
�security field are not severable and any attempt to make them so is doomed to
failure . Two further examples should suffice . In the work of a security
intelligence agency important policy questions concerning the distinction between legitimate dissent and subversive threats to the security of Canada will
arise in the context of deciding whether or not to initiate surveillance of a
particular individual or group . Similarly, questions will arise about the legality
and propriety of a particular method of collecting intelligence in the context of
a particular case . Obviously, the Minister cannot direct the day-to-day operations of the agency any more than can the Minister of any other department do
so with respect to his or her department . However, there must be no fetters on
the Minister's legal right to give such direction provided that such direction is
consistent with the authority granted to the security intelligence agency under
the Statute . In the instances we have mentioned above, and others where
day-to-day operations raise significant policy questions, the Deputy Minister
and the Director General must keep the Minister informed and seek his advice
and direction .
61 . In directing the security intelligence agency the Minister must not be
simply reactive to proposals brought to him by the agency . He must also take
the initiative in developing policies and guidelines, and in reviewing activities of
the agency . Without attempting to be exhaustive we think the Minister should
be responsible for the following :
(i) developing policy proposals for administrative or legislative changes
with regard to the activities of the security intelligence agency and
presenting such proposals to the Cabinet or Parliament ;
(ii) developing guidelines with respect to investigative techniques (e .g .
on use of informants) and reporting arrangements ;
(iii) continuous review of the agency's progress in establishing personnel
and management policies required by government ;
(iv) reviewing difficult operational decisions involving any questions
concerning legality of methods or whether a target is within the
statutory mandate;
(v) reviewing targetting priorities set by the government and ensuring
that the agency's priorities and deployment of resources coincide
with the government's priorities ;
(vi) approving proposals by the Director General to conduct full investigations and to apply for judicial authorization of investigative
techniques (e .g . electronic surveillance and mail checks) ;
(vii) approving liaison arrangements with foreign countries after consultation with the Secretary of State for External Affairs ;
(viii) approving liaison arrangements with provincial and municipal
police forces and government ; an d
(ix) authorizing reporting of security intelligence to the media .
62 . The Minister cannot, of course, carry out his powers of direction without
adequate advice and assistance . Normally in government a Minister looks to
the, agency or department for which he is responsible for such advice and
assistance . This system is usually satisfactory because of the myriad of othe r
869
�ways in which inadequacies or improprieties of the agency or department can
be brought to his attention . For example, most departments of government
have a constituency within the country which will be quick to express its
concerns to the Minister, such as farmers, labour, business, consumer groups,
universities, and other levels of government . In addition, within government,
certain central agencies are charged with the specific responsibility of ensuring
that the operating departments and agencies "toe the line" . Also, to the extent
that one department's activities border on those of another department there is
a certain amount of monitoring of the other department's activities . Parliament
itself has a large role to play in this scrutiny through its examination of
estimates, question period, debates on legislation, and so on . Moreover, the
media are always searching for stories . Through all of these processes and
others, a Minister is normally made aware of problems and difficulties of both
a policy and operational nature . He is then able to seek answers from his
department and give direction on the basis of the information and advice
received . Such is not the case with an agency whose activities are essentially
secret . Very few people either inside or outside government have much of an
idea what the agency is doing . Moreover, if the agency is to function as it must,
not much can be done to change that situation . Certainly not a great deal can
be made public so as to put into play the forces of the media and interest
groups. Implementation of our recommendations with respect to a statutory
base for security activities would offset the problem to some extent, as would
our suggestions for more adequate reporting to Parliament on the extent of
electronic surveillance and other intrusive techniques requiring warrants .
63 . Within government, our proposals as to the role to be played by the
Committee system and the Cabinet secretariat, and as to the increased
activities to be undertaken by the Department of Justice should each help to
make available to the Minister a larger pool of knowledge and advice . As a
further source we place great store in the reports to the Minister by the
Advisory Council on Security and Intelligence, the creation of which we shall
recommend in the next chapter .
64. At the parliamentary level, the special Committee which we envision
should also be of some assistance to the Minister, not as a source of information, but rather as a guide on general policies . In discussing matters with that
Committee the Minister will no doubt wish to use its members as a sounding
board for some of the more difficult policy areas .
Role of the Deputy Ministe r
65 . However, none of these sources of information and advice can serve as a
substitute for the information that the Minister must get from the agency and
the advice that he must get from his senior officials . In Part VI, Chapter 2, we
recommended that the Director General report to the Deputy Minister rather
than directly to the Minister . The purpose of this recommendation is to avoid
the concentration of too much power in the hands of the Director General, who
will have a statutory term of office and whose appointment will have been
made after consultation with the leaders of the opposition parties in the House
of Commons . The Deputy Minister should be considered for all purposes as th e
870
�`alter ego' of the Minister . Section 23(2) of the Interpretation Act should apply
to the Deputy Minister in his relations with the security intelligence agency .
Also, the Deputy Minister should be the `deputy head' for the agency for the
purposes Of all applicable legislation .
66 . The paramountcy of the Deputy Minister having been thus established,
we hasten to repeat our recommendation in Part V1, Chapter 2, that the
legislation provide for the security intelligence agency to be under the control
of the Director General, subject to that paramountcy . The Deputy Minister
must be ever mindful that although he has full legal authority over the agency
he ought not to exercise that authority in such a way as to weaken the role of
the Director General . We do not envision that the Deputy Minister become, in
effect, the Director General of the agency and that the Director General
become simply a Deputy Director General . We have recommended that the
Deputy Minister have plenary power to ensure that he is able to carry out his
functions . He should exercise that power to its full extent only in exceptional
circumstances .
67 . The Deputy Minister is the principal adviser of the Minister for all
purposes, including the areas of responsibility covered by the agency . But the
Director General must also be seen as an adviser to the Minister in those same
areas and, as a matter of good management, should meet regularly, together
with the Deputy Minister, with the Minister . The Director General will, in the
normal course of things, run the operations of the agency . He will also be
responsible to the Deputy Minister for developing policy proposals with respect
to the agency's field of activities .
68 . However, it is the Director . General who should be reporting to the
Minister on operational problems, and he should also be presenting to the
Minister the policy proposals developed by the agency . In both cases this
reporting should be done with the knowledge and consent of the Deputy
Minister, other than in exceptional circumstances which we will mention
shortly . The Deputy Minister should engage such staff outside of the agency as
he considers necessary to assess the policy proposals brought forward by the
Director General and to fill any gaps in security policy that are identified . The
Deputy Minister must also have sufficient staff to appraise for the Minister the
quality of the reports produced by the agency so that the Minister can assess
the agency's work . For that purpose the Deputy Minister and no more than one
or two of his staff having the appropriate security classification, should have
such access to the operational files of the agency as the Deputy Minister
considers necessary . We make the recommendation while fully realizing the
difficulties faced by a security intelligence agency in protecting the identity of
its human sources and its communications with foreign intelligence agencies .
The Deputy Minister's departmental staff will also be serving the Minister in
carrying out all his other responsibilities in the security field, some of which we
mentioned earlier . In many of the areas the staff . work will be a cooperative
.
venture between the agency and the secretariat of the department .
871
�Direct access by the Director General to the Minister and the Prime Minister
69. Because we have tried to recommend a system of countervailance between
the Deputy Minister and the Director General, subject to the overriding
authority of the Deputy Minister if it is necessary for him to assert it, we think
there are certain circumstances in which the Director General must have direct
access to the Minister without the consent, or even necessarily the knowledge
of the Deputy Minister . Those circumstances would arise only when the
Director General is of the opinion that the conduct of the Deputy Minister is
such as seriously to threaten the security of the country . For example, the
Director General might obtain information that leads him to believe that the
Deputy Minister is a security risk, or the Director General might consider that
the Deputy Minister is wrongly refusing to submit to the Minister proposed
policy changes of great importance . We do not think that such a right of access
needs to be provided for formally, either legislatively or administratively, since
it will be exercised only in extreme cases, when the dictates of common sense
would govern .
70. There are also circumstances when the Director General must be able to
"go over the heads" of both the Deputy Minister and the Minister to the Prime
Minister . It is part of our constitutional convention that a Deputy Minister
may, in extremis, go directly to the Prime Minister, either with or without the
knowledge of his Minister . It is not possible or desirable to describe definitively
the circumstances in which this might be necessary in the security field . We
would expect that in most cases where the Minister is to be by-passed it would
be done by the Deputy Minister, in consultation with the Director General .
This would be the case, for example, if it were necessary to bring to the
attention of the Prime Minister security concerns relating to any of his
Ministers . In our opinion such concerns should not be brought to the attention
of the Minister responsible for the agency unless the Prime Minister so directs .
The Director General should only go directly to the Prime Minister in those
situations where he considers there is a serious security threat and he is being
blocked at either or both of the deputy or ministerial level . Once again, we do
not think there is any necessity to spell this out in a formal sense . Indeed, even
if this custom did not already exist or nothing had been said about it we would
find it alarming if the Director General did not take this step in appropriate
circumstances when the security of the state is threatened .
Role of the Prime Minister
71 . We think it is appropriate to deal briefly with the directing role of the
Prime Minister in the security field . As the leader of the government he has the
ultimate responsibility for the security of the nation . This means that he must
be kept informed of issues arising from the work of the security intelligence
agency that have serious implications for Canada's internal security, for the
civil liberties of Canadians, or for Canada's international relations . It is the
responsibility of the Deputy Minister, with the assistance of the Director
General, to bring such matters to the attention of the Minister, who must then
decide whether and how to brief the Prime Minister . In the circumstances
previously described the Prime Minister may also be informed by either th e
872
�Deputy Minister or the Director General . The Prime Minister ; after ensuring
that he is being adequately briefed, must be prepared to give advice and
direction to the responsible Minister on the major security policy positions of
the government .
72 . In addition, as we have indicated earlier in this chapter, given the
ultimate responsibility of the Prime Minister for the security of Canada and
the need to prevent policy on security or intelligence from being unduly
influenced by any one department or agency, the Prime Minister should chair
the Cabinet Committee on . Security and Intelligence . Also he should be
expected to answer questions in the House of Commons relating to the security
of Canada or the activities of the security intelligence agency whenever he
believes an issue is important enough .
Choice of responsible Minister
73. Throughout this chapter we have referred to "the responsible Minister" .
We turn now to a consideration of which Minister that ought to be . We have
examined three options :
(i) the Solicitor General (who is now the minister responsible for the
R .C .M .P. Security Service) ;
(ii) the Minister of Justice ( who until 1966 was responsible for the
R .C .M .P ., including its security intelligence directorate) ;
(iii) a Minister of State or Minister Without Portfolio especially
appointed for the purpose of directing the security intelligence
agency and implementing the Commission's Report .
There are advantages and disadvantages to each of these options . On balance
we favour the first of the three . We also feel that there might be some
advantage in combining the first and the third options and we shall discuss that
as well .
74 . In rejecting the option of the Minister of Justice we considered two
matters . First, the principal reason for the removal of the R .C .M .P . from the
responsibility of the Minister of Justice in 1965 - the too-heavy workload still holds, and is no doubt even more applicable today . From many of our
recommendations it will be clear that we consider that only if the security
intelligence agency receives considerable attention from the Minister and the
Deputy Minister will the countervailing forces be effective and accountability
be achieved . Our second reason is that we think there would be some danger of
a conflict of interest developing if the Minister who is responsible for reviewing
the legality of' the agency's operations is also responsible for directing the
agency . That same reasoning of course might apply to the assignment of
responsibility for any other agency to the Minister of Justice, who is the
government's legal adviser, but in any event it is certainly applicable to a
security intelligence agency . We have not discounted the one great advantage
in having the agency report to the Minister of Justice : the benefit which would
accrue to the agency by virtue of the prestige of the Minister and the
Department of Justice both within and outside government .
873
�75. This element of prestige is the main reason why we rejected the option of
having the agency report directly to a Minister of State or a Minister without
Portfolio . For a variety of reasons, whether valid in all cases or not, these
Cabinet positions are seen by many to be less important or significant than the
`regular' Portfolios . If it were decided that there should be a separate Minister
responsible only for the security intelligence agency, which we do not recommend, that Minister could function effectively only if he were attached directly
to the Prime Minister, thus acquiring the prestige and authority of that office .
Along with that acquisition would be the concomitant danger of the activities
of the agency being in too close association with the Prime Minister . Such close
association might result in knowledge of particular matters being imputed by
Members of Parliament to the Prime Minister when in fact he has no
knowledge of them .
76 . There is no Minister of the Crown, except the Solicitor General, whose
responsibilities have any logical association with the agency . (Perhaps a
marginal case could be made with respect to the Minister of National Defence
or the Secretary of State for External Affairs but the case is so tenuous as not
to require further elaboration .) The office of the Solicitor General has, of
course, 15 years of experience with the Security Service . Along with the
machinery and structure which have been built up in his department, the
various relationships and understanding which have developed are also indefinable but significant benefits which should not be cast aside without valid
justification .
77 . If the security intelligence agency is separated from the R .C .M .P ., it
might be argued that it would be unwise to leave it under a Minister who
continues to be responsible for the R .C .M .P. No matter how well separation is
implemented it is bound to arouse some hostile feelings and a Minister
responsible for both the R .C .M .P . and the new agency might find himself with
divided loyalties . On the other hand, a strong Minister should be in a position
to arbitrate the differences and ensure that hostilities are not allowed to
degenerate into costly organizational rivalries . He should also play a key role in
ensuring that effective liaison - which will be essential - is established
between the R .C .M .P . and the new agency .
78. We do not accept the view that the responsibilities of the Minister
responsible for a police force and those of a Minister responsible for a security
intelligence agency are so incompatible that they should be assigned to
different Ministers . A security intelligence agency does need more direction
from a federal Minister than does a law enforcement agency whose targets are
primarily defined by the law creating federal and provincial offences and which
performs functions for eight provincial governments and many municipalities .
But, we submit, this is more a difference of degree than of kind . While in police
matters there may be certain "quasi-judicial" functions, such as the laying of a
charge, in relation to which ministerial direction is improper, there are a great
many policy questions concerning the deployment of resources and the legality
and propriety of investigative techniques which are similar to the policy issues
on which a Minister should give direction to a security intelligence agency .
874
�79 . It is beyond our terms of reference to comment on the structure of the
reporting relationships of the other operational components of the Solicitor
General's "Ministry", and the suitability of those relationships for ministerial
direction .27 We have rejected this "Ministry" concept as it applies to the
security intelligence agency for the reasons stated in our discussion of the
relationship between the Deputy Minister and the Director General . One thing
is clear: no matter how the "Ministry" is structured, its components are such
that any one of them can, over a considerable period of time, occupy almost the
whole of the time of the Minister to the unfortunate exclusion of the others .
There are two reasons for this : the disconnected nature of the components,
although there is a thread of commonality, and the `high profile' areas of their
responsibilities (police, parole, penitentiaries and security) when problems of
public concern arise . For example, when Mr . Fox assumed the portfolio in
September 1976, there were major disturbances in certain penitentiaries on
which he had to concentrate most of his efforts (Vol . 159, p . 24338) . And no
doubt there have been periods just prior to and during the life of this
Commission when the Solicitor General has had to pay less attention to parole
and Correction Service matters than is desirable .
80. One further point about the responsible Minister requires consideration .
Since the bringing together of the various components under the Solicitor
General on January 1, 1966, and the subsequent creation of the Department of
the Solicitor General on October 1, 1966, there have been nine Solicitors
General . Three of the changes came about by resignations and two by a change
of the Party in power . It would be impossible for any government department
to escape unscathed by such a turnover, but it is especially damaging to a
security agency . It must be remembered that until the last year or two public
knowledge about the Security Service was practically non-existent . A new
Minister assumed his responsibilities absolutely "cold" . With all his other
duties as a Minister and a Member of Parliament it would take him months, if
not years, to begin to understand the workings of this arcane Service . We hope
that the recommendations we have made as to the structure of the agency will
help to alleviate this problem through the Deputy Minister's being able to brief
the Minister more quickly and adequately . Nevertheless, we think that such a
rapid turnover in Ministers as has occurred in the past must, if at all possible,
be avoided in the future .
Ministerial assistance for the Solicitor Genera l
8 1 . The other major changes which we have proposed, including'the creation
of a new security intelligence agency, will place severe time demands on the
Solicitor General . There will be the creation of the new agency, the preparation
and processing of legislation, the preparation and implementation of adminis27 For a discussion of the "Ministry" concept see : H .L . Laframboise, "Portfolio Structure and a Ministry System : A Model for the Canadian Federal Service", Optimum,
vol . 1(Winter, 1970) ; D .R . Yeomans, "Decentralization of Authority",
Canadian
Public Administration, ( Spring, 1969) ; John W . Langford, Transport in Transition:
The Reorganization of the Federal Transport Portfolio, Montreal, McGill-Queen's
University Press, 1976 .
875
�trative orders and guidelines and extensive negotiations with the provinces . We
are concerned that the Solicitor General will not have the time to direct the
details of all those matters . This would be true if an emergency arose on the
police or security side, but particularly if one arose on the corrections side . For
that reason we think serious consideration should be given to the appointment
of a Minister of State, pursuant to section 23(a) of the Government Organization Act, 1970, 28 to assist the Solicitor General in implementing the changes .
We do not envisage this Minister of State assuming the responsibilities of the
Solicitor General nor do we suggest that he operate independently of the
Solicitor General in any way . He would be there simply to assist the Solicitor
General in providing direction on all the details which will require ministerial
attention . We visualize such assistance being necessary only during the implementation stages and see no role for such a Minister beyond that . We are
reluctant to make this suggestion as one of our recommendations because we
are not familiar with the various considerations which a Prime Minister must
bear in mind when recommending that a Minister be appointed . As outsiders to
that process we would have thought that a Senator might be ideal for this role .
He would have the necessary experience and maturity, and would be knowledgeable about governmental processes, would not seek to use the position for
personal advancement or to compete with the Solicitor General, and would not
be reluctant to give up the duties when the implementation had been completed. We raise this matter of a Minister of State for consideration only, and
not as a recommendation .
82 . Having thus examined the way in which we feel ministerial direction of
the agency ought to take place, whether at the level of Cabinet, Prime Minister
or responsible Minister, we turn now to look briefly at other levels of
government direction .
WE RECOMMEND THAT the Minister responsible for the security
intelligence agency be the Solicitor General.
(167 )
WE RECOMMEND THAT the Minister responsible for the security
intelligence agency should have full power of direction over the agency .
(168)
WE RECOMMEND THAT the
Minister's direction of the security
intelligence agency include, inter alia, the following areas :
(i) developing
-
policy proposals for administrative or legislative
changes with regard to the activities of the security intelligence
agency and presenting such proposals to the Cabinet or
Parliament;
(ii) developing any guidelines which are required by statute with
respect to investigative techniques and reporting arr angements ;
(iii) continuous review of the agency's progress in establishing personnel and management policies required by government ;
28 S .C . 1970-71, ch .42 .
876
�(iv) reviewing difficult operational decisions involving any questions
concerning legality of methods or whether a target is within the
statutory mandate ;
(v) reviewing targetting priorities set by the government and ensuring
that the agency's priorities and deployment of resources coincide
with the government's priorities;
(vi) approving proposals by the Director General to conduct full investigations and to apply for judicial authorization of investigative
techniques (e .g. electronic surveillance and mail opening) ;
(vii) approving liaison arrangements with foreign countries after consultation with the Secretary of State for External Affairs ;
(viii) approving liaison arrangements with provincial and municipal
police forces and governments; an d
(ix) authorizing dissemination of security intelligence to the media .
(169 )
WE RECOMMEND THAT the Director General be responsible, in the
normal course, for running the operations of the agency.
(170 )
WE RECOMMEND THAT the Director General be responsible to the
Deputy Minister for developing
policy proposals with respect to the
agency's field of activities .
(171)
WE RECOMMEND THAT the Minister meet regularly with the Director
General and the Deputy Minister together, to discuss matters relating to
the agency and to receive reports from the Director General on operational
problems in the agency and policy proposals developed by the agency .
(172 )
WE RECOMMEND THAT the Deputy Minister have such staff as he
considers necessary to :
(i) assess the policy proposals brought forward by the Director General and to fill any gaps in security policy that are identi fied ;
(ii) to appraise for the Minister the quality of the reports produced by
the agency ; and
(iii) assist the Minister in carrying out all his other responsibilities in
the security field .
(173 )
WE RECOMMEND THAT the Director General have direct access to the
Minister, without the knowledge or consent of the Deputy Minister, when
the Director General is of the opinion that .the conduct of the Deputy
Minister is such as to threaten the security of the country .
(174 )
WE RECOMMEND THAT the Deputy Minister and the Director General each have direct access to the Prime Minister, and not consult with their
Minister, in the following circumstances :
(i) if there are security concerns relating to any Minister;
877
�(ii) if, in the opinion of the Deputy Minister or the Director General,
the conduct of the Minister is such as to threaten the security of
the country .
(175)
WE RECOMMEND THAT recognition be given to the special need for
continuity in the office of the Minister responsible for the security
intelligence agency.
(176)
D . OTHER FORMS OF GOVERNMENT DIRECTION
AND REVIE W
83 . There are three other government entities which have a role to play in this
area . They are :
- Minister and Department of Justice
- Treasury
Board, which has two components, the Treasury Board
Secretariat and the Comptroller Genera l
- Auditor Genera l
Minister of Justic e
84 . We do not propose to examine here the responsibilities and duties of the
Minister and Department of Justice . They have been dealt with in Part V,
Chapter 8, and Part VI, Chapter 2 and will also be covered in detail in Part X,
Chapter 3 . We simply wish to emphasize at this point that their role is crucial
in ensuring that the security intelligence agency conducts its activities within
the law .
Treasury Board
85 . The Treasury Board, which is made up of certain designated Ministers,
has two distinct parts of the Public Service, each reporting directly to it . They
are the Treasury Board Secretariat and the Comptroller General's office .
86. The Treasury Board Secretariat performs a number of functions but we
are concerned only with the direction and control it exercises over the Security
Service through the Program and Budget Analysis Process . Each department
and agency of government must submit to the Treasury Board each year a
Program Forecast which relates to the following fiscal year and the four
subsequent fiscal years . This forecast is an estimate of the fixed costs of
providing services in the designated year plus any new or expanded initiatives .
A department's programme allocation for the next ensuing fiscal year becomes
the budgetary target level for the Main Estimates for that same year . Each
year a department must submit its Main Estimates for the following year and
twice during a year there is the opportunity to submit Supplementary Estimates . The Program Forecasts and the Estimates are reviewed by program
analysts in the Treasury Board Secretariat and then submitted by the
Secretariat to the Treasury Board with recommendations .
87 . The Program Forecast of the R .C .M .P. falls under the Solicitor General's
Program Review . Normally, a budget such as that of the Security Service ,
878
�being in the category of a sub-activity, would not receive special treatment by
the Treasury Board . But it does receive special treatment . For purposes of
analysis only it is broken out as a sub-activity and the Program Forecasts and
the Estimates are examined as though the Security Service were a separate
agency or department . The recommendations of the Secretariat are then
submitted for approval to the President of the Treasury Board only, and not to
the full Board, as would be normal . Thus it will be seen that the•Security
Service budget is subject to an extraordinarily detailed examination . This
process appears to be satisfactory and we see no neèd for change in it . It could
be readily adapted to the new security intelligence agency which we have
recommended .
88 . The other component of the Treasury Board which is of interest to our
concerns is the Office of the Comptroller General . This office was created
approximately two years ago to improve financial management in the Public
Service . The Comptroller General decided that he should first conduct a study
of 20 of the largest departments . Included was the R .C .M .P . ( The study of the
R .C .M .P. did not include the Security Service nor the Security Service internal
audit mechanism .) This study is called "Improvement of Management Practices and Controls" (IMPAC) . After doing a "systems walk through" (which
means there is no verification of documents or of representations made by the
department or agency) the Comptroller General discusses his conclusions with
each department or agency and obtains its agreement to the conclusions . Each
department and agency must submit an action plan of how it intends to remedy
the faults which have been found . A copy of that action plan is given to the
Auditor General and both the Comptro ll er General and the Auditor General
monitor the implementation of the plan . The role that the Comptroller General
will play after the action plans are implemented has not yet been determined .
We see nothing in this process which requires any particular comment by us .
Should any problems develop between the Comptroller General and the
security agency with respect to access to files they should be capable of
resolution at the ministerial level .
Auditor Genera l
89 . Currently there is only one examination of any aspect of the affairs of the
Security Service which is performed by an . agency independent of the government . That is the Auditor General's review process . The Auditor General has
been given three, responsibilities by Parliament and he must report on them to
Parliament . They are :
- a financial audit of government accounts ;
- a legislative audit to determine the degree of compliance by government
departments and agencies with the legislation governing the management and operation of the public service, e .g . the Financial Administration Act
a value-for-money audit - this audit examines programmes as to three
facets :
(i) the way in which goods and services are acquired
(ii) the efficiency of use of the goods and service s
879
�(iii) the manner in which the departments and agencies measure their
effectiveness . But the Auditor General is not authorized to comment on the effectiveness itself .
90. Each year the Auditor General does an attest audit of each department
and agency, which involves a minimum amount of audit of the accounts . There
is a comprehensive audit of each department and agency once every five years .
This is an audit of the application by the department or agency of government
regulations, procedures, directives, guidelines and practices . This audit is done
not only on a departmental and agency basis but also on a horizontal basis
across departments and agencies with respect to particular factors, as for
example, buildings .
91 . It is our understanding that in the past the Auditor General has done very
little in relation to the Security Service as such . Because the Security Service
financial figures are included in the R .C .M .P . figures they have been subject to
the annual attest audit and that is the extent of the examination to date . A
comprehensive audit of the R .C .M .P . is scheduled to be completed in 1981 .
This audit will include a thorough look at the affairs of the Security Service
under the three rubrics mentioned above ie . financial, legislative and
value-for-money .
92 . As a result of the undertaking of this comprehensive audit we can
envision problems arising in two areas : access to confidential Security Service
files and disclosure of confidential information in the report to Parliament .
There are certain files, such as those dealing with human sources, which the
Security Service justifiably considers should be seen by only those persons
having an absolute `need to know' . Access to those files is not normally given to
anyone outside the Security Service . We do not know to what extent the
Auditor General will wish to see such files but if any difficulties arise that
cannot be resolved between the Auditor General and the Solicitor General we
suggest that they be referred for resolution to the Joint Parliamentary Committee which we shall recommend, and pending the creation of such a Committee
that the resolution of any impasses be held in abeyance . Because criticisms in
the Auditor General's Report are usually system based it is unlikely that there
will be any need for the disclosure of any confidential information . If such a
problem does arise, however, and cannot be resolved between the Auditor
General and the Solicitor General that, too, should be referred to the Joint
Parliamentary Committee for resolution .
WE RECOMMEND THAT any disagreements between the Solicitor
General and the Auditor General with respect to :
(i) access by the Auditor General to information in the possession of
the security intelligence agency; and
(ii) disclosure in the Auditor General's Report of classified information obtained by him from the agenc y
be referred to the Joint Parliamentary Committee on Security and Intelligence for resolution, and pending the creation of that Committee the
resolution all such disagreements be held in abeyance .
(177 )
880
�CHAPTER 2
EXTERNAL CONTROLS
INTRODUCTION
1 . In this chapter we consider one of the most neglected aspects of Canada's
security and intelligence system : control of security intelligence activities by
bodies external to the executive branch of the federal government . In our
system of cabinet and parliamentary government under the rule of law,
`control' of government activity by individuals or institutions not accountable
to Ministers primarily takes two forms : ( 1) the supremacy of laws enacted by a
representative legislature and (2) review of governmental activity to ensure
that it is effective and that it meets the requirements of the law and acceptable
standards of propriety . The function of bodies which are independent of the
executive, such as Parliament, the judiciary and oversight bodies, is not to
carry out, nor to direct the carrying out, of national security functions, but
rather to provide some assurance that national security responsibilities are
performed properly and effectively within an established legislative framework .
2 . Our inquiry has shown how limited has been the control and direction of
the Security Service by responsible Ministers and their deputies . Our recommendations in the previous chapter were aimed at remedying that situation .
But if adequate ministerial control and direction of security intelligence
activities were lacking in the past, independent review of these activities was
almost non-existent . The judiciary has played a limited role on the relatively
rare occasions when security investigations have resulted in the laying of
charges . Parliament has been very active in raising questions and provoking
debates on security matters, but members of Parliament (aside from Ministers)
have had little or no opportunity .to scrutinize security intelligence practices
systematically . The proposal of the Royal Commission on Security for the
establishment of a Security Review Board was implemented only to a very
limited extent in the field of security screening . On the whole, security
intelligence operations have remained in a secret realm . Little has been known
about them, even by the Ministers who were theoretically responsible for them,
and even less by anyone outside government . The work of our own Commission
of Inquiry and the report of the earlier Royal Commission on Security have,
perhaps, been the principal departures from this pattern of excluding external
review of security activities .
3 . The recommendations put forward in this chapter would permit a number
of `outsiders' to have considerable knowledge of security practices . Although
the number would not be large, still there is a risk, though a slight one, o f
881
�compromising operations whose effectiveness often depends on their absolute
secrecy . We acknowledge that risk, but we think it is justified by the greater
risk to our democracy that lies in the absence of any effective independent
check on the government's conduct of security operations .
A. THE FEDERAL COURT OF CANADA AND THE
SECURITY APPEALS TRIBUNA L
4. In our First Report, Security and Information, we recommended that the
Federal Court of Canada have two responsibilities with regard to security
matters . First,- we recommended an appeal to the Federal Court from an
administrative tribunal reviewing government decisions refusing disclosure of
government documents on security and intelligence grounds . The appeal would
be available to the government or, in cases where the existence of a document
is admitted, to the person applying for access . We further recommended that
section 41(2) of the Federal Court Act no longer apply to security and
intelligence documents . When, in the course of judicial proceedings, a litigant
seeks to introduce evidence consisting of government documents, we recommended that instead of the court being bound by a Minister's affidavit that
production of the document would be injurious to national security, the matter
be referred to a judge of the Federal Court of Canada who would determine
whether the need to disclose the evidence for the purpose of doing justice
outweighed the public interest in non-disclosure .
5. Earlier in this Report, our recommendations for controlling methods of
intelligence collection by the security intelligence agency called upon the
Federal Court of Canada to play a role in authorizing the use of electronic and
photographic surveillance, mail interception, surreptitious entry and access to
confidential governmental information of a personal nature . It will be recalled
that, under the scheme we proposed, the Solicitor General would be responsible
for deciding whether, as a matter of policy, the use of any of these techniques
to gather intelligence about a particular `target' is advisable. If he decides that
it is and also is satisfied that the evidentiary standards established by the
statute for use of the technique have been satisfied, he could authorize an
application by the security intelligence agency to a judge of the Trial Division
of the Federal Court of Canada for a warrant to use the technique . A refusal
might be appealed to the Federal Court of Appeal . The judicial function in this
scheme would be to ensure that the evidentiary standards established by the
Statute,, governing the use of the techniques, are satisfied . Because of the secret
nature of these techniques and the absence of any provision requiring notification of persons subject to them, we felt that judicial authorization is the best
way to ensure that the requirements of the law are met in each case .
6. These two sets of recommendations clearly . envisage a significant role for
the Federal Court of Canada in decisions relating to national security . As we
recommended earlier in Part V, this role would best be carried out by a nucleus
of judges from the Appeal and Trial Divisions who would be specially
designated for the purpose by the Chief Justice of the Court .
882
�7. The judiciary may be involved in the review of security intelligence
operations in one other way . Our proposed statutory charter for the security
intelligence agency may create opportunities to launch a legal challenge
against the security agency if it is suspected of gathering information, by any
technique, about a subject which lies outside its statutory mandate . Such a
charter, it might be argued, will lead to harassment of the agency by persons or
groups who will launch suits mainly to expose or inconvenience the agency . We
do not believe that such harassment is a significant danger : Australia (since
1956) and New Zealand (since 1969) have had statutes governing their
security intelligence agencies and have not experienced this difficulty . We are
confident that the Federal Court, which hears cases involving challenges
alleging that Federal departments or agencies have exceeded their jurisdiction,
can deal expeditiously and properly with litigants .
8 . Besides the judiciary, our earlier recommendations include one other
element of independent review : the Security Appeals Tribunal for security
screening cases . The purpose and nature of this body are fully set out in Part
VII of the Report . Here we wish only to include the Tribunal in our
consideration of external controls and distinguish -it clearly from the independent review body - the Advisory Council on Security and Intelligence
(A .C .S .I .) which we will recommend below . The Security Appeals Tribunal is
a quasi-judicial body whose function would be to hear cases in which persons
wish to challenge security clearance decisions . Given the adversarial nature of
proceedings before the tribunal and the need for the tribunal to function as
much as possible like a Court, we think it should be quite separate from the
Advisory Council on Security and Intelligence which will have a broad
mandate to review and advise the government on. all aspects of security and
intelligence policy and operations .
B . THE ADVISORY COUNCIL ON SECURITY
AND INTELLIGENCE (A .C .S .I . )
9 . In 1977, the R .C .M .P . took some steps to establish better internal controls
of Security Service activities. Earlier, we commented on these , developments
and in Parts V and VI recommended a number of ways in which the internal
control of security intelligence activities could be improved . In Chapter 1 of
this part of the Report, we have made recommendations designed to strengthen
the capacity of the Solicitor General and the Cabinet to supervise security
intelligence activities . We shall also be recommending a special parliamentary
committee to increase parliamentary review of security intelligence activities .
While all of these changes will provide much greater assurance that the
security intelligence agency's conduct is lawful and proper, still we believe that
they are not sufficient . In addition a review mechanism is needed, both to
ensure that ministerial neglect or ignorance of security intelligence activities
does not recur and at the same time to guard against the possibility of the
security intelligence agency's being subject to direction by Ministers based on
partisan or personal considerations .
10 . Two features of security intelligence operations point to the need for an
independent review body : the extreme secrecy of many operations and thei r
883
�potential impact on the civil liberties of Canadians . With normal operations of
government the citizen knows what the government has done to him, and can
decide whether he wishes to question the propriety or legality of government
action . However, with regard to security intelligence investigations which a
citizen may fear are encroaching on his privacy or his political liberty, he has
no way of knowing whether he has been investigated as a threat to security
and, if he has, whether the investigation has been carried out in a legal and
proper manner . For reasons that are fully set out in our First Report, we think
providing a right of access to information about the operations of a security
intelligence agency would defeat its very purpose . However, in that Report we
argued that rigorous mechanisms of scrutiny subject to democratic control
would be even more effective than freedom of information legislation as a
means of ensuring that security intelligence operations are acceptable . "The
function of scrutinizing the operations of a security or intelligence agency", we
wrote,
"should be systematic and continual . It is a sensitive and important task
which must be performed assiduously by highly competent people who are
also responsible to democratically elected representatives ." '
This is so even if Parliament adopts Freedom of Information legislation which
affords a mechanism for some degree of non-systematic, intermittent scrutiny
of the activities of the security intelligence agency . It is with the object of
providing a systematic and democratically accountable review mechanism that
we now recommend the establishment of the Advisory Council on Security and
Intelligence .
11 . This Advisory Council, as its title suggests, should have no executive
powers . Its basic functions should be to carry out a continuous review of
security intelligence activities to ensure that they are lawful, morally acceptable and within the statutory mandate established by Parliament . Although it
should not be responsible for assessing the effectiveness of the security organization, it should be fully cognizant and supportive of the functions of the
security intelligence organization as set out in its statutory mandate . The
Council should report on a continuing basis to the Solicitor General so that he
has an opportunity to take remedial action in response to any finding by the
Council that an operation or practice is questionable . Also, it should report
from time to time and at least annually to the parliamentary Committee on
Security and Intelligence so that Members of Parliament representative of all
political parties will know of any situations in which the Solicitor General has
rejected the views of the Advisory Council .
12 . The independence of the Council will be best ensured if its review of the
agency's operation is strictly ex post facto . If the Council becomes involved in
advising on or, worse, approving operations before they occur, it will be
implicated in the agency's operations and in effect will be reporting on itself .
Therefore it should avoid giving advisory opinions before the fact . Its ex pos t
' Security and Information, Ottawa, Department of Supply and Services, 1979,
paragraph 97 .
884
�facto review of operations should, nevertheless, produce a body of "case law"
which should be of considerable assistance to the agency and those in government who are responsible for supervising the agency in making the difficult
policy decisions which, as we have emphasized throughout the Report, are
inherent in security intelligence operations .
13 . The scope of the Advisory Council's review of intelligence activities
should extend to all organizations employed by the federal government to
collect intelligence through clandestine means, other than the R .C .M .P. and
other federal police forces . Unless the independent review body's jurisdiction
extends this far, it will be all too easy for a government to evade its scrutiny by
de facto transfers of responsibilities from the security intelligence agency to
some other organization which is not subject to its review . In Part X, Chapter
2, we recommend the establishment of the Office of Inspector of Police .
Practices as a review and audit body to perform functions in respect to the
R .C .M .P . which are similar in this regard to those which we recommend the
Advisory Council on Security and Intelligence should perform with respect to
the security intelligence agency .
14 . To be effective the Advisory Council must be both independent and
knowledgeable. These two characteristics are not easily combined . The Advisory Council's advice will be of little value to the government or to Parliament if
it does not acquire a solid understanding of security intelligence work . Its
members must appreciate the purposes of this work, its problems and its
temptations . It must learn what questions to ask and where to look for the
answers . But the more knowledge the Advisory Council acquires about the
agency the more its members are apt to become so enmeshed in the world of
security and intelligence that they lose perspective and objectivity . There is no
fool-proof defence against this tendency . Our recommendations as to the
Council's composition, powers and organization will be designed to minimize
the danger while ensuring that the Council is knowledgeable enough to perform
a useful function .
15 . The Council must be small . The risk of disseminating highly sensitive
information about intelligence activities to `outsiders' should be kept to a
minimum . We think that an appropriate size would be three members . In the
United States, the President's Intelligence Oversight Board is that size and it
appears to function effectively .2 One member of the Council should be designated by the government as the chairman . We think that members of the
Council should be at arm's length from the Government of Canada - for
example, they should not be employees of the government . It would be a
distinct advantage if one of the members had some previous experience in the
field of security and intelligence . At least one member should be a lawyer of
not less than 10 years standing . On the basis of our own experience, we know
how much is involved in obtaining a reasonable understanding of security
intelligence activity . It is a field in which reliable knowledge is simply
unavailable to outsiders . Therefore we would urge that members new to th e
2 See Executive Order 12036, January 24, 1978, section 3-101 . Note that all three
members of this Board "shall be from outside the government" .
885
�field should, on being appointed, undergo a month-long programme of intensive
study on security and intelligence activities. After this, the members should be
expected to devote several days a month to the work of the Council . We do not
think that any of the members of the Council should be full-time, although they
should have the assistance of a small full-time secretariat . There is a danger of
their becoming too closely identified with the agency whose activities they are to
review . This danger is reduced if members of the Council do not spend all of their
time on security and intelligence business . For the same reason, they should serve
for no more than six years . Continuity in the membership of the Council, so that
its accumulated experience is passed on to new members, would be ensured if all
appointments did not terminate at the same time .
16 . The method of appointing and removing members of the Council must be
designed to ensure, so far as possible, that both the government and the
Opposition in Parliament respect the judgment and integrity of the Council .
We think this condition is most likely to be realized if members are appointed
by the Governor in Council after approval of the appointment by resolution of
the Senate and House of Commons . An appointment system of this kind would
be similar to that used for appointing the Commissioner of Official Languages
and that proposed for the Ombudsman in the bill introduced by the government in April 1978 . The method of removal should be the same as that which
applies to three offices or bodies which now report to Parliament (the Auditor
General, Members of the Human Rights Commission and the Commissioner of
Official Languages) as well as the proposed Ombudsman namely that members
should hold office during good behaviour for six years but may be removed by
the Governor in Council on address of the Senate and House of Commons . We
emphasize that our reason for making this recommendation is our belief that
this degree of parliamentary involvement in the appointment and removal of
Council members will increase the likelihood of Parliament's having confidence
in the Council . Public confidence in the security agency - confidence that its
activities are not serving narrow partisan interest and are not biased against
one side of the democratic political spectrum - will be best assured if the body
responsible for the independent, continuous audit of security intelligence
activities, demonstrably has the confidence of Parliament .
17 . The Council's full-time secretariat need not be large . It will certainly
need a full-time executive secretary and a small administrative staff . It should
also have authority to retain its own legal counsel and one full-time investigator . In addition, the Council should be able to recruit personnel on a temporary
basis for major investigations or studies . To reduce the danger of the Council's
staff being co-opted or of their coming to dominate the work of the Council,
full-time members of the Council's secretariat should hold their positions for
limited periods of time . The secretariat and Council should be housed separately from the security intelligence agency and the staff should be instructed to
avoid frequent social contact with members of the security intelligence agency .
18 . Members of the Council must have complete access to all documents and
files of the security intelligence agency and of other agencies which it scrutinizes . There may be information, for instance, pertaining to the identity o f
886
�sources or to foreign agencies, which is considered so sensitive that the Council
staff should not have access to it . But for purposes of examining files and
documents in the possession of the agency, the three members of the Council
must be treated as if they were members of the security intelligence agéncy
who are entitled to see all material . The arrangement would be similar to that
which has applied to the work of this Commission . Nothing less would be
acceptable for an effective and credible independent review body . The Côuncil
should have the power to require members of intelligence agencies to testify
before it under oath and to produce documents - that is, the powers of a
Commission of Inquiry appointed under Part I of the -Inquiries Act . Although
it is to be expected that the ordinary relationship of the Council to the âgencies
would not require such formality, we are convinced that there may be
circumstances in which the use of the power will be necessary .
19 . The basic function of . the Advisory Council on Security and Intelligence
should be to conduct a continuing review of legality and propriety of the
activities of the security intelligence agency and of any other federal government agencies (other than police forces) which collect intelligence by clandestine means . Amongst the matters which the Council should keep under review
are the following :
(a) The interpretation of the statutory mandate . The Council should
review how the general terms of the statutory mandate are interpretèd .
It will be particularly important in the first few years under a statutory
mandate for the Solicitor General, the Cabinet and Parliament to
obtain an informed, independent appraisal of the judgment exercised in
translating the general terms of the statute into an active programme,
of intelligence collection .
(b) The implementation of administrative directives and guidelines . The
Council should periodically conduct audits to ensure that the security
intelligence agency is observing the directives or guidelines issued by
the Cabinet, the Solicitor General or the senior . management of the
agency with regard to such matters as the use of human sources,
reporting information about individuals to government departments
and the role of the agency in the security screening process .
(c) The operation of the system of controlling intrusive intelligence collection techniques. The system we have proposed, especially for controlling electronic surveillance, mail opening, surreptitious entries and
access to confidential information is complex and novel . The Council
should review the functioning of the system as a whole : Is the system
too cumbersome? Are the powers, especially the new powers of mail
checks, surreptitious entry and access to confidential information,,
being used to good effect or are they being used exçessively?' The
Council's answers to these questions should be expectéd to provide a
far deeper insight into the, use of these extraordinarÿ powers than fiâs
been the case with the bare statistical -reports which have been'published in the past under section 16 of the Official Secrets Act .
-
(d) Relationships with other agencies . The Council should monitor the,
security intelligence agency's liaison arrangements with foreign agencies and 'with other police or security 'âgencies in Canada . It i s
887
�especially important that it review intelligence sharing activities with
foreign agencies to ensure that they satisfy the standards set out in
guidelines established by the government .
(e) Director General's report of improper ministerial direction . At several
points earlier in this Report we stated that the Director General of the
security intelligence agency should have a "safety valve" in the event
that he received what he considered to be an improper direction from
the Solicitor General and was unable to resolve the matter to his
satisfaction through the Deputy Solicitor General or the Prime Minister . Although it is unlikely that such a situation would ever arise, still
we think there should be some provision for it other than the resignation of the Director General . The Director General should at least be
able to discuss with an independent body his opinion that his "political
masters" are asking him to use the security intelligence agency for a
purpose he believes is outside its mandate .
20. Although the Advisory Council's main task should be to carry out on its
own initiative a continuing audit of security intelligence activities, it should
also play two other roles . The first is described in Part V, Chapter 8, and
concerns the review of decisions by the Attorney General of Canada not to
refer allegations of illegal conduct by members or agents of the security
intelligence agency to provincial attorneys general . The second role is responding to public complaints of improper or illegal conduct by members of the
agency . The primary responsibility for investigating such complaints should
rest with the agency itself, as it now rests with the R .C .M .P . In Part VI,
Chapter 2, we recommended the establishment of a small investigative unit
within the security intelligence agency for this purpose . But we think it
essential that the Advisory Council review the adequacy of the agency's
response to complaints . A number of incidents afford ample evidence of the
need for outside scrutiny of the response to public complaints of wrongdoing by
members of the security agency .
21 . The Advisory Council should be able to receive complaints and should be
kept infotmed of all complaints received by the agency, including those that the
Solicitor General refers to the agency, and the actions taken by the agency in
response to such complaints . The Council's main function with regard to
complaints should be to review the effectiveness and fairness of the security
intelligence agency's response to complaints ; it should advise the Solicitor
General when it finds that a complaint has not been dealt with satisfactorily ; it
should report, at least on an annual basis, to the joint parliamentary committee
on the frequency of complaints and the adequacy of the agency's response to
them . Although the Advisory Council should not normally investigate complaints itself, it should have a reserve power to carry out its own investigation
in exceptional circumstances . The Advisory Council on Security and Intelligence must be empowered to conduct its own investigation when the Council
considers that it is in the public interest to do so . The general audit function of
this independent review body will not be adequately fulfilled if it is denied the
power to carry out independent investigations . The discretionary power to
investigate complaints should be used sparingly and for stated reasons . These
reasons, particularly if the Council's power to investigate complaints is use d
888
�complaints is used frequently, should alert the Minister and the parliamentary
committee either to inadequacies in the internal investigative capacity of the
security intelligence agency or to excessive use of the Council's investigative
powers .
22. As we indicated in Part VI, the Council should also serve as a safety valve
in those exceptional situations when a member of the security intelligence
agency believes that an operation or practice of the agency is illegal or
improper and there appears to be no satisfactory way of having his concern
investigated by his superiors or by the Deputy Solicitor General or the Solicitor
General . While we think that it is essential to have such a safety valve, we
would stress that the Council should investigate such a complaint by a member
of the agency only when it has assured itself either that the member has tried
unsuccessfully to have his concern looked into by his superiors, the Director
General, the Deputy Solicitor General and the Solicitor General, or that the
member had good reason to believe that bringing the matter to the attention of
these people would not elicit a satisfactory response .
WE RECOMMEND THAT the statute governing the security intelligence
agency provide for the establishment of an Advisory Council on Security
and Intelligence to review the legality and propriety of the policies and
practices ( which includes operations) of the security and intelligence
agency and of covert intelligence gathering by any other non-police agency
of the federal government.
(178)
WE RECOMMEND THAT the Advisory Council on Security and Intelligence be constituted as follows :
(a) The Council should be comprised of three members, who should be at
arm's length with the Government of Canada, and at least one of whom
should be a lawyer of at least ten years' standing .
(b) Members of the Council should be appointed by the Governor in
Council after approval of their appointments by resolution of the
House of Commons and Senate . One member should be designated by
the Governor in Council as the Chairman of the Council .
(c) Members of the Council should serve for not more than six years, and
the termination dates of their appointments should vary so as to
maintain continuity.
(d) Subject to (c) above, members of the Council should hold office during
good behaviour subject to being removed by the Governor in Council
on address of the Senate and House of Commons .
(e) Members of the Council need not serve on a full-time basis but must be
able to devote up to rive days a month to the work of the Council .
(179)
WE RECOMMEND THAT the Advisory Council on Security and intelligence have the following powers and responsibilities :
(a) For purposes of having access to information, members of the Council
should be treated as if they were members of the security intelligence
agency and have access to all information and files of the security
intelligence agency .
889
�(b) The •Council should be authorized to staff and maintain a small
- secretariat • including a full-time executive secretary . and a full-time
investigator, to employ its own legal counsel and to engage other
personnel on a temporary basis for the purpose of carrying out major
investigations or studies .
(c) The Council should be informed of all public complaints received by
the security intelligence agency or by the Minister, or by any other
department or agency of the federal government, alleging improper or
illegal activity by members of the security intelligence agency or any
other covert intelligence gathering agency (except police) of the
federal government, and when it has reason to believe that a complaint
cannot be or has not been satisfactorily investigated it must be able to
conduct its own investigation of the complaint .
(d) The Council should have the power to require persons, including
members of the security intelligence agency or of any other federal
non-police agency collecting intelligence by covert means, to testify
before it under oath and to produce documents .
(e) The Council should report to the Solicitor General any activity or
practice of the security intelligence agency or any other federal
non-police agency collecting intelligence by covert means, which it
considers to be improper or illegal and from time to time it should
offer the Solicitor General its views on at least the following :
(i) whether an activity or practice of the security intelligence agency
falls outside the statutory mandate of the security intelligence
agency;
(ii) the implementation of administrative directives and guidelines
relating to such matters as the use of human sources, the reporting
of information about individuals to government departments and
the role of the security intelligence .agency in the security screening process;
(iii) the working of the system of controls on the use of intrusive
intelligence collection techniques;
(iv) the security intelligence agency's liaison relationship with foreign
agencies and with other police or security agencies in Canada;
(v) the adequacy of the security intelligence agency's response to
public complaints;
. .
(vi) any other matter which in the Council's opinion concerns the
propriety and legality of the security intelligence agency's
activities.
The Council should report, to the Minister responsible for any federal
non-police organization collecting intelligence by covert means, any
activity or practice of a member of such organization which in the
Council's view is improper or illegal .
(g) The Council should report to the Joint Parliamentary Committee on
Security and Intelligence at least annually on the following:
(i) the extent and prevalence of improper and illegal activities by
members of the security and intelligence agency or any othe r
890
�federal organization collecting intelligence by covert means, and
the adequacy of the government's response to its advice on such
matters;
(ii) any direction given by the Government of Canada, to the security
intelligence agency or any other federal organization collecting
intelligence by covert means, which the Council regards as
improper ;
(iii) any serious problems in interpreting or administering the statute
governing the security intelligence agency .
(180 )
C . THE ROLE OF PARLIAMEN T
23 . In the past Parliament's effectiveness in security matters has been
limited . This is not surprising . Indeed there appears to be a basic inconsistency
between the requirements of the field of security and the role of Parliament .
Security operations directed against significant threats to the country's security
must be associated with a high degree of secrecy, but Parliament is an open
arena of partisan debate . Consideration of security matters in the parliamentary forum, it may be argued, can result only in jeopardizing the efficacy of our
security arrangements . Adherence to this philosophy since the days of Sir John
A. Macdonald has had much to do with the fact that the function and structure
of Canada's security intelligence organization have not been debated and
approved by Parliament .
24. Yet security has not been completely absent from the parliamentary
agenda . On the contrary, particularly in recent years, national security issues
have been frequently debated in the House of Commons . A s has been shown in
the study of Parliament and Security Matters prepared for us, between 1966
and 1978 the House of Commons spent a great deal of time questioning and
debating the government's handling of security issues - 230 hours of debate,
the equivalent of more than half the government's time for an annual session .'
During these years Parliament has often been effective in performing its `watch
dog' role and many questions have been asked about alleged breaches of
security or improprieties . Often these questions have been inspired by information `leaked' to the media .
25 . There has not been a full debate on the basic purpose, the permissible
methods and the structure of the Security Service, nor an opportunity for even
a small group of parliamentarians (other than Cabinet Ministers) to scrutinize
its activities . When the Report of the Royal Commission on Security was
tabled in the House of Commons in June 1969, there was a one-hour exchange
of statements by the Party Leaders . In concluding his remarks, Prime Minister
Trudeau stated that the government intende d
.
.. to consult with the leaders of the opposition parties to determine how
the report might best be made the subject of parliamentary debate during
the next session . "
3 C .E .S . Franks, Parliament and Security Matters, Ottawa, Department of Supply and
Services, 1979, p . 22 .
" House of Commons, Debates, June 26, 1969, p . 10638 .
891
�This debate did not take place . In 1971, the government indicated that the
debate on a resolution to appoint a Special Joint Committee of the House of
Commons and the Senate to study the nature and kind of legislation required
to deal with emergencies might be an opportunity to consider the Royal
Commission's report . But the debate which occurred focussed on whether the
opposition would have an opportunity to examine the circumstances leading to
the invocation of the War Measures Act in 1970 and resulted in the government's dropping the motion to establish the Special Committee . In 1977 the
Solicitor General, the Honourable Francis Fox, in disclosing Operation Ham in
the House of Commons, paraphrased the 1975 Cabinet Directive on the Role,
Tasks and Methods of the R .C .M .P . Security Service and thus disclosed its
existence and essence for the first time, but no opportunity was afforded for a
parliamentary debate on these guidelines . At the Committee level, the House
of Commons Standing Committee on Justice and Legal Affairs has annually
been briefed in camera on security matters . We were permitted by the
Chairman of this Committee to examine the proceedings of two in camera
sessions held in November 1977 . Our impression of these sessions is that, while
they offer a general survey of the security system, they are not occasions for
probing in any depth the operational policies or practices of the security
organization . From time to time opposition leaders have been privately
informed of, or consulted on, security matters, but these briefings have been ad
hoc and rare in recent years . s
26. We think Parliament should play a larger role with respect to the federal
government's security intelligence organization than it has in the past . Parliament should debate and determine the mandate of the security intelligence
agency . The Minister should have full knowledge of the agency's operational
policies and practices so that he can answer parliamentary questions . Members
of the opposition must have a means of acquiring more accurate knowledge of
the security agency's policies and practices . In making recommendations to
achieve these ends, our aim is to tilt the balance between secrecy and openness
slightly away from a near monopoly of knowledge on the executive side of
government, so that the work of the security intelligence agency is based on a
parliamentary endorsement of its mandate and subject to a reasonably wellinformed and knowledgeable process of parliamentary review . In our view the
requirements of security and democracy require no less than this .
A parliamentary mandat e
27 . We think that a point in Canadian history has been reached when both
the requirements of security and the requirements of democracy would be best
served by embodying the mandate of Canada's security intelligence agency in
an Act of Parliament . The security intelligence agency has an important
service to perform for the people of Canada . The organization which performs
this service will cost many millions of dollars annually and will often intrude on
the privacy of individuals and groups . If it is ineffective in its work, foreign
powers will, with relative ease, operate secretly within Canada and electe d
s See C .E .S . Franks, Parliament and Security Matters, pp. 70-6 .
892
�governments in Canada will not be forewarned of programmes of political
violence directed against them . Also, friendly foreign governments will not
trust Canada and hence will refuse to share information . A service of this
importance must not be left to be regulated, as it is now, almost solely by
administrative guidelines . Parliamentary democracy requires that a government service of this importance be explicitly approved by the Parliament of
Canada .
28 . The process of enacting a statutory mandate for the security intelligence
agency may be a harrowing experience for those responsible for the effective
operation of such an agency . Parliamentary debate, and the public debate it
will stimulate, will expose the agency to unaccustomed and uncongenial
publicity . Given the necessarily limited knowledge which those outside the
security and intelligence community possess of security operations, there is a
risk that Parliament will impose a statutory mandate on the security intelligence agency which will dangerously emasculate it . We acknowledge these
risks, but we think that they are outweighed by the risk to parliamentary
democracy of continuing to operate such an important government service
without explicit statutory authorization, and the risk to the effectiveness of the
security intelligence agency which results from the lack of clear public
endorsement of its purpose . The short-run unsettling effects which may be
associated with a full-scale parliamentary debate will, we think, be justified by
the long-run benefits for both democracy and security .
29. On the basis of discussions we had with members of the three parliamentary parties we have formed the impression that there is the basis for a
parliamentary consensus on the need for an effective security intelligence
agency, providing it is under an adequate system of controls . We hope that
information provided in this Report will be useful background knowledge to
Parliament in considering the various aspects of a statutory mandate . We know
from our own experience that there are a number of Canadian and international experts in the field who might be of assistance when draft legislation is
considered at the Committee stage . In the previously mentioned study, Parliament and Security Matters, it was suggested that for the consideration of some
matters, it might be advisable for the House of Commons Standing Committee
on Justice and Legal Affairs to meet in camera . As an alternative, Parliament
might set up a smaller joint committee of both Houses of Parliament along the
lines of the permanent joint committee we shall suggest below . However, we
would hope that resort to in camera proceedings is minimized so that there is
as wide as possible a public understanding of the security intelligence agency's
rationale and of the precepts embedded in its statutory mandate .
30. At a number of points in this Report, we have indicated matters which
should be included in the Act of Parliament governing the secûrity intelligence
agency. Here we bring together these various suggestions and, for ease of
reference, list below the subjects which should be deal t
(a) Definition of national security threats . The Act should identify the
categories of activity which are deemed to constitute threats to Canada's security such that advance intelligence about them should be
provided by the security intelligence agency . In Part V, Chapter 3, w e
893
�advanced our recommendations as to how. . these threats should be
defined . In addition to this definition of security threats, the statute
might also set out in an introductory section, as for example is done in
the Broadcasting Act, a statement of the fundamental purpose of the
security intelligence agency and the framework of values within which
it is expected to operate.
(b) Structure of the security intelligence agency . The department or
agency of government to which the security intelligence agency belongs
should be indicated, along with the responsibilities, manner of appointment and term of office of its Director General and the status, within
the Public Service, of its personnel . Provision should also be made for
ministerial responsibility for the agency and for the Deputy Minister's
power with respect to the agency .
(c) Functions of the security intelligence agency. The Act should positively
identify the agency's basic function of collecting, analyzing and reporting intelligence about threats to national security and negatively establish the limits of the agency's operations by stipulating that it must not
perform intelligence functions unrelated to threats to national security
(as defined in the Act) nor perform executive functions to enforce
security measures. Besides providing for its general function, there are
a number of specific functions the permissible extent of which should
be provided for in the statute. These are activities outside Canada,
liaison with foreign agencies and with provincial and municipal
authorities, and the provision of security intelligence reports in programmes of security screening for public service employment, immigration, and citizenship .
(d) Extraordinary powers . Any investigatory power to be exercised by the
.security intelligence agency which is not available under law to persons
generally, in Canada, must be provided for in the Act . This would
mean that the statutory authorization to intercept or seize communications for security purposes which is now in section 16 of the Official
Secrets Act should be transferred to the Act governing the security
intelligence agency . Additional powers which we have recommended
above and which should be similarly provided for are the power to
intercept and open mail, the power of surreptitious entry and the power
to gain access to certain kinds of confidential information . Certain
additional techniques which are not otherwise unlawful, such as the use
of dial digit recorders and hidden cameras or optical devices, should
also be covered by the Act . The Act should stipulate all of the
conditions and controls which apply to the exercise of all such powers .
The Act should also specify the evidentiary standard which the security
intelligence agency must meet before it can initiate a full investigation .
(e) External controls of security and intelligence operations . Mechanisms
for providing an independent check and review of security intelligence
operations and of any intelligence activities, other than police activities,
conducted by the Government of Canada involving covert techniques of
intelligence collection should be provided for in the statute . In this
Report we suggest four such mechanisms :
- the designation of judges of the Federal Court of Canada to decide
whether certain statutory tests relating to national security have been
met ;
894
�- a Security Appeals Tribunal to review security screening cases ;
- an Advisory Council on Security and Intelligence to review the legality
and propriety of security intelligence activities .and the covert intelligence activities of any other federal agency other than a police force ;
- a joint standing committee of the Senate and House of Commons on
security and intelligence activities .
31 . Legislation covering the points . outlined in the preceding paragraphs
should be enacted whether or not our structural recommendation on the
separation of the security intelligence agency from the R .C .M .P . is adopted .
Security intelligence work is so important for Canada's security, has such a
potential impact on civil liberties and is sufficiently distinct from normal police
work, that it requires a clear and explicit authorization by Parliament, whether
or not it continues to be carried out by a division of our national police force .
WE RECOMMEND THAT Parliament enact legislation vesting authority
in an organization to carry out security intelligence activities and that such
legislation include provision fo r
(a) the definition of threats to the security of Canada about which
security intelligence is required ;
(b) certain organizational aspects of the security intelligence agency
including: its location in government ; the responsibilities, manner of
appointment and term of office of its Director General ; the powers of
direction of the responsible Minister and Deputy Minister ; and, the
employment statusof its personnel;
(c) the general functions of the organization to collect, analyze and report
security intelligence and to be confined to these âctivities, plus specific authorization of certain activities outside Canada, liaison' with
foreign agencies and provincial and municipal authorities and of the
organization's role in security screening programmes;
( d) authorization of certain investigative powers and the conditions, and
controls applying to the use of such powers ;
(e) mechanisms of external control to ensure an independent review of the
legality and propriety of security. intelligence activities and any other
covert intelligence activities by agencies of the Government of Canada
except those performed by a police force .
'
The ability of Ministers to answer questions in Parliamen t
32. A second way in which the role of Parliament in security matters needs
strengthening is that Ministers must be better able to answer parliamentary
questions about security intelligence activities . In the past ministérial ability in
this area was deficient in two respects : first, Ministers did not have sufficient
knowledge of the operational policies and practices of the R .C .M .P . Security
Service, and second, Ministers lacked means of ensuring that answers to
parliamentary questions about the Security Service supplied by the R .C .M .P .
were accurate, complete, and understandable by the audience to which they
were addressed .
895
�33 . The proposals we have made earlier for strengthening internal governmental control of the security intelligence agency are designed to ensure
adequate ministerial direction and control of security intelligence activities . In
particular we refer to our recommendations concerning the role of the Solicitor
General, as the Minister responsible for the security agency, and his Deputy,
aimed at ensuring full ministerial knowledge of the agency's operational
policies . We also emphasized the extent to which ministerial direction and
control should be carried out in a collegial manner when important policy
issues are at stake and for that purpose we called for a strengthening of the role
played by Cabinet and the interdepartmental committee system in directing
and reviewing security intelligence activities . Further, an independent review
body, along the lines proposed in our recommendation for an Advisory Council
on Security and Intelligence, with its own powers of investigation, should give
Ministers more assurance than they have had in the past that significant
information about security investigations is not being withheld from them .
34. We believe that, if these changes in the system of government control are
made, Ministers will at least possess the knowledge to answer questions about
security intelligence activities asked in the House of Commons . Of course,
because of the need for secrecy with respect to many aspects of security
operations, they may choose not to divulge in public some of the information
which they have: but such non-disclosure will be of their own choosing and not
because the information is kept from them by the security organization . To
insist that this condition be realized is to demand nothing more than that a
fundamental principle of responsible government be applied to security intelligence activities undertaken on behalf of the Government of Canada . Furthermore, the proposal we make below for a special parliamentary committee will
make it more feasible than it has been in the past for the Minister responsible
for the security intelligence agency to give those parliamentarians who are
members .of the committee important information about policy matters relating
to security activities which it would be unwise to disclose publicly .
A Parliamentary Committee on Security and Intelligenc e
35 . Effective scrutiny of security intelligence activities by representatives of
all parties in Parliament is more likely to be maintained if a new committee is
formed which can examine policies and practices in more depth than is now
done by the Standing Committee on Justice and Legal Affairs of the House of
Commons . That Committee is too large, its membership too fluctuating and its
procedures too restrictive of the time which each of its members has to raise
questions and pursue a line of inquiry . Our examination of the record of that
Committee's in camera meetings in 1977, when public disclosures had focussed
attention on the R .C .M .P., indicated the inherent difficulties faced by such a
committee when it comes to inquiring about policy issues arising from security
intelligence activities . Most of the time at these meetings was spent receiving
the views of security officials and members of the R .C .M .P. While what they
said was educational, most of it could have been, and indeed has been, stated in
public.
896
�36 . We think effective parliamentary scrutiny of security intelligence activities is more likely to be achieved by establishing a small joint committee of
both Houses of Parliament . This committee should be constituted of parliamentarians whose commitment to Canada's democratic system of government is unquestionable and who have the confidence of all parliamentary
parties . The members of this Committee, either through their previous experience in government or by continuing to serve on this Committee from session to
session, must possess or acquire a reasonable base of knowledge about Canada's security and intelligence system . The need for experience and knowledge is
one reason why we think the participation of Senators in such a committee
would be valuable .
37 . Our proposals concerning ministerial direction of the security organization acknowledged that a risk inherent in closer ministerial direction and
control was the possibility of the organization being used for narrow partisan or
personal purposes . A key protection against this possibility is the Advisory
Council on Security and Intelligence with its independent powers of investigation and its availability to the Director General in the event that he receives
what he regards as improper direction from government . But this independent
review body will be more credible as a check on partisan or personal misuse of
the security intelligence agency (or any other federal intelligence agency) if it
in turn has access to a parliamentary committee containing members of
opposition parties .
38 . To ensure that the Committee has the confidence of the recognized
parties in Parliament, the leaders of opposition parties should personally select
members of their party and, if possible, serve themselves on the Committee .
The Committee should not have more than ten members . All recognized
parliamentary parties should be represented on the Committee with the
exception of a party dedicated to the ultimate overthrow of the democratic
system of government in Canada, if in the future any such party should have
members of Parliament . If the parties are represented on the Committee
roughly in proportion to their strength in the House of Commons, as is
traditional with parliamentary committees, the Committee should be chaired
by a member of an opposition party . We understand that the combination of a
government majority and an opposition chairman has worked well with the
Public Accounts Committees . We think a similar balance would contribute to
the effectiveness and credibility of a Joint Parliamentary Committee on
Security and Intelligence .
39. This Committee should have much more continuity in its membership
than is the case with Standing Committees of the House of Commons . During
the first three sessions of the 30th Parliament (1974-79) substitutions in the
membership of committees totalled 4,310, 1,749, and 1,409 respectively .6
Rapid turnover of membership during a session, or from session to session,
would prevent the Committee from developing the background understanding
which is a prerequisite for knowledgeable questioning and judgment of securit y
6 Robert J . Jackson and Michael M . Atkinson, The Canadian Legislative System, 2nd
Edition, Toronto, Macmillan of Canada, 1980, p . 142 .
897
�and intelligence matters . The necessary continuity would be best provided by
establishing the Committee for the life of a Parliament . We considered the
possibility,of a Committee of parliamentarians (rather than a Committee of
Parliament) which, rather like the British Committees of Privy Councillors,
would not die with each dissolution of Parliament . But such an arrangement
would, in our view, go too far towards detaching this Committee from
Parliament . Also there is the danger of building too much continuity into the
structure of this Committee with the result that its members would become, or
would be perceived to have become, too closely associated with the security and
intelligence system .
40. The prime function of the Joint Parliamentary Committee we are recommending should be to scrutinize the activities of the security intelligence
organization with a view to ensuring that it fulfills the intentions of Parliament
as set out in the organization's legislative charter . The Committee's regular
opportunity for examining the conduct of the security organization's affairs
should be its examination in an in camera session of the organization's annual
financial estimates . This should be an occasion on which members of the
Committee can question the Solicitor General, and officials who accompany
him, on security intelligence activities . As a background paper for this activity
of the Committee, the Solicitor General should provide an annual report of the
security intelligence agency's activities similar to, but not necessarily containing the same information as, that which we have recommended be prepared for
the Cabinet . It is interesting to note that in making this recommendation for an
examination of security intelligence expenditures on a confidential basis by a
joint committee of Parliament, we are in part, reviving . a recommendation
made more than a century ago by the House of Commons' Select Standing
Committee on Public Accounts . That Committee, which was appointed to look
into Sir John A . Macdonald's handling of secret service funds, resolve d
thai inasmuch as such large sums as $75,000 have been voted for 'Secret
Service Money' of which there is no audit, as in the case of other
expenditure, this Committee is of opinion, that an account of all sums
hereafter spent .for'Secret Service' should be kept, as in England, in a book
specially prepared for the purpose, and that this book should annually be
inspected by a confidential Committee, of whom two shall be Members of
the Opposition of the day . '
The detailed examination of estimates must be in camera, although it should
be remembered that the Parliamentary committee would be composed of
members from both sides of the House. We would point out further that in
Australia, the total figure for expenditure by their security intelligence agency
is a matter of public record and we would urge that after some experience with
the new Parliamentary Committee careful consideration be given to the
adoption of that practice in Canada . We are not recommending such publication at this time .
41 . Our earlier recommendations referred to two specific matters which
-should be considered by the Committee . First, the Committee should receiv e
' Journals of the House of Commons, May 29, 1872, p .173 .
898
�detailed annual reports on the use of the extraordinary powers of intelligence
collection authorized in the Act governing the security intelligence agency . The
bare statistical report on the use of the power to intercept and seize communications for security purposes, which Parliament now receives pursuant to
section 16 of the Official Secrets Act is, as was explained earlier, an inadequate means of accounting to Parliament . We realize that a much more
detailed and in-depth public account of the use which is made of such powers
would require the disclosure of information which could seriously damage
security . Therefore, we have recommended that the more detailed examination
of the use of these powers be carried out in camera by the Joint Parliamentary
Committee on Security and Intelligence . Second, we have recommended that
the Advisory Council on Security and Intelligence report at least annually to
the Joint Parliamentary Committee on the extent and prevalance of improper
or illegal activities, on improper direction by government and on any serious
problems which have arisen in applying the security intelligence agency's
statutory mandate . In addition to these matters, Parliament would be able by
resolution to ask the Committee to inquire into' and report on any matter
relating to security and intelligence . The availability of such a Committee
might make it unnecessary to establish Commissions of Inquiry in the future .
42 . We have referred to this special parliamentary Committee as the Joint
Parliamentary Committee on Security and Intelligence . As this title implies,
the jurisdiction of such a Committee should extend to the covert intelligence
collection activities of all agencies of the federal government . The rationale for
this recommendation is the same as the rationale for a similar recommendation
with respect to the Advisory Council on Security and Intelligence . The
maintenance of effective parliamentary scrutiny of secret intelligence activities
conducted on behalf of the Canadian government could be jeopardized if other
agencies could be assigned covert intelligence-gathering tasks and not be
subject to the same powers of parliamentary scrutiny as the security intelligence agency . We would exempt the collection of criminal intelligence (i .e .
advance information about criminal activity unrelated to security threats) from
the purview of this Committee but not the activities of federal police agencies if
any of them are authorized to carry out non-criminal, covert intelligence-gathering tasks unrelated to the investigation of offences .
43 . Unlike the Advisory Council on Security and Intelligence, the Parliamentary Committee should be as much concerned with the effectiveness of the
security intelligence organization as with the legality or propriety of its
operations . Gaps in the security or intelligence system should be of as much
concern to this Committee as alleged excesses of security surveillance . In this
respect it might be asked to look into breaches of security which in Britain are
referred to the Security Commission8 (an appointed body of individuals, with
experience in security matters) .
8 The British Prime Minister, Sir Alec Douglas-Home, announced the establishment of
the Security Commission in January 1964 : United Kingdom, Parliament, Debates,
January 23, 1964, pp . 1271-5 .
899
�44. The Committee we have recommended should also play a role in the
legislative process . It should be in a strong position to see how the terms of the
security intelligence agency's new statutory charter are working out in practice
and to identify areas where legislative change may be required . In particular,
under the clause we have proposed for providing some flexibility in the scope of
security surveillance, this Committee would be notified of any order-in-council
temporarily extending security intelligence collection to a category of activity
not provided for in the Act . The Committee's knowledge of these situations
would enable it to assess the need for permanent changes in the agency's
mandate . The House of Commons might prefer to continue to have the
committee stage of bills relating to national security handled by the larger and
more representative Standing Committee of the House of Commons on Justice
and Legal Affairs. If this were so, then it would be important to include
Members of Parliament from the Joint Committee on Security and Intelligence
on the Justice and Legal Affairs Committee . If, on the other hand, the Joint
Committee were to have bills sent to it for clause-by-clause consideration, it
would be essential to arrange for the appearance of expert witnesses and the
representation of views by public interest groups as is done when legislative
proposals are before the Justice and Legal Affairs Committee .
45 . The Joint Committee on Security and Intelligence should have some staff
assistance. In addition to the access it would have to the Research Branch of
the Library of Parliament and to the services of a committee clerk, it should be
able to call upon the assistance of one or more specialists in security and
intelligence matters to assist it in obtaining background information on security
and intelligence matters and in preparing itself for other questioning of security
officials who may appear before it .
46. The Committee we are proposing, to be effective, must carry out many of
its inquiries in camera . There is simply no other way in which it can examine
the structure and management of the security organization, the deployment of
its resources and the policy issues which arise in, or can only be satisfactorily
illustrated by, references to concrete cases . Participation in in camera sessions
by members of opposition parties raises the prospect of reducing their freedom
to criticize the government's handling of security and intelligence matters .
Reluctance to compromise their right to criticize the government was a factor,
on occasions in the past, which inhibited Leaders of the Opposition from
accepting invitations from Prime Ministers to be briefed on some security
matter . We can see no tidy solution to this problem . Knowledge brings with it
the burden of responsibility to respect the conditions under which the knowledge has been provided . The alternative is to provide no authorized means of
informing opposition members about significant security and intelligence matters, and to continue to leave them dependent on unauthorized leaks of
information . We think that almost total dependence on unauthorized leaks is
undesirable : leaks of information are likely to be organized by disgruntled
members of the security intelligence organization or by hostile intelligence
agencies . The quality of parliamentary and public discussion of security and
intelligence will, we think, be enhanced if a few opposition members have the
opportunity to acquire a firmer, more balanced understanding of practices an d
900
�policies in the field than is available through public information and the
unauthorized disclosure of confidential information .
47 . The dilemma we have referred to can be lessened, although not entirely
removed . Not all of the Committee's proceedings need be in camera . It is
particularly important, as we have stressed, that when the Committee considers
legislative matters it have public sessions and discussions with expert witnesses
from outside the government and representatives of public interest groups .
Further, the Committee could adopt the practice of British Parliamentary
Committees and publish edited records of its in camera proceedings . Our own
experience suggests that such a procedure can produce a record that retains an
account of the important policy issues while editing out references to specific
sources, targets or organizational features, which might damage security . More
fundamentally, if members of the Committee discover what they regard as bad
practices or policies pointing to serious inadequacies or improprieties in
Canada's security and intelligence arrangements and are not satisfied that the
government is taking appropriate remedial action, then they might well have to
speak out publicly . They should do so in a manner which does not disclose the
particular information given to them in confidence, but informs Parliament and
the public of their perception of the government's failure to deal adequately
with a serious security or intelligence problem . Informed public criticism of
government is essential to democracy . In the final analysis, as we have
contended throughout this Report, security must not be regarded as, more
important than democracy, for the fundamental purpose of security is the
preservation of our democratic system .
48 . The view expressed at the end of the last paragraph may give rise to the
fear that access to confidential security information, rather than muzzling
opposition members, will have the opposite result of leaking important confidential information . It has been suggested that, as a protection against this
possibility, members of the kind of parliamentary committee we are proposing
should all need formal security clearance . That indeed was the view of the
Royal Commission on Security . However, that Commission took the position
that it was "inappropriate to subject private Members of Parliament to these
(security clearance) procedures" . Because of this view and the general contention that security was a matter for the executive, not the legislature,9 the
Commission discarded the idea of recommending a parliamentary committee
as a means of providing independent, responsible scrutiny of the Security
Service. In Part VII of this Report we put forward our own position on the
security screening of Senators or Members who are being considered for
positions with access to confidential information relating to national security,
including those who are .considered for appointment to the proposed Joint
Committee on Security and Intelligence . Our position is that, while parliamentarians should not be subjected to the formal security screening process, the
security intelligence agency should be asked to report in advance to a party
leader as to whether it has information about a Member the leader is proposing
to name to the Committee which indicates a significant association of tha t
9 Canada, Royal Commission on Security, 1969, paragraph 65 .
901
�member with an activity threatening the security of Canada . This would mean
that while parliamentarians would not be subjected to all the procedures of a
regular security clearance process (e .g ., they would not fill out personal history
forms nor be screened for "character weaknesses" by government officials),
party leaders would have an opportunity to be apprised in advance if an
appointment is likely to raise serious security problems . In addition to this
security check, Members might be asked to take an oath similar to that taken
by Privy Councillors, and they should receive a security briefing from the
Director General of the security intelligence agency .
49. Security checks and oaths will not likely satisfy those whose fear focusses,
not so much on the possibility of a person who is associated with a genuinely
subversive activity serving on the Committee, but on the possibility of members
of the Committee leaking information for partisan purposes to embarrass the
government or to obtain publicity for themselves or their party . A minimum
amount of realism about the role of partisanship in democratic politics makes it
necessary to acknowledge this risk . We are not in a position, and we doubt that
anyone else is, to be categorical about the extent of this risk in the context of
Canadian politics . However, we are not aware of evidence which would
indicate that members of the Canadian Parliament are so much more partisan
and so much less trustworthy than are members of the United States Congress
or the Bundestag of the Federal Republic of Germany who serve on security
intelligence oversight committees, that it is too dangerous to attempt such an
experiment in Canada . Only time will tell the likelihood of this danger . If it
appears to the government that opposition members, for partisan political
purposes, disclose information damaging to Canadian security, the government
will cease to permit the disclosure of important information to the Committee,
and the Committee will become ineffectual .
50. In embarking on the experiment in parliamentary oversight which we
have proposed, Canada would not be breaking entirely new ground . Nearly all
of the western democracies in one way or another have been moving away from
the position taken by the Canadian Royal Commission on Security (the
Mackenzie Commission) 13 years ago that the legislature should not be
directly involved in security matters . The trend has been towards a greater role
for Members including those who do not belong to the governing party or
coalition, to review secret security and intelligence activities . The two countries
which have made the most use of committees of the legislature are the United
States and the German Federal Republic . In the United States, Congressional
Committees, especially since the Watergate episode, have played a prominent
role in reviewing the operations of all of that country's intelligence agencies .
Recently there has been a movement to cut back on the number of committees
involved in such oversight and a rejection of the proposal that covert foreign
operations should require advance notification . These changes, however, will
not alter the comprehensive scrutiny of intelligence activities carried out by the
House and Senate Select Committees on Intelligence. The Senate Committee,
for instance, consisting of 19 Senators (10 Democrats and 9 Republicans while
the Democrats controlled the Senate), assisted by a staff of approximately 50,
two-thirds of whom are experts in various disciplines, continuously monitors al l
902
�aspects of covert and overt intelligence collection, including the F .B .I .'s counter-intelligence activities . About 95 per cent of its sessions are in camera, but
all Senators may examine records of its proceedings and documents in its
possession . In Germany, a Parliamentary Panel of Party Representatives to
examine the activities of that country's intelligence services has been in
existence since 1956 . Recent legislation in Germany has given the Parliamentary Committee a more formal status .10 It consists of eight members drawn
from the three major party groups in the Bundestag . The chairman of each
party group is a member of the Committee, and the chairmanship of the
Committee rotates every three months amongst the party groups. The scale of
this committee's activities (it has one staff inerrtber, who is an expert on
security and intelligence matters) is closer to what we envisage for a similar
parliamentary committee in Canada, although we would hope that a Canadian
Committee might have more access to information about operational policy
matters than has the German Committee . There is also a Parliamentary
Committee on Security and Intelligence in the Netherlands, although it would
appear to have been less active than the German Committee .
51 . In Australia a parliamentary committee has not been adopted as a means
of providing scrutiny of intelligence activities . One reason for this is the
practice of electing members of parliamentary committees . However, the
Australians have emphasized consultation with the Leader of the Opposition as
a means of providing "a bi-partisan approach to security matters ."" Section
94(2) of the Australian Security Intelligence Organization Act 1979, requires
that a copy of the annual report, which the Director General of the Australian
Security Intelligence Organization is required to furnish his Minister, be given
to the Leader of the Opposition, but with the proviso that "it is the duty of the
Leader of the Opposition to treat it as secret" . Also section 7(2) requires
consultation with the Leader of the Opposition before appointing the Director
General of A .S .I .O . We do not see a Parliamentary Committee, along the lines
we have proposed, as replacing consultation with the Leader of the Opposition
or leaders of other parliamentary parties on security matters . Situations may
well arise, as was the case in 1970 and frequently in World War II, when the
government deems it advisable to offer to brief the Leader of the Opposition
and other party leaders on security situations . But this kind of consultation is
too fragmentary and too dependent on the personal relationships between party
leaders to provide the systematic parliamentary scrutiny which is required . Nor
do we think it is wise to concentrate the burden of knowledge and judgment
concerning security matters on a single opposition member . Finally, in the
context of the Canadian Parliament, which for more than half a century has
been a multi-party, not a two-party, forum, it is essential to involve opposition
parties other than t1fe official Opposition . Being more likely to be associated
with whât, in the context of the times, are considered to be more radical views ,
10 An exchange of articles examining the strength and weaknesses of this Committee
can be found in the October 22, 1977 issue of Aus Politik und Zeit Geschichte .
" Australia, Fourth Report of the Royal Commission on Security and Intelligence (The
Hope Report), Canberra 1978, paragraph 46 1 .
903
�leaders of these parties are likely to be especially sensitive to the need for
careful judgment in distinguishing threats to security from legitimate dissent .
52 . The British Parliament has not developed a special parliamentary committee on security and intelligence matters . Instead, it has relied extensively on
Committees of Privy Councillors, who have served in Conservative and Labour
governments, to inquire into security issues . This is scarcely a feasible option in
Canada until such time as the balance of power in federal politics shifts much
more frequently from one party to another . Indeed, one important function
which the existence of a parliamentary committee on security and intelligence
would perform is to provide much more opportunity for at least a few leading
opposition Members of Parliament to become reasonably well-informed about
security and intelligence matters than has been possible in recent years .
53 . We realize that institutions and procedures developed by other democracies, even those with parliamentary systems, may not be workable within the
context of Canadian parliamentary~institutions . We have cited these foreign
experiences not because any of them will provide an ideal model for Canada,
but because all of them indicate a democratic desire to subject secret state
intelligence activities to review by persons associated with the democratic
critics of the party in power . We think most Canadians share that desire . The
way it is fulfilled will depend on the conventions and attitudes which govern the
workings of parliamentary government in Canada . These conventions and
attitudes are not static . We sense an interest by all political parties in
strengthening parliamentary committees to examine the operations of government effectively . Our proposed Joint Parliamentary Committee would be
consonant with parliamentary reform in this direction .
WE RECOMMEND THAT the statute governing the security intelligence
agency provide for the establishment of a Joint Committee of the Senate
and House of Commons to review'the activities of the security intelligence
agency and of any other agency collecting intelligence (other than criminal
intelligence) by covert means .
(182)
WE RECOMMEND THAT the Joint Committee on Security and Intelligence have not more than ten members, that all recognized parliamentary
parties be represented on it, that the leaders of parliamentary parties
personally select members of their parties for the Committee and, if
possible, serve themselves, that the Committee be chaired by a member of
an opposition party, that members serve for the duration of a Parliament
and that it retain the help of such specialists as it considers necessary .
(183)
WE RECOMMEND THAT the Committee be concerned with both the
effectiveness and the propriety of Canada's security and intelligence
arrangements and that its functions include the following :
(a) consideration of the annual estimates for the security i ntelligence
agency and for any other agency collecting intelligence ( other than
criminal intelligence) by covert means ;
904
�(b) examination of annual reports of the use made of "extraordinary"
powers of intelligence collection (other than criminal intelligence)
authorized by Parliament ;
(c) consideration of reports directed to it by the Advisory Council on
Security and Intelligence ;
(d) the investigation of any matter relating to security and intelligence
referred to it by the Senate or House of Commons .
(184)
WE RECOMMEND THAT the Joint Committee on~Security and Intelligence whenever necessary conduct its proceedings in camera, but that it
publish an expurgated report of all in camera proceedings .
(185 )
D . PUBLIC KNOWLEDGE AND DISCUSSION
OF SECURITY MATTER S
54. Our experience in carrying out the mandate of our Commission has made
us acutely aware of the low level of public knowledge about security issues .
This is, of course, what one should expect, given the veil of secrecy which,
traditionally, has been drawn over this sphere of government . The main sources
of `information' for most Canadians are newspaper disclosures of `spy scandals'
and popular works of fiction . Public discussion of Canada's internal security
arrangements tends to be dominated by two groups who advance positions at
two extreme poles : those who contend that the threats to security are so serious
that the wisest course is to disclose as little information as possible about the
measures taken to counter these threats and those who contend just the
opposite - that Canada is so fortunately immune from threats to its security
that there are no secrets worth keeping . .We think that both of these groups are
wrong . There are serious threats to the security of Canada but they are not so
serious as to prevent a reasonable amount of informed discussion about the
nature of these threats and the measures necessary to protect Canada against
them . As we have said in more expanded form elsewhere in this Report,
security measures can be so corrosive, that to preserve democracy we should
minimize the secrecy aspect wherever this can reasonably be done .
55 . The recommendations-we have made to strengthen the role of Parliament
would, we think, contribute to raising the level of public discussion about
security matters . Also, the Solicitor General, as the Minister responsible for
the security intelligence agency, should take a leading role in informing the
public about security issues and encouraging the study of these issues by
private research institutes and the universities . The Solicitor General might
turn to the Advisory Council on Security and Intelligence for assistance in
these areas . As laymen temporarily involved in the world of security and
intelligence, members of this Council should be in a good position to identify
subjects which would benefit from public discussion and independent research .
56 . The Bureau of Intelligence Assessments which we have recommended
would provide another opportunity for wider public participation in securit y
905
�and intelligence matters . The Office of National Assessments in Australia from
time to time arranges seminars attended by experts from outside government to
discuss subjects on which it is preparing an intelligence assessment . If such a
Bureau were established in Canada, we think it too should draw upon the
perceptions and knowledge of Canadians outside of the security and intelligence community in collating intelligence on various topics . Indeed, we think
that one of the distinct advantages of such a Bureau is to ensure that the
intelligence estimates prepared for government combine information and viewpoints obtained from covert sources with insights from a broad range of public
sources .
57. Another means of creating wider public knowledge of the security
intelligence agency's functions is to make more of the historical record of the
agency available to the general public . The Security Service has not transferred
to the public archives any file material covering any period after 1925 . We find
this practice both overly conservative and shortsighted . It is overly conservative
in that there is much Security Service file material of interest to the public
which is less than 50 years old and which, if made public, would not damage
Canada's security nor be harmful to the privacy of individuals . The public
record of this Commission in examining events which occurred as recently as
three years ago amply demonstrates this point . The practice is shortsighted
because it is in the security intelligence agency's best interests to have its
history published and widely examined . Such a process will serve as a check on
the abuse of the agency's power, will help the agency learn from its past
mistakes, and will help mobilize support for its activities . We believe, therefore,
that the security intelligence agency should adopt a more liberal approach than
in the past in making historical material relating to its policies and practices
available to the general public .
58 . It is also our hope that the public record of this Commission's proceedings, this Report and its accompanying bibliography, as well as the books and
articles stimulated by the work of the Commission, will provide Canadians who
are interested in this subject with a much better basis for study and research
than has ever been available before . The requirements of both security and
democracy are better served when the ideas which influence and shape
Canada's security and intelligence arrangements come not only from those who
work within government agencies but also from a broad cross-section of
informed Canadians .
WE RECOMMEND THAT the security intelligence agency be directed to
draft a policy for approval by the Minister to ensure the release of
historical material, unless such release can be shown to endanger the
security of Canada.
(186 )
906
�PART IX
ADDITIONAL LEGAL AND POLICY PROBLEMS
RELATING TO THE SECURITY OF CANADA *
INTRODUCTION
CHAPTER 1 :
National Emergencies
CHAPTER 2 : The Official Secrets Act
CHAPTER 3 : Foreign Interference
CHAPTER 4 : The Law of Sedition
907
��INTRODUCTION
1 . Paragraph ( c) of our terms of reference requires us to advise and report on
" . .. the policies and procedures governing the activities of the R .C .M .P . in the
discharge of its responsibility to protect the security of Canada . . . as well as
the adequacy of the laws of Canada as they apply to such policies and
procedures . . ." . In Parts V, VI, VII and VIII, which together form what could
be called a manual for Canada's security intelligence agency, we discussed
what we considered to be the major policy problems facing this security
intelligence agency . Many of our recommendations called for important
changes in both federal and provincial laws - changes which included the
establishment of a statute to govern the agency's scope of intelligence collection
and its use of intrusive investigative methods .
2 . In this Part, we present further proposals with respect to changing
inadequate laws relating to the security intelligence agency's mandate . Four
chapters make up this Part . In Chapter 1, we examine the special powers
available to the federal government in time of war or national emergency . We
also discuss the role that the security intelligence agency should play in such
emergencies . In Chapter 2, we focus on the Official Secrets Act . We recapitulate earlier recommendations we made in our First Report, Security and
Information, of relevance to this Act, and then discuss other sections of the Act
about which we have not yet made recommendations . In Chapter 3, we
consider legislative proposals to prohibit or restrict active measures of foreign
interference . Finally, in Chapter 4, we examine the law of sedition in Canada
and make a recommendation concerning that law .
909
��CHAPTER 1
NATIONAL EMERGENCIES *
INTRODUCTION
3 . In this chapter we examine the special powers available to the federal
government in time of war or other national emergency . We also discuss the
role of the R .C .M .P . in relation to emergency planning since World War II,
with particular reference to the October Crisis of 1970, and the role of the
security intelligence agency in the future . We have considered only emergencies arising from threats to the internal security system of Canada, not natural
disasters or other catastrophes unlikely to involve the security intelligence
agency .
4 . Our terms of reference require us to advise on "the adequacy of the laws of
Canada" as they apply to the "policies and procedures governing the activities
of the R .C .M .P . in the discharge of its responsibility to protect the security of
Canada" . A security intelligence agency should play a significant role in
national emergencies, being prepared to advise government on the possibility of
political violence and on various operations to ensure the security of the state .
After an emergency has been declared, the agency should keep government and
police forces informed on security matters . Before we discuss the specific role
of the security intelligence agency, however, we examine the laws which give
the federal government the authority to exercise emergency powers .
A . THE LEGAL FRAMEWOR K
5 . When the state is threatened by attack from a hostile power or by civil
insurrection, special powers are available to the federal and provincial governments . At common law and by virtue of the prerogatives of the Crown, the
state had the power to take all measures which were absolutely and immediately necessary for the purpose of dealing with an invasion or other emergency .'
Many of these inherent emergency powers are now set down in the War
Measures Act,2 the National Defence Act' and the Criminal Code . In the event
of a complete breakdown of civil authority, there remains the ultimate power t o
' Halsbury's Laws ojEngland, 4th edition (1974), Vol . 8, pp. 624-28 .
2 R .S .C . 1970, ch .W-2 .
' R .S .C . 1970, ch .N-4 .
*Commissioner Gilbert has filed a minority report with respect to some aspects of this
question .
911
�impose military government or martial law (last declared in Canada following
the rebellion of 1837) . In this section we set out the emergency powers which
are now available .
Criminal Code
6 . The Criminal Code contains a number of provisions which may have
particular application in emergency situations, including treason (section 46),
sabotage (section 52), inciting to mutiny (section 53), sedition (section 62), riot
(section 65), and hijacking (section 76 .1) . No special powers beyond the
ordinary police powers of search and seizure and arrest are provided for .
Use of the armed forces
7. In cases involving riot or civil disturbances, where local police forces are
insufficient, a provincial government can call upon military aid . The consent of
the federal government is not required . Section 233 of the National Defence
Act provides that the Canadian forces
. . . are liable to be called out for service in aid of the civil power, in any
case in which a riot or disturbance of the peace requiring such service
occurs, or is, in the opinion of an attorney general, considered as likely to
occur, and that is beyond the powers of the civil authorities to suppress,
prevent or deal with .
A provincial attorney general may act on his own or after receiving notification
from a judge of a superior, county or district court that the services of the
armed forces are needed . It should be noted that the Chief of the Defence
Staff, although required to respond to a provincial requisition, may determine
what resources to call upon to deal with particular situations . The province is
legally liable to pay for the costs of such military assistance .
8. Troops have been used on a number of occasions, including the labour
disturbances in Quebec City in 1878 and in Cape Breton in 1923, and the
Winnipeg General Strike in 1919 . More recently, during the 1970 October
Crisis, the military was called in by the government of Quebec, prior to the
invocation of the War Measures Act by the federal government .
9. It is not entirely clear how far the federal government can use its own
initiative to employ troops in connection with domestic disturbances . In the
anti-conscription riots of 1918 in Quebec City, the local commanding officer
moved in troops to restore order without waiting for any requisition for aid
from the provincial or local authorities . A week later, such interventions were
authorized by a federal Order-in-Council under the War Measures Act . Of
course, in the event of a national emergency the Government of Canada has
undoubtedly the constitutional power, pursuant to its authority to legislate in
relation to "peace, order and good government", to enact legislation to
authorize the deployment of troops within Canada .
10. A member of the armed forces does not ordinarily have the powers of a
peace officer (except when enforcing military law), but may exercise them
when called in to help civil authorities . Section 239 of the National Defence
Act provides :
912
�239 . Officers and men when called out for service in aid of the civil power
shall, without further authority or appointment and without taking oath of
office, be held to have and may exercise, in addition to their powers and
duties as officers and men, all of the powers and duties of constables, so
long as they remain so called out, but they shall aci only as a military body,
and are individually liable to obey the orders of their superior officers .
11 . The ability to invoke military aid to civil authorities would appear to be
less necessary today than in the early days of Confederation . Most local
disturbances can be adequately controlled by local police . Since the end of
World War II the provinces have used the requisition power on only two
occasions, once for the Police and Firemen's Strike in Montreal in 1969, and
again for the October Crisis in 1970 .
The War Measures Act
12 . The War Measures Act was enacted by Parliament on August 21, 1914,
at the outbreak of World War I . The Act was passed without dissent after just
over half an hour of debate, and became law, following Royal Assent, on
August 22 . The Canadian government had already detained enemy vessels
and taken other actions that were validated retroactively by the legislation .
13 . The Canadian War Measures Act followed much the same pattern as the
Defence of the Realm Act° passed in the United Kingdom on August 8, 1914 .
The emergency powers granted to the government were not spelled out in the
legislation . Rather, the Governor in Council was given broad powers to declare
a state of emergency and then to pass regulations under the Act . The Canadian
Act, which was more all-embracing than the United Kingdom legislation,
allows the government to make orders and regulations deemed "necessary or
advisable for the security, defence, peace, order and welfare of Canada" .
Under the Act a state of emergency may be declared by proclamation and,
until revocation, the proclamation is conclusive evidence that a state of war,
insurrection or invasion, real or apprehended, exists . Section 2 of the War
Measures Act states :
2 . The issue of a proclamation by Her Majesty, or under the authority of
the Governor in Council shall be conclusive evidence that war, invasion, or
insurrection, real or apprehended, exists and has existed for any period of
time therein stated, and of its continuance, until by the issue of a further
proclamation it is declared that the war, invasion or insurrection no longer
exists .
14. The Canadian Act provides that the regulations may impose penalties of
up to five years for breaches of the regulations, compared with three months
under the United Kingdom legislation .
15 . The U .K . legislation expired shortly after the end of World War I,
whereas the Canadian Act has never been repealed . New emergency powers
legislation was enacted in the U .K . just before World War II which remained
°(Imp .) 4 and 5 Geo . 5, ch .29 .
913
�in force for the duration of hostilities .5 It is not clear whether the original
intent was to make the Canadian Act a permanent one . The statute makes
specific reference to the existing hostilities, yet refers to "war, invasion, or
insurrection, real or apprehended" . Since if it were meant only to be applied
during the war there would have been no need to refer to "insurrection", it
seems likely that the government intended the statute to be permanent .
Moreover, it may be that the scope of the Act was altered during its passage .
The resolution introducing it referred to the issue of a proclamation only as
"conclusive evidence that war exists", whereas the legislation passed a few days
later made the proclamation "conclusive evidence that war, invasion, or
insurrection, real or apprehended, exists . . ." .
16. It is not certain how the crucial words "insurrection, real or apprehended", which were not in the U .K . legislation, came into the Canadian statute .
However, it is very likely that the language was borrowed from the Militia Act
of 19046 which had defined the word "emergency" to mean "war, invasion, riot
or insurrection, real or apprehended ." Another Canadian Act, the Finance Act,
passed on the same day as the War Measures Act, used the precise words of
the Militia Act'to allow the government to issue certain proclamations (authorizing, for example, a debt moratorium and other measures to prevent a run on
financial institutions) in case of "war, invasion, riot or insurrection, real or
apprehended . ." . In the War Measures Act, the word "riot" was dropped .
.
17 . During World War I the government enacted extensive regulations under
the authority of the War Measures Act . Towards the end of the war a number
of organizations, such as the Industrial Workers of the World and the Russian
Workers Union, were declared to be unlawful for the duration of the war by
Order-in-Council under the Act . Membership in such associations or even
attendance at their meetings was an offence . Investigating the activities of such
unlawful organizations was the responsibility of the Royal North-West Mounted Police .
18 . The War Measures Act was invoked for World War II on September 1,
1939, nine days before the formal declaration of war . The regulations had been
prepared by a Standing Interdepartmental Committee on Emergency Legislation set up in 1938 . During the war a number of front organizations were
declared unlawful by Orders-in-Council . Also, a Treachery Act was passed to
allow for prosecutions for major espionage and other serious cases .' After 1945
special transitional Acts were passed from year to year until 1951 . Following
the outbreak of the Korean War, a special Emergency Powers Act was passed
which expired in 1954 . 8
19. In 1960, at the time of the enactment of the Canadian Bill of Rights, the
War Measures Act was amended so that section 6 provided that a proclamation invoking the Act "shall be laid before Parliament forthwith after its issue ,
5 Emergency Powers (Defence) Act, 1939, 2 and 3 Geo . 6, ch .62 .
6 S .C . 1904, ch .23 .
' S .C . 1940, ch .43 .
8 S .C . 1951, ch .5 .
914
�or, if Parliament is then not sitting, within the first fifteen days next thereafter
that Parliament is sitting" . Section 6 also provides for Parliamentary debate of
a motion signed by ten members, "praying that the proclamation be revoked" .
Finally, section 6(5) provides that anything done under the authority of the
Act "shall be deemed not to be an abrogation, abridgement or infringement of
any right or freedom recognized by the Canadian Bill of Rights" .
20 . Mr . Pearson, then Leader of the Opposition, maintained that an effective
Bill of Rights should restrict the executive even in an emergency . He submitted
that the Governor in Council should be expressly forbidden to deprive any
Canadian citizen of citizenship or to banish or exile any citizen in any
circumstances . He further proposed a "limitation by law on the absolute and
arbitrary power of the government to detain persons, even in wartime", but
stopped short of recommending that detention without an early trial on
properly laid charges should be expressly forbidden. These proposals were not
accepted . Prime Minister Diefenbaker pointed out that the government's
amendments "assured parliamentary control which has not previously existed
under the War Measures Act" . Moreover, he suggested that a parliamentary
committee should later be established to examine the operation of the War
Measures Act .9 Such a committee was never set up .
21 . The War Measures Act was invoked for the third time, on the occasion of
the October Crisis of 1970 . This crisis was precipitated by the kidnapping of
the British Trade Commissioner, James Cross, and the subsequent kidnapping
and murder of Pierre Laporte, a cabinet minister in the Quebec government . It
provides an opportunity to evaluate the strengths and weaknesses of the statute .
Much was learned from the crisis about the adequacies of the legal framework
and the state of emergency preparedness of the country .
22 . On October 16, 1970, at four a .m ., the War Measures Act was invoked
by proclamation and the Order-in-Council incorporating the regulations was
signed by the Governor General . Later that morning, the Prime Minister
tabled in Parliament the Orders-in-Council under the War Measures Act
"authorizing the issuing of a proclamation" that a state of "apprehended
insurrection exists" in Quebec and "authorizing certain regulations to provide
emergency powers" . The regulations were published in the Canada Gazette at
11 :00 a .m ., and debated in the House of Commons for two days . On October
19, the House voted 190 to 16 to approve the action of the government in
invoking the War Measures Act . The resolution read :
That the House approves the action of the government in invoking the
powers of the War Measures . Act to meet the state of apprehended
insurrection in the Province of Quebec as communicated to the Prime
Minister by the Government of Quebec and the civic authorities of Montreal and further approves the orders and regulations tabled today by the
Prime Minister on the clear understanding that the proclamation invoking
the powers as contained in the regulations will be revoked on or befor e
' House of,Commons, Debates, July 7, 1960, p . 5948 .
915
�April 30, 1971, unless a resolution authorizing their extension beyond the
date specified has been approved by the House.1 0
23. The regulations declared as unlawful the Front de Libération du Québec
(F.L .Q .) and any other association that advocated the use of force or criminal
means to effect governmental change within Canada ." Membership in the
F .L .Q . was declared an indictable offence, as were advocating or promoting its
aims and policies, communicating its statements, contributing to it financially,
soliciting subscriptions for it, or rendering assistance to its members . According
to the regulations, peace officers (including members of the armed forces) were
given extended powers of search, seizure, and arrest . A peace officer could
arrest without warrant a person suspected of committing, or of being likely to
commit, any of the activities declared illegal . Those arrested could be detained
for seven days without charges being laid .
24. The proclamation under the War Measures Act was revoked on
December 3, 1970 when Parliament enacted the Public Order (Temporary
Provisions) Act . 12 This Act incorporated the same regulations in slightly
different form restricting the definition of illegal organizations to the F .L .Q .
and groups that advocated the same or similar methods to accomplish governmental change "with respect to the Province of Quebec or its relationship to
Canada as that advocated by . ." the F .L .Q . The time of detention was made
.
shorter and certain protections drawn from the Canadian Bill of Rights were
included in the Act . By its own terms, the statute expired on April 30, 1971 .
25. It is clearly not within our terms of reference to judge whether or not
there were sufficient grounds for invoking the War Measures Act . The matters
relevant to our mandate are the adequacy of that Act, the extent to which the
federal government looked to the Security Service for intelligence before
deciding to invoke the Act and the extent to which the R .C .M .P . was later
involved in dealing with this national crisis .
26. There is some uncertainty as to the role played by the R .C .M .P. in the
decision to invoke the War Measures Act . Was the decision based upon
intelligence supplied by the R .C .M .P. or were the relevant facts in the public
domain? On October 16, 1970, the Minister of Justice, the Honourable John
Turner, told the House that some of the information in the government's hands
could not be made public ." The Prime Minister, however, on October 23, 1970,
stated that the decision was based on information that was then known to the
public :
The first fact was that there had been kidnappings of two very important
people in Canada and that they were being held for ransom under the
threat of death . The second was that the Government of the Province of
Quebec and the authorities of the City of Montreal asked the Federal
Government to permit the use of exceptional measures because, in thei r
10 Ibid ., October 19, 1970, p . 335 .
" S .O .R ./70-444 ; P.C . 1970-1808, October 16, 1970 .
1 1 S .C . 1970-71-72, ch .2 .
" House of Commons, Debates, October 16, 1970, p . 212 .
916
�own words, a state of apprehended insurrection existed . The third reason
was our own assessment of all the surrounding facts, which are known to
the country by now - the state of confusion that existed in the Province of
Quebec in regard to these matters. "
27 . During the months preceding October 1970, the Security Service provided the Solicitor General, the Department of External Affairs and the Privy
Council Office with assessments on subversive organizations within Quebec,
including the F.L .Q . In addition, the Security Service had itself collected
information on the activities of the F .L .Q . and its supporters . On the operational level, the Security Service had established a close relationship with the
Quebec Police Force and the Montreal City Police .
28 . After the October crisis, criticism was expressed by Ministers that the
intelligence provided by the R .C .M .P . on the F .L .Q . had been less than
adequate . Yet it was well known to the Security Service that the F .L .Q . was a
tightly knit terrorist organization capable of political violence . An abortive
attempt to kidnap the Israeli Consul and Trade Commissioner in Montreal had
been discovered as the result of an arrest by the Montreal City Police in
February 1970 . A similar plot to kidnap the U .S . Consul in Montreal was
discovered in June after a raid by the Combined Anti-Terrorist Squad .
Information on this aborted kidnapping was transmitted by the Security
Service to the Department of External Affairs and the Privy Council Office .
Mr . E .A . Côté, who as Deputy Solicitor General was directed by the Prime
Minister during the crisis to prepare an independent report on the F .L .Q .,
expressed the view to us that the R .C .M .P .'s basic intelligence on the F.L .Q .
had been very good, better indeed than the intelligence of the Quebec Police
Force and the Montreal City Police . A general report on subversion in Quebec
had been prepared by the Security Service for the Interdepartmental Committee on Law and Order in July and was considered by Mr . Côté to be a good
summary of the situation (Vol . C.76, pp . 10486-95 ; Vol . C77, p . 10532 ; Vol .
C79, p . 10846) . After the crisis broke on October 5 with the kidnapping of
James Cross, the R .C .M .P . was in daily contact with the Solicitor General and
other Ministers to report on events as they unfolded (Vol . C39, pp . 5221-32) .
Not surprisingly, there were no written assessments of the situation in those
hectic days .
29. Commissioner Higgitt testified that the R .C .M .P . was not asked at the
time for an opinion as to whether the Act should be proclaimed or, in other
words, whether there existed a state of "apprehended insurrection" in the
Province of Quebec . According to his evidence, the R .C .M .P . did not take the
initiative to recommend to government that the Act should be proclaimed, nor
was the opinion of the R .C .M .P . sought . Furthermore, the R .C .M .P . did not
volunteer any comment on the government's proposal to invoke the War
Measures Act (Vol . C39, pp. 5297-5305 ; Vol . C40, pp . 5354-55, 5375-79 ; Vol .
C39, pp . 5336-64, 5367-68, 5376) . In early November, Commissioner Higgitt
was asked for his views as to whether the War Measures Act needed to b e
14 Ibid., October 23, 1970, p . 510.
917
�continued . Mr . Higgitt told us that he then advised Ministers that as far as the
R .C .M.P . was concerned the special emergency powers did not need to be
continued (Vol . C39, p. 5288) .
30 . According to the Security Service records, during the several days
preceding October 15, the Security Service in Montreal had been working with
the Quebec Police Force putting together lists of suspects . According to the
testimony of Superintendent (then Sub-Inspector) Ferraris, some of the information on which the lists were based had been sent from R .C .M .P . Headquarters in Ottawa . Late in the afternoon of October 15 the lists arrived in Ottawa .
According to the testimony of Superintendent Ferraris, during the course of
the evening a shorter list that had been prepared independently by the
Montreal City Police, arrived in Ottawa . (An R .C .M .P. memorandum prepared late in 1970 stated that the number of names on the Montreal City
Police List was 56 .) The lists prepared by the R .C .M .P . in co-operation with
the Quebec Police Force were of persons who, according to records, had
participated in violent demonstrations, or advocated the use of violence, or
were suspected of terrorist activities (Vol . C51, p . 6979-80 ; Vol . C39, pp .
5309-14) . Late in the evening of October 15 Sub-Inspector Ferraris, accompanied by a more senior officer, took the lists that the R .C .M .P . had prepared,
which totalled 158 names, to Parliament Hill in order to show them to the
Honourable Jean Marchand and the Honourable Gérard Pelletier, both members of the federal Cabinet from Quebec . Those lists were shown to Messrs .
Marchand and Pelletier . (It is unclear whether the Montreal City Police list
was shown to them .) (Vol . C39, p . 5325 ; Vol . C51, pp . 6982-3 .) According to
the testimony of Superintendent Ferraris, Messrs . Marchand and Pelletier did
not ask that the lists be altered in any respect (Vol . C51, pp. 6985-87) .
According to Commissioner Higgitt, there were two reasons for showing the
list to the Cabinet Ministers : first, this had been decided upon at a meeting of
Ministers and second, in a highly charged situation with political overtones, the
greatest care had to be taken in the preparation of the lists (Vol . C39, pp .
5319-27) .
31 . There has been little public discussion about the part played by the
R .C .M .P . after the proclamation of the War Measures Act . The major
responsibility for police operations remained with the police authorities in the
Province of Quebec (Vol . C39, p . 5256 ; Vol . C51, p . 6939) . The R .C .M .P.
co-operated with the Quebec, Montreal, and various other municipal police
forces in supplying intelligence to help identify and locate the kidnappers .
Members of the Security Service also acted in a liaison capacity with the crisis
centres and special task forces within the Privy Council Office, the Department
of External Affairs, and the Department of the Solicitor General .
32 . The arrests when they took place were not confined to those on the
original lists . The majority of the arrests were made by the Quebec Police
Force or the Montreal City Police . According to the R .C .M .P ., members of the
R .C .M .P . assisted in many of the arrests but never acted alone . There were
cases of local municipal police forces acting unilaterally to arrest people
without consulting the Quebec Police Force or the R .C .M .P . In the first few
hours after the regulations under the War Measures Act came into force, th e
918
�Quebec Police Force, acting on its own, (according to R .C .M .P . records)
arrested 140 persons, 115 of whom were the subject of files maintained by the
Security Service . Of the 68 noted to represent the greatest threat to security,
54 had been arrested by mid-December . Warrants had been issued for 5 of the
remaining 14, namely, the two Rose brothers, Francis Simard, Marc Carbonneau, and Jacques Lanctot .
33 . Mr . James Cross was found by the police and released by his captors on
December 4, 1970 . On December 27 the Rose brothers and Francis Simard
were arrested for the murder of Pierre Laporte . The tension then subsided . In
the perception of the Security Service, however, the crisis did not end . Even
after the Public Order (Temporary Provisions) Act expired in April 1971,
methods of investigation appropriate to a crisis situation were continued . Here
is the testimony of two members of the Security Service, both of whom were
involved in R .C .M .P . activities in Quebec during this period :
And so, in our minds, while the Act had been revoked, the situation had not
changed, and that to some extent many of the same measures that had been
used at that time seemed to us to be still necessary . And so there was a kind
of attitude, if you will, that prevailed among those of us that were doing the
work .
(Vol . 71, p. 11393 .)
. . we were told that Mr . Turner would be bringing in the permanent
.
Public Order Measures Act, which would allow us to operate at a more
reasonable level, with more authority and more legality behind our operations . . . So when the Public Order Measures Act [sic] was repealed in
April . .. we continued our operations as if the new one was going to come in
any time .
(Vol . 92, p. 14982 . )
In the opinion of Commissioner Higgitt, the situation during the October Crisis
and for one or two years thereafter was far from normal . It was in effect "a
war between the Security Service and those forces who were disrupting and
causing mayhem and unease in the country" (Vol . 87, p . 14346 ; Vol . 85, p .
13933-34) . In his testimony he implied that those times demanded "fairly
desperate counter-measures" (Vol . 85, p . 13934) .
34. The Security Service, which had been severely criticized for failing to
provide government with adequate intelligence on the F .L .Q ., expanded its
operations after the October Crisis . The situation was described by the
Solicitor General, the Honourable Francis Fox, in 1977 in the House of
Commons :
Nonetheless, when the October crisis of 1970 struck, there was an immediate realization that information on groups responsible for the crisis had
been wholly inadequate . It was not clear which specific groups involved in
the separatist movement were advocating or resorting to the use of violence
or the commission of criminal acts, including murder, to accomplish the
changes they sought . It was difficult to determine at that time precisely
which groups were conducting themselves in accordance with the law and
the principles of democratic action . In response to the gaps that were
recognized as existing in October 1970, the security service realigned it s
919
�operational activity to obtain intelligence on groups and organizations that
had been identified as supporting the separatist cause .1 5
Some of the operations that resulted from the realignment of operational
activity after October 1970 were among the events ultimately leading to the
establishment of this Commission .
B. LEGISLATIVE REFOR M
35. The October Crisis made one thing quite clear : the government had no
means of bringing emergency powers into play in a national domestic crisis
other than by invoking the War Measures Act or by enacting special legislation
in Parliament . Whether or not the use of emergency powers was justified in
1970 is not for us to decide . However, the question that arises is whether a
statute that would authorize less severe measures, with more protection for
fundamental rights and freedoms, should be available for use in similar
circumstances . In the spring of 1971, legislation was drafted dealing with civil
emergencies and the government proposed the appointment of a special joint
committee of the Senate and the House of Commons to consider the enactment
of this legislation . However, the committee was not appointed and the legislation was never introduced .
36. At first blush the concept of a statute to fill this gap and to give the
executive certain powers in the case of emergencies which fall short of war or
insurrection has attractions . However, many citizens are opposed in principle to
such laws which would give government more power to introduce emergency
measures without the prior approval of Parliament .1 6
37. Some countries, such as the United Kingdom, have no permanent legislation on the statute books applicable to civil political emergencies . In the United
Kingdom the only comparable statute is the Emergency Powers Act of 1920
which authorizes the executive to exercise emergency powers if essential
se rvices, such as the supply of food, water, fuel or light, are threatened ." The
legislation has been used only in connection with emergencies arising out of
industrial disputes . Regulations under the Act must be laid before Parliament
forthwith and they expire after seven days unless continued by a resolution of
both Houses . There are three limitations : there can be no conscription ; to strike
cannot be made an offence ; and existing criminal procedures cannot be altered .
38 . In 1974, with the outbreak of I .R .A . violence in Britain the British
Parliament enacted The Prevention of Terrorism (Temporary Provisions) Act .
In many respects this legislation was similar to the Canadian statute enacted in
December 1970, the Public Order ( Temporary Provisions) Act . The British
legislation was of limited duration . It required renewal by Parliament every si x
'S Ibid., October 28, 1977, p . 394 .
16 See the Brief submitted by the Canadian Civil Liberties Association, Emergency
Powers and the War Measures Act, October 3, 1979 .
"(lmp .) 10 and 11 Geo . 5, ch .31 .
920
�months . In 1976, the statute was amended to provide for renewal on an annual
basis .1 8
39 . The War Measures . Act applies to a variety of emergèncy conditions :
"war, invasion, or insurrection, real or apprehended" . The decision of the
government to invoke the act by proclamation is conclusive evidence that an
emergency condition under the Act is in existence . These are wide powers, but
grave national emergencies, such as war or insurrection, may well require
immediate action by the executive and we do not believe that there are
convincing arguments for the repeal of the War Measures Act . We do,
however, think that the Act can be improved, and we comment on this below .
On the other hand, we are not convinced that a case has been made, from the
point of view of national security, for the enactment of additional emergency
powers legislation that would give the government special powers in situations
falling short of "war, invasion or insurrection, real or apprehended" . When less
grave emergencies occur or are apprehended, and the government wishes
special powers, it should seek the approval of Parliament to special legislation .
Amending the War Measures Ac t
40 . We now make a number of specific suggestions for the improvement of
the War Measures Act .
(a) . The role of Parliament
i
41 . Section 6(2) of the War Measures Act provides that a proclamation of an
emergency shall be laid before Parliament forthwith if Parliament is sitting
and, if Parliament is not sitting, within the first 15 days of the new session .
Parliament, after debate, may then decide whether or not to revoke the
proclamation . In our opinion, section 6 should be amended to reduce the time
during which a state of emergency can continue without the approval of
Parliament . As now drafted, the Act does not provide for any time limit within
which Parliament must be assembled if not then in session . If a proclamation
invoking the Act is ordered by government, Parliament should be summoned
immediately . We therefore recommend that, if Parliament is not in session it
should be summoned to meet within seven days of the proclamation, so that the
merits of the proclamation and regulations may be debated and approval or
disapproval be given . We also consider that any proclamation should be limited
to a specific time not to exceed twelve months . Parliament would be required to
approve continuation for each subsequent twelve-month period .
42. In order to hold a genuinely useful debate on the proclamation and the
regulations, Members of Parliament should be given the information on which
the government based its decision . In some cases this can be accomplished
openly in Parliament, but there may be situations in which it would be unwise
to disclose some of the information publicly . Other arrangements must be
made to inform the House of the real situation . One solution is to have
Parliament sit in camera for part of its deliberations, as happened during th e
1e 1974, ch .56 ._
921
�Second World War in both Canada and the United Kingdom in regard to
certain other matters . Another is to inform the Leader of the Opposition, or the
leaders of all recognized parliamentary parties . A further possibility is to
inform a committee of the House, which could report its conclusions to the
House . In this context, the Parliamentary Committee on Security and Intelligence, which has been referred to earlier in our Report, could play a useful
role .
(b) Emergency regulations
43 . Under the War Measures Act, the government has plenary authority,
once a proclamation is issued, to make such orders and regulations as are
deemed necessary "for the security, defence, peace, order and welfare of
Canada" . Section 3 of the Act goes on to state "without restricting the
generality of the foregoing", that such orders and regulations of the Executive
may extend t o
(a) censorship and the control and suppression of publications, writings,
maps, plans, photographs, communications and means of communication ;
(b) arrest, detention, exclusion and deportation ;
(c) control of the harbours, ports and territorial waters of Canada and the
movements of vessels ;
(d) transportation by land, air, or water and the control of the transport of
persons and things ;
(e) trading, exportation, importation, production and manufacture ;
(f) appropriation, control, forfeiture and disposition of property and of the
use thereof .
44 . In the past, regulations under the War Measures Act were not made
public until an emergency was declared . Draft regulations, called the Internal
Security Regulations, based on the old Defence of Canada Regulations, were
prepared in 1962 at the interdepartmental level although we understand that
they were not submitted to Cabinet for approval . The draft Internal Security
Regulations cover such matters as the authority of the Minister of Justice to
make detention orders, the establishment of a review committee to hear
objections to detention orders, security of vital points, censorship, offences
related to sabotage, interference with communications, possession of firearms
and special powers of search and seizure . The draft regulations also provide for
the registration of aliens, authorize the Governor in Council to declare an
association or group to be an illegal organization and authorize the Minister of
Justice to establish and regulate places for the detention of persons .
45 . It is highly desirable that the emergency powers set out in the draft
regulations be debated in public before a crisis develops, to ensure that proper
attention will be paid to civil liberties . In our view, it would be an appropriate
and useful step to have such draft regulations tabled and discussed in Parliament . This would ensure the greatest degree of public confidence if and when
the regulations, in whole or in part, are brought into force at the time of an
emergency . If the government decides at the time the War Measures Act i s
922
�invoked that further regulations which have not received Parliamentary
approval, are required, such regulations should be submitted to Parliament for
approval at the earliest possible date and in any event within 30 days, otherwise
they would lapse .
(c) Fundamental right s
46 . In 1960, the Opposition, led by the Honourable L .B . Pearson, demanded
that certain fundamental rights, such as the right of citizenship, be spelled out
in the statute . This view was not accepted by the government . Instead, there is
a blanket proviso in section 6(5) that the War Measures Act applies, notwithstanding the Canadian Bill of Rights . Prime Minister Diefenbaker did suggest
that the question be debated by a special all-party committee . As we have
noted, no such committee was set up . Twenty years have gone by, and we think
it is time for Parliament to reconsider the question .
47 . We are not convinced that the fundamental freedoms expressed in the
Canadian Bill of Rights should be completely excluded after a proclamation
under the War Measures Act . The Public Order (Temporary Provisions) Act
1970, which revoked the October 1970 proclamation, retained the application
of certain provisions of the Canadian Bill of Rights - the right to a fair
hearing, the right to instruct counsel without delay, the presumption of
innocence, and the right to the assistance of an interpreter . These are fundamental to our system of justice and public administration in peace and in war,
and we believe that the total exemption of the War Measures Act from the
Canadian Bill of Rights is not required . The powers that are to be permitted,
notwithstanding the Canadian Bill of Rights, should be specifically identified
in the legislation . For example, if the executive is to have the power to hold
without bail, the statute should specifically identify this power as one permitted, notwithstanding the Canadian Bill of Rights .
48 . Also, in considering the rights and freedoms which should be preserved
even in emergency situations, Parliament should have regard to the fact that
Canada is a signatory to the International Covenant on Civil and Political
Rights . Hence Canada can be the subject of an international complaint for
violation of its provisions . Article 4 of the Covenant provides that although
some rights can be overriden in time of "public emergency threatening the life
of the nation", certain rights cannot be overridden under any circumstances .
These are : the right to life ; the protection against cruel, inhuman, or degrading
treatment or punishment ; the protections against slavery, against imprisonment
for debt, and against punishment for acts made crimes retroactively ; the right
of every individual to be recognized as a person before the law ; and the right to
freedom of thought, conscience and religion . We believe that these rights
should not be capable of being overridden by regulations adopted under the
War Measures Act .
49 . Certain additional rights, not specifically covered in the Canadian Bill of
Rights, should also apply even in a state of emergency . The Canadian Civil
Liberties Association, echoing Mr . Pearson's sentiments, has expressed the
view that the Act should not authorize government to denaturalize, deport o r
923
�exile a Canadian citizen .19 We agree . It should be recalled that on December
15, 1945, a series of Orders-in-Council were passed under the authority of the
War Measures Act which allowed under certain conditions for the deportation
from Canada of nationals of Japan resident in Canada and British subjects,
natural born and naturalized, "of the Japanese race" . Those Japanese who
were British subjects by naturalization or birth were to lose their citizenship on
deportation . Revocation of citizenship is not one of the powers explicitly
mentioned in section 3 of the War Measures Act, and, in our opinion, there
should be no such power . The power to exile or deport a Canadian citizen
should not be part of the War Measures Act . Although the deportation and
denaturalization of the Japanese Canadians was not carried out, as Prime
Minister Trudeau has said, "the fact that it could have been contemplated is a
frightening thing" .20 If fundamental rights and freedoms are to be introduced
in the Constitution, extremely careful consideration should be given as to
which rights and freedoms ought not to be abrogated even in time of national
emergency .
50 . As in the Second World War, there should be a Board of Detention
Review to consider the circumstances of persons whose liberty has been
restrained by actions taken or purported to have been taken under the War
Measures Act . Further, an independent tribunal should have the power to
award compensation to persons whose rights have been infringed, without due
cause, through the application of emergency legislation . Compensation should
be awarded not only for loss of property but also for loss of liberty . These
procedural safeguards should be provided in the War Measures Act itself
rather than in the regulations .
(d) The power to search, seize and arres t
51 . Under the Criminal Code a search warrant may be issued when a Justice
of the Peace has "reasonable grounds to believe" that evidence with respect to
the commission of an offence will be found in a specific place (section 443) . A
peace officer may . arrest without warrant a person who he believes "on
reasonable and probable grounds" has committed or is about to commit an
offence (section 450) . Under the regulations enacted at the time of the October
Crisis, a police officer was given the power to "enter and search without
warrant any premises . .. in which he has reason to suspect" that a member of
the F.L .Q . or anything that might be evidence of an offence under the
regulations was present . The draft Internal Security Regulations, on the other
hand, use the more familiar "reasonable grounds to believe" criterion . We are
not convinced that there is likely to be much substantive difference between
"reasonable suspicion" and "reasonable belief " in the context of a political
emergency . In any event, it is worth pointing out that neither of these phrases
would appear to authorize anything in the nature of wholesale house-to-house
searches .
" Emergency Powers and the War Measures Act, p . 10.
20 Prime Minister Trudeau, Globe and Mail, October 28, 1968, p . 12 .
924
�52 . It is a fundamental precept of our law that an arrested person be .charged
as soon as possible . Thus, the Criminal Code provides that a person who is
arrested and detained in custody shall, with very limited exceptions, be brought
before a justice of the peace within 24 hours . The British anti-I .R .A . legislation
requires a charge within 48 hours, although this can be extended by the
Minister for a further period of five days . The regulations enacted at the time
of the October Crisis provided that a person arrested had to be charged within
seven days although the period could be extended up to another 14 days by a
provincial attorney general . The Public Order (Temporary Provisions) Act
1970 provided that a charge had to be laid within three days of arrest, a period
which could be extended up to another four days by a provincial attorney
general . While we recognize. that the time limits provided in the Criminal Code
may be too short in the case of an emergency, we believe that lengthy detention
before charge should not be permitted . We are of the view that the War
Measures Act should be amended to provide that the period of detention before
charge should be as short as possible and in any event should not exceed seven
days after arrest .
53 . Section 3(2) of the War Measures Act provides that breaches of orders
.
and regulations made under the Act may be enforced by " . . such courts,
officers and authorities as the Governor in Council may prescribe, . .." . This
may be interpreted as providing authority to create new courts . Such courts
might appear to be simply extensions of the executive arm of government . In
our opinion there should be no such authority and the Act should be amended
to make this clear . If, by reason of the volume of charges arising out of a given
situation, the ordinary courts of criminal jurisdiction cannot handle the caseload, they should be enlarged, or the jurisdiction of other existing courts should
be extended to deal with the overload .
(e) Unlawful organizations and association s
54 . During the October Crisis the regulations declared the F .L .Q . to be an
illegal organization and membership was made an offence . There was precedent for this in Canada . During the two World Wars a number of organizations had been banned and membership in them prohibited . Such organizations
have not always been of a violent nature . During World War II, under the
provisions of the Defence of Canada Regulations,21 the Jehovah's Witnesses,
not a violent group, were declared an illegal organization .
55 . The draft Internal Security Regulations confer authority on the Governor
in Council to declare an organization illegal . There is a similar provisiôn which
authorizes the Minister of Justice to issue a detention order . It is important,
however, to distinguish persons who are simply members of a banned organization from those who are also dangerous and should be detained in the national
interest for the duration of the emergency . Membership in a banned organization may be made an offence, but as a rule membership should not be the sole
basis for arrest in an emergency .
21 Defence of Canada Regulations (1942), Reg . 39c.
925
�56 . During the second World War the Government gave notice of the
orgânizations that were to be proscribed, thus affording persons an opportunity
to relinquish membership or cease active participation in such organizations .
The legislation in the United Kingdom proscribing the I .R .A . provides, to the
same effect, tha t
A person belonging to a proscribed organization shall not be guilty of an
offence under this section by reason of belonging to the organization if he
shows that he became a member when it was not a proscribed organization
and that he has not since then taken part in any of its activities at any time
while it was a proscribed organization .2z
57 . The regulations adopted on October 16, 1970, came into force at four
o'clock in the morning . People were arrested and charged with being members
of the F.L .Q . before they had an opportunity to renounce their membership .
The Associate Deputy Minister of Justice for Quebec, Gerald Boisvert, issued
instructions to some prosecutors that the regulations did not have retroactive
effect and therefore that for guilt to be established there should be evidence of
membership in, or support for, the F .L .Q . on or after October 16 . This
reflected the common law rule of statutory construction that penal statutes not
be construed retrospectively unless the statute so provides . The instruction no
doubt contributed to the fact that of 467 persons arrested under the War
Measures Act only five were eventually prosecuted . If simple membership in an
illegal organization is declared to be an offence (as compared with active
support of an illegal organization) the regulations should allow for a certain
period of grace during which membership may be renounced with respect to
any membership held prior to the making of the regulations . Indeed, the same
period of grace should apply to any other section of the regulations proscribing
conduct which was not previously an offence if such conduct began prior to the
making of the regulations . An example would be the possession of literature .
The principle of non-retroactivity of penal legislation is enshrined in our law
and should be applicable even in the case of national emergencies .
WE RECOMMEND THAT a proclamation invoking the War Measures
Act be debated in Parliament forthwith if Parliament is in session or, if
Parliament is not in session, within seven days of the proclamation .
Parliament should be informed of the reasons for the invocation of the Act,
either publicly in the House, in an in camera session or by means of
consultation with the leaders of the opposition parties, or through a report
to the Joint Parliamentary Committee on Security and Intelligence .
(187)
WE RECOMMEND THAT the War Measures Act limit the duration of a
proclamation issued by the Governor in Council to . a specific period not to
exceed twelve months . Extensions for periods not to exceed twelve months
should require further approval by Parliament .
(188)
WE RECOMMEND THAT orders and regulations to be brought into
force when the War Measures Act is invoked be drafted in advance .
' (189 )
22 1974, ch .56, s .1(b) .
926
�WE RECOMMEND THAT the War Measures Act be amended to provide
that such draft orders and regulations be tabled and approved by Parliament prior to their being brought into force. Any orders and regulations
under thé War Measures Act which have not been so approved in advance
of the emergency should have to be tabled forthwith and should expire 30
days after coming into force unless approved by Parliament in the
meantime .
(190)
WE RECOMMEND THAT section 6(5) of the War Measures Act be
amended to provide that powers that are to be permitted, notwithstanding
the Canadian Bill of Rights, should be specifically identified in the
legislation and approved by Parliament .
(191)
WE RECOMMEND THAT section 3(1)(b) of the War Measures Act be
amended . There should be no executive power in emergencies to exile or
deport a Canadian citizen, nor should the Governor in Council have the
power to revoke Canadian citizenship.
(192)
WE RECOMMEND THAT there be provision in the War Measures Act
for:
(a) a Board of Detention Review to consider the circumstances of persons
whose liberty has been restrained by actions taken or purported to
have been taken under the War Measures Act ; an d
(b) a Compensation Tribunal to award compensation to persons whose
rights have been infringed, without just cause, through the application
of emergency legislation.
(193 )
WE RECOMMEND THAT the War Measures Act be amende d
(a) to prohibit prolonged detention after arrest without the laying of a
charge ; a charge should be laid as soon as possible and in any event not
more than seven days after arrest ;
(b) to prohibit the creation by the Governor in Council of new courts to
handle charges laid under the Act and Regulations ; and
(c) to provide that if, because of the volume of cases arising out of charges
laid under the Act and regulations, the ordinary courts of criminal
jurisdiction cannot handle the caseload, such courts should be enlarged
or the jurisdiction of other existing courts should be extended to deal
with the overload .
(194)
WE RECOMMEND THAT the War Measures Act be amended Act
should not be based solely upon the fact of simple membership in an illegal
organization .
(195 )
WE RECOMMEND THAT:
(a) no regulations passed pursuant to the War Measures Act have a
retroactive effect ; an d
(b) if the regulations proscribe a course of conduct which was not previously an offence, and the conduct began prior to the making of th e
927
�regulations, a reasonable period of grace be granted during which any
person may comply with the regulations .
(196)
WE RECOMMEND THAT certain fundamental rights and freedoms,
such as those specified in the Public Order (Temporary Provisions) Act,
those specified in Article 4 of the International Covenant on Civil and
Political Rights, and the right of citizens not to be deprived of citizenship
or exiled, not be abrogated or abridged by the War Measures Act or any
other emergency legislation under any circumstances.
(197 )
C. INTERNMEN T
58 . To complete our discussion of the War Measures Act, we turn to the
question of internment . A major security responsibility of the R .C .M .P . in the
past has been the preparation of contingency plans for interning persons who
are considered to be security risks, in time of emergency of the kinds contemplated by the War Measures Act, because of their allegiance to hostile powers,
or their known tendency towards political violence . During World War I,
World War II, and the October Crisis, the R .C .M .P . advised government with
respect to internment . The War Measures Act confers upon the Governor in
Council the authority to enact regulations that provide for the "arrest, detention, exclusion and deportation" of persons . In World War II internment of
aliens was dealt with under the Defence of Canada Regulations enacted
pursuant to the War Measures Act . As we have noted, these regulations have
been replaced by the draft Internal Security Regulations, which, if adopted
when an emergency is proclaimed, would authorize the Governor in Council to
declare an association, society, group or organization illegal . The regulations
also would give the Minister of Justice authority to order the indefinite
detention of an individual or a group of individuals .
59. In 1948, a programme was established by the Commissioner of the
R .C .M .P . to identify persons who, it was expected, might have to be rounded
up promptly in the event of hostilities with the Soviet Union . An Advisory
Committee was established in 1950 to review the list of people to be interned .
The R .C .M .P . was directed to identify and to group such persons in order "of
importance and danger to the country in the event of a further deterioration in
international affairs" . Emphasis was placed not only on those who might hold
allegiance to a foreign power but also on those who might play key roles in
espionage or sabotage in the event of war .
60. From 1950 until 1965, the programme was accorded a very high priority
within the Security Service . Some organizations were subjected to close
scrutiny and surveillance and a large number of potential internees were
screened through the programme . With the relaxation of international tensions
the programme was given less and less attention until, by the 1970s, it had
been placed virtually in abeyance .
61 . For the past decade Canada has lacked an effective contingency plan for
dealing with dangerous or hostile persons in the event of emergency of th e
928
�kinds provided for in the War Measures Act . The Security Service maintained
that a similar system, but including terrorists and other dangerous `subversives', was needed . In fact, within the R .C .M .P . (and without approval of the
Advisory Committee) the criteria were revised in 1970 to include terrorists and
other violence-prone individuals generally . The Security Service developed
proposals for a general reform of the system and referred these in 1973 to the
Security Advisqry Committee for approval . There was a good deal of consensus
since it was apparent that the programme was outdated and that the Advisory
Committee on Internments had not functioned well . Interdepartmental consultation on this aspect of emergency planning, however, was extraordinarily slow .
Eventually, on November 3, 1976, a memorandum on the proposal was
submitted to members of the Interdepartmental Committee on Security and
Intelligence (I .C .S .I .) with the following recommendations :
(a) the Advisory Committee and the existing internment programme be
abandoned;
(b) the Security Service be authorized and instructed to set up and
maintain a system of identification of individuals, and data retrieval,
such system to be incorporated in the R .C .M .P . War Book ; an d
(c) the selection of such individuals be on the basis of "subversive activity"
as defined in s . 16(3) of the Official Secrets Act .
62 . Members of I .C .S .I . replied in writing and expressed general agreement
with the recommendations, although the Deputy Minister of Communications
and the Deputy Minister of Justice felt that the selection of individuals should
be approved by an independent body such as the Advisory Committee . The
views of the Security Service were again solicited and on March 25, 1977, the
Director General's comments on the proposed system, were circulated to
members of I .C .S .I . The Director General indicated at this time that the
selection of individuals and organizations would be subject to the supervision of
an internal review committee that would include representatives of the Departments of Justice and Solicitor General . Although there is apparent consensus,
the new programme has not been approve d
63 . At the time of writing, the Security Service is engaged in the preparation
of basic lists employing new criteria . These criteria are extremely broad . The
preparation of lists based on the new criteria has not, as far as we know, been
authorized by the Government of Canada . Although the action now being
taken by the Security Service has been reported to the Department of the
Solicitor General, the government has not given approval to the new criteria or
to the programme as a whole . In our opinion, the government should'give this
matter urgent attention, both in terms of being prepared to act effectively in
the event of emergency and in terms of ensuring that the Security Service does
not develop "lists" except on the basis of approved criteria and proper
monitoring of the application of the criteria .
64 . The history of the internment programme affords a striking example of
the inadequate functioning of the interdepartmental system of decision-making
on emergency security matters . We are disturbed by the incapacity, not only of
the Security Service, but also of the whole machinery of government, to com e
929
�to grips with this aspect of emergency planning during the past 15 years . While
the Security Service has maintained its interest and developed proposals for a
new programme, it does not seem to have been able to obtain any decisions
from the Security Advisory Committee or the Interdepartmental Committee on
Security and Intelligence . Even conceding that emergency planning is a low
priority in times of peace, the failure of the interdepartmental system to act
effectively over the past eight years is regrettable . In the meantime, Canada
has no responsible emergency plan for the detention of hostile or dangerous
persons in the event of emergency of the kinds contemplated in the War
Measures Act . No doubt the R .C .M .P . on short notice can provide government
with the names of likely candidates for internment - as was done in October
1970 - but this is surely not good enough . Even the most senior official
dealing with security matters during the period 1964 to 1977 was given little, if
any, information about the programme . He testified that, until questioned
about the matter at a hearing before us in late 1980, he had not been made
aware of the "essentials" of the programme or that the Security Service
regarded it as one of the major sources of authority for some of the Service's
most sensitive investigations (Vol . C116, pp . 15138-40) .
65. The extent to which a security intelligence agency, or indeed any agency
of government, should make preparations for dealing with dangerous or hostile
persons is doubtless a contentious subject . The broad brush approach of the
post World War II years, is not justifiable today . We are not prepared to
accept the proposition that the Canadian government and its security intelligence agency should collect intelligence on the assumption that in the event of
hostilities with the Soviet Union key members of all designated organizations
will be interned . Even, if all such persons could be considered to be hostile to
Canada in the event of war, only a few might be considered to be of such a
character as to require their immediate arrest . The wholesale round-up of
people does not sit well with many Canadians who have lived through the
arrests of Japanese Canadians in World War II and the crisis of October 1970 .
Having said this, however, the fact remains that in an emergency of the kinds
contemplated by the War Measures Act some potentially dangerous persons
will have to be put under restraint . However, this should occur only when the
criteria for arrest, charge and imprisonment (detention) under law are defined
as clearly and narrowly as possible and the civil rights of the persons affected
are protected as much as possible . Because this is our view, we think that it is
undesirable that the regulations, in addition to providing offences for which
there may be arrest and trial in accordance with traditional judicial procedures, should provide a system of detention upon order by a Minister or the
Governor in Council . Our view is that any order of extended detention should
be made only by judicial procedures in the ordinary courts of law. We realize
that this proposal has procedural ramifications which should be closely examined ; we are thinking of the kinds of procedural questions which we examined
in our First Report in connection with trials under the Official Secrets Act .
The preparation of arrest lists in times of calm, subject to a system of careful
external review, is one means of minimizing the abrogation of civil liberties at
the time of crisis . Such lists must of course be kept to a minimum and b e
930
�consistent with the threat of hostilities or emergencies as perceived by
government .
The Advisory Committee on Internment s
66. When the programme was established, it was recognized that the evidence required to place a person on the list should be sufficient to satisfy any
independent committee that might subsequently be established to review the
internment programme . With this in mind, the Minister of Justice in 1950
appointed a committee external to the R .C .M .P ., the Advisory Committee on
Internments . While the origin of the Committee is not fully documented, it
appears that the idea was first suggested by the Commissioner of the R .C .M .P .
He insisted that members of the Force should not serve on the Committee.
67 . The main function of the Committee was to decide, on the basis of
evidence supplied by the R .C .M .P ., whether an individual should be placed on
the list . The Advisory Committee was also asked to approve a list of `subversive' organizations, membership in which was one of the criteria for internment. In the event of emergency of the kinds contemplated by the War
Measures Act, such organizations might be banned as unlawful if the government of the day agreed .
68 . The Advisory Committee on Internments was composed of the Deputy
Minister of Justice, three other senior officials from the Department of Justice,
and a legal adviser, who was a lawyer from outside the federal government
service . During the 1950s the Committee did not function to any extent ; its
work, including the approval of organizations, was carried on by the external
legal adviser . By 1960 the Committee had been reconstituted, and became
more active . Thus, in 1961 and 1962, the Committee met on several occasions,
considered R .C .M .P . briefs on organizations, reviewed the criteria for internment and considered the nature of the évidence required . After this spurt of
activity, the Advisory Committee ceased to function . The Committee was
reconstituted in 1967, and thereafter held one meeting, but never met again .
69 . The Advisory Committee on Internments cannot be called an effective
piece of interdepartmental machinery . In spite of the fact that the Committee
was appointed by and, it would appear, responsible to the Minister of Justice, it
was of no real interest to the Department . Mr . D .S . Maxwell, Q .C ., who in
1968 became Deputy Minister of Justice and ex officio chairman of the
Committee, told us that the Committee was not accorded much priority at that
time (Vol . C66, pp . 9127, 9132) . Before that, the Committee had, become
active only by virtue of prodding by the Commissioner of the R .C .M .P . and, in
1961-62, by an interested Deputy Minister and legal adviser . After 1969-70, as
the programme itself wound down, it appears that both the R .C .M .P . and the
Department of Justice gave up and allowed the Committee to die . During its
entire career, the Advisory Committee on Internments was in practice accountable to no one and never made a report of any kind .
70 . In 1948, the Commissioner of the R .C .M .P ., in the aftermath of the
Second World War, felt that an independent view of evidence was essential if
the internment process were to function properly in a future emergency . W e
931
�feel, in the light of the subsequent 30 years, that his perception was sound .
Indeed, an independent review body is necessary to supervise all aspects of
contingency planning for arresting people in times of emergency, not merely to
provide an external legal opinion as to the sufficiency of evidence in individual
cases . Important policy matters that should be reviewed by such a body include
the criteria for arrest, the selection of potential unlawful organizations, the
resources employed in the agency to keep the programme up-to-date, and last,
but by no means least, the techniques used to gather evidence on individuals .
71 . Experience has shown that a committee of lawyers from the Department
of Justice, responsible to no one, is not the answer . It would seem appropriate
to locate the proposed Committee, which we propose be called the Committee
on Arrests in Emergencies, squarely within the interdepartmental committee
structure under the Interdepartmental Committee on Security and Intelligence
or, if preferred, the Interdepartmental Committee on Emergency Preparedness .
The proposed Committee need not be large, but should have representation
from the Department of the Solicitor General and the Department of Justice .
We have also considered the participation of the security intelligence agency
and have concluded that for continuity and communication, a senior member
of the agency should serve as an adviser to the Committee, but should not
participate in the actual review of case files .
72 . The implementation of arrest procedures and contingency planning are
potentially so oppressive that the programme should be carefully reviewed by
the interdepartmental committee responsible for the special identification
programme . That interdepartmental committee should submit an annual report
as to the state of planning of these matters to the Cabinet Committee on
Security and Intelligence .
73 . The Committee will have to review individual cases proposed for arrest . It
is probably inevitable, if only because of the routine nature of the work, that
the actual examination of individual files will be delegated by the Committee
to one or two of its legal members who would report to the full Committee
from time to time . In the past, although the Advisory Committee was inactive
for most of the time, a large number of individual cases were reviewed by the
Committee's external legal adviser . In effect, it was the legal adviser who gave
approval to names being placed on the list . His job was to ascertain if there was
adequate documentation to support a conclusion that an individual occupied a
key position in a designated organization .
74 . When the system began it was probably felt that the Advisory Committee
would approve all possible cases . However, it soon became evident that many
important "probable" cases existed that could be proved conclusively only
when an emergency was declared and the police were granted special powers of
search and seizure . The "not-approved" and "special case" categories were
created to hold these "probables" . The power to search the premises of a
"probable" subversive is almost as much an invasion of liberty as the power to
detain or intern, as the experience of the October crisis showed . Therefore, we
believe that the Committee should review not only the list of potential persons
to be arrested but also those as to whom further evidence is required and who ,
932
�in the heat of an emergency, will be subject to emergency police powers of
search and seizure pursuant to regulations made under the War Measures Act .
We also believe that a record of the decisions of the Committee and of the
reasons for making them should be maintained . The lack of such documentation in the past is regrettable and appears to be contrary to the original purpose
of establishing the Committee .
Criteria for arrest
75. The criteria applied to cases in the past were clear-cut . An individual was
included on the list if he was a permanent member of certain organizations
dedicated to the overthrow of our system of government . The evidence to
support each case was required to be either (1) an authentic document, such as
a membership list or a newspaper report of the election to office of an
individual, or (2) evidence from two independent and reliable human sources
whose reports were to be corroborative of each other, or (3) evidence from
three human sources which did not need to be corroborative, but which was, of
course, required to be relevant to the criteria .
76 . The review of case files by the legal adviser was largely mechanical . Thus,
if an individual was an important member then ipso facto he was included on
the list . The criteria did not admit of fine distinctions as to whether or not an
individual was a significant threat to security ( except perhaps in the category
of persons "suspected of espionage") . The evidence in most cases would simply
be proof that an individual held an office or a position, a fact easily enough
established from the reports of human sources, membership lists and newspaper reports . Reports derived from technical sources were not used by the
Security Service to support applications to the Advisory Committee because
such sources were considered extremely sensitive . On occasion, evidence
obtained by means of "Contact 300" ( a code name for surreptitious entries)
was put forward . For the most part, however, the evidence was obtained from
the reports of human sources and from publications .
77 . In future, the criteria for the arrests programme must be more closely
related to security threats, and the selection process should be far less
mechanical . During more normal times, arrest lists should be prepared only of
persons who are predicted to be serious threats to the community in the event
of war or national emergency, as, for example, those who on reasonable
grounds are believed to be, or would in the event of an emergency of the kinds
contemplated by the War Measures Act likely become, espionage agents,
terrorists or saboteurs . If this approach is adopted the criteria for arrests
should be based on the statutory definitions of threats to security which we
have recommended in Part V . This approach will also require the submission of
more elaborate evidence, including a threat assessment, to the Committee . To
help members of the Committee evaluate this evidence, the security intelligence agency should brief them fully as to the methods used to collect security
intelligence . A report on such methods should be included in the Committee's
annual report . In the event of an imminent emergency, it might become
necessary to seek authority from government to expand the criteria so as t o
933
�include, for example, key figures in organizations who are considered sympathetic to likely hostile powers .
WE RECOMMEND THAT the government give immediate attention to
the establishment of a Special Identification Programme .
(198)
WE RECOMMEND THAT the legislation dealing with national emergencies should prohibit the making of regulations which would provide for a
system of detention upon order by a Minister or the Governor in Council.
Any detention should be consequent upon arrest, trial and imprisonment in
accordance with traditional judicial procedures .
(199)
WE RECOMMEND THAT the identification of dangerous individuals
who should be arrested in situations of emergency of the kinds contemplated by the War Measures Act be carefully reviewed prior to the outbreak of
any crisis by a Committee on Arrests in Emergencies external to the
security intelligence agency . This Committee should be responsible to the
Interdepartmental Committee on Security and Intelligence or the Interdepartmental Committee on Emergency Preparedness and should include
representatives from the Department of the Solicitor General and the
Department of Justice, with a member from the security intelligence
agency serving in an advisory capacity . The responsible interdepartmental
committee should annually submit a report on the arrests programme to the
Cabinet Committee on Security and Intelligence .
(200)
WE RECOMMEND THAT members of the Committee review and record
decisions on individual cases proposed for arrest or for extraordinary
powers of search and seizure in case of an emergency .
(201)
WE RECOMMEND THAT the members of the Committee who review
individual cases be fully briefed as to the methods used by the security
intelligence agency to obtain the supporting evidence . This evidence should
be discussed in the annual report to the Cabinet Committee on Security
and Intelligence .
(202)
WE RECOMMEND THAT arrest lists be prepared only in respect of
persons who are believed on reasonable grounds to be serious security
threats in the event of emergency of the kinds contemplated by the War
Measures Act such as those who, on reasonable grounds, are believed to be
espionage agents, terrorists or saboteurs, or likely to become such .
(203 )
D . THE ROLE OF A SECURITY INTELLIGENCE
AGENC Y
IN NATIONAL EMERGENCIES
78. A security intelligence agency should play a role only in those emergencies - for example, war, insurrection, serious political violence, political
terrorism, or sabotage - that affect the security of the nation . Public orde r
934
�emergencies, such as rioting, looting, street fighting and other such forms of
violent civil disorder, require action by law enforcement agencies . Emergencies
that arise from natural disasters or major accidents do not call for action by
the security intelligence agency .
79 . After the October Crisis in 1970 there was a substantial feeling in the
federal government that there was considerable room for improvement in its
capability for handling peacetime emergencies relating to security . Consequently a group was assembled in the Privy Council Office under LieutenantGeneral Michael Dare of the Department of National Defence to consider
ways of improving the federal government's ability to respond quickly, intelligently and efficiently to a broad range of emergency situations . Its report was
completed in 1 .972 and tabled in the House of Commons in March 1974 . One
of the report's key recommendations called for "a comprehensive system within
the federal structure which would confirm and formalize the primary responsibilities of departments in crisis handling matters and which would provide the
Cabinet with an enhanced capacity for crisis management ."z '
80 . In October 1973 the Cabinet decided to establish a co-ordinated system
for federal emergency preparedness and management . Each department was
directed to be responsible for the preparations necessary to deal with emergencies within its area of responsibility . Particular Cabinet Ministers were
appointed as "lead Ministers" to assume automatic responsibility for co-ordination of the federal government's response should an emergency arise . The
Solicitor General was designated the lead Minister for emergencies affecting
the internal security of Canada . A security intelligence agency can be vitally
important to the Solicitor General in helping him with his responsibilities
during a national emergency . In the remainder of this section, we examine the
various roles an agency should play before and during an emergency .
Providing intelligence and advice
81 . Intelligence is the first line of defence, both in prevènting emergencies
and managing them once they occur . During an emergency it is of vital
importance that the government receive accurate, timely and relevant information about the identity, capacity, intentions and techniques of those who are the
source of the serious political violence . The government's capability to deal
with an emergency depends to a very great extent on the availability of such
intelligence . The primary role of a security intelligence agency, is to supply this
intelligence to the various sections of government responsible for managing the
situation and to the authorities with the primary law enforcement jurisdiction .
The agency should possess the most extensive data bank in the country on
subversive and terrorist organizations and have developed a high level of
expertise on terrorist tactics and the effectiveness of various means of countering terrorist tactics in Canada and in other jurisdictions . Besides intelligence
obtained from its own sources, there will likely be intelligence reports fro m
23 Report of the Crisis Management Study Group, The Enhancement of Crisis Handling Capability within the Canadian Federal Structure, October 15, 1972, p . 45 .
935
�police forces and other government agencies . The security intelligence agency
should be in a position to monitor all the intelligence that is received and to
provide assessments of such intelligence to the Emergency Operations Centre
established to co-ordinate the government's response to the crisis :
82. The security intelligence agency should also be responsible for alerting
government to potential emergencies affecting the security of Canada . When a
security intelligence agency fails in this task, a serious lack of confidence in the
agency can result . There is some evidence before us to suggest that such a lack
of confidence occurred with respect to the R .C .M.P . during the October Crisis .
In the midst of the crisis, rather than continuing to rely solely on .the Security
Service, Cabinet established several special task forces to assess the political
intelligence available on the F .L .Q. (Vol . C76, p . 10441) .
83. An agency report which assesses the likelihood of an emergency occurring
should be reviewed both by the Solicitor General and by the Intelligence
Advisory Committee we described in Part VIII . Such reports could be used by
the Bureau of Intelligence Assessments (proposed in Part VIII) to prepare
long-term, strategic assessments of security threats . Further refinement and
analysis of reports might be required before they are considered by the Cabinet
Committee on Security and Intelligence . The timing of the Cabinet review of
the reports should depend upon the imminence of the threat .
84 . When a national emergency threatens the internal security of the country,
the government should be able to rely for policy advice on the head of the
organization with the most expertise and resources in security intelligence
matters, namely the Director General of the security intelligence agency . As
has been noted, the Commissioner of the R .C .M .P . attended meetings of
government at the beginning of the October Crisis, yet neither gave, nor was
asked for, advice as to whether or not the R .C .M .P . saw the situation as one of
an apprehended insurrection . We find Commissioner Higgitt's silence in such
situations somewhat puzzling, if for no other reason than the fact that silence
may well have been interpreted as approval . Although the Department of the
Solicitor General may play the lead role in orchestrating the procedures
necessary to handle any future crisis, there must be no reticence or hesitation
on the part of the Director General in offering the agency's assessment of the
situation or on the part of the government in asking for it .
Advice on vital point s
85 . Vital points are facilities, such as power stations, communications centres,
government buildings and transportation networks, that are of sufficient
importance to warrant extra security precautions to protect them from interference or destruction in time of emergency . A systematic attempt to protect such
vital points began in Canada in 1948 when an Interdepartmental Committee
was established to maintain an up-to-date list of vital civilian installations . The
Department of National Defence was responsible for assessing the vulnerability
of these vital points to military attack ; the R .C .M .P . assessed their vulnerability to sabotage . All vital points were assessed in terms of their vulnerability as
targets in case of war . In the crisis of October 1970, it became evident that the
936
�criteria for identifying vital points in wartime were not entirely appropriate for
a peacetime terrorist crisis . A second list of vital points was drawn up by the
federal Emergency Measures Organization with the aid of the provincial
governments to identify those facilities that might be the peacetime target of
insurrectionists . Several thousand peacetime vital points were listed . This
figure compared with 800 wartime vital points . The two lists have not been
amalgamated and are currently under review by the Interdepartmental Advisory Committee on Vital Points . The Security Service has no direct responsibility
for the vital points programme ; the responsibility resides with the Protective
Security Directorate of the R .C .M .P. Directorate whose representatives sit on
the Interdepartmental Advisory Committee . Nor is the Force responsible for
the actual protection of the vital points, except to ensure that the most
important federally owned wartime vital points can be, and are, guarded .
86. The role of a security intelligence agency, as described in Part V, does not
include protective security functions such as surveying the security requirements of vital points . This function properly belongs in a protective security
unit of the federal police force . The security intelligence agency has, however,
an advisory role to play in that it should be responsible for reporting to the
protective security unit any intelligence on methods of sabotage or terrorist
tactics that might influence the security requirements for vital points . The
security intelligence agency should also be responsible for reporting intelligence
on new targets of terrorists or saboteurs to the Advisory Committee on Vital
Points .
Advice concerning the medi a
87 . The October crisis revealed the nécessity for cooperation between the
security and police forces and the media . Communiqués by the F .L .Q . were
announced by the media before the police had a chance to see them, and the
media were antagonistic because of the lack of daily operational information
from the police .
88 . Because of the very nature of terrorism itself some form of media control
may be necessary when a terrorist incident occurs. One of the main aims of the
terrorist is to gain maximum publicity for his cause . A total news blackout of a
terrorist incident, however, would be unacceptable and untenable in a democratic society . Furthermore, the media need information ; to deny it could lead
to serious inaccuracies and flagrant rumours . We concur with the approach
suggested by Mr . Justice Hope in Australia . In the Protective Security Review,
he proposes the development of effective liaison between those directing the
police response to the crisis and the press .24 Briefings with the media should be
instituted to establish guidelines and appropriate channels of communication
that would operate during a crisis . During these briefings the security implications of irresponsible reporting should be explained to members of the media . It
would not be the function of the security intelligence agency to conduct o r
24 Australia, Protective Security Review, Canberra, Australian Government Publishing
Service, 1979 .
937
�attend such meetings, but it should be able to advise the government and the
police on the ways in which media reports might adversely affect the investigation of and response to the terrorist incident .
WE RECOMMEND THAT the security intelligence agency have the
responsibility to alert government to situations that might develop into
emergencies that would threaten the internal security of the nation .
Reports on such threats should be reviewed by the Solicitor General and
the Intelligence Advisory Committee and used by the Bureau of Intelligence Assessments in preparing long-term, strategic assessments of security threats . Reports assessing the imminence and significance of threats
should be submitted to the Cabinet at an appropriate time .
(204)
WE RECOMMEND THAT in times of national emergency, the security
intelligence agency monitor all intelligence received from its own sources
and from sources of other agencies, and provide assessments of such
intelligence to the crisis centre established to co-ordinate the government's
response to the crisis.
(205)
WE RECOMMEND THAT in national emergencies the government seek
the advice of the Director General of the security intelligence agency as to
matters to which security intelligence collected by the agency would be
relevant.
(206)
WE RECOMMEND THAT the responsibility for assessing the security
requirements for vital points remain a protective security function of the
federal police agency . The proper role of a security intelligence agency is to
report intelligence that may be valuable towards ensuring that vital points
are adequately protected .
(207)
WE RECOMMEND THAT during a national emergency involving terrorism or political violence the security intelligence agency be responsible for
advising these officials on the security implications of media coverage of
the crisis .
(208 )
938
�CHAPTER 2
THE OFFICIAL SECRETS AC T
1 . One of the most important pieces of legislation relating to the work of the
Security Service is the Official Secrets Act .' In our First Report, Security and
Information z we discussed most of the offences in the Official Secrets Act and
in Part V, Chapter 4 of this Report we made recommendations with regard to
the special powers of investigation provided for in the Act . In this chapter we
recapitulate these earlier recommendations and discuss other sections of the
Official Secrets Act on which we have not yet made recommendations . Our
recommendations as a whole, as we indicated in the First Report, call for the
repeal of the Official Secrets Act and the replacement of some of its provisions
by new legislation . Thus, the aim of this chapter is to provide a comprehensive
statement of the way in which our Security Plan for The Future will affect the
various provisions of the Official Secrets Act .
A . SUMMARY OF FIRST REPOR T
Espionage, leakage and related offences
2 . By any standard, the Official Secrets Act is an anachronism'ând should be
substantially revised . This is particularly so in the light of recent legislative
initiatives in the field of Freedom of Information . The Official Secrets Act is so
broad that it covers in section 4 any official document, whether classified or
not, entrusted to a civil servant or government contractor . Relèase of any
government information to the public or the media without authority constitutes an offence . In this respect, the Act runs contrary to the Freedom of
Information proposals which assume that information may be released to the
public unless there is good reason shown for not doing so .
3 . In our First Report we argued that, having regard to the steps being taken
to achieve greater openness in government, it is inappropriate to include in a
single statute, both a serious national security offence such as espionage,
(section 3) and a general catch-all offence covering the unauthorized disclosure
of government information, (section 4) . Accordingly, we felt that the Official
Secrets Act should be repealed and replaced with new legislation . We suggested that the espionage offences be placed in the Criminal Code or in a separate
statute . Finally, we noted the overlap between the treason provisions in sectio n
' R .S .C . 1970, ch .O-3, amended S .C . 1973-74, ch .50 .
2 Department of Supply and Services, 1979 .
939
�42(2)(b) of the Criminal Code and the espionage provisions in section 3 of the
Official Secrets Act . We made the following recommendations in the First
Report :
that the Official Secrets Act be repealed and replaced with new legislation
with respect to espionage, which should be incorporated in a new statute or
placed in one part of the Criminal Code with all other national security
offences .
(First Report, Recommendation 27)
that new espionage legislation incorporate in a single enactment the
offences relating to espionage now set out in section 3(1) of the Official
Secrets Act and section 42(2)(b) of the Criminal Code .
(First Report, Recommendation 1 )
4. We gave close attention to espionage which is one of the most serious
offences in any country . It was our view that the offence should apply to a
person who communicates to a foreign power information prejudicial to
national security, whether he acts knowingly or with reckless disregard of the
consequences . Furthermore, a person would be convicted even if the information he communicated was not classified, provided that the release of the
information might be prejudicial to national security . We gave as an example
of this the provision to a foreign state of photographs and data on key facilities,
such as dams, harbours and pipelines . We made the following recommendations with respect to espionage :
that espionage offences apply only to conduct which relates to the communication of information to a foreign power .
(First Report, Recommendation 2)
that new espionage legislation define the term `foreign power' to include a
foreign group that has not achieved recognition as an independent state .
(First Report, Recommendation 3)
that new espionage legislation cover the disclosure of, or an overt act with
the intention to disclose, information whether accessible to the public or
not, either from government sources or private sources, if disclosure is, or is
capable of being, prejudicial to the security of Canada .
(First Report, Recommendation 4)
that the maximum penalty for espionage be life imprisonment, except in the
case of the communication to a foreign power of information accessible to
the public in which case the maximum penalty should be six years .
(First Report, Recommendation 22)
We recommended that the offence of espionage be worded as follows :
No person shall :
(a) obtain, collect, record or publish any information with the intent of
communicating such information to a foreign power, o r
(b) communicate information to a foreign powe r
if such person knows that the foreign power will or might use such
information for a purpose prejudicial to the security of Canada or acts with
reckless disregard of the consequences of his actions to the security of
Canada .
(First Report, Recommendation 5 )
940
�5 . We also made recommendations with regard to offences in the Official
Secrets Act which are closely related to espionage . We recommended that the
provisions with respect to harbouring spies be retained, although in a somewhat
narrower form ; that a new offence be introduced to cover the possession of
instruments of espionage; and that the "prohibited place" subsection of section
3 be repealed because, in our view, it was archaic and constituted an unnecessary duplication of the sabotage section of the Criminal Code . We
recommended
that the provisions of section 3(1)(a) of the Official Secrets Act relating to
a prohibited place be repealed and not be included in new legislation .
(First Report, Recommendation 6)
that the provisions of section 8 of the Official Secrets Act, the harbouring
section, be retained but that the new legislation should make it clear that
the provisions would only apply in cases in which the accused has knowledge that the person on his premises has committed or is about to commit
an espionage offence .
(First Report, Recommendation 7)
that the new legislation include the offence of possession of instruments of
espionage . Under this provision it would be an offence to be found in
possession without lawful excuse of instruments of espionage, which would
include false documents of identity .
(First Report, Recommendation 8 )
6 . Section 4 of the Official Secrets Act makes the unauthorized use of
virtually all official documents or information an offence : its catch-all quality
has been subject to almost universal criticism . In our First Report we urged
that criminal liability for unauthorized disclosure of government information
apply only to well defined categories of information . We confined our recommendations to the two categories which fell within our terms of reference :
security and intelligence, and the administration of criminal justice . However,
we treated those two categories differently in view of the greater risks to the
state that accompany any disclosure of information relating to security and
intelligence .
7 . Thus, we felt that it should be an offence if a person entrusted with
security and intelligence information disclosed that information regardless of
what his motives might be . We also felt that a court should not be bound to
accept the security classification that has been placed by the government on a
document but should be able to determine the appropriateness of that classification . We therefore recommended
that new legislation with respect to the disclosure of government information should make it an offence to disclose without authorization government
information relating to security and intelligence .
(First Report, Recommendation 9)
that new legislation should empower the court trying an offence of unauthorized disclosure of government information relating to security and
intelligence to review the appropriateness of the security classification
assigned to such government information .
(First Report, Recommendation 10 )
941
�8. However, with regard to the disclosure of information which would
adversely affect the administration of criminal justice, we felt that a person
should not be convicted if he believed that the disclosure of such information
was for the public benefit . We recommende d
that new legislation with respect to the unauthorized disclosure of government information should make it an offence to disclose government information relating to the administration of criminal justice the disclosure of
which would adversely affect :
(a) the investigation of criminal offences ;
(b) the gathering of criminal intelligence on criminal organizations or
individuals ;
(c) the security of prisons or reform institutions ;
or might otherwise be helpful in the commission of criminal offences .
(First Report, Recommendation 11)
that it should be a defence to such a charge if the accused establishes that
he believed, and had reasonable grounds for believing the disclosure of such
information was for the public benefit .
(First Report, Recommendation 12 )
9. Finally, we recommended that in both categories - disclosure of information relating to security and intelligence and information relating to the
administration of criminal justice - a person should not be convicted if he was
authorized, or had reasonable grounds for believing he was authorized to
disclose the information . We recommended
that the offence of unauthorized disclosure of government information
relating to security and intelligence and the administration of criminal
justice provide that a person shall not be convicte d
(a) if he had reasonable grounds to believe and did believe that he was
authorized to disclose such information, or ,
(b) if he had such authorization, which authorization may be expressed or
implied .
(First Report, Recommendation 13 )
10. We also considered the position of the person such as a newspaper editor
who receives government information, albeit unsolicited, and who then wishes
to publish the information or who simply retains it without doing anything .
Information relating to security and intelligence or to the administration of
criminal justice as defined should not find its way, even innocently, into the
public domain . Positive harm to our country would result in most cases if such
information were published . We reached the conclusion that all citizens,
including members of the press, are under a public duty to return documents
relating to security and intelligence and to the administration of criminal
justice as defined should such documents come into their hands . We
recommended '
that the communication of government information relating to security and
intelligence or the administration of criminal justice by a person who
receives such information, even though such information is unsolicited, be
an offence .
(First Report, Recommendation 14)
942
�that it be an offence to retain government documents relating to security
and intelligence or to the administration of criminal justice notwithstanding
that such documents have come into the possession of a person unsolicited
and that there has been no request for the return of such documents .
(First Report, Recommendation 15 )
11 . However, we did not feel that criminal liability should attach to the
negligence of a public servant who fails to take reasonable care of secret
government information unless his conduct shows wanton or reckless disregard
for the lives or safety of other persons or their property . We recommended
that the failure to take reasonable care of government information relating
to security and intelligence or to the administration of criminal justice not
be an offence unless such conduct shows wanton or reckless disregard for
the lives or property of other persons .
(First Report, Recommendation 16 )
12 . The `leakage' offences are quite different from the espionage offences . To
be convicted of `leakage', the intent to assist a foreign power is not required ;
furthermore, the `leakage' is a less serious offence than espionage . Therefore,
we recommende d
that the maximum penalty in a case of unauthorized disclosure of government information relating to security and intelligence or the administration
of criminal justice, be six years imprisonment .
(First Report, Recommendation 23)
that the legislative provisions with respect to the unauthorized disclosure of
information relating to security and intelligence and the administration of
criminal justice be clearly separated from the legislative provisions with
respect to espionage .
(First Report, Recommendation 28 )
Procedural matters
13. Much of the recent criticism .of the Official Secrets Act as a result of the
Toronto Sun and Treu prosecutions was directed at the special advantages
alleged to be enjoyed by the Crown, particularly the right to an in camera or
"secret" trial . In our opinion, much more could be done in the way of
conducting the trial of espionage offences and offences of unlawful disclosure
of government information in public, even in cases where the accused consents
to or, as in the Treu case, at least does not oppose having the entire proceedings
in camera . We felt that the onus should be clearly placed on the trial judge to
hold in camera only those parts of the trial that must be kept confidential for
reasons of national security . We suggested that a Ore-trial proceeding in
camera might be a useful procedure in order to reduce the need for an in
camera trial . Thus, we recommende d
that with respect to section 14(2) of the Official Secrets Act which permits
in camera proceedings that :
(a) the provisions of section 14(2) be retained and made applicable to all
offences, either offences in new legislation or in the Criminal Code, in
which the Crown may be required to adduce evidence the disclosure of
which . would be prejudicial to the security of Canada or to the proper
administration of criminal justice .
943
�(b) the phrase 'prejudicial to the interest of the state' read `prejudicial to
the security of Canada or to the proper administration of criminal
justice' .
(c) the last clause of the section read `but except for the foregoing, the trial
proceedings, including the passing of sentence, shall take place in
public' .
(d) the legislation make provision for the holding of an in camera pre-trial
conference for the purpose of dealing with procedural questions relating to the handling of evidence which might have to be received in
camera
(First Report, Recommendation 18)
that new legislation provide that jurors who participate in proceedings in
camera be subject to the offences relating to the unauthorized disclosure of
government information .
(First Report, Recommendation 21 )
14. In some cases, we were convinced that certain special provisions were
necessary for the prosecution of national security offences . Thus, we agreed
that the provisions in the Official Secrets Act which require that the Attorney
General of Canada give his consent to prosecution (section 12) and which
make the Act applicable to offences committed by Canadians overseas (section
13) were necessary . We further agreed that section 9, which makes it an
offence to attempt to commit an offence or to incite an offence or to aid and
abet an offence, should remain in the legislation . However, we felt that that
part of section 9 which makes it an offence to do "any act preparatory to the
commission of an offence" should be dropped for it goes well beyond the
normal scope of the criminal law . Thus, we recommende d
that the consent of the Attorney General of Canada be required for the
prosecution of espionage offences, conspiracy to commit espionage offences,
or offences relating to the unauthorized disclosure of that federal government information discussed in this report . Similarly, the conduct of such
prosecutions should be the responsibility of the Attorney General of
Canada .
(First Report, Recommendation 17 )
that the offence of doing an act preparatory to the commission of an offence
under the Official Secrets Act be removed but that the other offences found
in section 9 be retained in the new legislation and made applicable to the
offences of espionage and the unauthorized disclosure of government information relating to security and intelligence and the administration of
criminal justice .
(First Report, Recommendation 25)
that the provisions of sections 13(a) and 13(b) of the Official Secrets Act
which make the Act applicable to offences committed abroad be retained in
the new legislation .
(First Report, Recommendation 26 )
15. Our general approach to procedural matters, however, was that the
Crown should not be given any advantage, over and above any advantages it
may have in a normal criminal case, unless clearly necessary . We did no t
944
�believe that the Crown required a special right to `vet' the members of a jury in
a security case, nor did we believe that the various presumptions in the Official
Secrets Act in favour of the Crown should be retained . In previous espionage
trials, it does not appear that the Crown required the assistance of the
presumptions in the Act . We also recommended that the accused be tried on
indictment and not by summary conviction, thus preserving the right of the
accused to have a jury trial . Thus, we recommende d
that offences dealing with espionage and the unauthorized disclosure of
information relating to security and intelligence and the administration of
criminal justice should be required to be tried by indictment and not by
summary conviction .
(First Report, Recommendation 19)
that the Crown have no special right to `vet' a jury in security cases over
and above the rights now provided in the Criminal Code and under
provincial law .
(First Report, Recommendation 20)
that the presumptions in favour of the Crown in section 3 of the Official
Secrets Act not be incorporated in the new legislation .
(First Report, Recommendation 24 )
B . SPECIAL POWERS OF INVESTIGATION
16 . The Official Secrets Act contains the following special powers for security investigations .
Section
7 - warrants to seize telegram s
Section 10 - power to arrest without warrant on reasonable suspicion
Section 11 - warrant to search and seiz e
Section 16 - warrant to intercept communication s
In Part V, Chapter 4, of this Report we gave extensive consideration to the use
of warrants for the interception of electronic communications and the seizure
of telegrams and other communications . We also considered the power to enter
secretly and search for documents in the course of a security investigation
(surreptitious entries) . If our recommendations are accepted all these special
powers will be brought together in a provision in the National Security Act and
may be authorized only by warrant of a judge after approval by the Minister .
As recommended in Part V, Chapter 4, this will result in the repeal of the
present sections 7, 11 and 16 of the Official Secrets Act .
17. Section 10 provides for a special power of arrest by a police officer of a
person who is "reasonably suspected" of having committed, or being about to
commit, an offence . It read s
Every person who is found committing an offence under this Act, or who is
reasonably suspected of having committed, or having attempted to commit,
or being about to commit, such an offence, may be arrested without a
warrant and detained by any constable or police officer .
945
�So far as we have been able to determine, it has never been necessary for the
police to resort to this special power of arrest in connection with offences under
the Official Secrets Act . The Criminal Code (section 450) gives a police officer
the right to arrest in these circumstances if he has "reasonable and probable
grounds" to believe that an offence has been, or is about to be, committed . In
our view the power of arrest in the Criminal Code should be sufficient to deal
with security offences and section 10 should also be repealed .
WE RECOMMEND THAT section 10 of the Official Secrets Act be
repealed.
(209 )
C.
OTHER MATTER S
18 . In our First Report, we did not refer to sections 5 and 6 of the Official
Secrets Act . Section 5 makes the following conduct an offence if done "for the
purpose of gaining admission, or assisting any other persons to gain admission,
to a prohibited place, or for any other purpose prejudicial to the safety or
interests of the State" :
1 . Use of a military or police uniform .
2 . Making a false written or oral statement .
3 . Forging a passport, permit or licence .
4.
Impersonating
a person entitled to use or have possession of a passwor d
or official document .
5 . Use without authority of an official die, seal or stamp or the counterfeiting or sale of such die, seal or stamp .
Section 6 makes it an offence to obstruct or interfere with a police officer or
military officer on guard near a prohibited place . In our First Report we
recommended repeal of the provision in section 3(1)(a) of the Act relating to
"prohibited place" . Similarly, the provisions of sections 5 and 6 need not be
retained . They would be covered by the general espionage section or by the
provisions of the Criminal Code against impersonation, forgery or the obstruction of justice . Indeed, the espionage offence which we have recommended in
our First Report is broad enough to comprehend the types of conduct that are
referred to in such unnecessary detail in sections 3, 4, 5 and 6 of the Official
Secrets Act . Apart from the specific offences mentioned in the First Report,
none of these sections need be retained in the new legislation .
WE RECOMMEND THAT sections 5 and 6 of the Official Secrets Act
not be retained in the new espionage legislation ; if a general espionage
offence is enacted, as recommended in the First Report ( Recommendation
5), it will not be necessary to preserve the other particular espionage
related offences in sections 3, 4, 5 and 6 of the Official Secrets Act .
(210)
946
�CHAPTER 3
FOREIGN INTERFERENC E
1 . In our First Report, entitled Security and Information, we pointed out that
there were activities of secret foreign agents which, although detrimental to the
security of Canada, could not be prosecuted under the espionage laws . These
activities can be described generally as active measures of foreign interference .
In Part V, Chapter 3, of this Report, we discussed these activities and
recommended that, because they involve attempts by . foreign powers to intèrfere with or manipulate our democratic process of government by secret means,
they should be included as one of the kinds of activity about which the security
intelligence agency has a statutory mandate to collect and report intelligence .
In this chapter, we consider legislative proposals designed to restrict or prohibit
such active measures of foreign interference .
2. The proposal which has received most consideration in Canada is legislation requiring the formal registration of persons acting in Canada as agents of
foreign powers . The existence of such legislation in the United States, in the
form of the Foreign Agents Registration Act' and the Voorhis Act,2 is widely
known in Canada and it might be argued that similar registration requirements
in Canada would facilitate the work of the security intelligence agency by
compelling public identification of foreign agents .
3. Legislation prior to the current Foreign Agents Registration Act was
passed in the United States as early as 1917, as a response to the view that a
host government had a right to know the identity of persons acting within its
boundaries as agents of foreign powers . The current Act came into effect in
1938 in response to the rapid growth in Nazi and Communist propaganda in
the United States . Despite numerous alterations in the Act since 1938, its basic
purpose has continued to be as stated in its 1942 revision :
To protect the national defense, internal security, and foreign relations of
the United States by requiring public disclosure by persons engaging in
propaganda activities and other activities for or on behalf of foreign
governments, foreign political parties, and other foreign principals so that
the Government and the people of the United States may be informed of
the identity of such persons and may appraise their statements and actions
in the light of their associations and activities .
Some knowledgeable American observers have .. attributed a wider purpose to
this legislation . For instance, Senator Fulbright, long time Chairman of th e
October 17, 1940, ch .645, All 62 Stat . 808 .
z October 17, 1940, ch .897, 54 Stat. 1201 (see Title 18, * 2386) .
947
�Senate Foreign Relations Committee, has stated that the registration and
disclosure were initially intended to serve the broader purpose of making public
the identities of all foreign sponsors of public relations campaigns and of
political lobbyists, regardless of whether their activities were subversive or not .3
In any event, American effort in this field has been marked by a shift in
emphasis from control of classic subversion and propaganda activities to
disclosure of attempts by foreign interests to manipulate American policies and
public opinion . It has proven extremely difficult, however, to administer the
legislation on a day-to-day basis, and the result has been a series of attempts to
refine the legislation so as to reflect changing concerns .
4. In broad outline, the Foreign Agents Registration Act defines those
required to register with the Department of Justice as foreign agents and
specifies how they must register and report on their activities, provides
exemptions from registration for certain types of agents, establishes specific
filing and labelling requirements for political propaganda disseminated by
registered agents, requires all registered agents to preserve books of account
and other records of all their activities, requires all of these books to be made
available for inspection by officials responsible for enforcement of the Act,
provides for public inspection of all registration statements and imposes
penalties for wilful violations of the Act . Over time, it has been necessary to
introduce a series of exemptions to the Act so as to overcome such special
problems as those associated with lawyers and others acting in a normal
professional capacity . The resulting "patchwork nature" of the Act has given
rise to great uncertainty as to which persons are required to register under it .
5 . The Voorhis Act, passed in 1940, requires the registration and detailed
disclosure of the activities of organizations subject to foreign control engaging
in political activity in the U .S . or whose civilian members engage in militarytype activity in the U .S ., and all organizations whose purposes include the
establishment, control, conduct, seizure, or overthrow of a government or
subdivision thereof by the use of force, violence, military measures, or threats
of any of the foregoing . Thus an attempt is made to expose the activities of
organizations, subject to foreign control or not, which seek to overthrow a
government by force or otherwise .
6. Our examination of American experience with these registration schemes
leads us to the conclusion that it would be unwise for the Canadian government
to introduce similar legislation in Canada . Even if legislation were adapted to
our own distinctive needs, we doubt that its benefits would justify the cost
involved in developing and administering such a scheme in Canada . It is
possible that a few agents of influence would register and disclose their
affiliation publicly . Also, such a scheme, by delineating acceptable forms of
foreign involvement in Canadian affairs, would provide a clearer basis for
identifying unacceptable activities which are a threat to security . But we doubt
that such a scheme would be of much rassistance at all in detecting the
professional, clandestine activities of agents of foreign interference . America n
1 (1964-65) 78 Harvard Law Review, 619 at 621 .
948
�experience indicates that, while a wide range of persons and organizations
involved in legitimate and mainly commercial activities would register, the
truly secret agent or organization would continue unaffected by the requirements of the legislation and might even be driven further underground and
forced to use more subtle techniques which are harder to detect . In the
meantime, the government would be obliged to establish, at considerable cost,
administrative machinery which, if it is to be effective, would likely involve
setting up an inspectorate to examine the books and records of representatives
of foreign organizations in Canada . Wé think the results of such a scheme are
too dubious to justify taking on these enforcement difficulties .
7 . In our First Report, we suggested as an alternative to a registration scheme
that consideration be given to the enactment of a provision which would make
it an offence to be a secret agent of a foreign power . We have considered this
possibility, but conclude that such a provision in the Criminal Code'would be
extremely difficult to enforce without basing it on a registration scheme
providing a means for publicly disclosing a person's or organization's affiliation
with a foreign power . Since we have rejected such a scheme as being impracticable we do not recommend this alternative .
WE RECOMMEND THAT there be no legislation requiring the registration of foreign agents or making it an offence to be a secret agent of a
foreign power .
(211 )
949
��CHAPTER 4
THE LAW OF SEDITION
1 . Paragraph (c) of our terms of reference requires us to report on the
adequacy of the laws of Canada as they apply to the policies and procedures
governing the activities of the R .C .M .P . in the discharge of its responsibility to
protect the security of Canada . The several Criminal Code offences commonly
called "sedition" are among those laws . In this section we shall examine the
law of sedition in Canada and make recommendations concerning that law .
2. Before the Cabinet attempted to define the "Role, Tasks and Methods" of
the R .C .M .P . Security Service by its Cabinet Directive of March 27, 1975, one
of the cornerstones upon which the Security Service rested its authority was the
law of sedition . For example, participants in the "Security and Intelligence
Induction Course" held in November 1970, were told in written material given
to them that their duties were based "directly" on the R .C .M .P . Act, sections
17(3) and 18(a) and (d), particularly section 18(a), which provides as follows :
18 . It is the duty of members of the force who are peace officers, subject to
the orders of the Commissioner ,
(a) to perform the duties that are assigned to peace officers in relation to
the preservation of the peace, the prevention of crime, and of offences
against the laws of Canada . . .
The words "the laws of Canada" were of course taken as including the
Criminal Code and the Official Secrets Act . The provisions of the Criminal
Code relating to sedition were analyzed (Ex . MC-17, Tab 30) .
3 . The training material defined `sedition' as follows :
Practices by word, deed or writing, which are carried out to disturb the
tranquility of the State, and lead persons to endeavour to subvert the
government and laws of the country . There must be an intention to incite to
violence or resistance or defiance for the purpose of disturbing constituted
authority .
The last sentence is taken verbatim from the judgment of Mr . Justice Kellock
in the leading Canadian judgment on the subject, Boucher v . The King .' The
first sentence is taken verbatim from an English case from which the following
passage was also quoted in the materials handed out :
[1951] S .C .R . 265 at 301 . Mr . Justice Estey said, to the same effect : "Seditious
intention must be founded upon evidence of incitement to violence, public disorder or
unlawful conduct directed against His Majesty or the institution of the government . "
951
�The objects of sedition generally are to induce discontent and insurrection,
and to stir up opposition to the government, and bring the administration of
justice into contempt and the very tendency of sedition is to invite the
.
people to insurrection and rebellion . . . [t]he law considers as sedition all
those practices which have for their object, to excite discontent or dissatisfaction, to create public disturbance or to lead to civil war . '
The materials describe the evolution of the law quite accurately . We quote at
length because we wish to give credit to the R .C .M .P . for sensitively conveying
the law to its members on such an important issue : '
Some earlier decisions suggest that an intention to promote feelings of
ill-will and hostility between different classes of subject in itself would
establish a seditious intention . This proposition seems to have been clearly
rejected by the Supreme Court in the Boucher case . In this respect Rand, J .
stated :
There is no modern authority which holds that the mere fact of tending to
create discontent or defamatory feelings among His Majesty's subjects or
ill-will or hostility between groups of them not tending to issue in illegal
conduct, constitutes the crime, and this for obvious reasons .
This decision clearly establishes that to be guilty of sedition a person
must have an intention to incite others to violence or disorder against the
government . The creation of violence or disturbance of some nature, must
be evident to show a seditious intention . Whether in fact a disturbance
takes place is immaterial . The crux of the matter is whether or not the
words themselves suggest the intention to incite violence . A person could
therefore be convicted of sedition on the evidence of the words alone and no
other overt act may be required .
A difficulty may arise in the case of particularly critical remarks
directed against the government . The right of an individual to criticize
government is a recognized democratic right in this country . This right is
emphasized and protected by section 61 of the Criminal Code . This section
provides in effect that a person should not be deemed to have a seditious
intention by reason only that he intends in good faith to point out certain
fallacies in government policy or government action .
The problem is to determine the line of demarcation between bonafide
criticism of the government and an actual seditious intent . The judge or
jury must determine what in fact was the real purpose of the statement . Do
the words seditious intention, themselves suggest incitement to violence? If
they do, the necessary element in sedition, is evident . If the real purpose
was honest criticism directed towards government policy or action with no
seditious intention then no offence has been committed . This distinction was
expounded in the judgment of Lord Chief Justice Coleridge in Rex v .
Aldred4 where he stated :
2 Regina v . Sullivan (1868) 11 Cox C .C . 44, per Mr . Justice Fitzgerald .
The history of sedition is traced in a research study prepared for this Commission,
National Security : The Legal Dimensions, by M .L . Friedland, Ottawa, Department
of Supply and Services, 1979, at pp . 17-25 .
° (1904) 22 Cox C .C . I .
952
�A man may lawfully express his opinions on any public matter however
distasteful, however repugnant to others, if, of course, he avoids anything
that can be characterized either as blasphemous or as an obscene libel .
Matters of State, matters of policy, matters even of morals - all these are
open to him . He may state his opinion freely, he may buttress it by
argument, he may try to persuade others to share his views . Courts and
juries are not the judges in such matters . For instance, if he thinks that
either a despotism, or an oligarchy or a republic or even no government at
all is the best way of conducting human affairs, he is at perfect liberty to
say so . He may assail politicians, he may attack governments, he may warn
the executive of the day against taking a particular course, or he may
remonstrate with the executive of the day for not taking a particular course ;
he may seek to show that rebellions, insurrections, outrages, assassinations,
and such-like, are the natural, the deplorable, the inevitable outcome of the
policy which he is combatting . All that is allowed, because all that is
innocuous ; but on the other hand, if he makes use of language calculated to
advocate or to incite others to public disorders, to wit, rebellions, insurrections, assassinations, outrages, or any physical force or violence of any kind,
then, whatever his motives, whatever his intention, there would be evidence
on which a jury might, on which I should think a jury ought, and on which
a jury would decide that he was guilty of a seditious publication .
4 . We have no quarrel with the foregoing instructional material . We have
quoted it partly to lay the foundation for the following points :
(a) If Canada' retains the offences of the speaking of seditious words,
publishing a seditious libel and being a party to a seditious conspiracy,s
then the definition of "seditious intention", which is an essential ingredient of each of those offences6 should be defined in the Criminal Code and
not left to judicial decisions. When the Criminal Code was first introduced in Canada in 1892, the Minister of Justice abandoned an attempt
to include a definition of seditious intention, "leaving the definition of
sedition to common law" . 7 We think that the positions taken by the
judges of the Supreme Court of Canada in the Boucher case represent
what the law should be, and that the important limitation there stated,
which requires "an intention to violence", should become part of the
statutory definition of the seditious offences . Unless there is a narrow
statutory definition of the offence, there is a risk that, despite the
excellent instruction which appears to have been given to members of the
R .C .M .P . Security Service, the police and others will give the offence a
wider meaning than is now the law, when deciding upon the scope of
investigation and search . The language that we propose be employed, i f
5 The three indictable offences provided for in section 62 of the Criminal Code .
6 Criminal Code, section 60.
Sir John Thompson, House of Commons, Debates, 1892, Vol . 2, col . 2837, quoted in
Friedland, National Security: The Legal Dimensions, p . 17 .
953
�the seditious offences are retained, is "an intention to incite others to
violence or disorder against government" . e
(b) However, we propose an even more radical step - the deletion of the
seditious offences from the Criminal Code. For it seems to us that the
scope of possible application of the present seditious offences, including a
judicially imported requirement of prôof of an intention to incite violence,
is already covered by other offences under the Code . We refer to
counselling or incitement or conspiracy to commit either offences against
the person, or offences against property, or to riot or to assemble
unlawfully . Advocacy of .revolution_ is covered by incitement to commit
treason, for the commission of treason includes the . use of "force or
violence for the purpose of bverthrowing thé government of Canada or a
province" .' Therefore there is no need for the seditious offences that are
now found in the Criminal Code .' o
WE RECOMMEND THAT the seditious offences now found in the
Criminal Code be abrogated .
(212) ,
8 We delete the additional words found in Boucher: "or resistance or defiance for the
purpose of disturbing constituted authority" . Retention of those words in the statutory definition might mean that incitement to call a major illegal strike would be
regarded as seditious.
' Criminal Code, section 46(2)(a) .
10 Professor Friedland argues that a new, comprehensive offence of "armed insurrection" ought to be considered ; see his study at pp . 15-16 . However, it is difficult to see
the advantages of creating a new offence if existing offences are sufficient to enable
effective protection of the State .
954
�PART X
THE R .C .M .P. .POLICING FUNCTION :
PROPOSALS FOR IMPROVING ITS LEGALITY ,
PROPRIETY AND CONTRO L
INTRODUCTIO N
CHAPTER 1 :
Change Within the R .C .M .P .
CHAPTER 2 : Complaints of Police Misconduct
CHAPTER 3 : Obtaining Legal Advice and Direction
CHAPTER 4 :
Ministerial Responsibility for the R .C .M .P .
CHAPTER 5 : Some Methods of Criminal Investigation and Their Contro l
955
��INTRODUCTION
1. Our intent in this Part is to examine and make recommendations on
certain policies and procedures affecting the R .C .M .P .'s policing function. The
basis for our choi ce of which policies and procedures to examine is found in
that pa rt of our terms of reference which requires us first to report the facts
established before us concerning incidents in which members of the R .C .M.P.
were involved in actions or activities "not authorized or provided for by law",
and second, " . : . to advise as to any further action that [we] may deem
necessary and desirable in the public interest. ..". We have interpreted this
second clause as requiring us to advise not only on what ought to be done with
respect to the individuals involved in the specific incidents (this is the subject of
a separate Report) but also on what general measures should be taken in order
to avoid such incidents in the future. These géneral measures are the subject of
this Part. Our focus here'1s solely on measures designed to ensure legality and
pro priety. Thus, our mandate with regard to the R .C.M .P . policing function
does not extend to advising generally on policies and pro cedures and the means
to implement them, as it does for the secu rity side of the R.C .M .P .
2. This part of our Report contains rive chapters. In the first, we examine the
changes necessary within the R.C .M.P. to enhance legality and propri ety . Our
emphasis here is on the rule of law, and the role of the peace officer in relation
to this principle . In Chapter 2, we develop recommenda tions concerning the
R .C .M .P.'s procedures for handling complaints. Several of the activities we
have inquired into have revealed major flaws in how the For ce responds to
allegations of misconduct on the pa rt of its members . In Chapter 3, we focus on
the system by which the R .C.M .P . receives legal advice. Again, it has been our
experience that this legal advice system has had major deficiencies in the past .
In Chapter 4, we turn to the relationship of the Force to the Solicitor General
and the Deputy Solicitor General. We believe that many of the Force's
problems which we have been examining stem, in part, from both a lack of
cla rity with regard to the roles of the Minister, his Deputy, and the Commissioner of the R .C.M .P., and inapprop riate lines of control and direction. Our
aim in this Chapter is to clarify these roles and to establish appropriate legal
relationships in order that the Solicitor General can properly direct and control
the R.C.M .P. Finally, in Chapter 5, we develop recommendations on the legal
issues relevant to the R .C.M .P.'s policing function - issues which we have
already highlighted in Part III and which include such topics as surrepti tious
entries, electronic surveillance, mail opening, access to confidential informa ti on
and inter rogation . This chapter corresponds to Part V . Chapter 4, in which we
examined similar subjects with regard to the secu rity intelligen ce agency.
957
��CHAPTER 1
CHANGE WITHIN THE R .C.M .P .
A . BASIC PRINCIPLE S
3 . One of the commonly accepted implications of the rule of law, fundamental to the health of our democratic society, is that all persons are equal before
the law .' That is, "officials like private citizens [are] under a duty to obey the
same law" .? All persons must obey the law : there is no special dispensation for
policemen Members of the R .C .M .P . who are peace officers and have the duty
to preserve the Queen's peace' and to protect citizens from offenders are
expected to conduct themselves so as not to break the law .
4 . Although Parliament has seen fit to confer special powers on them, for
instance powers of arrest, peace officers should not labour under the misconception that any act which would be an offence if committed by another citizen
is not an offence if committed by a policeman during the investigation of a
crime, or in the furtherance of national security . Yet we have found that in the
R .C .M .P. just such a misconception exists, and tends to be justified by claims
that there is no intent to commit a crime . The first part of this chapter will
examine the principles of the law as they apply to the role of the police, and
assess the validity of possible defences open to peace officers accused of
committing a crime in the execution of their duty .
5 . As already noted, it is true that the law does give certain powers to a peace
officer which an ordinary person does not have . Thus, section 450(1)(c) of the
Criminal Code provides that he may arrest without warrant "a person who has
committed an indictable offence, or who, on reasonable and probable grounds,
he believes has committed or is about to commit an indictable offence", or
"whom he finds committing a criminal [even a non-indictable] offence", or
where he "has reasonable and probable grounds to believe that a warrant is in
force within the territorial jurisdiction in which the person is found" . Generally
A .V . Dicey, Introduction to the Study of the Law of the Constitution ( 10 ed .),
London, Macmillan, 1959, p. 202 .
E .C .S . Wade and G . Godfrey Phillips, Constitutional and Administrative Law (9 ed .),
London, Longman, 1977, p. 87 .
"The general duty of all Constables, both high and petty, as well as of the other
officers, is to keep the King and peace in their several districts . .." : Blackstone's
Commentaries on the Laws of England (1809), Bk I, 15th ed ., Ch . 9, quoted by Judge
Zalev in R . v . Walker (1979) 48 C .C .C . (2d) 126 at 138 . See also Reg. v . Dytham
[1979] 3 Weekly L.R . 467 (Eng . C .A .) .
959
�speaking, an ordinary person may not arrest a person in those circumstances .
This provision is intended to protect a peace officer from civil liability for false
arrest when he acts, as very often society expects him to, on the basis of
information provided by others .
6 . The defence of `lack of intent' to commit a crime often put forward by the
R .C .M .P., has been disclosed both in files we have examined and in testimony
before us . While lack of intent may be a defence to a charge of "breaking and
entering with intent to commit an indictable offence" upon the premises, it will
most likely not be a defence to other criminal charges in which the question is
not whether the accused had the "intent" to commit a crime but whether he
had a "guilty mind" in a more general sense . (We have already discussed this
question in detail in Part IV, Chapter 1 .) The current impression which
permeates the R .C .M .P . is mainly the result of inadequate basic training in the
criminal law .
7 . Another defence put forward is that of `necessity', which is probably based
on section 7(3) of the Criminal Code:
7 . (3) Every rule and principle of the common law that renders any
circumstance a justification or excuse for an act or a defence to a charge
continues in force and applies in respect of proceedings for an offence under
this Act or any other Act of the Parliament of Canada . .
.
While this provides a policeman and an ordinary citizen with a defence to
criminal liability or liability for an offence under any other federal statute, it is
probably limited to emergencies . In Morgentaler v . The Queén° Mr . Justice
Dickson, speaking for the majority of the Supreme Court of Canada, said that,
if the defence of necessity does exist ,
it can go no further than to justify non-compliance in urgent situations of
clear and imminent peril when compliance with the law is demonstrably
impossible .
He said that not only must the situation be one of great urgency but the harm
averted must be "out of all proportion to that actually caused by the defendant's conduct" . Let us take an example that has been raised with us in evidence
by the R .C .M .P . A peace officer prima facie violates a federal law or
regulation by not donning a life jacket when he goes in a motor boat to the aid
of a drowning person . Probably the defence of necessity would prevent a
conviction, unless of course the life jacket was on hand and the peace officer
simply chose not to wear it . Therefore that example, which was put before us
as an instance of the need for policemen to violate the law to protect the public
inte-est, does not make the case at all .
8. There is also specific provision in section 25(1) of the Code that "everyone", including a peace officer ,
who is required or authorized by law to do anything in the administration or
enforcement of the law
(a) as a private person ,
° (1975) 70 C .C .C . ( 2d) 449 .
960
�(b) as a peace officer or public officer ,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable and probable grounds, justified in doing what he
is required or authorized to do and in using as much force as is necessary
for that purpose .
Since the law - as rendered by statute in the oath he takes - requires him to
enforce the law, he is protected from criminal and civil liability for any use of
force in the course of enforcing the law, if the force he uses is no more than is
reasonably necessary in the circumstances .
9 . Section 27 of the Code, applicable to peace officers and non-peace officers
alike, provides that a person is "justified in using as much force as is
reasonably necessary" to prevent "the commission of an offence", or the doing
of anything "that, on reasonable and probable grounds, he believes would, if it
were to be done, be an offence", if the person committing it "might be arrested
without warrant" and the offence "would be likely to cause immediate and
serious injury to the person or property of anyone" .
10. The provisions of sections 25 and 27 together permit a policeman,
provided he acts reasonably, to perform those acts which society expects a
policeman to do . They afford protection from criminal and civil liability if, for
instance, he breaks into premises, breaking down the door in the process, in
order to prevent the commission of an impending crime of serious violence .
11 . This brief statement of the law relating to the powers of a peace officer
should be sufficient to make it clear that, while the law expects a policeman to
do more than it expects of an ordinary persori, it correspondingly affords him
certain specific protections which will be sufficient to enable him in many cases
to do his duty without fear of prosecution or civil suit, provided he behaves
reasonably .
12. There will, nevertheless, be situations in which he will not be able to
enforce a law effectively without breaking some other law . In those situations
he must not break the law . No assertion that his action is in the public interest
or for the public good in the war against crime can be allowed to justify his
committing an offence . His conduct must be above reproach, and set an
example of obedience to the law . No equivocation is permissible either in the
policy established for the police force or in its application in the field .
13 . If a specific law, whether found in a federal, provincial or municipal
statute or regulation or bylaw, stands as an obstacle to effective law enforcement then the police force should press for a change in the law . It must not
subvert the law by permitting or even encouraging its members to break the
law on grounds that the violation will only be "technical" . Nor must it permit
its members to encourage other persons to do some act of cô-operation as a
"good citizen" if that act is an offence .
14 . We have heard a good deal about `technical' violations of the law . There
are no such things . A breach of a statutory prohibition is an offence, no matte r
961
�how noble the motive of the policeman committing it . While the selflessness of
the motive may be taken into account by a judge in mitigation of what
otherwise might be a severe penalty, the possibility of such leniency must not
be the basis of a policy permitting conduct which constitutes an offence .
15. No doubt members of a police force such as the R .C .M .P. feel frustrated
if they find it difficult to persuade governments and legislators to change the
law, as .they feel it needs to be changed to enable them to enforce it effectively .
We have found that the R .C .M .P . is unskilled at presenting a case for
legislative change . This may be a reflection of an inadequate capacity for
analytical thought and presentation, or it may flow from a failure to understand the process of government or the necessity to present the need and the
proposed solution with clarity and absolute candour . Government cannot be
expected to press the R .C .M .P . for clear evidence of need, or for more effective
presentation of argument . On the other hand, we recognize that a number of
legal prôbléms which are analyzed in this Report, if they are to be resolved,
will require the active and concerted effort of the federal and provincial
governments, each of which bears constitutional responsibilities that affect law
enforcement in general and the work of the R .C .M .P. in particular . The federal
system does not render the solution to these problems easier .
16 . Our preceding observations have referred to offences . But a police officer
must equally not be guilty of conduct which, although not an offence, will
constitute a civil wrong . For example, even if entry upon premises and
surreptitious search without warrant may not be a crime and in most provinces
does not contravene a provincial statute ; in the common law provinces it will be
trespass and in Quebec may be a delict . It was the law of trespass which in
England 200 years ago established the unacceptability of searches by general
warrant issued by an officer of state. The observations fotind in the great
judgments of those times (see Part III, Chapter 2) apply equally to render
"illegal" or "unlawful", in the civil sense, any such conduct by a peace officer .
That is enough to require a police force to prohibit such an investigative
practice .
17 . ' The currency of the doctrine that tortious conduct by policemen is
unacceptable, even if it is not a criminal offence or an offence under any
stâtute, was vividly illustrated by â recent judgment in the highest court of
England, the House of Lords . In Morris v . Beardmores, a charge by police was
dismissed because the evidence was obtained while the police were trespassing .
Lord Diplock stated :
In my opinion, in order to constitute a valid requirement the constable who
makes it must be acting lawfully towards the person whom he requires to
. . .undergo a breath test at the moment that he makes the requirement . He i s
not acting lawfully if he is then committing the tort of trespass on that
person's property, for [the statute] gives him no authority to do so, 6
s[1980] 3 Weekly L .R . 283 .
6 Ibid., at p . 289 .
962
�Lord Edmund-Davies said :
. .. although policemen have been vested by statute with powers beyond
those of other people, they are exercisable only by virtue of the authority
thereby conferred upon them and in the execution of their duty . A
policeman as such - in or out of uniform - has no powers or authority
beyond those of the ordinary citizen on occasions or in matters which are
unconnected with his duties .
My Lords, I have respectfully to say that I regard it as unthinkable
that a policeman may properly be regarded as acting in the execution of his
duty when he is acting unlawfully, and this regardless of whether his .
contravention is of the criminal law or simply of the civil law . And so, when
Parliament decreed that in the circumstances -indicated in section 8 "a
constable in uniform" was empowered-to take certain steps in relation to
motorists, the whole framework of the legislative provision was that the
powers were being conferred on a constable who at the material time would
not merely be in uniform bût would also be acting in the execution of his
duty . '
And later he warned tha t
. .. if the police (above all people) are seen to flout the law and are yet to be
regarded as lawfully exercising powers granted to them by Act of Parliament, diminished respect for the law and for the officers of law enforcement
must inevitably follow . e
18 . The policy of the R .C .M .P ., and its application in the field, must
unequivocally expect compliance with the law . Any deficiency in the law which
is perceived as a serious obstacle to the effective performance of the tasks
entrusted to the R .C .M .P . by the government and Parliament should be drawn
candidly to the attention of government . It should not be regarded as a
difficulty to be overcome either by turning a blind eye to violation of the law,
or by being equivocal in its approach to governtnent on the subject .
19. Our investigations reveal that some of the legal problems that have arisen
in the R .C .M .P . should have been identified sooner, and, when identified,
shonld have been brought to the attention of the government for legal advice
and if necessary for remedial legislation . Too often we have found that a legal
problem, even if identified as such by senior management of the Force, has
been hidden from government because of fear that the legal advice that the
government would obtain would result in a prohibition of the use of an
investigative technique .
20 . In addition to recognizing unreservedly the significance of the rule of law
in its application to the R .C .M .P ., it is imperative that in word and deed all
police forces accept the primacy of the civil government . Yet we have detected,
in subtle references, that there is an impression in some quarters in the
R .C .M .P . that the Commissioner of the R .C .M .P . is answerable to the law and
not to the government . Such is the impression one has when members of th e
' Ibid., at p . 291 .
S Ibid., at p . 294 .
963
�Force refer to R . v . Metropolitan Police Commissioner, Ex parte Blackburn9
(cited and discussed in Chapter 4 of this Part) as an apparent authority for
that proposition . The limits of what was said in that judgment were analyzed
by the Honourable Madam Justice Roma Mitchell, of the Supreme Court of
the State of South Australia, in the Report of the Royal Commission on the
Dismissal of Harold Hubert Salisbury from the office of Commissioner of
Police, 1978 .10 She found that former Commissioner Salisbury had misled the
Government of the State by his communications to it as to the nature and
extent of the activities of the Police Special Branch, and that the décision to
dismiss him was justifiable in the circumstances . Shortly before his dismissal,
as Madam Justice Mitchell said in her Report :
In his interview with the Premier on the 13th January 1978 Mr .
Salisbury said that special branches of Police Forces had duties which he
considered to be to the Crown, to the law and not to any political party or
elected Government . In giving evidence he again affirmed that that was his
belief and he said "As I see it the duty of the police is solely to the law . It is
to the Crown and not to any politically elected Government or to any
politician or to anyone else for that matter ." That statement, in so far as it
seems to divorce a duty to the Crown from a duty to the politically elected
Government, suggests an absence of understanding of the constitutional
system of South Australia or, for that matter, of the United Kingdom . As I
understand his evidence he believed that he had no general duty to give to
the Government information which it asked but he regarded it as politic to
give such information as, in his view, was appropriate to be general
knowledge . "
Madam Justice Mitchell then continued :
Of course the paramount duty of the Commissioner of Police is, as is
that of every citizen, to the law . The fact that a Commissioner of Police "is
answerable to the law and to the law alone" was adverted to by Lord
Denning M .R . in R . v . The Commissioner of Police of the Metropolis: ex
parte Blackburn . This was in the context of the discretion to prosecute . No
Government can properly direct any policeman to prosecute or not to
prosecute any particular person or class of persons although it is not
unknown for discussions between the executive and the police to lead to an
increase in . or abatement of prosecutions for certain types of offences . That
is not to say that the Commissioner of Police is in any way bound to follow
government direction in relation to prosecutions . Nor should it be so. There
are many other police functions in respect of which it would be unthinkable
for the Government to interfere . It is easier to cite examples than to
formulate a definition of the circumstances in which the Commissioner of
Police alone should have responsibility for the operations of the Police
Force.
It is one matter to entrust to the Commissioner of Police the right to
make decisions as to the conduct of the Police Force . It is quite another to
'[1968] 2 Q .B . 118 ; [1968] 1 All E .R . 763 .
10 Royal Commission Report on the Dismissal of Harold Hubert Salisbury, South
Australia, 1978 .
Ibid ., at p . 19 .
964
�deny the elected Government the right to know what is happening within,
the Police Force .' 2
We shall express our views on this subject in Chapter 4 of this Part . Suffice it
to say here that requests by government for information as to what is
happening within the R .C .M .P. must be answered in a forthright manner using
unequivocal language that sets out clearly any qualifications to the information
being provided . But candour and completeness are not the only essentials . The
police, because they are aware of the difficulty government may have in
identifying issues requiring its attention, must bring forward all such issues,
even matters which the police themselves might consider to be "internal
management" .
B . MANAGEMENT AND PERSONNEL PRACTICES
21 . A study of the management and personnel practices of the R .C .M .P .
policing function, parallel to the one we conducted and reported on in Part VI
in relation to the Security Service, is outside our terms of reference . We have
not been asked to examine the role that the Force ought to play as Canada's
national police force, and without such an examination we believe that a study
of management and personnel issues would be on an unsound footing . Even if
we were to assume a continuation of the R .C .M .P .'s existing role, we could
review the Force's procedures in the area of policing in a comprehensive
manner only by focussing on effectiveness as well as on legality and propriety .
We consider that lasting improvements will not be effected simply by suggestions for imprôved legal training or by calling upon R .C .M .P. members to
refuse to obey illegal orders . Questions of legality and propriety relate directly
to long established, deeply rooted characteristics of the Force : its managerial
style, with its emphasis on obedience ; its disciplinary procedures ; the extensive
and well-defined set of rules that governs behaviour on and off the job ; the
stress on loyalty ; the initial training which attempts to mould the individual to
fit the image of the Force; the insularity of the R .C .M .P . These topics, in our
view, should be looked at only in the context of effectiveness .
22 . However, although a study of management and personnel issues for the
R .C .M .P . policing function lies outside our terms of reference, we would be
remiss in dropping the subject entirely . We believe that there is a strong
connection between legality and propriety on the one hand and management
and personnel procedures on the other . Moreover, we strongly suspect that
some of the weaknesses we have identified in the Security Service - a poor
capacity for legal and policy analysis, a serious deficiency in management
skills, lack of continuity and expertise in key areas because of the generalist
career path - are also weaknesses in the criminal investigations side of the
Force . Indeed, some have argued that the type of managerial and personnel
policies which we are recommending for the security intelligence agency would
be appropriate for at least certain parts of the Force, such as those branche s
12 Ibid., at p . 20.
965
�dealing with commercial crime, criminal intelligence, and drug offences . For
these reasons, we suggest that the government consider initiating a study of the
R .C .M.P . policing function, centering on at least the following topics :
- the role for Canada's national police force ,
- the desired qualities for the R .C .M .P . Commissioner and his senior
managers,
- the major personnel policies including recruitment, training and development, career paths and classification ,
- the organizational structure of the Force,
- the approach to management and decision-making .
The objectives of such a study should be to enhance the effectiveness of the
Force and to ensure legal and proper conduct on the part of its members .
966
�CHAPTER 2
COMPLAINTS OF POLICE MISCONDUC T
1 . "Who should police the police?" is one of the most difficult questions
facing those concerned with law enforcement in a liberal democracy . Allegations of police misconduct must be resolved promptly and fairly to protect the
rights of citizens and police alike, and to maintain the confidence and respect
of citizens in the police . Moreover, an effective means of handling complaints
can be an important management tool for a police force in identifying problem
areas such as poor recruiting and training practices or improper investigatory
procedures . As we have noted in Part VI, Chapter 2, the problem of police
misconduct - certainly as it relates to the R .C .M .P. - is not simply a
question of `evil' people doing `evil' deeds . We were not investigating acts of
police corruption, that is policemen acting illegally or improperly for their own
aggrandizement . Rather the evidence before us suggests that the causes of
police misconduct are complex and have at least as much to do with failures in
our systems of law, management, and governmental relationships as they do
with human failings . The proper handling of complaints is an excellent way of
identifying and correcting these systems failures .
2 . As in the case of `policing' a security intelligence agency, an effective
system for `policing' the police requires a judicious blending of several approaches . In some instances, especially those in which the complaint is a
relatively mild one - for example, a complaint that a police officer was rude
- the best approach may be for the complainant and the officer to meet face
to face in order to ascertain whether an amicable resolution is possible . In other
cases, the R .C .M .P . itself should conduct an investigation . In situations where
there is an alleged illegality on the part of the police, the matter must be
handled by the appropriate Attorney General . Finally, we believe that an
external review body is necessary to monitor how the R .C .M .P. handle
complaints, and in certain circumstances, to undertake an investigation of its
own . Indeed, the major recommendation in this chapter will call for the
establishment of the Office of Inspector of Police Practices whose functions
and roles, with some important exceptions, will be similar to those of the
Advisory Committee on Security and Intelligence, which we discussed in Part
VIII, Chapter 2 .
3 . In addition to the establishment of an external review body, we shall make
recommendations in three other areas to improve the R .C .M .P .'s handling of
complaints . First, we shall recommend ways of improving the flow of complaints about police misconduct from the general public, the judiciary and from
members of the R .C .M .P . Then we shall make proposals for improving the way
in which complaints are dealt with, once they have been received by the
967
�R .C .M .P . or some other government body . Finally, we shall examine the role
which the provinces should play in the complaints system relating to the
R .C .M .P.
4 . Before turning to each of these areas, we should note that a Royal
Commission has recently studied R .C.M .P . complaint procedures . The Report
of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedures Within the Royal Canadian Mounted Police'
(chaired by His Honour Judge René Marin and referred to hereafter as the
"Marin Commission") was published early in 1976 and called for a series of
changes in the manner in which public complaints against the R .C .M.P . are
handled . The R .C .M .P. has since implemented many of these proposals .
Having that Report makes our task much easier in that we agree with a
number of the Marin Commission's recommendations . Nonetheless, there are
certain areas where we differ with the recommendations made by that Commission and for this reason we have developed our own proposals on certain key
points .
A . EXISTING PROCEDURES FOR HANDLING PUBLIC
COMPLAINTS AGAINST THE R .C.M .P.
5 . The existing procedures provide for the reception, investigation and resolution of a complaint by the Force itself. With the exception of certain provincial
police boards, whose constitutional authority in so far as their jurisdiction over
the R .C .M .P. is concerned is now in doubt (which we shall discuss later in this
chapter), no authority external to the Force oversees, on a regular and
systematic basis, the handling of public complaints against it . The administration of public complaints and internal discipline procedures is the responsibility
of the divisional commanding officers . Appeals concerning internal discipline
can be made to the Commissioner, whose rulings are final .
6 . When a complaint is received by the R .C .M .P ., a preliminary investigation
is carried out at the local level . The majority of complaints appear to be
satisfactorily resolved on an informal basis by way of an explanation or an
apology. R .C .M .P . Headquarters does not keep records of complaints which
are resolved informally . However, Force policy requires divisions to compile
reports on the nature and frequency of all complaints as a measure of divisional
effectiveness . At the discretion of Headquarters and the Commanding Officer
of each division, the R .C .M .P . also examines and investigates adverse comments reported in the press or contained in judicial decisions in court cases .
The R .C .M .P . told us that an investigation is undertaken in a case where there
is an expectation that questions will be addressed to the responsible federal or
provincial Minister.
7 . Where any matter is considered by the R .C .M .P. to be serious, or if the
complainant is not satisfied at the informal level, a formal investigation is
undertaken by a senior NCO or an officer at the local level, or by a specia l
' Information Canada, Ottawa, 1976 .
968
�R .C .M .P . internal investigation unit called the Complaints and Internal Investigation Séction (C .I .I .S .) . There are internal investigation sections in most
divisions across Canada and they can be sent to smaller detachments as
required . C .I .I .S . Sections investigate most serious cases including those cases
where R .C .M .P. members normally responsible for service investigations (or
criminal investigations in areas where the R .C .M .P . has general law enforcement responsibilities) have personal involvement or interest in the matter to be
investigated ; where there is any question of corruption ; or, where public
interest appears to be high .
8 . If a complainant alleges illegal conduct on the part of an R .C .M .P .
member in an area where the R .C .M .P. has general law enforcement responsibilities, the Force undertakes a criminal investigation . The R .C .M .P . then
refers the matter to the provincial prosecutorial authorities who determine
whether criminal charges should be laid . In other areas, the R .C .M .P . refers
the matter to the police force which has general law enforcement responsibilities for investigation and referral to the prosecutorial authorities . One of the
Marin Commission's recommendations concerning public complaints proposed
that such criminal investigations be carried out by experienced R .C .M .P.
investigators seconded to a provincial attorney general and working under his
direction . This recommendation has not been implemented . The R .C .M .P . and
the interdepartmental review committee that studied the report believed that
these investigations should be carried out by experienced R .C .M .P . members
under the direction of the Commissioner . The provincial attorneys general have
never requested seconded officers, and there does not appear to be administrative machinery available to implement the recommendation . We return to this
matter later in this chapter .
9 . In cases of alleged illegal conduct the R .C .M .P. may also undertake an
internal investigation . If it does, it may rely heavily on the criminal investigation material to determine the appropriate disciplinary action . This procedure
is contrary to two recommendations of the Marin Commission . These recommendations would not permit the use of the criminal investigation reports or
the employment of the criminal investigators in subsequent disciplinary
proceedings .
10 . The focus of R.C .M .P . internal investigations regarding complaints is not
solely on determining the validity of the complaint and proposing remedial
steps . In addition Force management sometimes review training programmes,
standing orders of the Commissioner, and Force directives . When an incident
suggests that training or operational procedures were part of the cause of a
problem, modifications to those procedures are considered .
11 . According to the R .C .M .P ., whenever it receives a complaint through a
provincial attorney general, and in cases where the matter is sufficiently serious
that inquiries by the press or public are likely to be made to the attorney
general, the R .C .M .P . keeps the attorney general's office informed of the
progress and the final result of the investigation . (We have examined cases in
which this procedure has not been followed and these are documented in a
subsequent Report .) The complainant, for his part, is told whether his com969
�plaint has been found to be substantiated and, in some cases where property
damage is involved, he receives compensation from an ex gratia fund . The fac/t
that an R .C .M .P . member was or was not disciplined is always disclosed .
However, the nature of the discipline . is not disclosed .
12 . In December 1978, the R .C .M .P . established a unit called the,Complaints
Section within its Internal Affairs Branch at Headquarters to, receive complaints and forward them to the appropriate region . The Complaints Section
does not receive particulars of all complaints, but has recently begun to receive
statistical data of complaints, and their resolution, from each division . In the
six months ending September 30, 1979, the Complaints Section recorded that
1,042 complaints were lodged against the R .C .M .P ., of which 576 were
disposed of informally . A total of 281 complaints were found to be substantiated . If R .C .M .P . personnel at the divisional level rule that a complaint is
unsubstantiated, Headquarters has at present no means to review the case . To
date, the only authorities external to the R .C .M .P. which have reviewed
internal investigation of complaints are the provincial attorneys general in the
contracting provinces or their police boards and commissions . They are provided with access to investigation files to ensure that complaints have been
fairly dealt with . In isolated instances, specially appointed provincial commissions of inquiry have investigated specific allegations of misconduct . Until
recently, complainants in some provinces were advised that if they were
dissatisfied with the disposition of their complaint, they could appeal the
matter to the provincial police board or commission . However, as we shall
explain later in this chapter, serious doubt has now been cast on the constitutional power of provincial police boards and commissions to review complaints
against R .C .M .P. members .
13 . We have concluded that the present R .C .M .P . public complaints procedures go some distance in providing for the just disposition of a complaint, .and
for the use of complaints as a remedial management tool to improve policies
and procedures governing R .C .M .P. operations . However, based on our experience, at the formal hearings and on our research of how other jurisdictions
handle this matter, we believe that improvements can be made . We shall
describe the . major shortcomings of the present system and develop proposals
which we think will solve them .
B . LODGING OF COMPLAINTS
14 . It is clear to us that only a small minority of cases involving police
misconduct ' are reported by the `victim' of alleged wrongdoing . This is a matter
of serious concern to us . In this section we shall recommend the adoption of
measures to facilitate the lodging of complaints by aggrieved citizens . We shall
also examine two other sources of information about police misconduct - the
judiciary and members of the R .C .M .P . - and make recommendations to
facilitate the lodging of complaints from these sources as well . •
970
�Complaints Jrom the public
15 . We have found that R .C .M .P . misconduct does not necessarily lead to a
public complaint . Of nine sample cases of alleged R .C .M .P . misconduct
reviewed by our counsel, in only one did the alleged victim complain to the
Force directly . In each of two cases, the lawyer for the potential complainant
wrote to the R .C .M .P . years after the event, following the disposition of
criminal appeals . In the remaining cases the R .C .M .P . initiated an inquiry
following adverse publicity .
16. There are a variety of reasons why a`victim' of alleged police misconduct
may fail to complain to the police . First, the `victim' himself is often engaged in
questionable activity, and may be subject to continuing police investigation :
Evidence relating to the complaint may also be relevant to the charges against
him . Second, some individuals may fear, especially if there was a physical
altercation, that complaints against police officers will result in later police
harrassment . Third, minority groups may lack confidence in police impartiality . Fourth, even where the incident comes to the knowledge of lawyers, it may
serve as a tool in plea bargaining and never be publicly disclosed . Further,
lawyers often hesitate to raise the issue of police impropriety outside the
criminal proceedings brought against their clients until the cases have been
finally resolved by the courts . Fifth, the fear, whether justified or not, of
incurring heavy legal costs may deter many people from lodging complaints .
Finally, the `victim' may not be aware of the police misconduct . For example, a
policeman might break into his home without his knowledge . Alternatively ; the
victim might be aware of a questionable act, but have no idea that the police
were responsible .
17 . In those cases where the `victim' is aware of possible police misconduct, it
is important, we believe, that there be public bodies other than the R .C .M .P . to
which a complaint may be submitted . Consequently, we propose that provincial
police boards and commissions continue to receive complaints against the
R .C .M .P . These boards and commissions should transmit the allegations to the
R .C .M .P . If so requested, they should not reveal the name of the complainant
to the R .C .M .P. The second alternative to lodging complaints directly with thé
R .C .M .P . should be the registering of allegations with a new federal review
agency, the Office of Inspector of Police Practices . We do not see a need for
this agency to establish offices in every region for the purpose of receiving
complaints . Rather, the local offices of the federal Department of Justice
should receive complaints on behalf of this body . Copies of complaints received
by or on behalf of the federal review body should be forwarded to the
R .C .M .P . Again, if so requested, the Inspector should not reveal the name of
the complainant to the R .C .M .P .
18 . These alternatives to filing a complaint directly with the R .C .M .P . should
be widely publicized by the Solicitor General, the Force, the Inspector of Police
Practices and the provincial police boards and commissions . In particular those
agencies and organizations dealing with minority groups should be aware of
the right to complain about R .C .M .P . conduct to the Inspector of Police
Practices and the provincial police boards and commissions, as well as the righ t
971
�to anonymity . As the Marin Commission recommended, the public should be
advised of the need to file complaints as soon as possible after the event
becaus e
.
.. with the passage of time evidence is lost, memories dim, members of the
Force are transferred and the reconstruction of events becomes difficult . 2
Complaints from the judiciary
19 . Members of the judiciary are in a position to provide a continuous, albeit
unsystematic, review of police conduct in the course of the criminal trial
process . We are referring here to situations where judges, in the course of
criminal trials, learn of possible police misconduct . What action should they
take? In Part X, Chapter 5, we deal with the efficacy of judicial discretion to
reject illegally obtained evidence in controlling improper police investigative
measures . We conclude there that the possibility of penalizing the prosecution
is not an adequate response when police misconduct is discovered by a judge .
There is a need to ensure that the matter comes to the attention of the proper
authorities in order that corrective action can be taken .
20 . For want of established procedure, the response from the judiciary on
police misconduct has been variable and sometimes inequitable . At present,
when the issue of police misconduct is raised in the criminal courts, members of
the bench occasionally castigate the police officers involved for the apparent
impropriety. While the desire of judges to voice their concern over an apparent
case of police misconduct is understandable, sometimes all the facts are not
before the court and the police officer involved is not given an opportunity to
state his case .
21 . We believe that the courts should establish procedures whereby judges
may send a formal report to the Commissioner of the R .C .M .P . of cases of
suspected police misconduct . The culpability of police officers should be
determined in the proper forum where, after a full investigation, a fair hearing
is accorded the police officer . Informing judges of the avenues available for
lodging complaints or allegations, and encouraging them to make use of these
channels, would seem to us to be the best approach . In Chapter 5 of this Part
of our Report, in a section concerning the interrogation of suspects, we shall
make a related recommendation calling for the establishment of procedures to
ensure that the R .C .M .P . is notified of the reasons given by judges for
excluding confessions because of questionable police practices being brought to
the attention of the management of the R .C .M .P .
Misconduct reported by members of the R .C.M.P.
22. Even if the present obstacles to filing a complaint against the R .C .M .P .
are partially or wholly removed, public complaints and criticism will continue
to be irregular sources of information on police misconduct . There might still
be serious cases of illegal or improper conduct on the part of R .C .M .P.
members which either do not come to the attention of anyone outside th e
' Ibid., p . 75 .
972
�Force, or, if they do, for one reason or another are not brought to the attention
of the proper authorities . In such cases, the only way in which the incidents
may come to light is through other members of the R .C .M .P . who know of the
illegalities or improprieties and report them . "Whistle-blowing" is a term often
used to describe such reports . We make two proposals aimed at encouraging
R .C .M .P . members to report misconduct . The first is to have a clearly
designated organization outside the R .C .M .P. to which members can report
questionable acts in a way that ensures anonymity and protects the whistleblowers from future reprisals . The second proposal calls for the explicit
recognition, in the statute governing the R .C .M .P ., of an R .C .M.P . member's
duty to report misconduct within the Force . We enlarge below on each of these
proposals .
23 . R .C .M .P . members should normally bring questionable acts to the attention of their immediate superiors or the designated units within the Force
responsible for investigating misconduct . There may be situations, however,
where an R .C .M .P. member, having knowledge of a case of illegal or improper
conduct, is not confident that the matter will be properly handled by the Force .
A case of improper conduct, for example, may have its roots in policies and
procedures which have received the approval of senior officers of the R .C .M .P .
(We have found evidence of several such situations in the past .) Or the member
may suspect that his superiors have either participated or acquiesced in the
misconduct . Or the member may have received an order that he believes is
either illegal or improper . Finally, the member may have made an allegation
internally and not been satisfied with the Force's response . In all of those cases,
the member may be concerned that pursuing his allegation within the Force
will bring him into disfavour . Such cases should arise only infrequently, but if
they do there must be a means for R .C .M .P . members to report their
allegations to an authority external to the Force . We recommend that the
Inspector of Police Practices be the external authority to receive such allegations . In addition to investigating these allegations, he should ensure that the
members making the allegations should remain anonymous, if they so wish,
and that they not be punished or their careers harmed for making these
allegations . This recommendâtion is similar to one we have made for the
security intelligence agency in Part VI, Chapter 2, and provides a channel for
members' allegations which is an alternative to the public forums of the press'
and Parliament .
24 . Our second recommendation calls for a more explicit requirement by
Parliament that members of the R .C .M .P . disclose incidents of wrongdoing by
other members of the Force . We believe that members of the R .C .M .P . should
be under a statutory duty to report evidence or knowledge of illegal or
improper conduct on the part of other R .C .M .P. members . R .C .M .P. Regulation 25 provides that :
It is the duty and responsibility of every officer and of every person in
charge of a post to ensure that there is at all times strict observance of the
law, compliance with the rules of discipline and the proper discharge of
duties by all members of the Force. '
3 P .C . 1960-379 .
973
�This regulation does not place a duty on R .C .M .P . members to report incidents
of wrongdoing . Rather, it places a duty on superiors to ensure that their
subordinates obey the law . One other enactment which should be mentioned is
paragraph 25(o) of the present R .C .M .P . Act ,° which provides that every
member of the Force who "conducts himself in a scandalous, infamous,
disgraceful, profane or immoral manner" is guilty of a major service offence .
While this provision might be broadly construed so as to apply to the
withholding by an R .C .M .P . member of knowledge of illegal or improper acts
committed by other members, so far as we know it has not been so applied in
the past . Bill C-50, An Act to Amend the Royal Canadian Mounted Police
Act, which was introduced in April 1978, and which subsequently died on the
order paper, had the following section which is appropriate to what we are
recommending :
37 . It is incumbent on every membe r
(e) to ensure that any improper or unlawful conduct of any member is not
concealed or permitted to continue .
By adopting such a provision, Parliament will make it clear to the members of
the Force that the rule of law must be paramount in all that the R .C .M .P .
does . Loyalty to the Force or even to members within the Force must be
secondary .
25. In making these two recommendations designed to encourage and,
indeed, compel members of the Force to report misconduct on the part of other
members, we recognize that their adoption by government may not, by itself,
be adequate . Our own experience supports this conclusion . In December 1977,
Commissioner Simmonds told members of the Force that they had a "right" to
appear before this Commission in order to give evidence which would help the
Commission in its deliberations . He further promised that the fact that a
member did so would not "give rise to disciplinary action" . A year later, in the
"Pony Express", the R .C .M .P . newsletter, we invited members of the Force to
volunteer knowledge relevant to the Commission's mandate without their being
officially called upon to do so . Despite these messages, not one serving member
of the Force has come directly to us to volunteer information about incidents or
practiçes that may have been unlawful . We realize that it is expecting a good
deal of a member to come to us voluntarily when his own conduct is in issue .
However, knowledge of some questionable practices was widespread, and it is
noteworthy that no one has come forward in regard to such practices even
when his own conduct would not be in issue .
26. In one of our formal hearings, a senior R .C .M .P . officer, who has served
in both the Security Service and the criminal investigation side of the Force,
gave us some inkling of the norms operating within a police force which would
discourage members from reporting questionable activities which occur within
their organization . In attempting to explain the reason for his not knowin g
° R .S .C . 1970, ch .R-9 .
974
�about a certain questionable activity conducted by several of his own subordinates, he said : .
I had every reason' to believè at that time, that I had installed in the
organization and procedures and communications facilities of that Section
- and I'm •speaking now of the formal ways people communicate - so
many safeguards-there was no way that this kind of thing could happen . In
looking for an explanation afterwards, I have•gone back into the literature •
and I have brought for whatever interest it might have for the Commission . ; . an . extract from the work of - I believe he is a sociologist .- on
police cultures, that explains that where you have rogue individuals in
groups of this kind, it is part of the police . tradition, of esprit de corps and
professional secrecy, that as long as people do not break these codes, as lon g
as they do' not rat 'on each other, that police groups are tolerant of the
existence among them, of individuals of this kind . . . A number of people in
the Section knew it, but they knew intuitively that the last thing they could
do was let that knowledge get to the level of a person who would have to act
.
.
on it . . .
(Vol . C106, pp . 13703-04 . )
The senior officer then went on to quote passages from the extracts he had
brought with him . Relevant to what •we are dealing with 'in this chapter is the
following excerpt :
Teams of partners do not talk about each other in the presence of non-team
members, line personnel do not talk about their peers in the presence of
ranking officers . . . and, of course, no members of the -department talk
about anything remotely connected with police work with any outsiders .
Obviously the rule of silence is not uniform throughout these levels . Thus,
matters that, could . never be mentioned to outsiders can be topics of shoptalk
among peers . But this reflects only gradations of secretiveness . _In a larger
sense police departments accommodate a colossally complicated network of
secret sharing, combined with systematic information denial .
•
(Vol . C 106, pp . 13705-06 . )
In reply to a question asking him whether the passages'he had quoted reflected
his experience in the R .C .M .P ., the witness sai d
Yes, sir . As a matter of fact, when A came across that book, I was
astounded at the- perceptions that this person could' communicate, ' not
having been a pôlice officer . Then I discovered that he had, in fact, like •
many of his practitioners, : . . gone• to work directly in police forces to
acquire his knowledge .
(Vol . C106, p. 13 7 08 :) ,
27 . It is not important for us at this point to comment on the merits of thé
thesis put forward by this senior officer . But what his evidence does suggest to
its is that the reporting by R .C .M .P . members of questionâble' acts within thé
Force is a complex matter whick is very much tied to the 'management stÿle•
and personnel policies now employed -by the R :C .M .P . Reflecting on this
relàtionship has . reinforced for us the suggestion we made in an earlier . chapter
Egon Bittner, The Functions of the Police in Modern Society, Chevy Chase,
Maryland, National Institute of Mental Health, 1970 .
.
975
�- a suggestion that the Solicitor General undertake a review of the
R .C .M .P .'s organizational structure and its management and personnel policies
with the twin objectives of increasing the Force's effectiveness and reducing the
risks of members committing illegalities and improprieties in the performance
of their duties .
WE RECOMMEND THAT the federal government establish the Office of
Inspector of Police Practices, a review body to monitor how the R .C.M .P.
handles complaints and, in certain circumstances, to undertake investigations of complaints on its own
.
(213)
WE RECOMMEND THAT as alternatives to filing complaints directly
with the R .C .M.P . ,
(a) provincial police boards and commissions continue to receive complaints against the R .C .M .P., and to forward copies of them to the
R .C.M.P . without revealing the name of the complainant if so requested by the complainant ;
(b) the Inspector of Police Practices and local offices of the federal
Department of Justice, receive complaints against the R.C .M .P . and
forward copies of them to the R .C.M.P . without revealing the name of
the complainant if so requésted by the complainant .
These alternatives to sending a complaint directly to the R .C.M .P. should
be widely publicized by the Solicitor General, by the Force, by the Office of
Inspector of Police Practices and by provincial police boards and
commissions .
(214)
WE RECOMMEND THAT the Federal Government request the courts to
establish procedures whereby judges may send a formal report to the
Commissioner of the R.C .M .P. of cases of suspected police misconduct .
(215)
WE RECOMMEND THAT the Inspector of Police Practices be authorized to receive allegations from members of the R.C .M .P . concerning
improper or illegal activity on the part of other members of the Force .
(216)
WE RECOMMEND THAT the Inspector of Police Practices endeavour
to keep secret the identities of R.C .M .P . members who report incidents of
illegal or improper R .C.M .P. activity
.
(217)
WE RECOMMEND THAT R .C.M .P . officers be proscribed from taking
recriminatory personnel action against any member under their command
by reason only that the member filed, or is suspected of having filed, an
allegation of illegal or improper R .C .M .P. conduct with the Office of the
Inspector of Police Practices.
(218)
WE RECOMMEND THAT members of the R .C.M .P . be under a specific
statutory duty to report evidence of illegal or improper conduct on the part
of members of the Force to their superiors . Where there is reason to
believe that it would be inadvisable to report such evidence to their
superiors they should be under a statutory duty to report it to the Inspector
of Police Practices.
(219 )
976
�C . INVESTIGATING ALLEGATIONS OF MISCONDUCT
28. Who should investigate allegations of R .C .M .P . misconduct? This is a
sensitive issue requiring consideration of the nature of the allegation (is the
alleged misconduct illegal or merely improper?), the effectiveness of the
investigation, the morale of the Force, public confidence in the R .C .M .P . and
in the administration of justice, and the constitutional division of powers
between the federal and provincial governments . We believe that different
circumstances call for different approaches to the form of investigation . We see
an initial distinction between complaints which allege or disclose the commission of a federal or provincial offence on the one hand, and those which
complain of impropriety but make no allegation of illegality on the other . We
shall deal with the latter class of allegations first .
Complaints of R .C.M.P. impropriety
29 . As we discussed earlier, the R .C .M .P . now employs special units for the
investigation of complaints against members of the Force . Is this sufficient, or
should provision be made for investigation by non-R .C .M .P . investigators? We
are persuaded that in most cases R .C .M .P . investigations into allegations
against their own members are fair and thorough . Moreover, there are other
compelling reasons for having the R .C .M .P . investigate its own members in the
majority of cases . First, as we explained earlier in this chapter, many complaints can be handled informally by the complainant and the R .C .M .P .
member involved, thus avoiding the need for a costly investigation . Second,
having `outsiders' completely in charge of investigating misconduct would
undermine the sense of responsibility within the R .C .M .P . for uncovering and
preventing questionable behaviour in its own ranks . Third, we believe that the
level of co-operation given to R .C .M .P . investigators- will generally be higher
than that given by members of the Force to `outsiders' . For all of these reasons,
the following remarks of one American writer commenting on the F .B .I ., apply
to the R .C .M .P . :
For more than thirty years the F .B .I . has gathered evidence for federal
prosecutions of local law enforcement officers for corruption, police brutality, and other crimes . Now it is learning that it must sometimes investigate
its own personnel . Every law enforcement agency has to face this problem ;
and there is no simple answer . But to act as if the F .B .I . is incapable of
investigating itself would be as unrealistic as to rely on the traditional
assumption that the F .B .I . does not need investigating . 6
30 . We have two concerns, however, which lead us to suggest that, in special
circumstances, it may be advisable to have the Office of the Inspector of Police
Practices investigate allegations of misconduct . Our first concern is the need
for public confidence in the resolution of allegations of police misconduct .
Sometimes, in controversial or very serious cases, the notion of the police
investigating themselves may not provide the public with the assurance it' needs
that a completely thorough and impartial investigation has been conducted .
6 John T. Elliff, The Reform of F.B.I. Intelligence Operations, Princeton, New Jersey,
Princeton University Press, 1979, p . 174 .
977
�Our second concern is that, in some situations where there is tension or distrust
between the R .C .M .P . and the community they serve, complainants or witnesses may not lend their complete co-operation to the investigators . Without
such co-operation, the quality of the investigation will be poor and consequent- .
ly the complaint will not be satisfactorily resolved .
31 . For these reasons we adopt the general approach suggested by the
Australian Law Reform Commission in its 1978 Supplementary Report entitled "Complaints Against the Police" .' The Australian Law Reform Commission thinks that the Australian Ombudsman should have a reserve power to
undertake, at his discretion, an independent investigation into public complaints against the police. This power would be . exercised in any of four
circumstances :
(1) The complaint involves a member of the police force senior to all
members of the internal investigation unit ;
(2) the complaint involves a member of the internal investigation uriit ;
(3) the complaint is related to a matter which the Ombudsman has already
investigated ; o r
(4) the Ombudsman is of the opinion that it is in the public interest that
the complaint should be investigated by him .
32 . We believe it is especially important that the Inspector of Police Practices
have the residual discretion which is incorporated in the fourth condition . He
must be able to exercise his judgment as to whether and when to conduct an
independent investigation . Thus when a citizen is dissatisfied with the disposition by the R .C .M .P . of his complaint and brings his allegation to the attention
of the Inspector, the latter would decide whether further inquiry is necessary .
Review would not be automatic . In addition, we think that the Solicitor
General should have the power to require the Inspector to investigate a specific
allegation .
33 . In addition to its investigatory role, the Office of the Inspector of Police
Practices should have a second function - that of monitoring the R .C .M .P .'s
investigations of complaints and evaluating the R .C .M .P .'s complaints handling procedures . To perform this role effectively, the Inspector should receive
copies of all written complaints of R .C .M .P. misconduct and reports from the
R .C .M .P . of the results of its investigations of these complaints . As one
American writer has noted :
Acquisition of the input and output information [relating to a complaint] is
one of the most powerful monitoring devices available over an organization ;
Whoever has that information has the potentiality to assess where the
problems of the organization lie . The power of aggregate information is
considerable . The patterns exhibited in matters surrounding the complâint
and its processing provide useful information for changing, . the
organization . e
The Australian Government Publishing Service, Canberra, 1978 .
,
e Albert Reiss, The Police and the Public, 1971 ; pp . . 193-7-as quoted by John Elliff in
The Reform of F.B.I. Intelligence Operations, p. 177 .
.
.
978
�As part of this reviewing and evaluating role, the Inspector of Police Practices
should be empowered to inquire into and review at his own discretion or at the
request of the Solicitor General any aspect of R .C .M .P . operations and
administration which may relate to questionable behaviour on the part of
R .C .M .P . members . This proposal is in line with our belief that complaints can
be an important managerial tool for identifying `systems' problems which can
lead to improper or even illegal behaviour .
Allegations of illegal conduct on the part of R .C.M .P . members
34 . Allegations of illegal conduct on the part of R .C.M .P . members will
normally result in at least two investigations . The first and primary investigation will be a police inquiry into the alleged violation of a federal or provincial
law . This police investigation is conducted under the ultimate direction of
either the federal or provincial attorney general (usually the latter) in order
that the appropriate authorities can determine whether there is sufficient
evidence to warrant a prosecution . The second investigation is the internal one
conducted by the R .C .M .P. It is conducted under the authority of the
Commissioner of the Force, and its purpose is to determine whether the
member violated the R .C .M .P .'s own standards of conduct . It may result in
disciplinary or other remedial action by the Force .
35 . Important questions arise as to the timing of these investigations, and
who should conduct them . These issues are further complicated by the division
of constitutional responsibility in the field of law enforcement . We shall turn
first to the matter of police investigations into alleged violations of federal and
provincial statutes by R .C .M .P. members . Then we shall discuss the R .C .M .P .
internal inquiry, and its relation to the police investigation for purposes of
prosecution .
36 . We consider it most important, as did the Marin Commission, that the
investigation of suspected unlawful conduct by R .C .M .P . members parallel as
closely as possible regular police investigations into allegations concerning
private citizens . That is, there should be no special treatment accorded a
member of the R .C .M .P . The general rule should be that the details of all
allegations of R .C .M .P . illegal conduct received by the Force, by the provincial
police boards, or by the Inspector of Police Practices, should be forwarded to
the appropriate law enforcement body for investigation, and concurrently to
the appropriate prosecutorial authorities . We endorse the Marin Commission's
admonition against refraining from prosecuting in the expectation that
R .C .M .P . internal disciplinary proceedings will suffice . Internal discipline
proceedings should not be viewed as a substitute for prosecution under a
federal or provincial statute .
37. Many, although not all, allegations of R .C .M .P . violations of federal and
provincial statutes occur in jurisdictions where the R .C .M .P. is the police force
which would normally investigate the matter . In most cases the R .C .M .P .
investigators will be capable of undertaking a thorough and impartial investigation, and will have the complete confidence of the public . Still, the problems
which may, on occasion, arise when a police force investigates allegations o f
979
�improper conduct on the part of its own members may be equally present when
criminal conduct is alleged, especially if the incident has been a violent one .
That is, R .C .M .P . investigators may encounter problems obtaining evidence
from complainants and witnesses who are reluctant to co-operate with investigators belonging to the same police force uniform as the potential `accused' .
Also the appearance of justice may be compromised at times if the R .C .M .P . is
seen to be carrying out the investigation into the alleged offence .
38 . Just as we recommended above that occasionally complaints of improper
conduct lodged against the R .C .M .P . should be investigated by members of an
outside body, we feel also, for the same reasons, that certain police investigations of alleged criminal or other statutory offences might be better conducted
by members of a police force other than the R .C .M .P. The appropriate
attorneys general might therefore, in certain cases, direct members of another
municipal or provincial police force to investigate an allegation of criminal
misconduct lodged against an R .C .M .P. member . It may be necessary to
establish special administrative machinery if outside investigators are to be
employed frequently . One other alternative is to appoint a provincial commission of inquiry for special investigative problems . The importance of a thorough and impartial investigation into allegations of criminal misconduct on the
part of R .C .M .P. members cannot be overstated . The prosecutorial authorities
need a complete and accurate investigative record for the purpose of deciding
whether or not to prosecute, and generally how best to proceed . Consequently,
we believe that allowing for the use of `outside' investigators in certain
circumstances is superior to the recommendation made by the Marin Commission whereby R .C .M .P. investigators would be seconded to an attorney general .
We note that the procedure we are proposing is similar to one now commonly
used in England .
39 . Almost all police investigations into suspected offences should be supplemented by internal R .C .M .P. investigations for purposes of disciplinary or
other remedial action . We propose that whenever the R .C .M .P . is the police
force undertaking the criminal investigation, a separate, special R .C .M .P . unit
be directed to investigate the matter for internal (non-prosecutorial) purposes .
These parallel inquiries would be for different ends, and the two investigative
teams, even though both composed of R .C .M .P . members, would be responsible
to different authorities for the purpose of the investigation . While R .C .M .P .
members investigating the alleged statutory offence would be subject to the
final authority and direction of the appropriate attorney general, the members
of the special internal unit would be under the direction of the Commissioner
of the Force .
40 . With respect to the timing of the internal investigation, it is clear that the
criminal investigation, by whichever police force it is undertaken, must take
precedence . This means that the internal investigation would normally not be
undertaken until the criminal investigation is substantially completed, unless
exceptional circumstances warranted an immediate internal inquiry . As well,
the Inspector of Police Practices, as we noted earlier, should be empowered, in
certain circumstances,to conduct an independent investigation into alleged
misconduct, including criminal allegations . If the Inspector decides to conduc t
980
�an investigation, any criminal investigation should take precedence, but the
R .C .M .P . should halt its internal investigation for disciplinary purposes . Any
new relevant information which the Inspector obtains should also be transmitted to the R .C .M .P . and the appropriate prosecutorial authorities .
41 . One final matter we would like to raise in this regard is the Marin
Commission recommendation that criminal investigative files not be used by
the R .C .M .P . for disciplinary purposes . Their view was that the rights of
members might be compromised if investigative reports which are prepared
under the direction of the prosecutorial authority, and which do not contain
sufficient evidence to warrant the laying of criminal charges, are used as the
basis for internal disciplinary charges . We take the view that the use of these
records by the R .C .M .P . does not threaten the rights of members . Indeed,
investigatory reports which show a prosecution is not warranted may contain
exculpatory evidence which might be missed by an internal investigation . We
believe that it is imperative that the R .C .M .P . obtain as much information as
possible in the course of their internal investigations, not only to ensure the just
disposition of the allegation against the members involved, but also to assess
better the effectiveness of R .C .M .P . policies and procedures .
WE RECOMMEND THAT the R .C.M.P . retain the primary responsibility for investigating allegations of improper, as opposed to illegal, conduct
lodged against its members .
(220)
WE RECOMMEND THAT the Inspector of Police Practices be empowered to undertake an investigation of an allegation of R .C.M .P. misconduct
when
(a) the complaint involves a member of the R .C .M .P. senior to all
members of the internal investigation unit ;
(b) the complaint involves a member of the internal investigation unit ;
(c) the complaint is related to a matter which the Inspector is already
investigating ;
(d) the Inspector is of the opinion that it is in the public interest that the
complaint be investigated by him ; o r
(e) the Solicitor General requests the Inspector to undertake such an
investigation .
(221)
WE RECOMMEND THAT the Inspector of Police Practices be empowered to monitor the R.C .M .P.'s investigations of complaints and to evaluate the R .C.M.P .'s complaint handling procedures . The Inspector should
receive copies of all formal complaints of R .C .M .P. misconduct and reports
from the R .C.M .P. of the results of its investigations .
(222)
WE RECOMMEND THAT, as part of his monitoring and evaluating role,
the Inspector of Police Practices inquire into and review at his own
discretion or at the request of the Solicitor General any aspect of R .C .M .P.
operations and administration insofar as such matters may have contribut-
. . . .ed :to questionable .behaviour .on .the part of R .C.M .P. members. .. . , . . . . . .. . . . . . .
.
(223 )
981
�WE RECOMMEND THAT copies of all allegations of illegal conduct on
the part of R.C .M .P. members, which are received by any of the bodies
authorized to receive the allegations, be forwarded to the appropriate law
enforcement body for investigation and concurrently to the appropriat e
prosecutorial authorities.
(224)
WE RECOMMEND THAT the Solicitor General adopt the necessary
administrative machinery to allow provincial attorneys general to direct at
their discretion members of municipal or provincial police forces to
investigate an allegation of criminal misconduct lodged against an
R.C .M .P. member.
(225)
WE RECOMMEND THAT whenever the R.C.M .P. is the police force
undertaking the investigation into an alleged offence committed by one of
its members, a separate, special R.C .M .P . investigative unit be directed to
investigate the matter for internal ( non-prosecutorial) matters .
(226)
WE RECOMMEND THAT an
R .C.M .P. internal investigation into
alleged illegal conduct not be undertaken until the regular police investigation has been substantially completed, unless there are exceptional circumstances which warrant an immediate internal inquiry .
(227 )
WE RECOMMEND THAT
(a) the Office of Inspector of Police Practices be empowered to conduct
an investigation into allegations of illegal conduct ;
(b) any criminal investigation take precedence over the Inspector's
investigation;
(c) the R .C.M .P . halt any internal investigation that it is conducting for
disciplinary purposes; an d
(d) any relevant information discovered
by the
Inspector during the
investigation be transmitted to the appropriate prosecutorial
authorities .
(228)
WE RECOMMEND THAT criminal investigatory files continue to be
used by the R .C.M.P . for internal investigations .
(229 )
D . RESOLVING ALLEGATIONS OF MISCONDUCT
42 . In this section we shall be concerned with the resolution of alleged
improprieties not involving illegalities . Determining whether or not an
R .C .M .P . member committed a statutory offence is of course the responsibility
of the prosecutorial authorities and the courts . The responsibility of the
R .C .M .P . with regard to such offences, if it is the police force investigating the
allegation, is to conduct a thorough and impartial investigation . Otherwise, its
responsibility is to co-operate completely with the police force which is
conducting the investigation .
982
�43 . We have two main concerns - regarding the resolutiôn of ' allégations of
improper conduct lodged against the R .C .M .P. The first is that there be a just
and effective resolution of the specific allegatiôn . The second is that the report
on the incident serve as 'a remedial management tool, i .e . that'it be exâmined
with a view to improving the quality of the management and operation of the
R .C .M .P . We examine each of these matters in turn .
Resolving specific complaint s
44 . It has . been controversial in . many jurisdictions whether a body independent of the police should resolve allegations of police misconduct, or whether the
determination of the validity of a complaint and any subsequent disciplinary
action ought to be left in the hands of the police themselves . Some argue, for
exampÎe, that the only way in which a fair result can be achieved, and, seen by
the public to be achieved, is for an individùal or body independent of the police
force to make the finding as to police . misconduct . Others believe . that the
police themselves should be entirely responsible for deciding on the validity of
the complaint and the subsequent action to be taken with regard to the
complainant .
45. Otir position'on this difficult issue of who should determine the validity of
the complaint parallels our view as to who should investigate the complaints .
We believe that in the large majority of cases the responsibility for adjudicating complaints should rest with the R .C .M .P . Once it has' cômpléted the
investigation of the complaint, the R .C .M .P . should advise the'complainant as
to whether the Force has -determined the allegation to be founded, unfounded
or unsubstantiated . The R .C .M .P . should also advise the complainant that if he
is not satisfied with how the Force has handled his complaint, :he can appeal to
the Solicitor General who will be the final adjudicator . In this regard, we part
company with the strongly held view within the R .C .M .P . and other police
forces that the final judge _in complaint matters should be the head of the
Force . In Bill C-50, to which we, have previôusly referred, whiçh was introduced in 1978 but not passed, the traditional approach was maintained . But we
feel there cannot be public confidence in the complaint procedure if the final
arbiter belongs_ to the force whose conduct is under review . We emphasize that
we have not taken the extrémé position favoured by * some who advocate the
.
investigation and adjudication of complaints by a body external to the Force.
In the case of an appeal from a complainant, the Solicitor General, in coming
to his decision, may wish to seek the advice of the Inspector of Police Practices
as to the .quality and . thoroughness of the R .C .M .P . investigation . The Solicitor
General shôuld also be able to ask the Inspector to re-investigate the matter if
he believes this is necessaryAn those cases in which the Office of the Inspector
of Police Practices has done,the original investigation, the R .C .M .P . should not
decide on the validity of the complaint : Rather, the Inspector of Police
Practices should report . the results of his investigation directly to the Solicitor .
General who should make a decision on the matter and communicate it directly
to the complainant .
46. In addition to the côinplâinant'appealing a decision by the R :C .M .P: to
the Solicitor General, the Inspector of Police Practices, in his role as monitor o f
983
�the complaint handling procedures of the R .C .M .P ., should also bring to the
attention of the Solicitor General any specific case which, in his opinion, has
not been handled or adjudicated properly by the R .C .M .P . We believe that this
is an essential role for the Inspector to have . There may be cases, for example,
where the complainant is anonymous or where the complainant is only an
observer to the alleged misconduct and is not directly affected by it . In both of
these situations, there is a need for a review body to ensure that the complaint
is dealt with fairly and effectively .
Remedial action within the R .C.M .P.
47 . Another important aspect of resolving a complaint of misconduct has to
do with the R .C .M .P . itself and those members who were involved in the
activity leading to the complaint . In Part VI, Chapter 2, we have already noted
our agreement with the Marin Commission's assessment of R .C .M .P . disciplinary procedures . That Commission found the procedures too formal, the
control too centralized, the members' rights ill-defined and the exercise of
disciplinary authority too arbitrary . Following the Marin Commission, we also
believe that the primary emphasis on correcting improper behaviour should be
through remedial action, rather than by punishing individuals . Moreover, the
remedial action should not be directed solely or primarily at individuals .
Rather, improper behaviour may indicate faults in certain organizational
practices such as inadequate supervisory patterns or poor training programmes .
When remedial action is directed toward an individual, the key, in our view, is
to avoid a highly formalized adversarial process . The stress should be on
creatively working out joint solutions to problems rather than on punishing
people .
48. Because we agree with the general principles of the Marin Commission's
approach to disciplinary matters, we decided not to commit time and resources
to further exploration of this subject . Consequently, we make no recommendations on R .C .M .P . disciplinary procedures with one exception concerning an
issue on which the Marin Commission did not comment . We believe that the
punishment given an R .C .M .P . member arising from a complaint should not
necessarily be communicated to the complainant . Rather, the Force should tell
the complainant that it recognizes the error, that it apologizes for the misconduct of its member, that it has taken steps to ensure that such activity will not
be repeated, and that, in those cases where the complainant has suffered
damage or loss, it will make an ex gratia payment . In addition, as part of its
monitoring responsibilities of complaints handling procedures, the Office of
Inspector of Police Practices should periodically review and report on the
appropriateness of the disciplinary measures taken by the Force in regard to
questionable conduct affecting persons outside of the R .C .M .P . We do not
think that this general power of review will undermine the authority of the
Commissioner of the R .C .M .P . We are not proposing that the Inspector of
Police Practices have any authority to overturn the Commissioner's decisions in
these matters .
WE RECOMMEND THAT the R.C .M .P. advise complainants whether it
has found the allegation to be founded, unfounded, or unsubstantiated .
(230 )
984
�WE RECOMMEND THAT complainants have the right to appeal to the
Solicitor General if they are not satisfied with how the R .C .M.P . has
handled their complaint .
(231)
WE RECOMMEND THAT, upon request, the Inspector of Police Practices advise the Solicitor General as to the quality and thoroughness of any
investigation of a complaint undertaken by the R .C .M .P. The Inspector of
Police Practices should also re-investigate a complaint at the request of
the Solicitor General .
(232)
WE RECOMMEND THAT the Inspector of Police Practices report
directly to the Solicitor General the results of his office's investigations of
complaints alleging misconduct .
(233)
WE RECOMMEND THAT the Inspector of Police Practices, as part of
his role of monitoring the complaint handling procedures of the R .C.M.P .,
bring to the attention of the Solicitor General any specific complaints
which, in the opinion of the Inspector, have not been properly handled by
the R .C .M .P.
(234)
WE RECOMMEND THAT any punishment given an R.C .M .P. member
arising from a complaint not necessarily be communicated to the complainant. Rather, the Force should tell the complainant that it recognizes the
error, that it apologizes for the misconduct of its member, that it has taken
steps to ensure that the activity will not be repeated, and that in those
cases where the complainant has suffered damage or loss it will make an ex
gratia payment .
(235)
WE RECOMMEND THAT the Inspector of Police Practices periodically
review and report on the appropriateness of the disciplinary measures
taken by the R .C.M .P . in regard to questionable conduct on the part of a
member which affects the public .
(236 )
E . THE OFFICE OF INSPECTOR OF POLICE
PRACTICES
49 . Our major recommendation in this chapter calls for the establishment of
an external review body which we have named the Office of Inspector of Police
Practices . We have discussed the need for such a body and its role at several
points already . In sum, it should have two basic functions : first, it should have
the power in exceptional circumstances to investigate complaints of R .C .M .P .
wrongdoing and make recommendations to the Solicitor General ; second, it
should monitor the investigations of alleged misconduct undertaken by the
R .C .M .P . itself and evaluate the R .C .M .P .'s complaints handling procedures .
The functions, responsibilities and staffing arrangements which we are recommending for the Office of Inspector of Police Practices closely parallel those of
the Office of Professional Responsibility recently established in the Attorney
985
�General's Department in the United States .9 The system we are proposing
places primary responsibility for investigating and disposing of complaints with
the R .C .M .P . We believe this is necessary if the Force is to take seriously the
need to make changes on a continuing basis to reduce the likelihood of future
misconduct and if it is to continue to be responsible for ensuring a proper
standard of conduct on the part of its members . The Inspector of Police
Practices would act as a kind of safety valve in this system . We know from the
evidence received in our hearings that the R .C .M .P . does not always investigate itself adequately, and consequently, in our opinion, there is room for
skepticism about any claims that the R .C .M .P. does not need the intervention
of `outsiders' in handling certain complaints against it . We also believe that an
outside body can be an important repository for complaints of R .C .M .P .
misconduct, especially in those instances where someone from either inside or
outside the organization might fear retaliation if he made the complaint
directly to the Force .
50. Our recommendation of an external review body is similar to one made
by the Marin Commission, which, as one of its pivotal recommendations, called
for the establishment of a "Federal Police Ombudsman" . The Marin Commission preferred an ombudsman specializing in police matters because such a
person would soon acquire a detailed and intimate knowledge of the Force and
its members, and thereby dispel fears expressed by R .C .M .P . members that an
`outsider' would lack an understanding of the particular problems the
R .C .M .P . have to face . This central proposal was not fully accepted by the
government of the day . Instead, in 1978, Bill C-43 proposed the establishment
of an Ombudsman who would oversee all federal government departments and
agencies, and not simply the R .C .M .P . The Bill died on the order paper that
year .
51 . We believe the Marin Commission's proposal of a specialized police
Ombudsman remains fundamentally valid . The police function is intrinsically
different from other administrative functions in the federal Public Service, and
the problems which arise between members of the public and the R .C .M .P. are
of a special character . Unlike most federal civil servants, R .C .M .P . members
exercise powers of arrest and search and seizure . They are occasionally obliged
to use physical force on potential complainants in the course of their duties .
R .C .M .P . members, by the nature of their tasks, are more apt than any other
federal government employees (with the possible exception of members of the
security intelligence agency) to infringe upon fundamental rights and freedoms, especially those relating to due process of law . Consequently, the
problems R .C .M .P . members face in the course of their duties are quite
distinct from those faced by most other federal civil servants . We therefore se e
9 The Office of Professional Responsibility was established on December 9, 1975, by
Attorney General Edward H . Levi . The Office was designed to oversee and, if
necessary, investigate "conduct by a Department employee that may be in violation
of law, of Department regulations or orders, or of applicable standards of conduct ."
28 C .F.R . Section 0 .39 et seq . (1976) .
986
�the need for a continuing review of police activity by an external body which
can acquire an intimate understanding of the problems involved in police work .
52 . While we support the Marin Commission's proposal for a specialized
external review body for the R .C .M .P ., and perhaps for other federal police
forces, we believe the institution of the Ombudsman would not go far enough in
meeting the needs we have identified . Our view is that the work of an external
review body should go beyond the traditional role of the Ombudsman of
responding to individual complaints and should involve a continuing review of
the adequacy of the R .C .M .P .'s practices . Such matters, we feel, should be
within the mandate of an external body charged not only with reviewing the
R .C .M .P.'s disposition of complaints, but also with identifying problems within
the R .C .M .P . which may have contributed to the incidents in question .
53 . There is a second reason for our preferring the Office of . Inspector for
Police Practices to the Marin Commission's police Ombudsman . An Ombudsman is usually an officer of Parliament and is therefore independent of any
government department . In contrast, we believe that there are real advantages
to having the Office of Inspector of Police Practices as part of the Solicitor
General's Department . First, the evidence we have heard concerning several
allegations of R .C .M .P . misconduct - for example, the North Star Inn
incident and the surreptitious entry into the A .P .L .Q . premises - suggests that
it would have been highly advantageous for a Solicitor General to have a
convenient means of launching an investigation of the R .C .M .P . using investigators attached to his office but not part of the Force . Second, having the
Inspector of Police Practices within the Solicitor General's Department will
give the Minister and his Deputy another source of information and advice
about the R .C .M .P .'s handling of complaints . It is clear from the evidence we
have heard that past Solicitors General knew far too little about the R .C .M .P .,
and did not have sufficient means for finding out enough to even ask the right
questions . The Inspector of Police Practices should be one way of remedying
this weakness .
54. In making this recommendation, we realize that we are departing from
the organizational arrangements we recommended in Part VIII, Chapter 2 for
the Advisory Council on Security Intelligence, an agency with similar functions
to those of the Inspector of Police Practices . We do so because we see a
fundamental difference in the manner in which a police force and a security
intelligence agency should relate to government . There is far less danger than
in the case of the security intelligence agency that the Solicitor General will
himself be a party to R .C .M .P . misconduct because of the quasi-independence
the police should enjoy in terms of conducting investigations and making
arrests . (We shall return to this theme in Chapter 4 of this part of our Report .)
In contrast, the Solicitor General, under the system we are proposing for
directing the security intelligence agency, would be actively involved in the
"targetting" decisions to be made by the agency and therefore, would be more
likely to risk becoming a participant in wrongdoing .
55. Still, we can envision situations where the Solicitor General might use the
Office of Inspector of Police Practices improperly . We believe that there are
987
�several ways in which the position of Inspector of Police Practices should be
structured to avoid such possible abuses . Specifically, we propose that the
Inspector be an Order-in-Council appointment for a fixed five-year term, that
no Inspector should serve for more than 10 years, and that the Inspector can be
dismissed only for `cause' . (We have defined `cause' in Part VI, Chapter 2 to
include mental or physical incapacity, misbehaviour, bankruptcy or insolvency,
or failure to comply with the provisions of the Act establishing the position of
the Director General .) Further, the statute establishing his agency should give
the Inspector the authority to launch any investigation he deems necessary to
fulfill his mandate . Thus, the Solicitor General should not be able to prevent
the Inspector from investigating a matter in which the Solicitor General might
be implicated . Finally, it should be understood that the Inspector would have
access to the Prime Minister on matters where the integrity of the Solicitor
General is at question . By structuring the Office of Inspector of Police
Practices in this way, we believe that the Office can be placed within the
Solicitor General's Department but still enjoy a quasi-independent relationship
with the Minister and his officials .
56. The Office of Inspector of Police Practices should have a small staff with
experience in the field of police administration or criminal justice . The
Inspector should be a lawyer who has at least 10 years standing at the Bar . The
permanent staff members should focus primarily on the monitoring and review
role we have defined above . Their role in investigation should be limited to
preliminary inquiries to determine the need for an investigation . When the
Inspector decides to undertake a special investigation, he should obtain on
secondment, experienced police investigators from different police forces and
other experts as required . This arrangement will ensure that the Inspector does
not undertake investigations merely in order to keep permanent staff occupied .
More importantly, the Inspector and his assistants will not have a strong vested
interest in the outcome of investigations conducted by the seconded staff of
investigators, and, consequently, will be a more reliable source of advice to the
Solicitor General .
57 . A final aspect of the Office of Inspector of Police Practices concerns the
submission of reports . The Inspector should report regularly to the Solicitor
General on the results of investigations of serious concern, and he should report
annually to the Solicitor General on significant activities of his office during
the year, including recommendations calling for changes in R .C .M .P . policies
and procedures and the Force's response to these . This annual report should
also be tabled in Parliament .
WE RECOMMEND THAT the Office of Inspector of Police Practices be
established within the Department of Solicitor General and that the
Inspector report directly to the Solicitor General .
(237)
WE RECOMMEND THAT the Inspector of Police Practices be an
Order-in-Council appointment and that the following conditions of employment be included in the statute establishing the office :
(a) the Inspector should be subject to dismissal only for `cause';
988
�(b) 'cause' includes mental or physical incapacity ; misbehaviour; bankruptcy or insolvency ; or failure to comply with the provisions of the
Act establishing the Office of Inspector of Police Practices ;
(c) the Inspector should be appointed for a five-year term ;
(d) no Inspector should serve for more than 10 years.
(238)
WE RECOMMEND THAT the Inspector of Police Practices have access
to the Prime Minister on matters concerning improper behaviour on the
part of the Solicitor General in the performance of his duties vis-à-vis the
R .C .M .P .
(239)
WE RECOMMEND THAT the Inspector of Police Practices be a lawyer
who has at least 10 years standing at the Bar, and that he have a small staff
with experience in the field of police administration or criminal justice .
(240)
WE RECOMMEND THAT the Inspector of Police Practices be empowered to obtain on secondment experienced police investigators and other
experts to conduct investigations, when appropriate, of misconduct on the
part of R .C.M .P. members .
(241)
WE RECOMMEND THAT the Inspector of Police Practices report
regularly to the Solicitor General on the results of investigations and
annually to the Solicitor General on significant activities of his Office
during the year. The Solicitor General should table this report in
Parliament .
(242 )
F . THE PROVINCIAL ROL E
58 . Before outlining a role for the provinces in resolving allegations against
the R .C .M .P ., we shall examine brie fl y the current developments in the courts
and define what we believe to be the present limits on provincial power over the
R .C .M .P. and its contract policing role . The relevant provincial power is
section 92(14) of the B .N .A . Act, which grants to the provinces power .over
" . . . the Administration of Justice in the Province . . ." . This has traditionally
been thought to include not only the establishment and administration of
provincial courts, but also the enforcement of law within the province . The
scope of the power of the provincial attorney general in regard to law
enforcement does not seem to be in doubt so far as the direction and control of
provincially constituted police forces are concerned . But where a federal
agency, the R .C .M .P ., carries out the provincial policing functions under
contract, there are significant constitutional limitations on the control the
provinces may exercise over it . There are also constitutional limits on provincial
power in relation to the R .C .M .P .'s federal policing role.
59 . Two recent court decisions have dealt specifically with the limits to
provincial authority over the R .C .M .P . The first case is the 1978 decision o f
989
�the Supreme Court of Canada in Attorney General of the Province of Quebec
and Keable v . Attorney General of Canada et a1.10 Specifically, the constitutional question addressed was :
If members of a federal institution, namely the Royal Canadian Mounted
Police, be involved in allegedly criminal or reprehensible acts, does a
commissioner appointed under provincial legislation for the purpose of
inquiring into matters concerning the Administration of Justice in the
province have the right, while conducting an inquiry into the circumstances
surrounding the commission of said acts, to enquire into :
(a) the federal institution, namely, the Royal Canadian Mounted Police ;
(b) the rules, policies and procedures governing the members of the
institution who are involved ;
(c) the operations, policies and management of the institution ;
(d) the management, operations, policies and procedures of the security
service of the Royal Canadian Mounted Police;
and to make recommendations for the prevention of the commission of said
acts in the future ?
60 . Mr . Justice Pigeon, speaking for the majority of the Court, answered this
question in the negative . He stated :
Parliament's authority for the establishment of this force and its management as part of the Government of Canada is unquestioned . It is therefore
clear that no provincial authority may intrude into its management . While
members of the Force enjoy no immunity from the criminal law and the
jurisdiction of the proper provincial authorities to investigate and prosecute
criminal acts committed by any of them as by any other person, these
authorities cannot, under the guise of carrying on such investigations,
pursue the inquiry into the administration and management of the force .
61 . Thus, while the provincial authorities may investigate and prosecute
offences committed by members of the R .C .M .P., they cannot expand their
focus to include matters relating to the administration and management of the
Force . This decision by itself would appear to suggest that provincial boards
and commissions are not constitutionally competent to investigate the noncriminal aspects of public complaints against the R .C .M .P ., even when the
R .C .M .P . is performing a provincial-policing service in the contract provinces .
Attempts by a provincial police commission to inquire into policies and
procedures which may have given rise to a series of complaints, for example,
may well be unconstitutional in light of the Keable decision . The same may be
true of attempts by a provincial commission to order the R .C .M .P . to conduct
an internal investigation into allegations which come to the attention of the
provincial commission .
62. A recent Alberta case confirmed these limitations on provincial powers to
inquire into public complaints against the R .C .M .P . The Alberta Court of
Appeal, in The Attorney General of Alberta and the Law Enforcement Appeal
Board v. Constable K.W. Putnam and Constable M.G.C. Cramer and th e
10 [ 1979] I S .C .R . 218 .
990
�Attorney General of Canada," held that section 33 of the Alberta Police Act,
which established a procedure for the investigation and review of complaints
against all police forces in the province, was ultra vires the province in so far as
it applied to members of the R .C .M .P . This section purported, among other
things, to empower the Alberta Law Enforcement Appeal Board to hear an
appeal by the complainant from the decision made by the R .C .M .P . as to the
merits of the complaint . It also purported to permit the Board to conduct its
own investigation into any complaint, and to conduct an investigation into any
matter relating to the discipline or conduct of any member of a police force .
These provisions were held to be invalid insofar as they would interfere with
the internal management of the R .C .M .P ., and insofar as they would conflict
with valid and subsisting federal legislation and regulations . This decision is
now being appealed to the Supreme Court of Canada .
63 . The result of these decisions has been to cast serious doubt on the validity
of provincial machinery for handling public complaints against the R .C .M .P .,
even when the Force is carrying out a provincial policing function under the
direction of a provincial attorney general . One must now assume that some of
the central features of these provincial schemes no longer apply to the
R .C .M .P .
64 . We believe that the provinces have a legitimate role to play in the
handling of public complaints against the R .C .M .P. They would like to provide
a uniform system of redress for aggrieved citizens regardless of whether the
complaint concerns the R .C .M .P. or another provincially constituted police
force . The police boards have proved to be valuable instruments of provincial
oversight and control . The provincial attorneys general have a constitutional
duty to oversee the effectiveness of provincial police operations, including those
undertaken by the R .C .M .P. How are these concerns to be reconciled with the
responsibility of the Solicitor General of Canada to direct the control and
management of the federal agency under his supervision, the R .C .M .P. ?
65. As we said earlier, the investigation and adjudication of allegations of
criminal misconduct on the part of R .C .M .P . members should continue to be
the responsibility of the provincial attorneys general, as a matter of the
administration of justice in the provinces . This accords with the existing
judicial interpretation of Canada's Constitution . With respect to the non-criminal aspects of complaints against the R .C .M .P . in their provincial policing role,
we feel. that effective communication and co-operation between the provincial
attorneys general and police boards on the one hand, and the R .C .M .P ., the
Inspector of Police Practices, and the federal Solicitor General on the other,
are essential . In the remainder. of. this section, we indicate where co-operation is
required and how it might be obtained . Given the recent court decisions cite d
[1980] 22 A .R . 510, [1980] 5 W .W .R . 83 . [Commissioners' Note : Since delivery of
this Report the Supreme Court of Canada, on May 28, 1981, delivered reasons for
judgment in dismissing the appeal to it, and upholding the judgment of the Alberta
Court of Appeal . The reasons are not yet reported in the law reports . ]
991
�above, it is incumbent on the federal government to take many of the required
initiatives to ensure that provincial bodies play a significant role in the
complaints system .
66. One area of potential co-operation is in the sharing of information about
complaints of R .C .M .P. misconduct . The provincial attorneys general and the
provincial police boards should be advised by the R .C .M .P. and the Inspector
of Police Practices of all serious complaints in their respective provinces, which
were not filed with the provincial police boards . They should be informed of the
disposition of all allegations of R .C .M .P. misconduct within their provinces,
and should receive the statistical analyses of complaints compiled by the
R .C .M .P . subject to the restrictions which we are proposing in Part V, Chapter
8, when the R .C .M .P . are carrying out duties relating to the mandate of the
security intelligence agency . Requests for any information by provincial attorneys general and police boards respecting allegations against R .C .M .P . members should be met fully by the Force, by the Inspector of Police Practices and
by the Solicitor General .
67 . Another area where co-operation is required concerns the actual investigations and inquiries of alleged misconduct . As we understand the present law,
provincial police boards and special Commissions of Inquiry are not constitutionally barred from inquiring into instances of criminal misconduct, violations
of the rights of citizens, or damage to property . The only limitation is that the
scope of the inquiry may not include the internal administration and management of the R .C .M .P . Provincial inquiries, if conducted, should, to the extent
of their constitutionally proper scope, receive the full co-operation of the
R .C .M .P ., the Inspector and the Solicitor General .
68. Alternatively, a provincial police board or commission should be able to
request an investigation by the R .C .M .P. or refer a matter to the Inspector of
Police Practices if the commission or board deems it to be unusually important
or sensitive . The R .C.M .P . and the Inspector, while they should not be obliged
to comply with such requests, ought to accommodate them wherever possible .
It would also be highly desirable for the Inspector to obtain on secondment,
staff from provincial or municipal bodies when his office conducts investigations of alleged misconduct . As -well, the Inspector should normally consult
provincial officials on recommendations he proposes to make arising out of a
serious allegation made in that province . It is especially important that the
provinces have an opportunity to comment on and influence recommendations
which concern the management of the Force and which are relevant to
complaints occurring in the provinces .
69. One way in which the Solicitor General might facilitate the necessary
co-operation and communication amongst federal and provincial ministers and
officials in this area is to establish a regular forum for discussing mutual
problems and for sharing information on handling complaints . Such a forum,
which might be held annually or perhaps semi-annually, might lead to more
formalized structures and procedures for ensuring federal-provincial co-operation . Without such co-operation, the system for handling complaints of
R .C .M .P . members, proposed in this chapter, will not be as effective as it could
be .
992
�WE RECOMMEND THAT, subject to the restrictions which we have
proposed when the R .C .M .P. are carrying out duties relating to the
mandate of the security intelligence agency, the R.C .M .P . and the Inspector of Police Practices provide each provincial attorney general and each
provincial police board with the following:
(a) information about all serious complaints in their province ;
(b) reports on the disposition of such complaints ;
( c) statistical analyses of complaints regarding R .C .M .P. misconduct .
(243 )
WE RECOMMEND THAT the Inspector of Police Practices shoul d
(a) obtain on secondment staff from provincial police forces, police boards,
or appropriate provincial government departments when forming task
forces to investigate allegations of R .C .M .P . misconduct ;
(b) normally consult the appropriate provincial officials on recommendations he proposes to make arising out of a serious allegation in that
province .
(244 )
WE RECOMMEND THAT the Solicitor General
(a) initiate the establishment of a regular forum for Provincial and
Federal ministers and officials to discuss problems and share information concerning complaint handling procedures ; an d
(b) ensure that provincial inquiries into allegations of R .C .M .P . misconduct, to the extent of their constitutionally proper scope, receive the
full co-operation of the R .C.M.P . and the Inspector of Police
Practices .
(245 )
993
��CHAPTER 3
OBTAINING LEGAL ADVICE AND DIRECTIO N
A . ROLE OF THE LEGAL BRANC H
1 . Our mandate instructs us "to report the facts relating to any investigative
action or other activity involving persons who were members of the R .C .M .P .
that was not authorized or provided for by law . .", and further "to advise as to
.
any further action that the Commissioners may deem necessary and desirable
in the public interest" . We consider that advice with respect to legal services
falls squarely within those instructions .
2. Prior to 1960 the R .C .M .P . apparently did not feel the need for `in-house'
legal advice. They found it satisfactory to obtain their legal advice from the
Department of Justice or from the appropriate provincial attorney general,
depending on the circumstances . Although some members of the Force, most
notably former Commissioner Lindsay, had graduated from law school, they
did not act officially in the role of legal advisers .
3 . In the 1950s, as part of its university education programme, the Force paid
for 10 of its members to acquire law degrees . Some of the graduates under this
programme comprised the Legal Section of the R .C .M .P . which was set up in1960 . They did not article, were not admitted to the Bar of a Province, and
hence were not, in the normal sense of the term, `lawyers' .
4. The Royal Commission on Government Organization (1962) (Glassco
Commission), chaired by Mr . Grant Glassco, reported that in 1961 there were
three legally trained officers in the R .C .M .P . engaged in legal work and that
they served much as did departmental solicitors in other government departments . The Commission pointed out that those officers were not recruited as
solicitors, but sent by the Force to law school . Members of the Force
graduating from law school were assigned to legal work at Headquarters, and
after three to rive years were promoted to non-legal positions . It was also
pointed out that those officers did not article and were not admitted to the Bar
of any province .
5 . The Glassco Commission recommendéd that there be an integrated legal
service for the government, with several exceptions, those being :
- Judge Advocate General ;
- Legal Division of the Department of External Affairs ;
- Legal Branch of Taxation, Department of National Revenue;
- Pensions Advocates in the Department of Veteran's Affairs ;
- Legal Officers in the R .C .M .P .
995
�6 . In the Rivard affair, which gave rise to the Commission' of 1965, chaired
by Chief Justice Frédéric Dorion, the fledgling Legal Section gave a legal
opinion to the Commissioner of the R .C .M .P . as to the sufficiency of evidence
to warrant a successful prosecution of Raymond Denis, one of the participants
in the events that gave rise to the Inquiry . That advice was adopted by the
Commissioner of the R .C .M .P. in his verbal report to the Minister of Justice .
The Minister of Justice acted upon the recommendations in that verbal report
without consulting his departmental lawyers . Chief Justice Dorion commented
unfavourably on the advice given by the Commissioner to the Minister, and
went on to say :
I do not believe it to be the responsibility of the R .C .M .P . officers, no
matter how great their experience, to advise the Minister of Justice in
regard to the decision he should take in respect to a denunciation, nor in
regard to the probable results of a charge laid before a Court . Their duty is
rather to seek out all the facts and leave the decision to the Minister .z
7 . The rebuke had no apparent effect on the development of the R .C .M .P.'s
`in-house' legal services . The then Commissioner, Mr . McClellan, considered
that he had not been giving legal advice to the Minister, but only a police
officer's advice on the stage reached in the police investigation .
8 . In 1966, with the creation of the new Department of the Solicitor General,
responsibility for the R .C .M .P . was transferred from the Minister of Justice to
the Solicitor General . The government had accepted the basic recommendation
of the Glassco Commission that most of the government's legal services be
integrated in the Department of Justice, and, in keeping with that decision,
lawyers were assigned by the Department of Justice to provide legal services to
the Solicitor General's Department . This appears to have had no measurable
impact on the course of development of the in-house legal services of the
R .C .M .P . Indeed, in 1966 the Legal Section was upgraded to branch status .
The Force continued its policy of sending selected members to university to
obtain law degrees . It also continued its policy of not allowing those law
graduates to article with a practising lawyer, thus denying them the opportunity to become members of a provincial Bar .
9. The Glassco Commission recommended that a Department of Justice
lawyer be assigned to the R .C .M .P. to "head up the legal work" of the Legal
Section, but this recommendation was virtually ignored by the R .C .M .P . The
failure to implement it appears not to have been of concern to the Department
of Justice, which assumed that the Legal Branch was providing advice to the
Force only on internal matters, such as the contents of R .C .M .P . manuals, and
that whenever the Force required an opinion, it obtained it from the Department of Justice or from the appropriate provincial attorney general . After the
Rivard affair, nothing of significance relating to the Legal Branch would
appear to have come to the attention of the Department of Justice .
The Dorion Commission was to investigate fully into allegations about any improper
inducements having been offered to, or improper pressures having been brought to
bear on, counsel acting upon application for the extradition of one Lucien Rivard and
all relevant circumstances connected therewith .
2 Report of the Commission, p . 118 .
996
�10. From 1960 to 1974 inclusive, the Legal Branch grew very little : the
number of law graduates in the Force increased from 12 to 17 ; 22 members
graduated in law and 17 law graduates left the Force . The net gain of five law
graduates was not enough to staff the Legal Branch, which was being saddled
with an increasing number of responsibilities . By 1975 the problem had become
acute and the R .C .M .P . sought assistance from the Department of Justice .
They requested that Department to second a civilian lawyer to assist the Legal
Branch . No mention was made, however, of that lawyer `heading up' the Legal
Branch, and there is no record of a reply from the Department of Justice . Nor
was a lawyer seconded .
11 . In response to the disclosure of the events which gave rise to the creation
of this Commission, it was determined by the Commissioner of the R .C .M .P .
and the then Solicitor General, Mr . Fox, that certain steps would have to be
taken to ensure that the Security Service of the R .C .M .P . would operate within
the law . One of the steps envisaged was to request the assignment of a
Department of Justice lawyer to the R .C .M .P. to assist the Security Service
with some of its legal problems .
12. After some discussion between the Department of Justice and the Security Service ; a formal request was made on November 20, 1977, from the
Director General of the Security Service to the Deputy Minister of Justice and
the Deputy Solicitor General for the assignment of a Department of Justice
lawyer to the Security Service . On November 29, 1977 the Solicitor General
advised the Justice and Legal Affairs Committee of the House of Commons as
follows :
There was, in March of 1977, set up by the Director General of Security
Services the Operational and Priorities Review Committee which has as its
mandate to ensure that the new operations are not only within the mandate
given to the Security Service by the government but also within the law . It
also has the mandate of reviewing operations that have gone on in the
previous year to ensure once again that they come within the mandate and
are within the framework of the law . '
The Minister said that three additional steps had been taken and explained the
one relevant to our considerations as follows :
. .. the Security Service Operational and Priorities Review Committee has
been reinforced, so to speak, by the addition of two members, one of whom
is a senior officer with current criminal operations responsibility for the
Force, the other is a lawyer seconded from the Department of Justice . This
is with a view to ensuring that all operations are within the mandate and
are also within the scope of the law . "
A Department of Justice lawyer, R . Watson, Q .C ., who was at that time the
Director of Legal Services in the Solicitor General's department, was assigned
to the R .C .M .P . on December 1, 1977 . He was not given any guidelines or
terms of reference except for what was contained in the Minister's statement .
Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal
Affairs, November 29, 1977, p . 87 .
° Ibid.
997
�Discussion took place between the R .C .M .P . and the Department of Justice
over the next year and finally, on December 19, 1978, the terms of reference
were settled . By these terms his duties were not confined to the Security
Service, but were extended to the whole of the R .C .M .P.
13. From the date of the Glassco Commission until 1980, the Legal Branch
had grown to nine members, all with law degrees . They continued to be
assigned to the Legal Branch for three to five years, usually immediately after
receiving their degrees, and then to non-legal duties . On occasion they were
re-assigned to the Legal Branch in a more senior capacity later in their careers .
Only three members had been admitted to the Bar of a province and thus were
the only ones legally qualified to practise law . (Of these three, one member
retired from the Force, became a member of a provincial Bar and subsequently
re-enlisted . )
14. The most recent objective and goals of the Legal Branch were set out in,
the R .C .M .P. Policies, Objectives and Goals for 1979 as follows :
Objective:
To provide legal advice and services to Commissioner, Deputy Commissioners, Directorates, Branches and Sections in Headquarters .
Goals:
- Conduct research and submit reasoned opinions on legal problems ;
interpret statutes, contracts, leases, and give legal opinions or direction
on matters referred in writing or verbally by Senior Management,
Directorates, Branches and Sections .
- Assist in redrafting the R .C .M .P . Act, Regulations and Orders, and in
restructuring administrative procedures in accordance with the Marin
Commission recommendations.
- Write selected articles for publication ; serve on committees inside and
outside Headquarters ; attend conferences, meetings, seminars, etc .
- Respond to requests for lecturing to internal training courses as well as
to outside organizations as required, covering the aspects of criminal
and civil law, their application and interpretation and law enforcement
in general .
No facet of legal services appears to be missing from this mandate .
15. The relevant paragraphs of the terms of reference for the Department of
Justice lawyer assigned to the R .C .M.P . can be summarized as follows :
(a) The R .C .M .P . may look to the Department of Justice for legal advice,
and when acting as a provincial police force to the appropriate
provincial attorney general .
(b) A legal opinion obtained from other than the above provides no
protection "within the framework of responsible government" .
(c) In all matters, other than certain specified areas where it should seek
legal advice from a provincial attorney general, the Force "should seek
its legal advice from the Minister of Justice" .
998
�,(d) .The Legal Branch should channel all requests for a legal opinion
through the Department of Justice counsel assigned to the R .C .M .P .
(e) The Legal Branch advises the Commissioner and the Force "in relation
to internal operational matters which include a . variety of consider-,
ations as well as matters of law" .
(f) The Legal, Branch may assist "in the identification of issues and
problems which require (or do not require) a legal opinion from the
Minister of Justice or a provincial attorney general" .
16. It is clear from the terms of reference that the Department of . Justice
lawyer was not to fulfill the role recommended by the Glassco Commission, to
"head up the legal work" of the Legal Branch . It is also clear that the
Department of Justice lawyer was not given any supervisory role over the Legal
Branch . Any such role does not appear to have been contemplated by either the
Department of Justice or the R .C .M .P .
17 . The terms of reference imply that a legal opinion obtained from an
attorney general provides "protection" to a member of the Force "within the
framework of responsible government" . This implication arises from the provision which states that any other opinion does not afford such protection . We
understand that the' protection allegedly afforded arises out of constitutional
convention and the consequence of such protection is that the Government of
Canada will do whatever it can to ensure that a member of the Force does not
suffer personally if he acts in conformity with the opinion . For example, the
government will pay the legal fees of a member who has to defend himself as a
result,of an activity based on a legal opinion of an attorney general, even if that
legal opinion is found to be wrong .
18 . The paragraphs of the terms of reference which deal with the relationship
between the Justice counsel and the Legal Branch are instructive in their lack
of clarity . The extent to which the Legal Branch is to provide legal advice to
the Commissioner and the Force is not spelled out, nor is there any indication
as to when the Legal Branch should seek an opinion from the Justice counsel .
The role of the Legal Branch set out in the 1979 Policies, Objectives and
Goals, and the role of the Department of Justice spelled out in the'terms of
reference of the Department of Justice lawyer, are clearly not compatible . The
former prôvides thât the Legal Branch is to "give legal opinions or direction"
to "Management, Directorates, Branches and Sections" . The latter provides
that the R .C .M .P. "should seek"its legal advice from the Minister of Justice"
or "the appropriate provincial attorney general" and "the Legal Branch should
.
. .. channel all requests for a legal opinion through the Justice counsel . ." .
19. This, then, was the status of the Legal Branch in 1980 . However, in late
1979 the Commissioner of .the R .C .M .P. decided that it was not desirable to
maintain a Legal Branch within the R .C .M .P . There was a concern on his part
that the Legal Branch had been providing legal advice that should have been
obtained from the Department of Justice . Since the members of the Legal
Branch did not have the status of government legal advisers it was not proper,
in his opinion, for the R .C.M .P . to rely on this advice . He initiated discussions
with the Department of Justice with the aim of eliminating the Legal Branc h
999
�and having all legal services provided by Department of Justice lawyers
assigned to the R .C .M .P. We understand that the plans include provision for
the secondment of legally trained R .C .M .P . members to assist those Department of Justice lawyers . It is our view that this is precisely the direction which
should be followed .
B. GLASSCO COMMISSION'S POSITIO N
20 . We should now discuss briefly the current plans for the Legal Branch in
the light of the recommendations of the Glassco Commission . In Part VI,
Chapter 2, section F, dealing with legal advice for the security intelligence
agency, we set out the Glassco Commission's general position with respect to
the provision of legal advice . That Commission recommended that the
R .C .M .P . Legal Branch be one of the exceptions to the general rule of
integration of the government's legal services . They stated as their reason :
. ..The nature of the work may be such as to require a close identification of
the legal staff with officials who are administering the law : to sever this
organic connection would, as has been said, cause the whole function to
"bleed" . This is the relevant consideration in recommending the partial
dissociation from the proposed integrated system of.
R .C .M .P.S
.. the lawyers in the
That Commission went further, however, to propose "that a representative of
the integrated legal services be seconded to the Force to head up the legal
work" . The Commission added that "The existing pattern of legal training and
rotation would not be disturbed, but more effective liaison with the Department of Justice would be maintained" . 6
21 . An organization the size of the R .C .M .P ., whose principal function is law
enforcement, requires a full range of legal services . Not only must it have legal
advice and assistance on all those matters common to any government department or agency, such as contracts for goods and services and real estate
transactions ; it also needs specialized legal advice with respect to its functional
role as a law enforcement agency . As to legal advice essentially unrelated to
the functional role of the Force, e .g. property law, commercial law, etc ., we can
see no reason why such advice should not be provided by the Department of
Justice in precisely the same fashion as it is provided generally to other
departments and agencies .
22. In our view, when the Glassco Commission spoke about the necessity for
"a close identification of the legal staff with the officials who are administering
the law" it had in mind the legal advice required in relation to the functional
role of the Force . We agree with the Glassco Commission that the whole
function must not be allowed to "bleed", if what this means is that the legal
advice will be inadequate unless those providing it are totally familiar with the
context within which the advice has to be applied . We would add that the same
is true of all legal advice . What we think is unique about the R .C .M .P . is th e
'Commission Report, Vol . 2, p . 413 .
6 Commission Report, Vol . 2, p . 419 .
1000
�depth and range of the knowledge which the lawyer must have . In other words,
a lawyer providing legal advice to the R .C .M .P . in matters relating to law
enforcement must be knowledgeable about law enforcement generally as well
as all aspects of the Force's activities in that field . This does not imply,
however, that such lawyers need to be members of the R .C .M .P.
23 . We pointed out earlier, in discussing legal advice for a security intelligence agency, the problems associated with the provision of legal advice by
lawyers who are on the staff of the department or agency that they are
advising . The essential problem is that independence, which is a prerequisite to
the giving of sound legal advice, may be lost . Against this must be balanced the
requirement, also mentioned above, that the lawyer must have extensive
general knowledge about the field in which he or she is providing the legal
advice . We believe that the plan presently being developed between the
R .C .M .P . and the Department of Justice will provide the benefits of both
independence and extensive knowledge and experience in the field . We also
believe that it is consistent with the principles underlying the recommendations
of the Glassco Commission .
24 . Earlier in this Report, in discussing the legal services for the security
intelligence agency we pointed out that it is the duty of a Department of
Justice counsel to report immediately to the Deputy Attorney General of
Canada any knowledge he obtains with respect to past or potential illegalities
by members of the agency . In our opinion the same reasoning and result apply
to the Department of Justice counsel who are legal advisers to the Force . Such
a duty might be considered by some to be incompatible with the counsel's
responsibility towards his client . We feel that, on the contrary, the two are
entirely consistent in that it is the counsel's duty to promote, at all times, the
interests of the Force as a whole, and adherence to the law is clearly in its best
interests .
25 . As indicated earlier, a senior Department of Justice lawyer with a great
deal of experience and expertise in the area of criminal law enforcement was
assigned to the R .C .M .P . in November 1977 . It is obvious that a number of
lawyers will have to be assigned by the Department of Justice to the R .C .M .P .
and we believe it is imperative that among them there be several with those
same qualities of experience and expertise .
26. Our approval of the current plan includes an endorsement of the proposal
to second legally trained R .C .M .P. members with several years of regular
police duties to assist the Department of Justice lawyers . We consider, as did
the Glassco Commission, that such an element is essential to the provision of
sound legal advice to the R .C .M .P . Those members will assist immeasurably in
interpreting and explaining the problems of the Force to the Justice lawyers
when legal advice is being sought . We prefer the concept of their being
seconded rather than that the Legal Branch be retained . If the Legal Branch
were to be retained, there would be a danger of its drifting towards its former
role .
27 . There is a further point with respect to the use of law graduates by the
R .C .M .P . We understand that it is the intention of the R .C .M .P . to increas e
1001
�the number of law graduates among its regular members and that this will be
accomplished primarily through recruitment of law graduates after graduation .
We applaud this recruiting of more highly educated persons, but we wish to
injeci a note of caution with respect to the use of such law gradûates in any
positions where they are expected to provide some sort of legal advice .
28. No law graduate can hope to become or remain competent as a lawyer
unless he is active full-time in the practice of law, has the use of a good law
library and has the opportunity to mix daily with other lawyers to discuss legal
problems with them . The legally trained member of the Force who is assigned
to a post without the benefit of all of those conditions and who has, in addition,
other duties to perform, would be woefully inept in providing proper legal
advice. That is not to say that the forensic skills acquired by that member will
be lost to the Force . Clearly, he will be more capable of analyzing difficult
problems than he would otherwise have been : this is the outstanding benefit
derived from legal training . Even more important, he will be more aware of
legal problems and will see those circumstances in which they are likely to
arise. That, however, is not the same thing as providing the legal solution to the
problems, which must be left to the full-time legal practitioners .
29 . We also wish to enter'a caveat with respect to the intention of the Force
to assign members with law degrees to represent other members who have been
charged with breaches of discipline. We see this as an entirely appropriate
measure provided that the member law graduate is acting under the general
supervision of a Department of Justice counsel . In our opinion, if the matter is
sufficiently serious to require an advôcate and there is legal advice to be given,
it must be given under the supervision of a qualified and experiencéd lawyer .
C . RELATIONSHIP OF R .C .M .P . TO
PROVINCIAL ATTORNEYS GENERA
. In carrying out certain of its responsibilities the R .C .M .P . ought to obtai n
L30
its legal advice from a provincial attorney general . In our view, as a general
rule the legal advice with respect to problems of a, typically departmental
nature should be sought from the federal and not the provincial level . This
should be so regardless of whether it relates to services provided under
provincial or municipal contracts or whether it relates to the federal policing
role . However, in the law enforcement area the situation is different . Here, if
the advice concerns a matter being performed under a municipal or provincial
contract it must be sought from the attorney general of the province in which
the matter occurs . If it does not so fall within a provincial or municipal
contract then the legal advice must be sought at the federal level . If the
R .C .M .P. is in doubt as to which governmental level is the appropriate one
from which to seek its advice, it should, as a federal government agency, seek
the opinion of the federal Attorney General and abide by that opinion .
WE RECOMMEND THAT the R.C.M .P . obtain all its legal advice
relating to matters arising out of its administrative activities as an agency
of the Government of Canada from the federal Department of Justice .
(246)
1002
�WE RECOMMEND THAT the R.C .M .P. obtain all its legal advice with
respect to its federal law enforcement role from the federal Department of
Justice, and with respect to its law enforcement role pursuant to a
provincial or municipal contract from the appropriate provincial attorney
general .
(247)
WE RECOMMEND THAT if the R .C.M .P. is in doubt as to which
governmental level is the appropriate one from which to seek its legal
advice in a particular matter it should get an opinion from the federal
Department of Justice as to which is the appropriate level and abide by
that opinion .
(248)
WE RECOMMEND THAT the Department of Justice assign sufficient
counsel to satisfy the requirements of the R .C.M .P .
(249)
WE RECOMMEND THAT there be no Legal Branch of the R .C.M .P .
(250)
WE RECOMMEND THAT THE R .C .M .P . continue to have within the
Force regular members with law degrees and to assign a sufficient number
of such members to work with the Department of Justice counsel to ensure
that thè R .C .M .P.'s needs are explained and interpreted .to those counsel .
(251)
WE RECOMMEND THAT no member of the Force with a law degree be
assigned to any duty requiring him to give a legal opinion to another
member of.the Force, with the exception of the normal assistance given by
any superior to a subordinate in the course of the investigation of an
alleged offence.
(252)
WE RECOMMEND THAT members with law degrees who are assigned
to represent other members in disciplinary proceedings be supervised by
Department of Justice counsel :
(253)
WE RECOMMEND THAT the Department of Justice counsel assigned to
the Force have a specific duty to report to the Deputy Attorney General of
Canada any past or future acts which he believes may be unlawful, of any
past or present member of the Force.
(254 )
1003
��CHAPTER 4
MINISTERIAL RESPONSIBILITY FOR THE
R.C.M .P.
INTRODUCTION
1 . Throughout the long and distinguished existence of the R .C .M .P ., spanning over 100 years of Canadian history, there has never been a study in depth,
by an independent body, of the interrelationships between the Force and the
Government of Canada . The work of this Commission of Inquiry represents the
first . In this chapter we are principally concerned with the proper dimensions
of ministerial supervision and accountability for the criminal law aspects of
policing by the R .C .M .P . We have earlier described the degree of supervision
and direction that is appropriate in security matters .
2 . The post of Commissioner of the R .C .M .P. has been elevated to a position
of prominence in the senior ranks of the government . He has right of access to
the Prime Minister of the day, claimed and exercised by successive Commissioners ; he is a member of Committees of Deputy Ministers ; and, when invited,
he sits in on meetings of Cabinet Committees . This status, combined with the
dependence of the government upon the R .C .M .P . to enforce federal laws
effectively, has generated an unwarranted disinclination on the part of government to interfere in R .C .M .P . affairs, even when serious questions of ultimate
government control of the Force arise . This reluctance has been increased by
three other factors - an ill-defined principle of non-intervention by the
government in the decision-making processes of peace officers, the long-standing legal ambiguity surrounding the legal status of the Deputy Solicitor
General and the R.C .M .P. Commissioner vis-à-vis each other, and the monolithic character of the Force arising from its organizational structure and the
common ethos imbued in each of its members by its internal systems . The first
two factors will be examined in the context of the discussion which follows . The
third factor has been dealt with in detail in Part VI, Chapters 1 and 2 .
A . PRINCIPLES GOVERNING MINISTERIAL
RESPONSIBILIT Y
AND ACCOUNTABILITY FOR POLICE ACTIVITIE S
3 . We take it to be axiomatic that in a democratic state the police must never
be allowed to become a law unto themselves . Just as our form of Constitution
dictates that the armed forces must be subject to civilian control, so too must
police forces operate in obedience to governments responsible to legislativ e
1005
�bodies composed of elected representatives . This important doctrine in our
system of democratic government has often been overshadowed by the parallel
concept that the best interests of the state are served by keeping at bay any
attempts to interfere with the making of police decisions relating to investigation and prosecution in individual cases .
4 . The concept of independence for peace officers in executing their duties
has been elevated to a position of paramountcy in defining the role and
functions of the R .C .M .P ., thus setting the norm for all relationships between
the government and the Force . We believe, on the contrary, that the peace
officer duties of the R .C .M .P . should qualify, but not dictate, the essential
nature of those relationships . The government must fulfill its democratic
mandate by ensuring that in the final analysis it is the government that is in
control of the police, and accountable for it . There is no inconsistency in
asserting simultaneously that every member of the government, and above all
the Minister responsible for the R .C .M .P ., has an essential obligation not
normally to become involved in the decisions to be made by members of the
Force, including the Commissioner himself, with respect to investigation, arrest
and prosecution in individual cases .
5 . We have studied carefully statements made by Prime Minister Trudeau,
on his government's policy with respect to ministerial responsibility for the
day-to-day operations of the police . Speaking in 1977 he said :
I have attempted to make it quite clear that the policy of this Government,
and I believe the previous governments in this country, has been that
they . . .should be kept in ignorance of the day-to-day operations of the
police force and even of the security force . I repeat that is not a view that is
held by all democracies but it is our view and it is one we stand by .
Therefore, in this particular case it is not a matter of pleading ignorance as
an excuse . It is a matter of stating as a principle that the particular
Minister of the day should not have a right to know what the police are
doing constantly in their investigative practices, what they are looking at,
and what they are looking for, and the way in which they are doing it .
I would be much concerned if knowledge of that particular investigative
operation by the security police were extended to all their operations and,
indeed, if the Ministers were to know and therefore be held responsible for
a lot of things taking place under the name of security or criminal
investigation . That is our position . It is not one of pleading ignorance to
defend the government . It is one of keeping the government's nose out of
the operations of the police force at whatever level of government .
On the criminal law side, the protections we have against abuse are not with
the government . They are with the courts . The police can go out and
investigate crimes, they can investigate various actions which may be
contrary to the criminal laws of the country without authorization from the
Minister and indeed without his knowledge .
What protection do we have then that there won't be abuse by the police in
that respect? We have the protection of the courts . '
' Prime Minister's Press Conference, December 9, 1977 .
1006
�6 . We note that the Prime Minister, in his statement quoted above,~ assigned
the source of protection against police misdeeds on the law enforcement side of
the, R .C .M .P.- to the courts and not to the .government . Such a policy implies
two things . The first is that the courts will become aware of police misdeeds
during the course of criminal trials on other matters and will make their views
known from the Bench, and the second is that those views will have a salutary
effect on the police . 'This procedure is considered by the R .C .M .P . to be a
significant contrôl .ovèr their activities, but we have come across situations in
which . the failure of a judge to express disapproval of an objectionable
investigative procedure disclosed in evidence has been interpreted by the
R .C .M .P . as judicial approval .. Wé discuss this in the following chapter of this
Part . In our view reliance on comments from the Bench is an' entirely
haphazard and unsatisfactory method of control, depending as it does on thè
almost âccidental disclosure of a misdeed in the course of other proceedings,
and the inclination of the judge to comment on it or not, usually without the
benefit of any backround evidence or argument . Moreover, judges are un9
to comment on the lawfulness of an investigative procedure if, as a t
present, the law holds that évidence is admissible if relevant, even if illegally
obtained . (We shall discuss this law and make recommendations about it,
Chapter 5 of this .Part .) The second implication of the policy is that it transfers
to the- private citizen the initial responsibility for correcting alleged abuses,
either by laying an information . or bringing a civil action against the Force .
There does not. appear to .be a strong tradition in Canada of the civil courts
being used by private citizens as a means to curb police transgressions . The
cost alone of such civil action is likely to deter all but the exceptional person .
Neither is it sufficient to invoke the right- of private prosecutions without also
pointing out the statutory powers of the Crown to take over such private
prosecutions and to determine whether to press -forward with the case or to
enter a stay-of proceedings . In short, the realities of the situation significantly
diminish the controls exerciséd theoretically by the courts .
7 . These realities help to explain why we have seen emerge in recent years a
plethora of. Ombudsmen, assistant Ombudsmen and quasi-Ombudsmen, in the
form of civilian review boards, whose functions .include the task of investigating
citizen complaints against other police forces and, if possible, effecting remedial actions . There has, . however, never been any suggestion that these Ombudsmen should be'given the powers of control over . the day-to-day . operations of the
police, with respect to which the government disclaims any responsibilities . In
Chapter 2 of this part of the Report we developed our views on'the desirability
of extending - the principle of an Ombudsman to ~handle . public complaints
against the R .C .M .P . Our recommendations there were in no way intended to
diminish the accountability of the Minister resporisible for the R .C .M .P. '
8 . In the areas of both security and law enforçement we strongly support the
principle that considerations of a purely partisan or personal nature should play
no part in the making of decisions : at any level . In examining earlier in this
Report the role of the responsible Minister in relation to the security intelligence agency, we set out our views on the extent to which the Minister ought to
be involved in its operations . In our view, the methods, practices and proceA 007
�dures used by the R .C .M .P. in executing its criminal law mandate - "the way
in which they are doing it" to borrow the Prime Minister's words - should be
of continuing concern to the appropriate Minister . We believe that the Solicitor
General of Canada has not only the right to be kept sufficiently informed but a
duty to see that he is kept sufficiently informed .
B . MINISTER'S AND DEPUTY MINISTER'S ROLES IN
DIRECTING R .C .M .P .
9 . As far as the Minister is concerned, the language of the pertinent Acts of
Parliament does not brook much doubt as to where the ultimate authority of
direction lies . We detailed in Part VIII, Chapter 1, the cumulative effect of the
relevant sections in the Department of the Solicitor General Act and the
R .C .M .P . Act which make it clear that the Solicitor General has the power of
direction over the R .C .M .P., subject to any powers, duties or functions
assigned by law to any other department, branch or agency of the government .
Those sections do not, however, make clear which activities of the R .C .M .P.
are subject to such direction .
10 . As already recounted, the roots of the present constitutional arrangements are to be found in the North-West Mounted Police Act of 1873, section
11 of which made the Commissioner "subject to the control, orders and
authority of such person or persons as may, from time to time, be named by the
Governor in Council for that purpose" . The same enactment designated the
Department of Justice as being responsible for "the control and management"
of the new police force . By the R .C .M .P . Act of 1959 the Commissioner of the
R .C .M .P . was given "control and management" of the Force, subject to the
direction of the Minister . Prior to 1966 the responsible Minister was, with one
change of short duration, the Minister of Justice . The Government Organization Act of 1966, which included the Department of the Solicitor General Act,
transferred responsibility for the R .C .M .P . to the Solicitor General . What, it
may be asked, did Parliament intend in conferring upon the R .C .M .P . Commissioner "control and management" of the Force, subject to the direction of
the Minister, when previously the Department of Justice was made responsible
in the legislation for "the control and management" of the Force? And what
did Parliament intend should be the relationship between the Commissioner
and the Deputy Minister ?
11 . We have encountered within the R .C .M .P . a misunderstanding of certain
judicial decisions concerning the extent to which the powers of police officers
affect the Minister's power of direction of the Force . In our opinion, these
misunderstandings have contributed greatly to the barrier that arises repeatedly when attempts are made to define the proper relationship between police and
government . We refer specifically to the oft-repeated claim that, by the very
nature of their office, police officers acquire the privilege of independence from
the executive branch of government, at all levels . The present day police
officer, it is asserted, is a direct descendant of the early constable or peace
officer in England whose duties were to preserve the King's peace and to bring
malefactors to justice without fear or favour . It is said that his duty is to "th e
1008
�Crown" as a public officer of the state . However, the responsibilities of a
member of the R .C .M .P . are defined by the common law or subsequent
legislation . In the case of members of the R .C .M .P . reference is specifically
directed to section 17(3) of the R .C .M .P . Act which states :
Every officer, and every person appointed by the Commissioner under this
Act to be a peace officer, is a peace officer in every part of Canada and has
all the powers, authority, protection and privileges that a peace officer has
by law .
and to section 18 of the same enactment which declares :
It is the duty of members of the Force who are peace officers, subject to the
orders of the Commissioner ,
(a) to perform all duties that are assigned to peace officers in relation to
the preservation of the peace, the prevention of crime and of offences
against the laws of Canada and the laws in force in any province in
which they may be employed, and the apprehension of criminals and
offenders and others who may be lawfully taken into custody ; . . .
(d) to perform such other duties and functions as are prescribed by the
Governor in Council or the Commissioner .
12 . Little or no attention has been given to the potential conundrum posed by
the fact that the exercise of the powers, which historically were exercisable by
each peace officer in his own right, is by section 18 made "subject to the orders
of the Commissioner" . Any police force is a disciplined body of men acting in
accordance with a hierarchical structure that, leaving aside questions of
possible unlawfulness, requires the orders of a superior to be carried out . The
pertinent clause above, by making the members' performance of their duties
"subject to the orders of the Commissioner", presumably does no more than
state explicitly what is implied in other Police Acts governing provincial and
municipal police forces . This conclusion is advanced with some tentativeness,
since the question has not been litigated . In any event, the alleged independent
authority of each peace officer is, at least with respect to the R .C .M .P ., limited
by the exercise of such authority having been made "subject to the orders of
the Commissioner" .
13 . In support of the claim by members of the R .C .M .P . to occupy a special
status of independence in the discharge of their peace officer's duties, reference
is frequently made to decisions of the English courts and to the Report of the
British Royal Commission on the Police in 1962 which examined the relationship of police personnel in that country both with the central authority, in the
person of the Home Secretary, and with the local police authorities . In its
Report, that Royal Commission reaffirmed the special constitutional status of
the police in Britain, on the grounds that in such "quasi-judicial" matters as
inquiries with regard to suspected offences, the arrest of persons, and the
decision to prosecute ,
.
.. it is clearly in the public interest that a police officer should be
answerable only to his superiors in the force and, to the extent that a matter
may come before them, to the courts . His impartiality would be jeopardized
1009
�and public confidence in it shaken, if in this field he were to be made the
servant of too local a body . '
The Royal Commission, however, experienced more difficulty in-defining the
status of the chief constable and his relations with the local or regional police
authority . When dealing specifically with the "quasi-judicial" matters referred
to above, the Royal Commission accepted the proposition that it is in the public
interest that a chief constable "should be free from the conventional processes
of democratic control and influence" . The problem areas, the Commission
deduced, were those which fell outside the enforcement of the law in particular
cases and included such matters as the police chief' s
general policies in regard to law enforcement over the area covered by his
force, the disposition of the force, the concentration of police resources on
any particular type of crime or area, the manner in which he handles
political demonstrations or processions and allocates and instructs his men
when preventing breaches of the peace arising from industrial disputes, the
methods he employs in dealing with an outbreak of violence or of passive
resistance to authority, his policy in enforcing traffic laws and in dealing
with parked vehicles and so on . '
It is important to note with respect to these questions, that the British
Commissioners rejected the prevailing doctrine by which, as a consequence of
his legal status, the chief constable is invested with an unfettered discretion ;
and accountable to no one and subject to no one's orders as to the manner in
which he exercises that discretion .
14 . This fundamental distinction between the "quasi-judicial" and other
furictions of a police force is, we believe, pertinent to the Canadian situation/
But it is a serious mistake to assume that the conclusions of English judges and
Royal Commissioners correctly describe the constitutional status of police
officers in Canada, and particularly so with reference to the Royal Canadian
Mounted Police whose powers, responsibilities and relationship to the appropriate Minister of the Crown are the subject of express statutory definition .- The
English decision most frequently cited is the judgment of the Court of Appeal
in R . y . Metropolitan Police Commissioner, ex parte Blackburn in 1968 .° In
that case, Lord Denning M .R ., referring to the constitutional position of the
Metropolitan Police Commissioner stated :
I have no hesitation, however, in holding that, like every constable in the
land, he should be, and is, independent of the executive . He is not subject to
the orders of the Secretary of State, save that under the Police Act 1964 the
Secretary of State can call on him to give a report, or to retire in the
interests of efficiency . I hold it to be the duty of the Commissioner of
Police, as it is of every chief constable, to enforce the law of the land . He
must take steps so to post his men that crimes may be detected ; and that
honest citizens may go about their affairs in peace . He must decide whether
or not suspected persons are to be prosecuted ; and, if need be, bring the
prosecution :or see that it is . brought ; but in all these things he is' not th e
z Cmnd . 1728, 1962, paragraph 68 .
Ibid., paragraph 89 .
°[1968] 2 Q .B . 118 ; 1968 1 All E .R . 763 .
1010
�serv ant of anyone, save of the law itself. No Minister of the Crown can tell
him that he must, or must not, keep observation on this place or that; or
that he must, or must not, prosecute this man or that one . Nor can any
police authority tell him so . The responsibility for law enforcement lies on
him . He is answerable to the law and to the law alone . That appears
sufficiently from Fisher v . Oldham Corpn . ( 1930), and the Privy Council
case of A .G. for New South Wales v . Perpetual Trustee Co . (Ltd. ) (1955) .
15 . The judgment in A .G . of N.S.W. v . Perpetual Trustee Co . Ltd., çited by
Lord Denning, has also often been cited with approval by Canadian provincial
Courts of Appeal in their attempt to define, by analogy to the English
constable, the true status of a police officer . According to the Privy Council :
.
.. there is a fundamental difference between the domestic relation of
se rv ant and master and that of the holder of a public office and the State
which he is said to se rv e. The constable falls within the latter category . His
authority is original, not delegated, and is exercised at his own discretion by
virtue of his office ; he is a ministerial officer exercising statutory rights
independently of contract . 5
It is important to recognize that the issues which have arisen in the Canadian
courts, and which have prompted Canadian judges to invoke the analogy of the
common law constable contained in the passage just quoted, have been issues of
civil liability ( e .g. the extent to which chiefs of police, police governing bodies
or various levels of government are liable for the wrongful exercise of police
powers by a subordinate police officer) and the power of the courts to review
collective bargaining agreements . To date Canadian courts have not addressed
the problem that arose indirectly before the English Court of Appeal in Ex
parte Blackburn, namely, the powers of the executive (or the courts) to give
directions to a chief constable in matters of law enforcement .
16 . Unfortunately, the particular passage from the judgment of Lord Denning, M .R ., in Ex parte Blackburn, quoted above, is constantly transposed to
the Canadian scene with no regard to those essential features that distinguish
Canadian police forces from their British counterparts . There is no English
legislation defining the precise nature of the relationship between the Home
Secretary and the Commissioner of the Metropolitan Police, nor does the
.English Police Act of 1964 (enacted in the wake of the recommendations of the
1962 report of the Royal Commission on the Police) contain either a general
authority for the governing of police forces or specific powers to issue directions or orders to police forces or their individual members . In Canada,
however, section 5 of the R .C .M .P . Act clearly empowers the Minister to give
direction to the Commissioner in regard to "the control and management of the
force and all matters connected therewith" . To the extent that a matter is one
of "control and management" or is "connected" with control and management,
the Minister has a statutory power of direction . The statute has to that extent
made the English doctrine expounded in Ex parte Blackburn inapplicable to
the R .C .M .P . However, there is a further question in the interpretation of
section 5, which has not been tested in the courts . Can decisions to investigat e
1955] A .C . 457 at 489-90 (P .C .) .
1011
�in a particular case, to lay an information in a particular case, or to arrest in a
particular case, properly be described as powers "connected" with control and
management of the R .C .M .P. ?
17 . On this point, section 5 of the R .C .M .P. Act is open to two interpretations . The English language version of the section empowers the Minister to
give direction to the Commissioner in regard to "the control and management
of the force and all matters connected therewith ." Under one construction of
the English version the Minister's power of direction would extend to "control
and management" and "all matters connected" with "control and management" . In other words, the reference to "matters connected therewith" might
be to "control and management". On the other hand, a broader construction of
the words would be that "matters connected therewith" refers to "the Force"
and thus the Minister would have the power of direction over "all matters
connected" with "the Force" including decisions to investigate, lay an information or arrest in individual cases . The French language version of the section is
not an exact translation . It reads as follows :
Le gouverneur en conseil peut nommer un officier, appelé commissaire de la
Gendarmerie royale du Canada, qui, sous la direction du Ministre, est
investi de l'autorité sur la Gendarmerie et de la gestion de toutes les
matières s'y rattachant .
Our translation from the French is as follows :
The Governor in Council may appoint an officer, to be known as the
Commissioner of the Royal Canadian Mounted Police, who, under the
direction of the Minister, has authority over the Force and has the
management of all matters connected therewith .
The versions are "equally authentic", according to the Official Languages
Act .6 The French version does not appear to be subject to the same ambiguity
as the English version . It seems to state clearly that the Commissioner has full
authority over the Force, that the exercise of that authority is subject to the
direction of the Minister, and that the Commissioner's authority extends to the
management of all matters connected with the Force . In other words, in the
French version there is not the same problem with what is being referred to by
the words "connected therewith" . Thus, in interpreting section 5 we receive
little assistance from the rules quoted from the Official Languages Act . Nor
does another provision of the Official Languages Act assist in resolving the
problem of interpretation, for there is no obvious way to determine which of
the different interpretations to which the two linguistic versions of section 5 are
open would best ensure the attainment of the objects of the R .C .M .P . Act . '
18 . There has been no judicial interpretation of this section of the R .C .M .P .
Act . For our purposes, we do not think it is necessary for us to attempt a n
6 R .S .C . 1970, ch .0-2, section 8(1) .
' Ibid ., section 8(2) :
"In applying subsection (I) to the construction of an enactment ,
(d) if the two versions of the enactment differ . . . preference shall be given
to the version thereof that, according to the true spirit, intent and
meaning of the enactment, best ensures the attainment of its objects . "
1012
�interpretation . We think that the statute should be amended to effectuate the
recommendations which we will be proposing, and such amendments would, we
believe, eliminate any existing ambiguity . We do not think that this problem
can be solved otherwise.
19. We believe that those functions of the R .C .M .P. which we have described
as `quasi judicial' should not be subject to the direction of the Minister . To be
more explicit, in any particular case, the Minister should have no right of
direction with respect to the exercise by the R .C .M .P . of the powers of
investigation, arrest and prosecution . To that extent, and to that extent only,
should the English doctrine expounded in Ex parte Blackburn be made
applicable to the R .C .M .P . Even though the Minister should have no power of
direction in particular cases in relation to the exercise by the R .C .M .P. of these
`quasi judicial' functions, the Minister should have the right to be, and should
insist on being, informed of any operational matter, even one involving an
individual case, if it raises an important question of public policy . In such cases
he may give guidance to the Commissioner and express to the Commissioner
the government's view of the matter, but he should have no power to give
direction to the Commissioner .
20 . As we reported in Part VIII, Chapter 1, throughout the short history of
the Department of the Solicitor General, the Commissioner of the R .C .M .P .
has not accepted that the Deputy Solicitor General has the full powers of a
deputy minister with respect to the R .C .M .P. This state .of affairs, moreover,
did not begin in 1966, when the Solicitor General's Department was first
established, but was carried over from the previous era when the Commissioner
of the R .C .M .P . reported to the Minister of Justice .
21 . Because of the difficulties we encountered in comprehending the exact
nature of these working relationships, both past and present, we attempted to
analyze in depth the legal status of the Commissioner of the R .C .M .P . In the
opinion of the R .C .M .P . its Commissioner is the `Deputy Head' in charge of
the Force for all purposes and is not required to report to the Minister through
the Deputy Solicitor General . We concluded that the legal position is not clear .
In our earlier analysis we did not come to any conclusion as to the current legal
status nor do we propose to do so here . We believe such legal speculation to be
futile, in the circumstances . Until now the people who could have resolved this
dispute have fought shy of grasping this nettle and, in consequence, the
problems arising from ineffective accountability have been seriously compounded . In our opinion what is required is clear and decisive action on the
part of the government to resolve the problem through the introduction of
legislation which states categorically that the Deputy Solicitor General is the
deputy of the Solicitor General for all purposes related to the R .C .M .P . The
Commissioner of the R .C .M .P. should be legally accountable to the Deputy
Solicitor General . Such a legal relationship is imperative to ensure that
ministerial responsibility is effective . The Deputy Minister is the principal
adviser of the Minister . The Deputy Minister must have unimpeded access to
all matters being handled by the R .C .M .P., to be able to advise the Minister
properly . Any doubts about the Deputy Minister's right to be kept informed
and to look into all matters must be removed . The Deputy Minister is not a
1013
�member of the Force itself and thus should be able to give the Minister
informed, independent advice on policy matters relating to the Force, something which has not been possible in the past .
22 . One final point needs to be made in this regard . On no account should the
Minister or his deputy give direction based on partisan or personal considerations . If the Deputy Solicitor General does so, the Commissioner should take
the matter up with the Minister and if necessary the Prime Minister . If the
Minister gives such an improper direction the Commissioner should speak to
the Prime Minister directly .
WE RECOMMEND THAT the Deputy Solicitor Géneral be considered as
the deputy of the Solicitor General for all purposes related to the R .C.M.P .
and that the Commissioner of the R.C .M .P. report directly to the Deputy
Solicitor General rather than to the Solicitor General as at present .
(255)
WE RECOMMEND THAT the Solicitor General have full power of
direction over the activities of the R .C.M .P., except over the `quasi-judicial' police powers of investigation, arrest and prosecution in individual
cases .
(256)
WE RECOMMEND THAT the Commissioner of the R.C .M .P. keep the
Deputy Solicitor General, and through him the Solicitor General, fully
informed of all policies, directions, guidelines and practices of the Force,
including all operational matters in individual cases which raise important
questions of public policy.
(257)
WE RECOMMEND THAT if the
Commissioner considers that the
Deputy Solicitor General is giving him direction based on partisan or
political considerations, the Commissioner take the matter up directly with
the Minister . We further recommend that if the Commissioner, after
consultation with the Deputy Solicitor General, considers that the Solicitor
General is giving him, the Commissioner, direction based on partisan or
political considerations, he should take the matter up directly with the
Prime Minister .
(258 )
C . RELATIONSHIP WITH PROVINCIAL ATTORNEYS
GENERA L
23 . Pursuant to contracts entered into between the Government of Canada
and eight of the provinces ( Ontario and Quebec having their own provincial
police forces) the R .C .M .P. provides policing services to those eight provinces .
In carrying out its duties under each of those contracts it is accountable to the
provincial attorney general . In . Alberta, where the responsibility for the
administration of justice has been divided between two ministers, the Force is
also accountable to both the provincial solicitor general and the provincial
attorney general . The extent to which the Commanding Officer of the
R .C .M .P . ( in the contracts called the "Commanding Officer of the Provincial
Police Services") in each province is responsible to the provincial minister o r
1014
�ministers is governed by the terms of the contract . The relevant provisions are
the same in all contracts (except the Alberta contract which we will cite later) .
They read :
3 . The internal management of the Provincial Police Services, including
the administration and application of professional police procedures,
shall remain under the control of Canada .
4 . (1) The Commanding Officer of the Provincial Police Services shall for
the purposes of this agreement act under the direction of the Attorney
General in the administration of justice in the province .
(3) The Commanding Officer shall provide the Attorney General with
information in possession of the Royal Canadian Mounted Police which
affects the administration of justice in the Province . This will include
information obtained by members employed in Federal duties and shâll
be provided in a manner and form to be inutually agreed upon between
the Commanding Officer and the Attorney General .
Nowhere does the contract state what is meant by the words in clause 4(1)
"under the direction of the Attorney General in the administration of justice in
the Province" . Nor is there any clarification of which activities are subject to
such "direction" and which are governed by the words in clause 3 which
provide that internal management "shall remain under the control of Canada" .
24 . The relevant provisions in the Alberta contract simply add to the confusion . They read :
3 . The internal management of the Provincial Police Services, including
the administration and application of professional police procedures,
shall remain under the control of Canada .
4 . (1) The Commanding Officer of the Provincial Police Services shall for
the purposes of this agreement act under the direction of the Solicitor
General of Alberta in matters dealing with the operations, broad policy
and functions of the Provincial Police Services . The said Commanding
Officer shall for the purposes of this Agreement act under the direction
of the Attorney General of Alberta in matters dealing with administration of justice and the enforcement of those laws which the Government
of Alberta is required to enforce .
(2) Nothing in this agreement shall be interpreted as limiting in any
way the powers of the Attorney General, relating to the administration
of justice within the Province .
(3) The Commanding Officer of the Provincial Police Services shall
provide the Attorney General of Alberta with information in the
possession of the Royal Canadian Mounted Police that relates to the
administration of justice in the Province . The Commanding Officer
shall provide the Solicitor General of Alberta with information in the
possession of. the Royal Canadian Mounted Police that relates to the
operations, broad policy and functions of the Provincial Police Services .
The phrase `information' as it appears in this paragraph shall include
information obtained by members employed in Federal duties and shall
be provided in a manner and form to bè mutually agreed upon by the
Commanding Officer and the Attorney General of Alberta, and the
Solicitor General of Alberta, as the case may be .
1015
�It will be noted that in the Alberta contract "direction" of the Commanding
Officer is extended to more than "matters dealing with administration of
justice" . It also covers "those laws which the Government of Alberta is
required to enforce" and "matters . dealing with the operations, broad policy
and functions . . ." .
25. There is no common understanding on the part of the responsible
provincial ministers and the eight Commanding Officers in the provinces as to
what is included in the power of direction of the provincial ministers and what
information must be provided by the Commanding Officers to those ministers .
This cannot help but lead to misunderstandings and subsequent litigation such
as the Putnam case a which we discuss in Chapter 2 of this Part . We consider it
doubtful that our terms of reference require us to recommend how the
responsibilities for direction of the R .C .M .P . ought to be divided between the
federal and provincial ministers . In view of that doubt, we did not carry out the
extensive research and analysis which would have been required to formulate
recommendations on this subject . We are concerned, however, that the matter
be clarified . In our view, agreement should be reached between the two levels
of government as to what is meant by "internal management" for purposes of
exclusion from direction by the provincial ministers . With respect to all other
matters, members of the R .C .M .P . who are acting within a province pursuant
to a contract should be governed by the same principles which we outlined
earlier in this chapter with respect to the responsible Minister and Deputy
Minister at the federal level .
26. There have also been controversies between the federal government and
provincial governments about the extent to which the R .C .M .P . is obliged to
keep the provincial attorneys general informed of the activities of members of
the R .C .M .P. involved in the enforcement of federal laws . This problem applies
to all provinces : contract and non-contract . In Chapter 2 of this Part we
discussed this problem as it relates to acts in which members of the R .C .M .P .
may have been engaged and which may be violations of the Criminal Code or
other federal or provincial statutes . We made recommendations for the procedure to be followed in these cases . In cases not involving such acts the solution
appears to be close and continuous consultation among the federal and
provincial ministers responsible for policing .
WE RECOMMEND THAT in the contracts with the provinces covering
the provision of R .C .M .P . policing services, the respective roles of the
responsible federal and provincial ministers be clarified, so that the
R .C .M .P. members involved have an accurate understanding of the division
of their obligations and duties vis-à-vis those ministers
.
(259)
WE RECOMMEND THAT the contracts with the contracting provinces
incorporate as far as possible the principles of ministerial direction recommended above for the federal level .
(260 )
The Attorney General of Alberta and the Law Enforcement Appeal Board v .
Constable K .W. Putnam and Constable M.G .C. Cramer and the Attorney General of
Canada, [1980] 22 A .R . 510, [1950] 5 W .W .R . 83 . Affirmed by the Supreme Court
of Canada in a judgment pronounced May 28, 1981 .
1016
�CHAPTER 5
SOME METHODS OF CRIMINAL
INVESTIGATIONS AND THEIR CONTRO L
INTRODUCTION
1 . In this chapter we consider the legal and policy problems identified in Part
III which pertain to methods of investigation used by the criminal investigation
side of the R.C .M .P . In contrast to our comprehensive treatment of investigative techniques required for the protection of national security, our consideration of legal and policy changes in relation to the investigation of crime is
limited to those changes which we deem necessary in response to activities of
the R.C .M .P . found to be not authorized or provided for by law . While our
recommendations call for legislation to render lawful certain techniques of
criminal investigation which have been used in the past ( for example, searching
mail for illicit drugs and obtaining information about suspects from confidential government files) we also call for a rigorous system of controlling intrusive
techniques in criminal investigations and, in the final section of the chapter,
where we consider the admissibility of illegally obtained evidence and entrapment by agents provocateurs, we recommend changes in the law designed to
prevent police use of illegal or improper investigative techniques .
2 . As with our recommendations on the security side, our recommendations
in this chapter constitute an interconnected package : in our view, it would be
unwise to adopt recommendations for greater police powers without at the
same time adopting our recommendations with respect to controls and sanctions against unlawful or improper investigative activities .
A. A SYSTEM FOR CONTROLLING CRIMINAL
INVESTIGATORY METHOD S
3 . In Part V, Chapter 4, we began by stating five principles which should
form the basis of a system of controls governing the use of investigatory
methods by the security intelligence agency . Using those principles, we developed a system of controls which divided investigatory techniques for the
Security Service into three categories which we called levels one, two and
three . In addition to these elements, our control system consisted of ministerial
guidelines governing the use of certain techniques, and two "external" bodies
- an independent review body (the Advisory Committee on Security Intelligence) and a joint Parliamentary Committee - with responsibilities for
monitoring and evaluating the operation of the total system of controls .
1017
�4 . We do not propose a parallel system of controls for the criminal investigation side of the R .C .M .P . Our terms of reference do not permit us to examine
the command structure and decision-making processes of the R .C .M .P . as a
whole, and without such an examination, we are unable to evaluate in a
comprehensive manner the current system within the Force for controlling the
use of investigatory methods . A clear, comprehensive system for controlling
such investigation techniques is essential, in our view, if elected officials are to
exercise properly their responsibilities with regard to the R .C .M .P . Consequently, we believe that the Solicitor General, in concert with his counterparts
in the provinces, should give priority to reviewing the current system of controls
in the R .C .M .P . We do not underestimate the difficulty of this task . Designing
a control system on the criminal investigation side of the Force will be a
complex undertaking because of the decentralized command structure of the
C .I .B . and because of the contract policing role which the R .C .M .P . has in
eight of the provinces . It is by no means certain that the control system has to
be the same in each of these eight provinces . Furthermore, there is a very
difficult question of what ought to be the respective responsibilities of the
federal and provincial governments in the contract provinces with regard to the
control of investigatory methods used by the R .C .M .P . Finally, adding to the
complexity is another factor : the significant overlap in responsibilities of the
R .C .M .P . and other police forces in this country. Consequently a proposal for a
control system for the R .C .M .P . should be based on knowledge of how other
police forces control their use of intrusive investigative methods .
5 . We put forward the following questions as a suggested initial agenda for
the review we are proposing :
(a) what should be the principles on which a control system should be
based ?
(b) to what extent can the main outlines of the system of controls be made
public without harming the effectiveness of the individual investigatory
methods ?
(c) what is an appropriate method for periodically evaluating the effectiveness of this control system ?
(d) to what extent should officials `outside' the Force, in addition to those
who now participate by law, be included in the control system in order
to provide countervailing pressures to use of intrusive investigatory
techniques ?
(e) what should be the role of the Department of Justice lawyers assigned
to the R .C .M .P . in this control system so as to ensure the lawful use of
these methods ?
(f) what role should the Solicitor General and the provincial attorneys
general play in this system ?
WE RECOMMEND THAT the Solicitor General, in concert with his
counterparts in the provinces, initiate a review of the current system of
controls governing the use of the R .C.M.P .'s investigatory methods .
(261)
1018
I
�B . SURREPTITIOUS ENTRIE S
6. In a brief to us concerning surreptitious entries the R .C .M .P . has made a
strong case that this is a desirable, and often an essential, investigative
technique when the manufacture of illicit drugs and alcohol comes under the
scrutiny of resourceful investigators . Eventually a time comes when members
employed on lengthy, difficult investigations, many involving great personal
danger, are faced with the problem of having to know with certainty whether
an illicit drug laboratory or still is secreted in a place, if the laboratory or still
is producing or is in the development stage, if a cache of drugs or alcohol is in a
place, or if quantities of illicit drugs or spirits are being removed from a cache
bit by bit for trafficking purposes . The Force considers that it is extremely
difficult, without the power to search in circumstances when a search warrant
cannot now be obtained, to detect the existence of clandestine drug laboratories . The R .C .M .P . also asserts that surreptitious entry is a valuable tool
generally in the fight against "white-collar" crime . This latter assertion,
however, has'not been substantiated before us .
7 . We consider that any broad power to search private premises upon mere
suspicion that there might be evidence of the commission of an ôffence or the
intended commission of an offence, even if such a power were authorized by a
judicial warrant, should be granted by statute only after a thorough review of
all police powers of search and seizure - a review which should study this
proposal in the context of the entire ambit of such powers . If what was being
sought were the power to search upon warrant granted upon suspicion, and the
search was to be made known to the occupant at the time of the search or soon
thereafter, at least the power to enter and inspect would have many counterparts in federal and provincial regulatory laws . However, what is sought by the
R .C .M .P . in these situations is a power to search covertly . Such a power, we
think, should be granted by statute, only if a thorough review of all police
powers of search and seizure demonstrates the need for such a power . We
therefore decline to make any recommendation in regard to this proposal,
except that the matter be referred to the Law Reform Commission of Canada,
which is at present studying the laws relating to search and seizure .
WE RECOMMEND THAT the Solicitor General refer to the Law Reform
Commission of Canada the matter of whether or not the Criminal Code
should be amended to allow peace officers in Canada, under defined
circumstances and controls, to make surreptitious entries .
(262 )
C . ELECTRONIC SURVEILLANC E
8 . In Part III, Chapter 3, we set forth statistics as to the use of electronic
surveillance by the R .C .M .P . in criminal investigations . Based on these statistics and on knowledge which is common to those familiar with the operations of
the criminal courts since 1974, we are confident that electronic surveillance is a
valuable and necessary tool in the investigation of crime and the prosecution of
offenders . Having said this, we believe that there are legal problems to resolve
so that this investigative tool can be used legally and effectively . These
problems fall into three categories : first, there are problems relating to the us e
1019
�of information obtained as a result of a lawful interception ; second, there is an
inadequate review procedure to evaluate the use of electronic eavesdropping
devices ; and third, there is a set of problems paralleling those connected with
the use of electronic surveillance under section 16 of the Official Secrets Act
and involving a lack of legal authorization to examine premises prior to
installation and to install, operate, repair, and remove electronic devices .
Use of information
9 . A problem that the R.C .M .P . has drawn to our attention is whether or not
members of the Force may give to a foreign law enforcement agency any
information which the R .C .M .P . obtains from electronic surveillance . Section
178 .2(1) of the Criminal Code prohibits disclosure of information obtained
from the use of electrical eavesdropping devices, subject to several exceptions .
In our view, it is doubtful whether any of these exemptions are applicable to
foreign law enforcement agencies . Another aspect of the limited exceptions is
that members of the R .C .M .P . are severely restricted as to what information
they may give to anyone involved in preparing the Solicitor General's Annual
Report to,Parliament or a provincial attorney general's Annual Report to his
provincial legislature on the use of electronic surveillance . A similar problem
may arise for any other body reviewing the use of this power . We believe that
section 178 .2(1) should be amended to make it clear that information obtained
from a lawful interception can be given to foreign law enforcement agencies, to
those involved in producing annual reports and to federally authorized persons
reviewing the use of this power .
Review mechanis m
10 . We think that there should be a mechanism to facilitate an effective
review of the use of electronic surveillance . The yearly statistical reports of the
provincial attorneys general and the Solicitor General of Canada to provincial
legislatures and Parliament, while more useful than the yearly report on the
Security Service's use of electronic surveillance, does not provide for an
extensive enough review of this investigative method . In Part III, Chapter 3, we
explained the constraints that make it difficult for a Commission of Inquiry to
review thoroughly the manner in which the process of applying for authorization under section 178 is working . Any other government body would face at
least equal difficulty in doing so . If our proposal for a more thorough review of
the use of electronic surveillance in criminal investigations by all police forces
in Canada is adopted, section 178 would have to be amended to allow access to
sealed packets and to the product of interception . Presumably this access could
be limited to certain federal Commissioners appointed under Part I of the
Inquiries Act .
11 . One means of improving the safeguards, both with regard to electronic
surveillance and with regard to the search of mail for illicit drugs or narcotics,
would be the creation of a committee appointed jointly by federal and
provincial governments to review the exercise of these powers by peace officers
across Canada . This committee, consisting of two judges, two lawyers, and two
citizens (one of whom might, for example, be a person active in a civil libertie s
1020
�organization) could review the documents filed in support of applications for
judicial authorization, the orders themselves, the alternatives available to the
police, the results of the investigative work to the extent that it was aided by
the means authorized by the judicial authorizations,-and so on . In addition, this
committee could sponsor sessions in which judges from across the country
could compare experiences and seek to arrive at high standards by which
applications for authorization orders should be judged . Moreover, the committee could report annually to Parliament, taking care to keep its comments on
specific cases at a general level so as not to prejudice the rights of individuals
or the techniques and circumstances of past and continuing police investigative
operations .
12 . Results of our research, based on a broad survey of experience gained in
administering the application procedure, raise issues which a more extensive
review process might study thoroughly . These issues are of a kind that a yearly
statistical summary cannot answer . Some of our research results are as follows :
(a) Applications to a judge are usually completed in less than half an hour
- in many cases in less than 15 minutes .
(b) Frequently, but far from always, when the application is made privately to the judge, the agent of the Solicitor General of Canada or of the
provincial attorney general is accompanied by the police officer who
swore the affidavit .
(c) In order to supplement the information contained in the affidavit, many
judges question the policemen . Some judges receive this additional
information under oath, but most do not . Some judges require the
additional information in writing, some do not .
(d) There is evidence that the applications are well prepared, but the fact
that they lack detail about a variety of matters is a ground for some
degree of dissatisfaction .
(e) There is substantial evidence that the fact that almost all applications
are successful is due to the efforts of police forces and Crown agents to
submit only those applications that have been well prepared and are
likely not to encounter difficulty .
(f) Although, as has been disclosed by the Annual Reports of both the
Solicitor General of Canada and the provincial attorneys general, very
few applications have been refused by judges, there is some evidence
that this information is somewhat misleading . It appears that applications are frequently withdrawn when the judge points to inadequacies in
the affidavit . Thus the official statistics are misleading because they do
not record the number of applications which are made but withdrawn .
(g) Some judges attach a condition to the authorization that there be
periodic progress reports to the judge .
(h) In the several provinces in which research was conducted, there was
evidence that the system adopted by each Court for determining which
judge received applications has reduced but not eliminated `judge-shopping' by the Crown - i .e . the selection of judges more likely to be
amenable to such applications . Despite the minimization of this
undesirable risk, it may be that, wherever possible, instead of all th e
1021
�judges in the court being entitled to receive applications, there should
be a limited number. of designated judges who would be so entitled .
This would reduce the possibility of `judge-shopping' and at the same
time develop a number of judges who have a certain expertise in
analysing the quality of the applications .
13. Our research covered many other points concerning the application
process, but the foregoing are the most significant . We make one further
observation : it would be desirable that there be organized discussion among the
judges of Canada of the many problems associated with the process . Many
judges lack experience as criminal law practitioners before going to the bench,
and consequently are not fully familiar with the alternative means of investigation that in many situations are available to policemen . If the judges are to be
effective instruments of ensuring that electronic surveillance is used as an
investigative tool of last resort, discussion would enhance the sharing of the
knowledge which is possessed by those judges who are wise in the ways of
criminal investigation .
Executing authorizations for electronic surveillanc e
14. An important question which we addressed at length in Part III, Chapter
3, in our discussion of the legal issues relating to electronic surveillance was the
following : does a judge have the statutory power under section 178 .13 of the
Criminal Code to authorize entries to examine premises prior to installation
and to install, repair and remove a listening device, and, if he does not
expressly authorize entry for those purposes is the power to enter implied under
section 25(1) of the Criminal Code or section 26(2) of the Interpretation Act?
We believe that a judge does not have the authority to authorize entries, nor is
the power to enter implied in any statute . Consequently, section 178 .13 of the
Criminal Code should be amended in a manner similar to that which we have
recommended for the statute governing the security intelligence agency's use of
electronic surveillance in Part V, Chapter 4 . Specifically, the judge should be
granted the authority to authorize peace officers to take such steps as are
reasonably necessary to enter premises or to remove property for the purpose of
examining the premises or property prior to installing a device or for the
purpose of installing, maintaining or removing an interception device . The
judge issuing the authorization should set the methods which may be used in
executing it . These powers should be available only on the condition that their
execution shall not cause significant damage to premises that remains
unrepaired, nor involve the use of physical force or the threat of such force
against any person . In addition, section 178 .13 of the Criminal Code should be
amended to provide for the use, without compensation, of the electrical power
supply available in the premises .
15 . A further problem relating to the installation and operation of electronic
eavesdropping devices involves the possible violation of provincial and municipal regulations governing such matters as electrical installations, fire protection and construction standards . We believe that the Solicitor General should
seek the co-operation of the provinces in order to effect the required administrative and legislative changes so that this investigatory method can be used in
a lawful manner .
1022
�WE RECOMMEND THAT a committee be established with statutory
powers to review the use of electronic surveillance by all police forces in
Canada, including, but not limited to, the procedure by which authorizations are applied for.
(263)
WE RECOMMEND THAT section 178 .2(1) of the Criminal Code be
amended so that information obtained as a result of lawful electronic
surveillance can be given t o
(a) a foreign law enforcement agency ;
(b) any person who is involved in the preparation of the Solicitor General's Annual Report to Parliament on the use of electronic surveillance ;
(c) any person who is involved in the preparation of a provincial attorney
general's Annual Report to a provincial legislature on the use of
electronic surveillance ; an d
(d) any person authorized by federal legislation to review the use of this
investigative technique .
(264)
WE RECOMMEND THAT section
178 .13 of the Criminal Code be
amended to permit peace officers executing authorizations under this
section to take such steps as are reasonably necessary to enter premises or
to remove property for the purpose of examining the premises or property
prior to installing a device or for the purpose of installing, maintaining or
removing an interception device, providing the judge issuing the authorization sets out in the authorizatio n
(a) the methods which may be used in executing it ;
(b) that there be nothing done that shall cause significant damage to the
premises that remains unrepaired ;
(c) that there be no use of physical force or the threat of such force
against any person .
(265)
WE RECOMMEND THAT section 178 .13 of the Criminal Code be
amended to permit peace officers executing authorizations under this
section to use the electrical power source available in the premises without
compensation .
(266)
WE RECOMMEND THAT the Solicitor General seek the co-operation of
the provinces to effect the necessary administrative and legislative changes
to provincial and municipal regulations governing such matters as electrical installations, fire protection and construction standards in order to
allow peace officers to install, operate, repair and
eavesdropping devices in a lawful manner .
remove electronic
(267 )
D . MAIL COVERS AND MAIL OPENIN G
16 . On the criminal investigation side of the Force's operations, investigations
of drug trafficking have relied not only on mail cover checks and mail
openings, but also on controlled deliveries of drugs to bring the cases to a
1023
�successful conclusion . (See Part III, Chapter 4 for a description of controlled
deliveries .) Various examples of drug-related investigations were cited in
evidence to demonstrate the efficacy of these investigative techniques . However, in a number of cases, charges were not laid even though the evidence
against the accused had been obtained, because the Force did not want to
compromise postal or customs authorities (Vol . 18, pp . 2827-59 ; Vol . 23, pp .
3619-50) . According to the R .C .M .P ., letter bombs are another indication of
the need for mail opening . One witness argued that not only is it necessary to
have early evidence, if possible, in an attempt to predict the sending of the
bomb, but if the item of mail is not delayed it may reach the recipient and be
opened (Vol . 8, pp . 1032-35) . We also heard evidence in camera of a fraud
investigation, in which the accused had left Canada . Mail arrived in Canada
from the country he was living in, and it was opened in the hope that it would
disclose whether he might go to a country from which it would be possible to
extradite him .
17 . One senior R .C .M .P . officer told us that the Force should be empowered
by legislation to open the mail, not only during the course of drug investigations, but also for investigations of all those offences concerning which a judge
may now authorize electronic interception under section 178 .13 of the Criminal
Code (Vol . 8, p . 1146) . The R .C .M .P . is not satisfied with limiting mail
opening to drug investigations as was proposed in Bill C-26, introduced in the
House of Commons in 1979 .
18 . In our view the need for mail cover checks and mail opening has not been
established in the case of investigations other than for drugs . We think that the
need to examine substances (not messages) in the mail has been established
clearly if there is a reason to suspect that mail of any category contains
narcotics or illicit drugs . A senior R .C .M .P. officer gave evidence before us
about the extent to which the mail has been a channel of importation for
narcotics and drugs - a channel "which has been taken advantage of in
increasing fashion over the past several years . .. and has resulted in a tremendous influx of narcotic drugs into this country" (Vol . 8, p . 1013 . See Vol . 8, pp .
1042-1150 for testimony on drugs and mail opening) . While this evidence has
convinced us of the need to open mail to search for illicit drugs and narcotics,
because of the importance we attach to individual privacy we do not recommend that mail be opened for the purpose of reading messages about drug
offences or any other criminal offences . Whatever may be our personal views
as to the threat to our society that is posed by trafficking in narcotics and illicit
drugs, we are not a Commission of Inquiry into the harmful effects of those
substances . All we can properly say is that, if Parliament considers trafficking
in narcotics and illicit drugs to be a grave problem, then we would point out
that the police have great difficulty in lawfully investigating and even detecting
such traffic unless certain legislative provisions are enacted . These provisions
are as follows . First, the power to open mail and even to examine or photograph an envelope should be exercisable only on judicial authorization, subject
to the same safeguards as are now found in section 178 of the Criminal Code in
regard to electronic surveillance . In addition, just as section 178 makes it an
offence for anyone to use electronic or other artificial means to eavesdrop,
except upon consent or lawful authorization, so should the legislation make i t
1024
�an offence to open mail except upon consent or lawful authority . The powers
should be limited initially to examination and testing of any substance found in
the mail . Only when a narcotic or illicit narcotic drug is found in the letter
should a peace officer be empowered to read an accompanying written, printed
or typewritten message . To ensure that in executing the judicial authorization
no one has read any message contained in the mail unless a narcotic or illicit
drug is found in the letter, there should be a procedure such as a statutory
declaration by the official supervising the opening of the letter that the law has
been followed . The declaration should be filed with the Solicitor General .
Finally the Post Office Act should be amended so that it is clear that controlled
deliveries in drug investigations may be made lawfully . The problem is that a
controlled delivery may require a delay in the delivery of the letter to ensure
that the police are present to witness the delivery and that the recipient of the
letter is actually at the address to receive it . Such a delay is illegal under the
present Post Office Act .
19 . We wish to make one further proposal for legislative change . In Part III,
Chapter 4, with regard to letter bombs, we noted that if it is known that an
article of mail contains an explosive, then the article of mail is considered
"non-mailable matter" under sections 1 and 2 of Schedule I of the Prohibited
Mail Regulations, and consequently whether it is domestic or international
mail, it can be disposed of by the Postmaster General's Department . A problem
arises, however, if there is only reasonable belief or suspicion that an article of
mail contains a bomb . In such cases, it appears that a postal employee or a
member of the R .C .M .P . who opens an article of mail or delays it commits an
offence except when the mail is international and the article opened by a
Customs Officer (which includes R .C .M .P . members) is not a "letter" . To
rectify this problem, we believe that Schedule I of the Prohibited Mail
Regulations should be amended so that an article of mail is considered
"non-mailable matter" if there are grounds to suspect that it contains an
explosive .
WE RECOMMEND THAT, not withstanding the present provisions of the
Post Office Act, R .C .M .P . peace officers be authorized by legislation to
examine or photograph an envelope and to open mail in order to examine
and test any substance found in the mail, subject to the following
conditions:
(a) this power is exercisable only on judicial authorization, subject to the
same safeguards as are now found in section 178 of the Criminal Code ;
(b) the offences concerning which this power can be exercisable are
limited to narcotic and drug offences ;
(c) the reading of an accompanying written, printed or typewritten message other than a message accompanying an illicit drug or narcotic is
an offence ;
(d) there is a procedure established ( such as a statutory declaration by the
official supervising the opening of mail) to ensure that in executing
the judicial authorization no one has unlawfully read any message
contained in the mail . The declaration should be filed with the
Solicitor General .
(268 )
1025
�WE RECOMMEND THAT the Post Office Act should be amended so
that it is clear that controlled deliveries of mail by R .C .M .P . peace officers
or their agents may be made lawfully .
(269)
WE RECOMMEND THAT Schedule I of the Prohibited Mail Regulations be amended so that an article of mail is considered "non-mailable
matter" if there are grounds for suspicion or reasonable belief that the
article of mail contains an explosive .
(270 )
E . ACCESS TO CONFIDENTIAL INFORMATIO N
20 . It is clear that an investigation of crime will be more effective if a police
force could gain access to names, addresses, family relationships, financial
information, medical histories, physical characteristics and other data . Particularly fruitful sources of such information are the data banks of government
departments and agencies . As we have seen, the R .C .M .P . in its criminal
investigations has particularly sought such information from the Income Tax
Branch of the Department of National Revenue, the Unemployment Insurance
Commission ( now the Canada Employment and Immigration Commission) and
the Family Allowance Division and the Old Age Pension Division of the
Department of National Health and Welfare.
21 . In the case of information provided by taxpayers to the Income Tax
Branch of the Department of National Revenue, we accept that both biographical information and financial information can be of substantial importance in
the investigation of fraud, gambling and bankruptcy offences - whether by
organized criminals or by single adventurers .
22 . In the case of information from the Unemployment Insurance Commission, the R .C .M .P . consider that the kind of biographical data and employment
records obtained was of importance - a "necessary tool" according to one
senior R .C .M .P . officer who testified before us - in the location of persons
wanted for the commission of crime, as well as the identification of dead bodies
and missing persons, and the accurate identification of persons generally . We
consider that the need for such information is evident, but as we stated in Part
III, Chapter 5, there is some doubt as to whether it is within the power of the
Minister of Employment and Immigration and of the Canada Employment and
Immigration Commission under existing law to make it lawful for employees of
the Commission to provide information to the R .C .M .P . or to other police
forces .
23 . We have no doubt that access by the R .C.M .P . to biographical information possessed by social welfare programmes, including the Social Insurance
Number, is a valuable tool in the location of missing persons, the identification
of stolen property and other matters of importance . Similarly, we are sure that
access by .the R .C .M .P. to some kinds of confidential information possessed by
provincial government departments or agencies such as vital statistics and
medical information, will be of vital importance in some criminal investigations
or attempts to preserve the peace and protect lives and property .
1026
�24. As in the case of security intelligence investigations, it is necessary in the
case of each category of confidential information to balance the need of the
police force for the information to fulfill its public duties against the need to
maintain confidentiality of information . Usually administrators of statutory
programmes involving the collection of confidential information express concern that the integrity and effectiveness of these programmes will suffer if
police forces are granted access to the information . Public knowledge of the
fact of such access, these administrators argue, will discourage members of the
public from candour and forthrightness in disclosing information . In addition
to these concerns it is also necessary to take into account the concern of society
to prevent unjustified and excessive intrusion by the state into the private lives
of its people . Again, there is the argument that changing the present law to
provide access by the police to information at present prohibited breaks a tacit
understanding that the confidentiality dictated by the governing statute would
be honoured .
25 . We think that there will be a need in some criminal investigations, and in
some other cases where the police are acting to maintain the peace and protect
lives and property, for the state to enable them to have lawful access to the
information which the state has received in confidence . What must be provided, however, is a system designed to prevent unrestrained and uncontrolled
access . Putting it another way, there must be a means to limit access to those
cases where the need is very clear and demonstrably outweighs the opposing
considerations we have mentioned .
26 . We prefer not to make any recommendations in regard to provincial
statutes, except that the Solicitor General negotiate a similar solution with the
provinces . The views of provincial and municipal police forces should be taken
into account, as well as those of other interested persons and groups, since it .is
after all the provincial legislatures that will have to act . Perhaps those
negotiating a solution will bear in mind, as possible answers on the provincial
level, the recommendations we shall make in regard to confidential information
held by federal government departments and agencies .
27 . We turn, then, to the federal government . In Part V, Chapter 4, we noted
that the "non-derivative use" section of Part IV of the Canadiait Human
Rights Act (section 52(2)) has been interpreted strictly by all departments and
agencies, with the result that the R .C .M .P. Security Service and the criminal
investigation side of the Force have now been denied access to virtually all
personal information possessed by other federal government institutions . The
proposed Privacy Act currently before Parliament, a section of which would
replace Part IV of the Canadian Human Rights Act, provides that personal
information under the control of a government institution shall, subject to
certain exceptions, be used only for the purpose for which it was obtained . The
exception which is most relevant for our purposes would permit a government
institution to disclose personal informatio n
(e) to an investigative body specified in the regulations, on the written
request of the body, for the purpose of enforcing any law of Canada or
a province or carrying out a lawful investigation, if the request specifies
the purpose and describes the information to be disclosed .
1027
�28. As we noted in Part V, Chapter 4, in certain respects this legislative
change goes too far in opening up access of confidential information to
investigative bodies including the R .C .M .P . For example, it does not provide a
clear enough test of necessity for access to personal information . Moreover, it
makes no distinction between information about a person which is publicly
available (e .g . biographical information) and information which is not publicly
available . In other respects, the legislative proposals do not go far enough .
Thus, it does not provide access to income tax, family allowance, old age
security and Canada Pension Plan information, all of which are protected by
Acts of Parliament which bar disclosure of information, even with the permission of the Minister, for any purpose unrelated to the programme or purpose
for which the information was obtained .
29. The changes in this legislative proposal which we recommended for the
security intelligence agency should apply with appropriate modifications to the
criminal investigation side of the R .C .M .P . We distinguish at the outset
between `biographical' and `personal' information . The former would consist of
an individual's name (including change of name), address (including change of
address), telephone number, date and place of birth, physical description and
occupation . We believe that this class of information, since for the most part it
is publicly available, merits less protection than more `personal' information .
Consequently the R .C .M .P . should be able to request this type of information
from government departments under a system of administrative controls
provided for under section 8(2)(e) of the proposed Privacy Act . Such applications before being submitted should be approved by a designated senior officer
at Headquarters in Ottawa .
30 . With regard to `personal' information, we believe that access should be
conditional on the investigative body's receiving authorization from a judge
upon meeting the same tests that are now found in section 178 of the Criminal
Code for authorizing electronic surveillance . Because decision-making in criminal investigations is more decentralized than in a security intelligency agency,
and because decisions in criminal investigation cases need to be made quickly,
we propose that applications for judicial authorization be made to either a
judge of the Federal Court of Canada or a judge of the superior court in the
province in which the investigation, or a part of it, is taking place .
31 . In the case of the security intelligence agency, we recommended that the
Solicitor General should approve all requests for `personal' information prior to
the agency's seeking a judicial warrant. In addition, we recommended that the
Minister or head of the government institution which holds the information
should comply with the warrant unless the Prime Minister directs the Solicitor
General not to execute it . This system of ministerial involvement in dealing
with specific requests for `personal' information is inappropriate in the case of
criminal investigations conducted by the R .C .M .P. As proposed in Chapter 4
of this Part, the Solicitor General should become involved in the R .C .M .P .'s
investigation of individual cases only in very exceptional circumstances involving significant policy matters . Thus, we propose that the R .C .M .P ., in the same
way that it now does with requests for electronic surveillance, submit applications for access to `personal' information to the Minister of Justice, who, as th e
1028
�Attorney General of Canada, can request an agent to apply for a judicial
warrant authorizing the delivery of the information to the R .C .M .P . The
Minister who receives the warrant should be required to comply with it, but as
with access for security purposes, if he thinks the integrity of his department's
programme is being seriously undermined by use of this power by the police
and cannot resolve the matter through discussions with the Attorney General
he should make representations to the Prime Minister . Whether the R .C .M .P .
should be allowed to distribute information received under judicial authorization to other police forces is a matter for the Solicitor General of Canada to
discuss with the provincial attorneys general .
32 . Finally, the R .C .M .P .'s scope of access to government information should
be the same as that which we have recommended for the security intelligence
agency . Thus the Force should, subject to the controls referred to in the
preceding paragraph, have access to all government data banks including those
now protected by Acts of Parliament which bar disclosure of information for
any purpose unrelated to the programme or purpose for which the information
was obtained . One category of federal government information which it would
be reasonable to exempt from the scope of legislation giving access to otherwise
protected bodies of information is the census information compiled by Statistics Canada for reasons we gave in Part V, Chapter 4 .
WE RECOMMEND THAT
(a) legislation authorize the heads of federal government institutions to
release information concerning an individual's name, address, phone
number, date and place of birth, occupation and physical description
on receiving a written request from the R .C .M .P . stating that such
information is necessary for the purpose of conducting a criminal
investigation.
(b) all other personal information held by the federal government with the
exception of census information held by Statistics Canada, be accessible to the R.C .M .P. through a system of judicially granted authorizations subject to the same terms and conditions as are now found in
section 178 of the Criminal Code with regard to electronic
surveillance .
(271)
WE RECOMMEND THAT the R .C .M .P . obtain personal information
held by government institutions under the jurisdiction of provincial governments only from persons legally authorized to release such information and
that, with regard to any province in which there is no authorized means of
access to information to which the Solicitor General of Canada considers
that the R.C .M .P. should have access in order to discharge its policing
responsibilities effectively, the Solicitor General should seek the co-operation of the province in amending its laws to make such access possible .
(272 )
F . PHYSICAL SURVEILLANC E
33 . In Part III, Chapter 8 we described the importance in criminal investigations of the police being able to follow and watch suspects and apprehend
criminals, often by the use of vehicles . In Part V, Chapter 4 we mad e
1029
�recommendations as to what should be done to enable physical surveillance
operations to be conducted effectively yet lawfully by the security intelligence
agency . What follows in regard to criminal investigation will be brief; the
details of our approach may be found by referring to our identical recommendations in regard to the security intelligence agency .
34. In regard to criminal investigations, as in the case of security intelligence
work, we think that the only proper way to resolve the legal difficulties that
now place members of the R .C .M .P . in a dilemma is to make appropriate
changes in the relevant provincial legislation and municipal bylaws, as to the
rules of the road, pedestrian movement on the roads, the use of documents of
identification and registration issued by the provincial government, the use of a
fictitious name in registering at a hotel, and trespass to land or chattels . The
details of the amendments are as set out in the recommendations in Part V,
Chapter 4 .
WE RECOMMEND THAT the amendments which we proposed in Part
V, Chapter 4 to facilitate physical surveillance operations by the security
intelligence agency be made applicable to physical surveillance in criminal
investigations by the R .C.M .P.
(273 )
G. UNDERCOVER OPERATIVE S
35 . In Part 111, Chapter 9 we discussed the important contributions to the
detection and investigation of crime which are made by regular members of the
R .C .M .P . who serve under cover (particularly in combatting trafficking in
narcotics and restricted drugs) and by other persons who serve as paid or
volunteer sources of information about criminal activity . We have no doubt
that these means of collecting criminal intelligence and evidence for use in
prosecutions are vital to the effective functioning of the R .C .M .P ., particularly
in regard to some kinds of crime, especially drug and gambling offences and
organized crime .
36 . In Part III, Chapter 9, we analyzed the legal difficulties involved in the
use of undercover operatives . This analysis causes us to doubt seriously whether
operatives may be used by either the criminal investigation side of the Force or
the security intelligence agency without violating existing federal and provincial laws . Some of these legal problems are common to both criminal investigations and security intelligence functions . Consequently, our recommendations,
given in Part V, Chapter 4 are applicable to criminal investigations by the
R .C .M .P. While there is no need to repeat them in detail, we outline them as
follows :
(a) Legislation relating to income tax should be amended to permit the
non-declaration as income of payments made by the police to sources .
We considered and rejected the alternative of having the tax deducted
at source and sent to the Department of National Revenue without the
identity of the source being disclosed . Other fiscal legislation requiring
deduction and remittance by or on behalf of employees ought to be
amended to exclude such sources .
1030
�(b) Federal and provincial legislation should be amended where necessary,
to allow R .C .M .P . undercover operatives, both members and sources,
in defined circumstances, to obtain, possess and use false documentation, subject to administrative controls such' as return of the documentation when the operation is completed .
(c) Section 383 of the Criminal Code should be amended to provide
expressly that an agent or employee who gives information to the police
about his principal's or employer's activities does not commit the
offence provided for in that section, so long as the act is done or the
favour that is exercised in relation to the business of the principal or
employer is in fulfilment of a public interest or duty which transcends
the private relationship . At the same time, the R .C .M .P . should have
internal operational guidelines that reflect an awareness of the social
value of the relationships which are affected by the operation of sourcés
- an awareness which is to be balanced against the need for effective
investigation . These guidelines should be approved by the Minister and
publicly disclosed .
(d) In criminal investigations there should be no special power of access to
confidential records in the private sector, with the exception of medical
records, discussed below . We do not think that the police should
encourage persons controlling such records to violate legal or professional requirements of confidentiality . We suggest that the R .C .M .P .
should obtain legal advice in regard to particular problems of this sort ;
sometimes such advice will enable the supposed barrier to access to be
`lowered' because it will be found that there is none in law in the
particular circumstances . Conversely, failure to obtain legal advice
may result in the police encouraging individuals to breach their legal
duties of confidentiality . There is one kind of confidential records in
the private sector which requires specific consideration, namely, medical records . We have now read the report of the Krever Commission
and concur with its recommendations as to access by police forces to
such records if the police forces are under proper control as to how they
use the information . Our comments on this matter are found in Anne x
37 . One legal problem which pertains only to the criminal investigation work
arises from the use of undercover operatives to investigate drug offences . The
Narcotic Control Act and the Food and Drugs Act should be amended to
broaden the circumstances in which it is lawful for agents or members . of the
R .C .M .P . to handle drugs for the purpose of gathering information or evidence
concerning drug-related offences . The amendments should provide that a
person who is employed as a member of the R .C .M .P . or a person acting under
the instructions of the R .C .M .P . shall not be guilty of the following offences
related to a narcotic or a controlled or restricted drug so long as his acts are for
the purpose of and in connection with a criminal investigation : possession,
trafficking, possession for the purpose of trafficking and sale . To prevent abuse
of this exemption, and to ensure that it is relied upon to protect undercover
members in the specific situations described in Part 111, Chapter 9 (kickbacks ,
1031
�administering, passing on, offering, distribution and possession), the R .C .M .P .
should deal with this exemption in a detailed way in its guidelines governing
the use of undercover operatives . For one thing, these guidelines should provide
direction as to the extent to which undercover members or sources may release
drugs into the market, a subject which we will discuss in a future Report .
38. There is one final matter concerning administrative policy to which we
wish to draw attention . In Part III, Chapter 9 we referred to the isolation,
stress and danger often associated with long-term undercover work by a regular
member of the R .C .M .P. Long-term dissociation from his regular police
milieu, prolonged simulation of the habits and manners of the milieu which he
has penetrated, the risks of exposure and physical harm, his isolation from
family and friends, and his inability to discuss what he is doing except with
those in the R .C .M .P. associated with his operation, can produce significant
disorientation . This may result in a decreased effectiveness while under cover,
and difficulty upon "re-entry" into regular police work . If the latter occurs, he
may become a less effective regular policeman during the remainder of his
career, or he may even leave the Force . In either case, there is a heavy cost
both in human terms and in terms of the loss of the state's financial investment
in his training as a policeman . We are satisfied that the R .C .M .P . does not
adequately recognize the problem as one that deserves systematic attention . It
appears to be regarded as one that can be handled by the common sense and
firmness of the undercover member's superior during his period of serving
under cover and afterwards . We think that that is not enough . We think that
there is a need for a sensitive and planned programme designed to assist the
member (and indeed long-term sources) to overcome the personality disorders
that can result from a long-term undercover assignment . In one other national
police force the problem is considered to be serious and is met by the use of a
psychiatrist who meets the member regularly while he is under cover and
afterward . We recommend that the R .C .M .P . adopt such a programme.
WE RECOMMEND THAT the R .C .M .P . establish administrative guidelines concerning the use of undercover operatives in criminal investigations . These guidelines should be approved by the Solicitor General and
should be publicly disclosed .
(274)
WE RECOMMEND THAT to facilitate the obtaining of false identification documents in a lawful manner for R .C.M .P . undercover operatives in
criminal investigations, federal legislation be amended, and the co-operation of the provinces be sought in amending relevant provincial laws, in a
similar manner to that recommended for the false identification needed in
physical surveillance operations of both the security intelligence agency
and the criminal investigation side of the R .C .M .P .
(275)
WE RECOMMEND THAT income tax legislation be amended to permit
R.C .M .P. sources in criminal investigations not to declare as income
payments received by them from the force and that other fiscal legislation
requiring deduction and remittance by or on behalf of employees be
amended to exclude R.C .M .P. sources.
(276 )
1032
�WE RECOMMEND THAT section 383 of the Criminal Code of Canada
concerning secret commissions be amended to provide that a person
providing information to the R .C.M.P . in a duly authorized criminal
investigation does not commit the offence defined in that section .
(277)
WE RECOMMEND THAT the R.C .M .P . develop a programme designed
to assist its members who serve as undercover operatives in criminal
investigations to overcome the personality disorders associated with longterm assignments in this role .
(278 )
H . INTERROGATION TECHNIQUES
'
39 . In Part III, Chapter 10 we outlined the policy of the R .C .M .P . towards
the interrogation of suspects . We examined there four areas which give rise to
concern . As we pointed out, there have been very few cases brought to our
attention of R .C .M .P . members being involved in questionable interrogation
techniques : nevertheless, in the light of those cases that we have looked at, we
have concluded that some changes are necessary .
Reporting reasons for judicial decisions that statements are inadmissibl e
40 . We consider that there should be more systematic mechanisms for review,
within the R .C .M .P ., of the standards members attain in their interrogation of
suspects . A starting point would be collection of the reasons for which
statements by an accused are held to be inadmissible at preliminary inquiries
and trials, or indeed the reasons for which Crown attorneys decide not even to
tender the statement . In our research programme a number of federal Crown
attorneys were interviewed about their experiences with R .C .M .P . interrogations . Although in the experience of these counsel the vast majority of voir dire
resulted in the admission of statements, in the few problem cases which did
arise they gave the following as reasons for their not offering statements or for
judges holding them to be inadmissible : ( 1) an atmosphere of general oppression due to the youth of the accused ; ( 2) the number and size of the officers
involved in the interrogation ; (3) persistent questioning over a long period when
the accused had made it clear that he did not want to speak . ( There were other
reasons beyond the control of the police .) Even so, none of these counsel had
encountered cases of overt violence, tricks or obvious denial of counsel . We cite
those in which difficulties have arisen, not so much to indicate a prevalence of
these problems as to illustrate the kinds of reasons that should be collected in
each division, and nationally . Problems that arise in court are already required
to be reported on a form that is to be submitted to the divisional C .I .B .
Director when a case is dismissed . But this procedure is an inadequate
safeguard, for it allows two situations in which reports are not made : ( a) when
a conviction is obtained even though the accused's confession is held inadmissible ; (b) when counsel for the prosecution decides not to offer the confession
because he feels that there would be little or no chance of its being held to be
admissible, given the manner in which it had been obtained . Consequently, it
would be desirable that there be a reporting and review procedure whenever a n
1033
�accused's statement is held inadmissible, and whenever the Crown attorney
decides not to tender it in court .
Right to counse l
41 . We do not consider it necessary to make any recommendations with
respect to oppressive conduct, brutality and trickery beyond what we have said
above . However, some specific steps need to be taken with respect to the right
to counsel . In our view, R .C .M .P . policy should be that members of the Force
have a duty to inform a person in custody, within a reasonable time after being
taken into custody, of his right to retain counsel . Furthermore, in order to
comply with the spirit of the Canadian Bill of Rights the policy should require
the provision of reasonable means to a person in custody to communicate with
counsel .
42. Members of the R .C .M .P., both in their initial training and in later
training courses, should receive instructions as to the duty to advise persons in
custody of the right to retain and instruct counsel without delay, and of their
right to have reasonable access to that counsel . Our research (including
attendance by a researcher in the classroom) indicates that recruits in training
at Regina, at least in sessions on interrogation, are not told of the right to
retain and instruct counsel, and it follows that they are not told at that time
that they should advise persons in custody of their right to do so . The topic is
not mentioned in the lesson plan or the written materials on interrogation, and
no mention is made by the lecturer of these matters . The right to counsel does
not appear to be referred to during the day and a half spent on interrogation
techniques, statements, admissions and confessions during the divisional training on the Criminal Investigators course . Even when it is referred to it may
receive insufficient stress . For example, the right to counsel is referred to in the
Polygraph Examiner Training Course only after there has been a lengthy
period of training in interrogation . This is unlikely to be effective in stressing to
the participants the importance of the right . Moreover, apart from the question
of when the right to counsel is referred to, in our view, all materials relating to
these subjects in any courses should be revised to include proper instructions on
right to counsel, even if it is covered as a separate topic elsewhere .
43 . Joint federal-provincial funding in recent years has provided meaning in
substance to the "right to counsel", by supporting programmes of legal aid in
criminal cases for those who could not otherwise afford counsel . The administrative means of providing legal aid vary from province to province . We believe
that members of the R .C .M .P . should have a responsibility for seeing that
persons in custody are advised reasonably soon after their arrest not only that
they have a right to counsel but that arrangements exist to enable them to
apply for counsel to advise and represent them without cost to themselves if
they cannot afford to pay counsel . We do not think it is sufficient to have
notices posted in cell blocks about the legal aid system . We emphasize that we
are not proposing that it be a duty of R .C .M .P . members upon making an
arrest to give that advice ; what we do say is that the advice should be given
reasonably soon thereafter . What is "reasonably soon" will depend on the
circumstances. We propose this not as a legal duty, breach of which woul d
1034
�invalidate the arrest or imperil the prosecution, but as a duty imposed by Force
policy .
44. Some forms of trickery may be clearly prohibited in regard to interrogations . No trick which includes criminal conduct by the police can be permitted .
Another sound rule of conduct is provided in the Judges' Rules, one of which
prescribes the method by which one accused or suspect is to be told of his
co-accused's or co-suspect's written statement : a copy of the written statement
is to be shown . This rule was designed to discourage oral misrepresentations by
a police officer to an accused or suspect as to what a co-accused or co-suspect
has said . Beyond that, it is desirable that policy disapprove of deceit in
interrogation, not just because (as the Training and Development Branch
booklet indicates) deceit may backfire, but because it is an unacceptable police
practice . We make no recommendations about this subject, but. we would
expect that the Inspector of Police Practices (a new office we propose in Part
X, Chapter 2) would show a continuing interest in the ethics of R .C .M .P .
interrogation procedures .
WE RECOMMEND THAT the R .C .M .P. develop reporting and review
procedures both at the divisional and the national levels to enable an
internal review of the following cases :
(a) when a conviction is obtained even though the accused's confession is
held inadmissible ;
(b) when counsel for the prosecution decides not to offer the confession
because he feels that there would be little or no chance of its being
held to be admissible, given the manner in which it had been obtained .
(279 )
WE RECOMMEND THAT the R .C .M .P. adopt the following policies
concerning interrogation :
(a) members of the Force have a duty to inform a person in custody,
within a reasonable time after being taken into custody, of his right to
retain counsel ; and
(b) members of the Force should provide reasonable means to a person in
custody to communicate with his counsel without delay upon the
person making a request to do so .
(280 )
WE RECOMMEND THAT the R .C.M .P. revise training materials and
programmes relating to interrogation to include proper instructions on the
right of an accused to retain and communicate with counsel .
(281 )
WE RECOMMEND THAT members of the R .C.M .P . be required to
advise persons in custody reasonably soon after their arrest that arrangements exist to enable them to apply for counsel, such counsel to be paid for
by the state if they cannot afford to pay counsel .
(282 )
1035
�I . ADMISSIBILITY OF EVIDENCE OBTAINED BY
ILLEGAL MEANS, AND ENTRAPMEN T
45 . In this section we address two important legal issues relating to the
criminal justice system in Canada . The first concerns the conditions, if any,
under which evidence that has been illegally or improperly obtained by the
police should be admitted at trial . The second issue concerns the question of
how the criminal justice process should treat the police use of agents provocateurs . We have examined these issues because they have a significant bearing
on the penalties which may apply to illegal or improper acts by Canadian
police forces, including the R.C .M .P .
46 . As the Law Reform Commission of Canada has stated :
Canadian law has followed English law : the illegality of the means
used to obtain evidence generally has no bearing upon its admissibility . If,
for example, a person's home is illegally searched - without a search
warrant or reasonable and probable cause for a search - the person may
sue the police for the damages incurred, complain or demand disciplinary
action or the laying of criminal charges . But, the evidence uncovered during
this search together with all evidence derived from it is admissible . '
In short, assuming that the evidence is relevant to an issue in the case, it is
admissible even if it was obtained illegally, and the trial judge has no discretion
to exclude it except in the most limited of circumstances .
47 . The rule of Canadian law was expressed by the Supreme Court of
Canada in The Queen v . Wray in 1970 . 1 Mr . Justice Martland based his
analysis on an English decision, Kuruma v . The Queen, where the following
had been said :
The test to be applied in considering whether evidence is admissible is
whether it is relevant to the matters in issue . If it is, it is admissible and the
Court is not concerned with how the evidence was obtained . '
An exception to this general rule was stated as follows :
•
In a criminal case, the Judge always has a discretion to disallow evidence if
the strict rule of admissibility would operate unfairly against an accused .
As an example of this, police trickery was cited .
48 . Referring to the Kuruma case, Mr . Justice Martland said :
It recognized a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused . Even if this statement be
accepted, in the way in which it is phrased, the exercise of a discretion by
the Trial Judge arises only if the admission of the evidence would operate
unfairly . The allowance of admissible evidence relevant to the issue before
the Court and of substantial probative value may operate unfortunately fo r
Law Reform Commission of Canada, Study Paper "The Exclusion of Illegally
Obtained Evidence", 1974, p . 7 .
2 [ 19711 S .C .R . 272 .
' [1955] A .C . 197 .
1036
�the accused, but not unfairly . It is only the allowance of evidence gravely
prejudicial to the accused, the admissibility of which is tenuous, and whose
probative force in relation to the main issue before the Court is trifling,
which can be said to operate unfairly . °
49 . The general rule of admissibility of illegally obtained evidence had been
stated in previous Canadian cases . In one of them, which we select because we
have found that it has been quoted in R .C .M .P . memoranda and training
courses, the following was said in regard to a claim by the accused that the
search warrant was illegal and that the police officers had obtained possession
of the articles seized by means of their own trespass :
.
. . the question is not, by what means was the evidence procured : but is,
whether the things proved were evidence ; and it is not contended that they
were not ; all that is urged is, that the evidence ought to have been rejected,
because it was obtained by means of a trespass - as it is asserted - upon
the property of the accused by the police officers engaged in this prosecution . The criminal who wields the `jimmy' or the bludgeon, or uses any
other criminally unlawful means or methods, has no right to insist upon
being met by the law only when in kid gloves or satin slippers : it is still quite
permissible to `set a thief to catch a thief. . . . 5
50 . The Scottish law6 is that "an irregularity in the obtaining of evidence
does not necessarily make that evidence inadmissible" and that "irregularities
required to be excused, and infringements of the formalities of the law in
relation to these matters, are not lightly to be condoned" . In Scotland, if
evidence is "tainted by the method by which it was deliberately secured, . .. a
fair trial . .. is rendered impossible" .
51 . There have been some important judicial decisions on the subject in other
Commonwealth countries in very recent years .
52 . The High Court of Australia, in Bunning v . Cross,' held that the law for
Australia had been laid down in the following passage in an earlier case :
Whenever such unlawfulness or unfairness appears, the Judge has a discretion to reject the evidence . He must consider its exercise . In the exercise of
it, the competing public requirements must be considered and weighed
against each other. On the one hand there is the public need to bring to
conviction those who commit criminal offences . On the other hand is the
public interest in the protection of the individual from unlawful and unfair
treatment . Convictions obtained by the aid of unlawful or unfair acts may
be obtained at too high a price . Hence the judicial discretion . e
"[ 1971 ] S .C .R . 272, at 293 .
Mr . Justice Meredith of the Ontario Court of Appeal in R . v . Honan, (1912) 20
C .C .C . 10 at 16, 6 D .L .R . 276 at 280. The passage was quoted in a Quebec appeal
case, Paris v . The Queen (1957) 118 C .C .C . 405 at 407, and it is that case which has
been cited by the R .C .M .P . in recent years .
b As stated by Lord Fraser of Tullybelton, in Regina v . Sang [1979] 3 W .L .R . 263, at
282 . He quoted from the leading Scottish cases .
' (1978) 52 A .L .J .R . 561 .
B R . v . Ireland, (1970) 126 C .L .R . 321 at 335, per Chief Justice Barwick .
1037
�Thus the Australian law is more like that of Scotland than that of England or
Canada .
53 . The highest court in England has recently reasserted firmly the position
to which Canadian law subscribes . In some lower court decisions in England it
had been said (purporting to apply the exception recognized in Kuruma) that
the trial judge has a discretion to refuse the admission of particular evidence if
the police officers obtaining the evidence "have been guilty of trickery or they
have misled someone, or they have been oppressive or they have been unfair, or
in other respects they have behaved in a manner which is morally reprehensible" . However, in Regina v . Sang,9 the House of Lords rejected that position .
One of the judges, Lord Diplock, said that "there is no discretion to exclude
evidence discovered as the result of an illegal search" and tha t
the function of the judge at a criminal trial as respects the admission of
evidence is to ensure that the accused has a fair trial according to law . It is
no part of a judge's function to exercise disciplinary powers over the police
or prosecution as respects the way in which evidence to be used at the trial
is obtained by them . If it was obtained illegally there will bea remedy in
civil law ; if it was obtained legally but in breach of the rules of conduct for
the police, this is a matter for the appropriate disciplinary authority to deal
with . What the judge of the trial is concerned with is not how the evidence
sought to be adduced by the prosecution has been obtained, but with how it
is used by the prosecution at the trial .
He said that, whil e
there should be excluded from the jury information about the accused
which is likely to have an influence on their minds prejudicial to the
accused which is out of proportion to the true probative value of admissible
evidence conveying that information ,
nevertheless a fair trial according to law is provided, even if evidence obtained
illegally is admitted :
However much the judge may dislike the way in which a particular piece of
evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of his judicial
function to exclude it for this reason .1 0
Similarly, Lord Scarman said that the trial judge "has no power to exclude
admissible evidence of the commission of a crime" except for incriminating
evidence which an accused has been compelled to produce or admissions or
confessions not proved to have been made voluntarily . "
54 . In the United States, the law excludes illegally obtained evidence
completely .1z This is known as the `exclusionary rule' . Thus evidence obtaine d
9 [1979] 3 W .L .R . 263 .
10 Ibid., at 271-2 . Viscount Dilhorne agreed with Lord Diplock .
"Ibid., at 288 . The first exception was asserted again by Lord Diplock in Morris v .
Beardmore [1980] 3 W .L .R . 283 . He explained that the exception related to an
offence that has already been committed .
1z Weeks v . U.S. (1914) 232 U .S . 383 ; Mapp v . Ohio (1961) 367 U .S . 643 .
1038
�by an illegal search and seizure is to be excluded, and in addition all evidence
that indirectly results from the information obtained by the illegal search and
seizure is also excluded . The latter is known as the "fruit of the poisoned tree"
principle .
R.C.M.P . policy
55 . We feel that the most important contribution which we can make to the
public debate ; on this matter is to relate the issues to the policies of the
R .C .M .P. and to the attitudes of members of the R .C .M .P . toward their
investigative duties and powers in the light of their understanding of the law .
Our powers under the Inquiries Act have given us an opportunity not possessed
or exercised by other Commissions that have examined the subject . This may,
we think, enable us to shed some new light on it .
56 . The policy of the R .C .M .P ., stated in the operational manual of the
R .C .M .P . for criminal investigation purposes, clearly states that only lawful
methods of investigation are to be employed . Moreover, whatever may be the
case with other police forces in Canada, the research undertaken by the
Commission, including inquiries made nationally among the judiciary, leads us
to the conclusion that, so far as R .C .M .P . members' investigative conduct
which reaches the attention of the Courts is concerned, the instances of
conduct constituting a crime or civil wrong in the course of investigation are
infrequent . We recognise nevertheless that there may be instances in which
unlawful conduct has been employed which have not come to the attention of
the courts . Moreover, the effect of the present law on police attitudes towards
investigative conduct is of importance in regard to other police forces as well ;
but we are not in a position to comment on the conduct or attitudes of other
police forces .
57 . It is not only criminal conduct which is here of concern . We believe that
the law should be concerned in some manner with ensuring that the standards
of investigative conduct of our police forces are high in terms . of their being
acceptable and that they not violate the criminal law or the civil law (of tort or
delict) . As an English judge has said recently :
. ..I regard it as unthinkable that a policeman may properly be regarded as
acting in the execution of his duty when he is acting unlawfully, and this is
regardless of whether his contravention is of the criminal law or simply of
the civil law .1 3
Thus, a police force should be encouraged by the law to ensure that its
members use lawful investigative methods, and the requisites of propriety
should go beyond mere questions of the absence of criminal conduct .
58. The files of the R .C .M .P . disclose that there is a significantly general
attitude that, since the courts of Canada have held that illegally obtained
evidence is admissible, this means that the judges do not condemn unlawful
investigative conduct, and this in turn is taken as implied authorization o f
" Lord Edmund-Davies in Morris v . Beardmore [ .1980] 3 W .L .R .283, at 291 .
1039
�unlawful investigative conduct if the result is the obtaining of evidence relevant
to an issue before the Court . Thus, for example, as far back as 1936 Assistant
Commissioner G .L . Jennings reviewed the case law and concluded :
It is considered that it may be necessary in connection with some of our
work, more and more in the future, to resort to wiretapping .
In this connection an opinion of the Justice Department was obtained, copy
of which is enclosed for your very secret information . You will note the
attached memo mostly refers to the admissibility of evidence obtained in an
irregular manner . The consensus of the legal opinion is that if evidence so
obtained is admissible it is not material to the case in what manner . such
evidence was obtained .
(Ex . E-l, Tab IA .)
(This was at a time when it was thought that telephone tapping might be in
violation of the Bell Telephone Act . )
59 . This attitude was stated very clearly in testimony before us and in briefs
prepared by the R .C .M .P. for us . In a brief prepared by the R .C .M .P . it was
stated, in regard to two cases in which it had been admitted by R .C .M .P.
officers that surreptitious entries had been effected, tha t
In neither case was any criticism levelled at the police officers or their
forces by the judges or défence counsel over the fact that surreptitious entry
had been employed .
(Ex . E- 1, Tab 2 . )
And in another brief prepared by the R .C .M .P. the following statement was
made :
Numerous trials have taken place since June 30, 1974 in which intercepted
mater'ial was accepted as evidence . Many courts were told that surreptitious
entries had to be made into premises to carry out the interception as
authorized .
In rio case has a court criticized the police action and in no case has a police
officer been charged with a criminal offence respecting surreptitious entry .
It appears that our procedures in this area have been accepted as sound .
(Ex . E- 1, Tab I . )
In a similar vein, Commissioner Simmonds, in a letter to the Solicitor General,
the Honourable Francis Fox on October 6, 1977, observed tha t
Courts across the nation accepted evidence before and after passage of
PART IV .I of the Criminal Code which clearly showed that premises had
been surreptitiously entered by the police to successfully carry out their
duties . To our knowledge, there has been no judicial criticism of this
investigative technique .
(Vol . 33, p . 5379 . )
60 . The logic of this reasoning is defective and its apparent acceptance at
senior levels of the R .C .M .P . encourages the inference that it is accepted at low
levels, where there is the most frequent day-to-day contact between policeman
and citizen in the investigation of crime . Our discovery of this attitude is, in
our opinion, the most significant contribution which we can make to the debate
concerning this area of the law . Until now, the debate has been of a rathe r
1040
�theoretical nature, and writers and commentators have perforce guessed at the
effect of the law on police investigative attitudes and conduct . It can now be
said, at least in this country and in regard to the R .C .M .P ., that the attitude of
members of that Force, as expounded by its most senior officers, is to regard
the absence of critical comment by the judiciary as tacit approval of forms of
conduct that might be unlawful . In fact the absence of judicial comment will
frequently be because no issue has been made by defence counsel about the
illegality of the means used to obtain the evidence ; and defence counsel has not
made any issue of it because, even if he did, the law gives him no advantage as
the law does not permit the exclusion of the evidence on that ground . It is in
this sense that one may say that the present law has encouraged the police,
quite erroneously, to infer that judicial silence implies approval of the investigative method that has been described in court .
61 . In our view, the significance of our discovery is that, even though the
number of known instances of unlawful or unacceptable investigative conduct
in criminal investigations may, in the case of the R .C .M .P . at least, be
relatively small, no rule of law which encourages such conduct can be tolerated
unless there are other effective means in place which will discourage such
conduct .
Arguments for and against the present la w
62 . We shall first set forth the arguments in favour of the present rule that
illegally obtained evidence is admissible without any significant judicial discretion to exclude it, ând comment on each of them .
(a) A rule excluding illegally obtained evidence would divert a criminal
trial away from its essential function of discovering the truth and
making a correct finding as to the guilt or innocence of the accused .
However, if this argument is valid, it would logically justify the
abolition of other rules of evidence that result in the exclusion of
relevant evidence . For there are other rules that cause evidence to be
excluded on the ground that some social value requires protection by an
exclusionary rule of evidence, even if the result is that relevant evidence, which might result in the conviction of an accused person, is
excluded . An example is communications between a client and his
solicitor, which are generally protected from disclosure . In the case of
each kind of evidence, the real question is whether the social value in
issue is sufficiently important to justify the suppression of relevant
evidence and whether the suppression of relevant evidence is an efficacious manner of achieving the social value .
(b) A rule excluding illegally obtained evidence would reduce the effectiveness of law enforcement . Correctly stated, the argument would be that
the rules applying to search and seizure, for instance, reduce the
effectiveness of law enforcement because they prevent searches and
seizures except in certain controlled circumstances . We believe that if
the laws of search and seizure can be demonstrated to impair the
effectiveness of law enforcement, then it is the laws of search and
seizure which require review, but the law of evidence should no t
1041
�encourage their being undermined, particularly if the undermining is
intentional and serious .
(c) Since criminals are unrestrained in the way they carry out their
activities, the police should be given some leeway in pursuing them :
they should be allowed to "fight lire with fire" . This argument, like the
first, if valid, proves too much . If it were valid and applied to its logical
extreme, murder would be met with murder, robbery with robbery,
kidnapping with kidnapping . We believe that the standard of conduct
of our police forces should not be established on this basis .
(d)
If the police know a person to be guilty but a rule of law excluding
illegally obtained evidence would result in the person's acquittal, the
police, as witnesses, will be tempted to lie about such matters as
whether the search was lawful . An American scholar has supported
this argument by saying that the American rule which excludes
illegally obtained evidence "corrupts law enforcement personnel and
degrades the whole system of criminal justice" . 14 However, in our view
it is unacceptable to fashion a rule of law on the premise that the police
will perjure themselves to subvert rules of which they do not personally
approve ; to accept that premise as a working foundation in our view
would libel and downgrade and treat as corrupt the system of criminal
justice as a whole and law enforcement personnel generally . We have
found no basis, as far as the R .C .M .P . is concerned, for regarding
members of that Force as deserving such implicit condemnation .
(e) A rule excluding illegally obtained evidence would result in the acquittal and release of persons guilty of crime, which would shock the
conscience of the community . We agree that if a murderer is freed
because of a trivial and inadvertent error made by the police in the
course of a search and seizure, the public is likely to be outraged at
such a judicial decision . The confidence of the public in the entire
judicial system may be undermined . There is, we think, some validity to
this argument . On the other hand, this argument assumes that exclusion of the evidence will necessarily result in criminals going free . Yet
in some cases in which evidence is obtained by police forces by illegalmeans, there would be other evidènce to convict the accused . In any
case, any effective rule of law or'discipline which deters police illegalities in investigative conduct would equally have the result of permitting
some guilty persons to escape punishment ; yet no one argues that
policemen who transgress the law should not be disciplined or prosecuted . Why, then, is there concern that a rule excluding illegally obtained
evidence would result in more criminals being at large? Perhaps the
real reason is that the effect of such a rule is more often the subject of
public discussion than is the fact that the criminal law and the law of
tort or delict and disciplinary rules also discourage illegal police
investigative conduct and also result in guilty persons escaping
punishment .
14 Oaks, "Studying the Exclusionary Rule in Search and Seizure", (1970) 37 U. of Chi.
L . Rev. 665 at 740 .
1042
�63. The following are the principal arguments which have been advanced
against the admissibility of illegally obtained evidence (the American position
of complete exclusion of such evidence) :
(a) There is a need to protect the integrity of the judicial process . The
government ought not to profit from its own lawless behaviour . Refusing
to permit the court to become a party to police illegality contributes to the
moral acceptability of judicial decisions . If the police engage in flagrant
illegality in obtaining evidence against a burglar or a person in possession
of drugs, the public . may be outraged and lose some confidence in the
judicial system if it permits the use of evidence collected in such a fashion .
This position is represented by judgments of Mr. Justice Holmes and Mr .
Justice Brandeis, both dissenting, in Olmstead v . U.S ." Mr. Justice
Holmes observed :
It is desirable that criminals should be detected, and to that end
that all available evidence should be used . It is also desirable that
the government should not itself foster and pay for other crimes,
when they are the means by which the evidence is to be obtained . ..I
can attach no importance to protestations of disapproval if it
knowingly accepts and pays and announces that in the future it will
pay for the fruits . We have to choose, and for my part I think it a
less evil that some criminals should escape than that the government should play an ignoble part .1 6
Mr . Justice Brandeis reasoned that the use of illegally obtained evidenc e
is denied in order to maintain respect for law ; in order to promote
confidence in the administration of justice : in order to preserve the
judicial process from contamination . "
The same point of view was expressed by Mr . Justice Spence, dissenting,
in The Queen v . Wray . In defending an exclusionary rule he sai d
I am most strongly of the opinion that it is the duty of every judge to
guard against bringing the administration of justice into disrepute .
That is a duty which lies upon him constantly and that is a duty
which he must always keep firmly in mind . The proper discharge of
this duty is one which, in the present day of almost riotous disregard
for the administration of justice, is of paramount importance to the
continued life of the state .1 8
These passages associate the courts with the governmental process as a
whole, and it is a premise of their position that the public is unable to
dissociate the courts from the rest of the government machinery for the
detection, investigation and prosecution of crime .
(b) The exclusionary rule serves to educate people, including the police, as to
the serious commitment which our society has to the proper and restraine d
's (1928) 277 U .S . 438 .
16 Ibid ., at p . 470 .
" Ibid ., at p . 484 .
18 [ 19711 S .C .R . 272 at 304 .
1043
�restrained exercise of power . Other rules of criminal procedure and
evidence which shape the conduct of the criminal trial have a social
effect in teaching people, including the police, about the proper exercise of power . Any rule which requires the admission of illegally
obtained evidence runs the risk of teaching people, including the police,
that society, including the courts, does not have such a serious commitment . The evidence which we have seen in R .C .M .P . documents and
testimony supports this argument .
(c) A rule excluding illegally obtained evidence will deter the police from
breaking the laws relating to search and seizure, unlawful arrest and
imprisonment, and other unlawful investigative conduct . Is this true?
Studies in the United States have come to differing conclusions as to
the validity of this argument in practice . Here, no more need be said
than that the case for the proposition that the exclusionary rule has a
deterrent effect has been overstated . Reason tells us that there are
grounds on which it may be unlikely that the exclusionary rule is an
effective deterrent . The rule imposes no personal or financial penalty on
the offending police officer ; great delay may occur before the evidence
is excluded at trial ; the exclusionary rule cannot have a deterrent effect
if the consequence of the illegal investigative conduct is not the
production of evidence at trial . On the other hand, the existence of an
exclusionary rule, or at least of a discretion to exclude illegally obtained
evidence, will probably deter some police illegality : such a rule would
be studied in police training and might result in the placing of increased
emphasis on the importance of the laws of search and seizure, arrest
and imprisonment; the existence of the rule or the discretion might
assist a well-intentioned officer in resisting pressure from his colleagues
and superiors to violate the law, and in persuading his colleagues and
superiors that other investigative means should be attempted .
Our position
64 . In our view, the law of Canada should, like that of Scotland and
Australia, give the trial judge a discretion to exclude illegally and unfairly
obtained evidence . It will be noted that we do not propose the adoption of the
American rule requiring the absolute exclusion of all illegally obtained evidence . The Canadian rule should be discretionary rather than absolute,
because :
(a) The state's commitment to due process would be seriously diluted if the
court in the most serious of crimes were to exclude evidence that was
obtained as a result of the most trivial breaches of the laws of search .
Rather than demonstrating the commitment of the law to principle,
such a result would confirm in the minds of many members of the
public the commitment of the law to technicality and in their minds
would bring the law into disrepute . Therefore, the protection of judicial
integrity and encouraging confidence in the judicial system require a
discretionary rather than an absolute rule .
(b) The rationale of deterrence ought logically to apply only to intentional
breaches of the law . Generally, an absolute rule of exclusion fails t o
1044
�distinguish between wilful and flagrant conduct on the part of the
police on the one hand, and conscientious and careful police conduct
undertaken in a difficult situation, on the other . An absolute rule fails
to distinguish between errors of judgment that cause no harm and those
that seriously violate fundamental values . An absolute rule fails to
distinguish between a minor case such as shoplifting, and a grave case
such as murder . Any rule that fails to discriminate between those
different factual circumstances is too blunt an instrument to achieve
any of its objectives, such as the preservation of judicial integrity and
the deterrence of improper or illegal police conduct .
65 . We do not believe that reliance upon a discretion will result in unequal
application of the law, any more than the exercise of judicial discretion does in
many other circumstances in which judges are given a discretion . Nor do we
consider that delays caused by voir dires (a voir dire is a trial within a trial), in
which the question of admissibility is decided, will result in significant lengthening of the judicial criminal calendar . For we have no reason to believe that
the police forces in Canada, whether the R .C .M .P . or any other forces, engage
frequently in illegal or unfair conduct that results in evidence being proferred
by the prosecution in Court .
66. In its report in 1975, recommending the adoption of a code of evidence,
the Law Reform Commission of Canada recommended that the code should
include the following provision :
15 . ( I) Evidence shall be excluded if it was obtained under such circumstances that its use in the proceedings would tend to bring the
administration of justice into disrepute .
(2) In determining whether evidence should be excluded under this
section, all the circumstances surrounding the proceedings and the
manner in which the evidence was obtained shall be considered,
including the extent to which human dignity and social values were
breached in obtaining the evidence, the seriousness of the case, the
importance of the evidence, whether any harm to an accused or others
was inflicted wilfully or not, and whether there were circumstances
justifying the action, such as a situation of urgency requiring action to
prevent the destruction or loss of evidence . "
The very brief commentary which accompanied the proposed code observed
that the intent of the section "is not to incorporate an absolute exclusionary
rule into Canadian evidence law, but to give judges the right in exceptional
.
cases to exclude evidence unfairly obtained . . . . . 2 0
67 . We support the Law Reform Commission in recommending the adoption
of this statutory provision, whether it is in a new code of evidence or by
amendment to the Canada Evidence Act .
68 . We would like to refer specifically to two of the factors which the Law
Reform Commission's proposed section would require the Court to take into
19 Law Reform Commission of Canada, Report on Evidence, 1975, p. 22 .
20 Ibid., at p. 62 .
1045
�account . The first is the extent to which the violation was wilful and the police
officer's ignorance inexcusable . We have already observed that, if one purpose
of the rule is to deter illegal conduct by the police, it makes little sense to
exclude the evidence if the officer's conduct was inadvertent . Moreover, if the
officer's conduct was not culpable, the integrity of the court is not so much in
jeopardy if the evidence is admitted . However, if only the wilfulness of the
violation were to be considered, this would place a premium on the ignorance
of the officer . Therefore, to ensure that police forces are motivated to train and
educate ôfficers adequately, the court should be required to consider whether
the officer's ignorance was inexcusable . This would, we hope, have the effect,
in the case of an inadvertent error, of requiring the judge to determine whether
adequate police training procedures were undertaken .
69 . The second is that the seriousness of the offence for which the accused is
charged is a factor to be considered . An exclusionary rule that does not permit
consideration of the seriousness of the crime produces a risk that dangerous
offenders will more frequently be returned to the community and that the rule
will be self-defeating . Instead of appreciating the moral purity of the court
system and internalizing values of due process, citizens will see the system as
the champion of errant technicality at the expense of other more humane
values . Moreover, in terms of deterrents to police officers, it is in serious cases
that it is most likely that alternatives to the exclusionary rule will be most
effective .
70 . We recognize, consequently, that the exclusionary discretion is likely to
be exercised in favour of excluding the illegally obtained evidence in minor
criminal cases . In serious criminal cases, such as murder, the trial judge is
likely to admit the evidence .
71 . This being so, if the system as a whole is to deter illegal and improper
police conduct, the exclusionary discretion must be supplemented by other
effective measures . The exclusionary discretion will not alone be a sufficient
deterrent . Effective systems of training, discipline, complaint procedures and
policy review must also be looked to . Conversely, we do not believe that proper
training, disciplinary proceedings, complaint procedures and policy review will
be enough, unless the police see that the rules applied by the courts as to the
admissibility of evidence permit judicial scrutiny and sometimes condemnation
of methods used .
WE RECOMMEND THAT the Criminal Code be amended to include the
following provision :
(1) Evidence shall be excluded if it was obtained under such circumstances that its use in the proceedings would tend to bring the
administration of justice into disrepute .
(2) In determining whether evidence should be excluded under this section, all the circumstances surrounding the proceedings and the
manner in which the evidence was obtained shall be considered,
including :
(a) the extent to which human dignity and social values were breached
in obtaining the evidence;
1046
�(b) whether any harm was inflicted on the accused or others ;
(c) whether any improper or illegal act under (a) or (b) was done
wilfully or in a manner that demonstrated an inexcusable ignorance
of the law ;
(d) the seriousness of any breach of the law in obtaining the evidénce as
compared with the seriousness of the offence with which the accused
is charged ;
(e) whether there were circumstances justifying the action, such as a
situation of urgency requiring action to prevent the destructiori or
loss of evidence .
(283 )
Agents provocateurs and entrapment
72 . It is undesirable to discuss and make recommendations about illegally
obtained evidence without at the same time considering the use by police forces
of agents provocateurs and the subject of entrapment . These subjects all raise
the issue of the extent to which the courts should have a role in attempting to
discourage illegal or improper police tactics .
73 . We have already explained that there is a tendency in the R .C .M .P . to
regard the present Canadian law that relevant evidence is admissible even if
illegally obtained as an indication that Canadian judges do not disapp'rove of
using unlawful means to obtain evidence . As for the use of agents provocateurs, since Canadian law does .not recognize a defence of . entrapment or
exclude evidence obtained as a result of the instigation by the police of criminal
conduct by another person, there has undoubtedly been, at least in the
R .C .M .P ., a failure on the part of the police to analyze whether some
customary police practices are unlawful . Since the rules applied by the courts
attach no significance to "entrapment", there has been, naturally, little incentive within the R .C .M .P . to consider the lawfulness of these practices .
74. There is confusion in the terminology of entrapment and agents provocateurs . The most common definition of an agent provocateur is that by his
words and conduct he instigates an Act by another that the other would not
otherwise have committed in the sense that he had no pre-existing intention
generally to commit that sort of act . It may be said that the conduct of the
agent provocateur is "entrapment" .
75 . Sometimes the two phrases .are used to describe a situation in which the
other person had the general intention to commit such acts and the agent
provocateur by his words or conduct has done no more than help to cause him
to commit a crime by providing him with an opportunity, by passively acceding
to the accused's suggestions or by exposing him to temptation . This situation at
first sight seems remote from the first but in practice it is difficult to
distinguish the two .
76. In Canada and England, in neither case does such conduct by the agent
- an undercover policeman or an informer - affect the admissibility in law of
the evidence of the act committed by the other person . Thus, for example, in
neither case will the court exclude the agent's evidence that the accused ha s
1047
�sold him a narcotic . Such evidence is very common in prosecutions for
trafficking in narcotics or in substances under the Food and Drug Act .
77 . In the United States, however, the accused has a complete defence to the
charge in the first situation . Critics of the English/Canadian rule propose that
the American rule be adopted .
78 . There is no question that in England and in Canada the first situation is
deplored, even if the disapproval has not resulted in a rule excluding the
evidence resulting from it . In 1977, Chief Justice Laskin, of the Supreme Court
of Canada, said in Kirzner v . The Queen .
The problem which has caused judicial concern is the one which arises from
the police-instigated crime, where the police have gone beyond mere
solicitation or mere decoy work and have actively organized a scheme of
ensnarement, of entrapment, in order to prosecute the person so caught .2 1
79 . The Supreme Court of Canada has not yet, as a court, held as a reason
for decision in any case, that entrapment is, or is not a defence to a charge .
However, members of that court have considered the question . In Lemieux v .
The Queen Mr . Justice Judson, delivering the judgment of the court, said :
Had Lemieux in fact committed the offence with which he was charged, the
circumstances that he had done the forbidden act at the solicitation of an
agent provocateur would have been irrelevant to the question of his guilt or
innocence . "
However, this statement was not essential to the decision, so that the question
could be said to remain open . The members of the Supreme Court of Canada
in Kirzner v . The Queen considered that it was not necessary to decide whether
there is a defence of entrapment because the evidence did not show a
"police-concocted plan to ensnare him going beyond mere solicitation" .23 But
the Ontario Court of Appeal, in that case, had held that the defence of
entrapment is not available .
80. In England, the Court of Appeal has held in a number of cases that the
defence of entrapment does not exist in English law .24 In Regina v . Mealey and
Sheridan '25 in 1974, Lord Chief Justice Widgery stated :
If one looks at the authorities, it is in our judgment quite clearly established
that the so-called defence of entrapment, which finds some place in the law
of the United States of America, finds no place in our law here . It is
abundantly clear on the authorities, which are uncontradicted on this point,
that if a crime is brought about by the activities of someone who can b e
21 (1977) 38 C .C .C . (2d) 131, at p . 136 .
22 [1968] 1 C .C .C . 187 at p . 190.
21 (1977) 38 C .C .C . (2d) 131, at p . 142, per Mr . Justice Pigeon . Chief Justice Laskin
preferred "to leave open the question whether entrapment, if establishment, should
operate as a defence" .
2' e .g . in R. v . Sang [1979] 2 W .L .R . 439 at p . 444 ; R . v . Mealey and Sheridan (1974)
60 Crim .App .R . 59 ; R . v . McEvilly (1973) 60 Cp .App.R . 150 .
zs (1974) 60 Crim .App .R . 59 at 62 .
1048
�described as an agent provocateur, although that may be an important
matter in regard to sentence, it does not affect the question of guilty or not
guilty .
He also stated that policeme n
must endeavour to tread the somewhat difficult line between showing the
necessary enthusiasm to keep his cover and actually becoming an agent
provocateur, meaning thereby someone who actually causes offences to be
1
committed which otherwise would not be committed at all .
81 . Now the highest court in England, the House of Lords, in Regina v .
Sang,26 in 1979, has assumed that the defence does not exist . Although the
point was not, in fact, argued before the House of Lords, the judgments used
sufficiently conclusive language that it would now require legislation to bring
the defence into English law . Lord Diplock, for example, stated that "the
decisions . . . that there is no defence of `entrapment' known to English law are
clearly right" .27 A Court of Appeal decision even more recent than the
judgment of the House of Lords in Sang stated : "It has now been established
beyond possibility of further argument that the doctrine of entrapment, as it is
sometimes called, is not known to the English law" .2 8
82. In both England29 and Canada,30 even if entrapment is not a defence, it
may result in a reduced sentence . As we have seen, in R . v . Mealey and
Sheridan, Lord Chief Justice Widgery said that it "may be an important
matter in regard to sentence" ." In England, entrapment may result in the
granting of an absolute discharge in appropriate cases .32 However, Canadian
courts cannot grant an absolute or conditional discharge in cases where there is
a minimum punishment prescribed by law or the possible penalty is 14 years or
more ." Thus, entrapment could not result in a discharge in narcotics trafficking cases, where the sentence may be life, or wherever there is a minimum
sentence such as seven years for importing a narcotic .34
83 . It is not necessary that we analyze the arguments that might be
advanced, based on section 7(3) of the Criminal Code or the concept of due
process, in the hope of persuading a Canadian court to accept the defence .
Suffice it to say that it is unlikely that the defence will be developed judiciall y
26 [1979] 3 W .L .R . 263 .
2' Ibid., at p. 267 . Similar statements were made by the other Law Lords : Viscount
Dilhorne at p . 276 ; Lord Salmon, at p . 277 ; Lord Fraser of Tullybelton, at p . 280; and
Lord Scarman, at p . 285 .
28 R. v . Underhill, July 27, 1979 .
"Browning v . Watson [1953] 1 W .L .R . 1172 (Div . Ct .) ; R . v . Birtles (1969) 53
Cr .App.R . 469 (C .A .) ; R . v. McGavin (1972) 56 Cr .App .R . 359 (C .A .) ; R . v . Sang
[1979] 3 W .L .R . 263 (H .L .) ; .R . v . Underhill, July 27, 1979 .
3 0 R . v . Steinberg [1967] 3 C .C .C . 48 (Ont . C .A .) ; R. v . Price (1970) 12 C .R .N .S . 131
(Ont. C .A .) ; R . v . Chernecki [1971] 4 C .C .C . (2d) 556 (B .C .C .A .) ; R. v . Kirzner
(1976) 32 C .C .C . (2d) 76 (Ont . C .A .) .
"(1974) 60 Crim .App .R . 59 at 62 .
32 e .g . Browning v . Watson [1953] 1 W .L .R . 1172 .
" Criminal Code, section 662 .1(1) .
34 Narcotic Control Act, R .S .C . 1970, ch .N-1, s .4(3) .
1049
�in Canada . It is also unlikely that the courts in Canada, in the light of decisions
of the Supreme Court of Canada on the subject, will use the concept of abuse
of process to bar a prosecution because of improper entrapment .35 It is also
unlikely that Canadian judges would follow New Zealand cases 16 or pre-Sang
English cases" in which, although entrapment was not recognized as a defence,
the evidence obtained as a result of the entrapment was excluded . In R . v.
Sang, the Law Lords considered that to reject evidence on this ground would
be, in effect, to bring the defence in through the back door . This, their
Lordships'said, "does not bear examination" and would be "inconceivable",
"remarkable" and "odd" .3 8
84. If there were, as we recommend, a limited discretion to exclude evidence
illegally or improperly obtained, would it be applicable to the entrapment
situation and thus be a sound technique for preventing .those forms of entrapment that are objectionable? Probably not . It is true that, in the typical case,
the act of the accused was instigated . by . the undercover policeman and
consequently the policeman is a party to the offence or abetted it . So the
policeman's evidence was obtained as a result of conduct on his part which was
probably unlawful in that, quite apart from any liability for a substantive
offence such as "trafficking" by purchase of drugs, he might be guilty of an
offence because of his "counselling or procuring" as defined in section 22 of the
Criminal Code . Even if his evidence were excluded on that ground, the rule
might not permit exclusion of the evidence of another policeman to whom the
accused has admitted the facts, or of another person who happened to be
present at the time of the crime but was not a party to the instigation . These
distinctions are unwarranted .
85 . It must be borne in mind that there are some situations in which the
conduct of a policeman will result in acquittal of the accused even if there is no
defence of entrapment :
(a) In some cases, the conduct of the policeman may result in an element
of the offence being absent so that the accused will be acquitted
without resort to the notion of entrapment . For example, the physical
act of possessing stolen goods will be missing if the police have passed
the stolen goods to the accused, because the police involvement may
mean that they are no longer considered "stolen" .39 There will not be
the physical act of breaking and entering if the owner has really,
unbeknown to the accused, consented to the entry as part of his .
co-operation with the police .40 In the case of treason, the enemy may
not actually have been assisted .4 1
3 5 R . v . Osborn [1971] S .C .R . 184 ; R. v . Rouke [1978] 1 S .C .R . 1021 .
36 R. v . Pethig [1977] 1 N .Z .L .R . 448 (S .C .) ; R . v . Capner [1975] 1 N .Z .L .R . 411
(C .A .) .
"Several cases in the earlier 1970s are cited in R . v . Sang [1979] 3 W .L .R . 263 .
38 [1979] 3 W .L .R . 263, at 267, 277, 280 and 276 .
39See, e .g :, Haughton v
. Smith [1975] A .C . 476, and Booth, v. State of Oklahoma
(1964) 398 P. 2d 863 (C .C .A ., Okla .) .
40 Lemieux v . The Queen [1968] I C .C .C . 187 (S . Ct . Can .) .
"' R . v . Snyder (1915) 24 C .C .C . 101 (Ont . C.A .) .
1050
�(b) There are other, but not many, isolated instances where traditional
concepts might make a defence available to an accused without resorting to the notion of entrapment . For example, an assurance by a peace
officer that the proposed conduct is not illegal might enable the
accused to raise a mistake of law defence,42 particularly if the peace
officer acts openly as a peace officer . The American Model Penal Code
specifically deals with this in the entrapment section, providing a
defence if the police make "knowingly false representations designed to
induce the belief that such conduct is not prohibited" .43 And there may
be cases where the police tactics are so excessive that they can amount
to duress .
86 . We think that it is unacceptable that a police force should be tacitly
encouraged by the law to tolerate instigation by its members of crime by others
when that instigation goes well beyond mere solicitation . If members of the
R .C .M .P . engage in such conduct, we think that it is not surprising if they
should regard such conduct as being tolerated by the courts and thus implicitly
approved of: as the record shows, the same reasoning applies, in the minds of at
least some members of the R .C .M .P. to illegal methods of obtaining evidence .
Moreover, it would seem that entrapment cannot be the basis of a civil action
for damages against the police, so such alternative means of discouraging such
conduct are not available and the ability to establish criminal liability would, in
most cases, be doubtful . Therefore, in our opinion, some mechanism should be
available to the courts to register clear disapproval of such conduct in
appropriate cases .
87. As we have pointed out, the discretion to exclude illegally or improperly
obtained evidence is unlikely to provide a strong enough sanction against the
use of evidence obtained by agents provocateurs . What is required is the
establishment of either a criminal offence of entrapment or a defence of
entrapment which, if established, would result in the acquittal of the accused .
Our concern with using a new statutory offence of entrapment is that it would
probably rarely be used and it would not give the required guidance to the
police . Therefore, we opt for the latter alternative : a defence of entrapment .
88 . The burden of proof of the defence should rest upon the accused . The
accused should be required to give notice to the Crown before trial that he
intends to raise the defence, so that the prosecution will not be taken by
surprise .
89 . The test of the availability of the defence should be subjective, according
to some advocates of the defence, including the Canadian Committee on
Corrections . Its Report recommended that legislation be enacted to provide :
(a) That a person is not guilty of an offence if his conduct is instigated by
a law enforcement officer or agent of a law enforcement officer, for th e
42 See Friedland, National Security: the Legal Dimensions, Department of Supply and
Services, 1980, at p . 101 et seq . This was a background study published by the
Commission .
43 Section 213(1)(a) .
1051
�purpose of obtaining evidence for the prosecution of such person, if
such person did not have a pre-existing intention to commit the
offence .
(b) Conduct amounting to an offence shall be deemed not to have been
instigated where the defendant had a pre-existing intention to commit
the offence when the opportunity arose and the conduct which is
alleged to have induced the defendant to commit the offence did not go
beyond affording him an opportunity to commit it .
(c) The defence that the offence has been instigated by a law enforcement
officer or his agent should not apply to the commission of those
offences which involve the infliction of bodily harm or which endanger
life .° 4
However, other proponents of the entrapment defence have preferred an
objective test that requires proof not that the accused lacked pre-existing
intention to commit the offence, but that there was police conduct of an
importuning nature, or, as has been stated by many observers in the United
States, the test should be "whether the police conduct revealed in the particular
case falls below standards, to which common feelings respond, for the proper
use of government power" .45 Only the latter test, it is argued, will discourage
unacceptable police conduct . We see no reason why the objective and subjective tests should not be combined so that the police conduct and the accused's
pre-existing intent would both be factors in determining whether a defence
should apply . It is the combination of the two factors that make it unjust to
convict in any particular case . Society should allow the police very little scope
for entrapping the person who lacks a pre-existing intent, but substantially
more scope in the case of the person who has a pre-existing intent . The test
should reflect that the propriety of police conduct will vary from case to case
depending on the crime charged and the accused's prior intent to engage in the
activity .
90. It is the balancing of these interests, by the trier of fact, which is
permitted by the availability of such a defence . Mere difficulty in application
ought to be no reason for rejecting the proposal for such a defence . Society,
represented by the jury, must frequently grapple with difficult legal concepts
that are designed to reflect the need, in a particular case, to strike a fair
balance between competing social interests .
91 . We therefore propose that there be a statutory defence of entrapment,
embodying the following principle :
The accused should be acquitted if it is established that the conduct of a
member or agent of a police force in instigating the crime has gone
substantially beyond what is justifiable, having regard to all the circum-
Report of the Canadian Committee on Corrections, 1969, pp . 79-80 . The subjective
test was adopted by the Supreme Court of the United States in Sorrells v. U.S.
(1932) 287 U .S . 435 at 442, Sherman v. U.S . (1958) 356 U .S . 369, United States v .
Russell (1973) 411 U .S . 423, and Hampton v . U.S . (1976) 425 U .S . 484 .
45 Sherman v . United States (1958) 356 U .S . 369 at p . 382, per Frankfurther, J .
( dissenting), quoted in United States v . Russell, at p. 441, per Stewart, J .
1052
�stances, including the nature of the crime, whether the accused had a
pre-existing intent, and the nature and extent of the involvement of the
police .
92 . In addition to the provision of a statutory defence, we think that the
Commissioner of the R .C .M .P . should issue guidelines relating to informers
and instigation, and these should be made public . Such guidelines have been
issued and made public in England and the United States .46 The guidelines
should be approved by the Solicitor General . Breach of the guidelines should be
regarded as a disciplinary offence . These guidelines should direct that "no
member of a police force, and no police informant, counsel, incite or procure
the commission of a crime" .47 This aspect of the guidelines has been discussed
in Part V, Chapter 4 in relation to the use of informants by the security
intelligence agency . On the issue now under discussion, they should require
that the undercover policeman have reasonable grounds to believe that the
person instigated had been engaged in similar conduct in the past . However,
the guidelines cannot be too specific, for otherwise criminals will be able to test
persons they are dealing with in the light of known detailed police procedures .
WE RECOMMEND THAT the Criminal Code be amended to include a
defence of entrapment embodying the following principle :
The accused should be acquitted if it is established that the conduct of a
member or agent of a police force in instigating the crime has gone
substantially beyond what is justifiable having regard to all the circumstances ; including the nature of the crime, whether the accused had a
pre-existing intent, and the nature and extent of the involvement of th e
police .
(284 )
WE RECOMMEND THAT the administrative guidelines concerning the
use of undercover operatives in criminal investigations which we recommended earlier be established by the R .C .M .P ., include a direction that no
member of the R.C .M .P. and no agent of the R .C.M .P . counsel, incite or
procure an unlawful act .
(285 )
46 In England, the Home Office circular is reproduced in Appendix 4 to the Law
Commission's Report No . 83, Report on Defences of General Application, 1977 . See
also (1969) New L .J . 513, referred to with approval in R. v . Mealley and Sheridan
(1974) 60 Crim .App .R . 59 at 64 . In the United States, guidelines for the F .B .I . were
issued in a memorandum by the Attorney General, Edward H . Levi, to the Director of
the F .B .I ., dated December 15, 1976 .
"Quoting the British Home Office Circular to the Police on Crime and Criminal
matters, supra, p . 46.
1053
��CONCLUSION TO THE REPOR T
1 . In this Second Report we have attempted to state our views as to the many
policy issues that have come before us, and as to those legal issues which can be
discussed without going into the facts of specific cases : Throughout, we have
tried to develop recommendations for the future that are workable and
practical and reflect the principles we stated at the beginning of the Report .
We developed many of our recommendations in considerable detail . We did so,
believing that we would be derelict in our duty if we left the development of
detail in certain areas principally to the executive arm of government . Most of
the persons who will be responsible for implementation will not have had the
same opportunity as we to be immersed in the subject . Those who have been so
immersed will likely be still active in the world of security intelligence or police
work, and, while able to fill in detail, may not always have a detached
perspective on these matters . In instances where those considerations did not
apply, we have provided less detail and fewer concrete recommendations but
even there we have tried to state in some depth the general principles which we
think should be applied .
2 . This Report has been written in a manner that will allow it to be published
with few deletions . We recognize that there are some passages that will
properly be deleted on the ground that their publication would, or might,
prejudice the security of Canada, damage the privacy of individuals, or damage
some other legitimate public interest . We believe that the excision of the
limited number of passages that in our opinion is likely to be necessary will not
impair the ability of Parliament and the public to understand our recommendations and the reasons for them .
3. We have entitled this Second Report "Freedom and Security under the
Law" . While we recognize that for a subject of this magnitude and complexity
no title could fully express the whole message, we consider that three words are
essential, and are at the heart of our considerations : Freedom, Security and
Law .
4 . Freedom and security are fundamentals to the preservation of the democratic process . They are interdependent, for without security freedom is
imperilled, and without freedom the attainment of security will be to no avail .
In striving for security we expect that our security intelligence agency and our
police service will not only be effective in doing so but also will respect the
rights of citizens .
5 . Throughout this Report we have been uncompromising in our insistence on
obedience to the law by members of our national police force and our security
intelligence agency . Thus we have insisted that adherence to the Rule of Law is
inseparable from attempts to attain the objectives of freedom and security .
Without the Rule of Law, we do not believe that freedom and security can be
obtained .
1055
�6 . As we approach the end of this long and difficult inquiry we do not regret
having sought to meet a profound challenge : how to assure the people of
Canada that the functioning of their police force and their security intelligence
agency will result in freedom and security, under policies and procedures
provided for by law . We hope that our recommendations will enhance the
freedom and security of the people of Canada under the law .
1056
�ANNEX I
ACCESS TO MEDICAL INFORMATIO N
1 . At several places in this Report we stated that we would refrain from
making recommendations with regard to the security intelligence agency's or
the R .C .M .P .'s access to confidential medical information until we had the
benefit of considering the findings and recommendations of the Ontario
Commission of Inquiry into the Confidentiality of Health Information conducted by Mr . Justice Horace Krever . The Report of that Commission has recently
been released and we can now put forward our views on the subject in the light
of it .
The security intelligence agenc y
2 . Mr . Justice Krever has found that the R .C .M .P . Security Service obtained
medical information from Ontario Health Insurance Plan (O .H .I .P .) offices,
hospitals and physicians in Ontario in a manner not authorized or provided for
by law . He also reports instances in which the Security Service used medical
information improperly (see especially, Vol . II, pp. 14-19 and 38-48) . While he
considers that there are law enforcement purposes which justify changing the
laws of Ontario to provide the police greater access under law to medical
information, he does not discuss the need for a security intelligence agency to
have such access, nor does he make specific recommendations in this regard .
However, because of his concern that medical evidence obtained for legitimate
law enforcement purposes may be misused by the Security Service for disruptive or other improper purposes, and because of the inability of provincial
.
authorities " . . . . of following up and checking on . ." how the R .C .M .P . uses
medical information, he states that consideration should be given to allowing
the R .C .M .P . access to provincially maintained health information for acceptable police purposes "only if the R .C .M .P . by federal-provincial agreement or
otherwise, were first made accountable to a provincial authority for the
information it was entitled to have" . He further states that :
One would want to reconsider this position if, in time, the security service
responsibilities were removed from the R .C .M .P . and entrusted to a separate organization or agency, leaving the force with its conventional police
role .
(Vol .
11,
p . 48 . )
3 . In Part V, Chapter 4, we take the position that the security intelligence
agency's access to confidential information held by provincial governments or
private sources must be accomplished through lawful means . Further, in Part
V, Chapter 6, we have recommended that the security intelligence agency
should have no mandate to carry out disruptive activities of domestic political
groups including activities involving the dissemination of medical informatio n
1057
�such as occurred in the Riddell episode . We have also recommended in Part
VII, which is concerned with security screening, that the function of obtaining
information concerning an applicant's personal background, including any
medical information, be transferred to security staffing officers in the Public
Service Commission or government departments and that such information be
sought only with the applicant's permission . Still, questions arise from the
Krever Report, which we must address : is there a need to obtain amendments
in provincial laws to permit the security intelligence agency to have access to
confidential medical information, and, if there is, what arrangements should be
made with the provinces to facilitate access ?
4 . On the question of need for access we should distinguish the three different
kinds of information with respect to which the Krever Report makes
recommendations :
(a) O.H .I .P . enrolment information - i .e . simple biographical information .
(b) O .H .I .P . medical records .
(c) Medical information held by physicians and hospitals .
As we noted in Part V, Chapter 4, the need to obtain the first kind of
information, simple biographical information, from other sources may be
greatly reduced if the legal barriers to obtaining such information from federal
government data banks are altered in the ways we have recommended in that
part of our Report . As we further noted, our recommendations on security
screening procedures should remove any need to arrange security intelligence
access to medical records for screening purposes . However, as we pointed out in
Part V, Chapter 4, there may be a very real need for the security intelligence
agency to have access to detailed medical information falling under either the
second or third categories listed above, to enable it to carry out important
counter-intelligence or counter-terrorist investigations . The Solicitor General
should review this need with the security intelligence agency and, if he is
convinced that the need exists, meet with appropriate officials of those provinces whose laws do not permit access for security purposes with a view to
obtaining support for legislative changes which would allow access .
5 . As to the arrangements which might be appropriate, we make several
suggestions, based on the assumption that the concerns expressed and the
solutions proposed in the Krever Report may apply to other provinces in
addition to Ontario. First, we think that the changes in the mandate, management, structure and control of the national security intelligence agency which
we have called for in this Report would provide much better assurance to
provincial governments that medical information obtained by the federal
security agency would be used for lawful and proper security purposes . Even
with these changes, provincial authorities may wish to establish some way of
participating in the review of security intelligence activities involving the use of
provincially maintained and protected health information . If so, consideration
should be given to employing the mechanism that, in Part V, Chapter 8, we
recommended should be available to review decisions as to the disclosure to
provincial attorneys general of criminal activities of members or agents of th e
1058
�security intelligence agency . That mechanism would involve provincially nominated persons in the monitoring activites of the independent review body (the
Advisory Council on Security and Intelligence) . If this were done, we think it
would be appropriate for provincial representatives .on A .C .S .I . to be empowered to report any misuse of medical information to appropriate provincial
authorities . In putting this proposal forward we are cognisant of the possibility
that when arrangements of this kind are being considered, federal authorities
may well wish to work out reciprocal arrangements which afford the federal
government assurance that confidential information requested by provincial
organizations from the security intelligence agency (or from the R .C .M .P .) is
also used for legitimate and proper purposes .
6 . One further issue that must be considered is the appropriateness for a
security intelligence agency of Mr . Justice Krever's recommendations concerning police access to medical information . With regard to O .H .I .P . health
information, he recommend s
17 . That no employee of O .H .I .P . be permitted to release health information to any police force without a search warrant . The district manager
of O .H .I .P . or a person designated by him or her in writing at a district
or satellite office should, however, be permitted to answer, yes or no, to
the question of any police officer whether O .H .I .P . has specific health
information about a named person .
(Vol . II, p . 69 . )
The approach contained in the recommendation would not serve the needs of
the security intelligence agency, for two reasons . First, under sections 443 and
445 of the Criminal Code, a person or peace officer who is issued a search
warrant must, after conducting the search and seizure, carry anything he has
seized " . . .before [a] justice . .. to be dealt with by [the justice] according to
law" . Such a requirement, we believe, is inappropriate for a security intelligence agency, except in those rare cases where a prosecution is anticipated .
Secondly, the requirements of section 443 of the Criminal Code with regard to
reasonable belief about a specific crime are, for reasons we have fully set out in
section F of Part V, Chapter 4, not likely to be met in many security
intelligence investigations . Therefore, in place of Mr . Justice Krever's recommendation, we propose that access to provincial insurance health records by the
security intelligence agency require that a judicial warrant be obtained on the
conditions we have set out in Part V and which are contained in the proposed
legislation at the end of that Part . Legislatively, this could be accomplished by
the inclusion of an "opting in" provision for the provinces in the federal
legislation .
7 . The Krever Report also recommends that provincial laws forbidding
doctors and hospital officials to disclose confidential information to the police
without the patient's consent be modified so that such persons may do so
without the patient's consent, if there i s
reasonable cause to believe that a patient is in such mental or emotional
condition as to be dangerous to himself or the person of another or others
and that disclosure of the information . . . is necessary to prevent the
threatened danger .
1059
�He further recommends that senior hospital officials or doctors should be
permitted to inform the police when they believe on reasonable grounds that a
patient is a perpetrator or victim of a crime (Vol . II, pp . 93-4) . These
recommendations again, because they refer exclusively to the police and law
enforcement concerns, may be too narrowly cast to allow the security intelligence agency to benefit from them . We think it quite likely that doctors and
hospital employees may have information about terrorist or espionage threats
vital to the security intelligence agency and, if this is so, the Solicitor General
should endeavour to obtain the support of provincial authorities for a widening
of legislative amendments to permit disclosure by doctors and senior hospital
officials to the security intelligence agency (subject to conditions and controls
such as those proposed in the Krever Report) .
R .C.M.P. - Criminal Investigation Branc h
8. The Krever Report also finds that the R .C .M .P. and provincial police
forces have had access to medical information in a manner not authorized or
provided for by law . The recommendations of that Report referred to above are
designed to provide the police with greater access to medical information than
Ontario law has permitted in the past . We have already noted Mr . Justice
Krever's reservations about extending such access to the R .C .M .P .
9. We believe that our recommendations for separating the Security Service
from the R .C .M .P. ought to allay the concern that if the R .C .M .P . are given
access to medical information similar to that which is proposed for provincial
police, the R .C .M .P . may give information to its Security Service which might
use it for an improper purpose . Even if this particular concern is overcome,
Ontario or other provinces might nevertheless wish to have some way of
ensuring that confidential medical information is not misused by the R .C .M .P.
in criminal investigations . If that is the case, we suggest that the Office of
Inspector of Police Practices be used to monitor R .C .M .P . use of such
information . When carrying out an audit for this purpose, the Inspector of
Police Practices might use investigators seconded from provincial police forces
or provincial government departments, and any misuse of information which is
discovered could be reported to provincial authorities . We suggest that the
Solicitor General discuss an arrangement of this kind with those provinces
which have laws barring police access to the types of medical information
which are of vital importance to the R .C .M .P.'s criminal investigation
responsibilities .
1060
�MINORITY REPORT OF THE CHAIRMA N
Re: Part VII, Chapter 3
The last two sentences of paragraph 22 read as follows :
However, we believe that what we earlier referred to as "revolutionary
subversion" should be included in the citizenship rejection criteria . We
would like to make it clear that, with regard to this criterion, the applicant
should be judged on his merits rather than being judged by label alone .
That is the view of the majority . I am not convinced that it is necessary or
desirable, in order to protect the security of Canada, to refuse to grant a person
Canâdian citizenship solely on the basis that he preaches violent overthrow of
the government and may even proselytize others to his point of view . (I
distinguish, of course, the person who in fact uses violence to achieve political
ends .) I do not consider that my experience as a Commissioner enables me to
arrive at a proper conclusion on this question . Both the Governmént and
Parliament should address this issue when dealing with the recommendations
in our Report .
1061
��MINORITY REPORT OF COMMISSIONER
GILBER T
1 . With due respect for the opinion expressed by my co-Commissioners, I
wish to submit my own views and recommendations concerning an application
of the War Measures Act, which is designed to be used in cases of national
emergency . I shall not repeat here all the paragraphs of this report which will
be affected by my remarks . Unless express mention is made in this minority
report or unless there is an obvious incompatibility between my views and those
expressed by my co-Commissioners, I subscribe fully to the tenor of the
Chapter entitled "National Emergencies" .
A . The Scope of the War Measures Act
2 . The Chairman and Commissioner Rickerd have opted in favour of the
continuation of this Act in its present form in so far as its scope is concerned . It
should, they feel, grant to the executive the power to make regulations in the
event of war, invasion or insurrection, real or apprehended . They consider that
our country requires such an instrument to enable the restoration of order in
cases of emergency . However, because they are concerned about abuses that
might arise out of such legislation, they propose changes in its application . I
shall consider the question of'application later . First I want to set out my
dissenting views with regard to the scope of the War Measures Act . In my
opinion this legislation should only be applicable in cases of war and invasion,
real or apprehended, as is provided in the corresponding British legislation, the
Defence of the Realm Act . My reasons for taking this position follow .
3 . It seems to me that a threat to established order made by an aggressor
from outside the country is fundamentally different from a threat made by a
group of citizens who rise up against the government, either to destroy it or to
force a change of certain established policies . In the first case the aggressor has
no right to interfere in the affairs of our government, while in the second, even
if they are wrong in the methods they employ, it is citizens of the country who
are expressing their disapproval .
4 . Movements of insurrection act beyond the limits of legitimate dissent . But
in practice, the clandestine nature of such movements can make it difficult to
discover whether these activities are illegal and whether or not in a given
situation in which violence is carried out, that violence was the expression of
the insurrectional intent . We stated at the beginning of this Report that the
right to legitimate dissent is one of the three values which must not be
compromised by a true democracy ( the other two values being responsible
government and the rule of law) . We would be well advised to bear in mind
that the line is often narrow between what constitutes the expression o f
1063
�legitimate dissent - a positive element essential to the health of a true
democracy - and actual insurrection, which is an uprising by force and
violence against the established authority .
5 . Because insurrection and dissent are both expressed through confrontation
with existing authority, such actions leave themselves open to abuse by that
authority . In either case the existing authority tends to react against the
aggressor by adopting a posture of self-justification . To sum up, it is not unfair
to say that the existing authority is both party and judge in its confrontation
with the dissenter, whether he be legitimate or insurrectional . It must be
recognized that such a situation easily lends itself to vengeance and to the
abuse of power .
6. To this point, I have examined the War Measures Act as a tool enabling
the executive to act quickly to counter surprise aggression . By virtue of the
Act, the Cabinet can legislate, without reference to Parliament, ' a proclamation
being, by itself, conclusive proof of a state of war, invasion or insurrection, real
or apprehended . While this element of surprise is appropriate for the idea of
foreign aggression, as in an act of war or invasion, it is not compatible with the
idea of insurrection, let alone apprehended insurrection . Since its passage on
August 21, 1914, the War Measures Act has been used twice in cases of war
and once to counter an apprehended insurrection . I do not wish to deal in any
way here with the reasons for the government's recourse to the War Measures
Act in 1970 . But the history of the October Crisis provides an instance in
which the aggressor was known for a number of years before the outbreak of
the Crisis itself in the autumn of 1970 . Insurrectional movements are not
surprise movements by nature, as acts of war and invasion can be . On the
contrary, insurrections take a long time to develop before they erupt with force
and violence . Simply stated, a good government will be able to anticipate
revolutionary movements, especially if it makes use of the intelligence provided
to it by a well-informed national security service .
7 . Thus, I conclude that the War Measures Act has a definite function in
maintaining peace, security, order and good government . However, I feel that
in a true democracy this function should be exercised only with respect to acts
of war and invasion . In cases of insurrection, it seems to me that Parliament
should be the instrument with the responsibility for adopting the legislation
required in a given case . I therefore recommend that the War Measures Act be
amended to apply only to cases of real or apprehended war or invasion .
8 . It goes without saying that since my first recommendation is that the War
Measures Act apply only to war or invasion, the severity of its implementing
provisions is not as important a question as it would be if it applied also to
internal insurrectional movements . Aggressive acts by foreign countries or
foreign groups must be met on a war footing . Certainly, the government does
not owe the same degree of respect for the rights of such aggressors as it does
for its own citizens . It is appropriate, therefore, that the War Measures Act,
when applied to a situation of war or invasion, should be severe ; unfortunately,
the rules of war require this . War has its own rules, and far be it from me to
discuss here, even to a limited extent, how a country should make war .
1064
�B . Application of the War Measures Ac t
9. In the event that my recommendation on the scope of the War Measures
Act is not accepted, I wish to consider certain provisions which I feel should be
applied only in cases of real or apprehended insurrection . What follows applies
only to such situations .
The framework of the regulation s
10 . Section 3 of the Act sets out the framework within which the executive
may, after a proclamation, adopt regulations . Common sense dictates that such
a framework should exist . It must be remembered, however, that when the
executive is granted legislative power, the government acquires the power to
make illegal all sorts of situations which otherwise would be legal . It is
therefore especially important that such measures be specific and of short
duration, but above all it is essential to orderly democratic process that they be
submitted to Parliament within the shortest possible time . I am satisfied with
our recommendation that a proclamation by the Governor in Council should be
debated by Parliament immediately if Parliament is in session and within seven
days if it is not . It should be necessary, however, that within that same period
Parliament approve the regulations adopted by the executive, failing which the
regulations should lapse .
Penalty for breach of regulations
11 . Section 4 of the Act provides that violations of the regulations may be
punished by fines of up to $5,000 .00 or imprisonment not exceeding five years,
or both . This provision is abusive . In England, the corresponding Act, the
Defence of the Realm Act, provides for a maximum imprisonment of three
months for breach of the regulations . Why five years in Canada? Some claim
that the defence, peace, order, well-being and security of the country require
nothing less . But in reply to that argument it must be borne in mind that the
purpose of these regulations and the penalties for violation of them is not to
supplant the penalties laid down in other laws, particularly the Criminal Code .
Therefore, if in breaching a regulation adopted under the War Measures Act a
person also commits another offence already provided for in the Criminal Code
- for example, espionage - the penalties applying to that offence remain . I
therefore recommend that the penalty attaching to the breach of a regulation
under the War Measures Act be re-evaluated in the light of England's Defence
of the Realm Act .
Duration of detention without charg e
12 . Presently, the law does not specify how long a person whom the police
allege has breached regulations can be detained before a charge is laid . The
regulations adopted during the October Crisis of 1970 provided for detention
up to seven days without charge, with ministerial power to extend this period
an additional 21 days . In the present structure of the Act there is a definite
potential for abuse . In principle, no person should be arrested without being
charged, so that he may know why he is being deprived of his liberty and take
the necessary steps to regain it . I can see why, in a state of national emergency ,
1065
�this principle should give way if the collective good requires concerted and
rapid action on the part of the police, but it would be unjust, hârmful and
abusive to allow the police to make mass arrests and to take whatever time is
required subsequently to sort out the real suspects . The period, in a national
emergency, during which a person can be detained without charge should be
stipulated by law, not by regulation. Since it can be presumed that in a given
case an arrest would only take place after there has been a certain amount of
proof that the regulations have been breached, the charge should be laid no
longer than 48 hours after arrest . Here it must be remembered that when a
crisis occurs, arrests are often more numerous and consequently the police
would be better able to serve the ends of justice if allowed a short period of
time between arrest and charge . I recommend that this period be 48 .hours and
that it be provided for in the Act itself.
1066
�- SUMMARY OF RECOMMENDATION S
1 . WE RECOMMEND THAT legislation establishing Canada's security
- intelligence agency designate the general categories of activity constituting threats to the security of Canada in relation to which the security
intelligence agency is authorized to collect, analyze and report
intelligence .
2 . WE RECOMMEND THAT the categories of activity to be so designated be as follows :
(a) activities directed to or in support of the commission of acts of
espionage or sabotage (espionage and sabotage to be given the
meaning of the offences defined in sections 46(2)(b) and 52 of
the Criminal Code and section 3 of the Official Secrets Act) ;
(b) foreign interference, meaning clandestine or deceptive action
taken by or on behalf of any foreign (including Commonwealth) power in Canada to promote the interests of a foreign
power ;
(c) political violence and terrorism, meaning activities in Canada
directed towards or in support of the threat or use of acts of
serious violence against persons or property for the purpose of
achieving a political objective in Canada or in a foreign
country ;
(d) revolutionary subversion, meaning activities directed towards or
intended ultimately to lead to the destruction or overthrow of
the democratic system of government in Canada .
3 . WE RECOMMEND THAT, for category (d), revolutionary subversion,
only non-intrusive techniques be used to collect information About
individuals or groups whose known and suspected activities are confined
to this category .
4 . WE RECOMMEND THAT the legislation establishing Canada's security intelligence agency contain a clause indicating that the agency's
work should be limited to what is strictly necessary for the purpose of
protecting the security of Canada and that the security intelligence
agency should not investigate any person or group solely on the basis of
that person's or group's participation in lawful advocacy, protest or
dissent .
5 . WE RECOMMEND THAT all intelligence collection tasks assigned to
the security intelligence agency by the government be consistent with the
statutory definition of the security intelligence agency's mandate and
that all legislation and regulations providing special powers or exemptions for security purposes be consistent with the definition of threats t o
1067
�the security of Canada in the legislation establishing the security
intelligence agency .
6 . WE RECOMMEND THAT there be a provision to extend by Order-inCouncil in emergency circumstances the mandate of the security intelligence agency to a category of activity not included in the agency's
statutory mandate, providing that the Joint Parliamentary Committee
on Security and Intelligence is notified on a confidential basis when the
Order-in-Council is passed and that within 60 days of its passage the
Order-in-Council is approved by an affirmative resolution of both
Houses of Parliament .
7 . WE RECOMMEND THAT a system for controlling the collection of
information by the security intelligence agency be established which
distinguishes three levels of investigation .
8 . WE RECOMMEND THAT investigations at the first two levels be
regulated by administrative guidelines developed by the security intelligence agency and approved by the Solicitor General .
9 . WE RECOMMEND THAT the statute governing the security intelligence agency require ministerial approval for full investigations, indicate
the techniques of collection that may be used in a full investigation and
stipulate that a full investigation be undertaken only i f
(a) there is evidence that makes it reasonable to believe that an
individual or group is participating in an activity which falls
within categories of activities ( a) to (c) identified, in the statute
governing the security intelligence agency, as threats to the
security of Canada ; an d
(b) the activity represents a present or probable threat to the
security of Canada of sufficiently serious proportions to justify
encroachments on individual privacy or actions which may
adversely affect the exercise of human rights and fundamental
freedoms as recognized and declared in Part I of the Canadian
Bill of Rights ; an d
(c) less intrusive techniques of investigation are unlikely to succeed,
or have been tried and have been found to be inadequate to
produce the information needed to conclude the investigation,
or the urgency of the matter makes it impractical to use other
investigative techniques .
10 . WE RECOMMEND THAT the security intelligence agency and the
Solicitor General should move as quickly as possible to apply this system
of controls to all security intelligence investigations which are underway
at the time this new system of controls is introduced .
11 . WE RECOMMEND THAT, with the exception of administrative and
source files, the security intelligence agency open and maintain a file on
a person only if at least one of the following three conditions is met :
1068
�(a) there is reason to suspect that the person has been, is, or will be,
engaged in activities which Parliament has defined as threats to
Canada's security ;
(b) there is reason to suspect that the person, who is, or who soon
will be, in a position with access to security classified information, may become subject to blackmail or may become indiscreet or dishonest in such a way as to endanger the security of
Canada ;
(c) the person is the subject of any investigation by the security
intelligence agency for security screening purposes . (Once the
investigation has been completed, the agency should not continue to add information to these files unless the information
relates to category (a) or (b) above . )
12 . WE RECOMMEND THAT the security intelligence agency and the
independent review body (the Advisory Council on Security and Intelligence) develop programmes for reviewing agency files on a regular basis
to ensure compliance with the general principles for opening and maintaining files on individuals .
13 . WE RECOMMEND THAT the storage and retrieval system for information on individuals whose activities are relevant to the security
intelligence agency's mandate be separate from those systems pertaining
to administrative, source and research files .
14. WE RECOMMEND THAT the security intelligence agency's fïles,
documents, tapes and other matter be erased or destroyed only according to conditions and criteria set down in guidelines approved by the
Solicitor General .
15 . WE RECOMMEND THAT the security intelligence agency consult the
Department of External Affairs before initiating a full investigation
involving the use in Canada of certain investigative techniques directed
at a foreign government or a foreign national in Canada .
16 . WE RECOMMEND THAT, in order to make it possible for physical
su rveillance operations to be carried out effectively by a security intelligence agency, changes be made in federal statutes and the co-operation
of the provinces be sought to make changes in provincial statutes as
follows :
(1) Rules of the road
(a) A defence be included in provincial statutes governing rules of
the road for peace officers and persons designated by the
Attorney General of the Province on the advice of the Solicitor
General of Canada ("designated individuals") if such person s
act
(i) reasonably in all the circumstances ,
(ii) with due regard for the property and personal safety of
others, and
1069
�(iii) in the otherwise lawful discharge of their duties ;
(b) a defence similar to that referred to in (1)(a) above be included
in relevant provincial legislation which authorizes municipal
traffic by-laws ;
(c) there be enacted by each of the provinces and territories, a
provision for the protection of peace officers and designated
individuals, saving them harmless from personal liability in civil
suits, if such persons ac t
(i) reasonably in all of the circumstances ;
(ii) with due regard for the property and personal safety of
others ; and ,
(iii) in the otherwise lawful discharge of their duties ;
(d) the Government of Canada compensate those persons who, but
for recommendation (c) above would be entitled to recover
damages in a civil suit brought against a federally engaged
peace officer or designated individual in a cause of action
arising by reason of acts done or omissions occurring in the
course of the work of such peace officer or designated individual and on the principle that the quantum of compensation
should be assessed on the same basis as is the practice in the
civil courts .
(2) False identificatio n
(a) Provincial highway traffic legislation regulating the licensing
and identification of persons and property be amended to
permit the Director General or designated member of the
security intelligence agency (or a duly authorized member of a
police force) to apply for false identification to the senior
government official charged with the administration of the
legislation . Provision be made to permit the documents related
to the application to be sealed and not to be opened without
court order . It is further recommended that such amendments
be made as may be necessary to remove all statutory restrictions on the signing or holding of more than one piece of
identification in each case;
(b) provincial hotel registration legislation be amended to make
available a defence to peace officers and designated individuals
who register in a hotel under a false name provided tha t
(i) they do so in good faith, an d
(ii) the use of a false name is necessary for the performance of
their otherwise lawful duties .
(3) Trespass
(a) Provincial petty trespass statutes be amended to make available
a defence to peace officers and designated individuals who enter
onto private property other than private dwelling-houses o r
1070
�inhabited units in multi-unit residences . but including vehicles,
providing tha t
(i) entry onto private property is reasonably necessary in the
circumstances ;
(ii) they show due regard for the, property rights of the owner ;
and ,
.,(iii) they,act in the otherwise lawful discharge .of their duties .
(b) sections 387(1)(a) and 387(1)(c) and 388(1) of the Criminal
Code be amended to make available a defence to peace officers
and designated individuals in order to allow thé attachment of
tracking devices to vehicles, in order to assist in physical
surveillance operations, provided that such persons
(i) act in the course of their otherwise lawful duties ,
(ii) do~no more damage or interference with the property than
is reasonably .necessary, for,the purposes of the operation ;
in any event, the damage or interference must not render
the use of the property dangerous ;
(c) civil remedies be preserved for both trespass and the affixing of
devices in a manner similar to that recommended in respect of
rules of the road .
17 . WE RECOMMEND the establishment of administrative guidelines
concerning the principles to be applied in the use of undercover operatives by the security intelligence agency . These guidelines should be
approved by .the Solicitor General, as the Minister responsible for the
security intelligence agency and should be publicly disclosed . These
guidelines should cover, inter alia, the following points :
(a) the forms of deceit which are unacceptable ;
(b) sources and undercover members must be instructed not to
participate in unlawful activity . If an undercover operative finds
himself in a situation where the commission of a crime is
imminent, he must disassociate himself, even at the risk of
ending his involvement in the operation . In situations where
there is time to seek advice as to the legality of a certain act
required of the undercover operative, such . advice should be
sought . If the act is considered to be unlawful, alternative
courses of action should be cônsidéred .'In many situations, this
will âllow the operative to continue in' his role while remaining
within the law ;
(c) undercover operatives should not be used in situations where it
is likely that the operative will be required to participate in
unlawful conduct in order to establish or maintain his
credibility;
(d) the agency should report unlawful conduct by undercover operatives, in accordance with the procedures which we propose in
Chapter 8 of this Part ; .
1071
�(e) undercover operatives must not be used for the purpose of
disrupting domestic groups unless there is reason to believe such
a group is involved in espionage, sabotage or foreign
interference ;
(f) undercover operatives should be instructed not to act as agents
provocateurs and, in situations where they become aware of
plans for violent activity, to do what they can to persuade the
members of a group to adopt milder methods of protest ;
(g) interviews of persons for security screening purposes should not
be used as occasions for recruiting such persons as sources ;
(h) great care should be taken in authorizing the use of undercover
operatives to balance the potential harm to which the deployment of such individuals within a social institution may do to
that institution against the value of the information which may
be obtained ;
(i) the security intelligence agency should respect confidential
professional relationships and other legal barriers to the use of
sources in the private sector and should be directed by expert
legal advice as to the extent of such legal barriers ;
(j) employees or persons under contract to the federal, provincial
or municipal governments must not be used as undercover
sources in regard to matters involving their government . Confidential information held by governments must be obtained
through legally authorized channels ; an d
(k) the making of ex gratia payments for loss or damage suffered
as a result of civil wrongs committed by undercover operatives .
18 . WE RECOMMEND THAT to facilitate the obtaining of false identification documents in a lawful manner for undercover agents of the
security intelligence agency, federal legislation be amended, and the
co-operation of the provinces be sought in amending relevant provincial
laws, in a manner similar to that recommended for the false identification needed in physical surveillance operations .
19 . WE RECOMMEND THAT income tax legislation be amended to
permit the security intelligence agency sources not to declare as income
payments received by them from the agency, and that other fiscal
legislation requiring deduction and remittance by or on behalf of
employees be amended to exclude such sources .
20. WE RECOMMEND THAT section 383 of the Criminal Code of
Canada concerning Secret Commissions be amended to provide that a
person providing information to the security intelligence agency in a
duly authorized investigation does not commit the offence defined in
that section .
21 . WE RECOMMEND THAT there continue to be a power to intercept
communications for national security purposes but that the system o f
1072
�administering the power and the statute authorizing the exercise of the
power be changed as follows :
(1) All of the information on which an application for a warrant is
based must be sworn by the Director General of the security
intelligence agency. or persons designated by him .
(2) Proposals for warrants should be thoroughly examined by a
senior official of the Department of the Solicitor General and
by the security intelligence agency's senior legal adviser, and
the advice of the Deputy Minister should be available to the
Solicitor General in considering the merits of proposals from
both a policy and legal point of view .
(3) The legislation authorizing warrants should be amended so
that, except in emergency situations, warrants are issued by
designated judges of the Trial Division of the Federal Court of
Canada on an application by the Director General of the
security intelligence agency approved in writing by the Solicitor
General of Canada .
(4) The legislation should authorize the judge to issue a warrant if
he is satisfied by evidence on oath that the interception is
necessary for obtaining information about any of the following
activities :
(a) activities directed to or in support of the commission of
acts of espionage or sabotage (espionage and sabotage to
be given the meaning of the offences defined in sections
46(2)(b) and 52 of the Criminal Code and section 3 of the
Official Secrets Act) ;
(b) foreign interference, meaning clandestine or deceptive
action taken by or on behalf of a foreign power in Canada
to promote the interests of a foreign power ;
(c) political violence and terrorism, meaning activities in
Canada directed towards or in support of the threat or use
of acts of serious violence against persons or property for
the purpose of achieving a political objective in Canada or
in a foreign country ;
and the warrant should indicate the type of activity of which
the targetted individual or premises is suspected .
(5) The legislation should direct the judge to take the following
factors into consideration in deciding whether the interception
is necessary
(a) whether other investigative procedures not requiring a
judicial warrant have been tried and have failed ;
(b) whether other investigative procedures are unlikely to
succeed ;
1073
�(c) whether the urgency of the matter is such that it would be
impractical to carry out the investigation of the matter
using only other investigative procedures ;
(d) whether, without the use of the procedure it is likely that
intelligence of importance in regard to such activity will
remain unavailable ;
(e) whether the degree of intrusion into privacy of those
affected by the procedure is justified by the value of the
intelligence product sought .
(6) The legislation should provide that the Director General may
appeal a refusal of a judge to issue a warrant to the Federal
Court of Appeal .
(7) The legislation should provide that an applicant must disclose
to the judge the details of any application made previously with
respect to the same matter .
(8) The legislation should authorize the Chief Justice of the Federal Court of Canada to designate five members of the Trial
Division of that court to be eligible to issue warrants under the
legislation .
(9) The legislation should provide that in emergency circumstances
where the time required to bring an application before a judge
would likely result in the loss of information important for the
protection of the security of Canada, the Solicitor General of
Canada may issue a warrant which can be used for 48 hours
subject to the same conditions which apply to judicial warrants .
The issuance of emergency warrants must be reported to and
reviewed by the Advisory Council on Security and Intelligence .
(10) The legislation should require that warrants specify the length
of time for which they are issued and that no warrants should
be issued for more than 180 days .
(11) Before deciding to make application to renew a warrant the
Director General of the secûrity intelligence agency and the
Solicitor General should carefully assess the value of the intelligence product resulting from the earlier warrants . The legislation should stipulate that applications for renewals of warrants
be treated on the same terms as applications for original
warrants with the additional requirement that the judge to
whom an application for renewal is made be provided with
evidence under oath as to the intelligence product obtained
pursuant to the earlier warrant(s) .
(12) The legislation should authorize persons executing warrants to
take such steps as are reasonably necessary to enter premises or
to remove property for the purpose of examining the premises
or property prior to installing a device or for the purpose of
installing, maintaining or removing an interception device, pro-
1074
�viding that the judge issuing the warrant sets out in the warrant
(a) the methods which may be used in executing it ; (b) that
there be no significant damage to the premises that remains
unrepaired ; and (c) that there be no physical force or the threat
of such force against any person . The legislation should also
provide for the use of the electrical power supply available in
the premises .
(13) The Solicitor General should seek the co-operation of the
provinces to make lawful what would otherwise be unlawful
under provincial and municipal regulations governing such matters as electrical installations, fire protection and construction
standards, in order to allow the security intelligence agency to
install, operate, repair and remove electronic eavesdropping
devices in a lawful manner .
(14) The legislation should provide for warrants to be issued to the
Director General of the security intelligence agency or persons
acting upon his direction or with his authority, but require that
in every case the persons carrying out an entry of premises or
removal of property in the course of executing a warrant be
accompanied by a peace officer . If the Director General proposes to use a person who is not a member of the agency or a
peace officer, he should obtain the prior approval of the Minister to the use of such person .
(15) The legislation should make it clear that warrants may be
issued for the interception or seizure of written communications, other than a message in the course of post, as well as oral
communications . Warrants for these interceptions must not be
used for the examination or opening of mail or the search of
premises . Section 7 of the -Official Secrets Act should be
repealed . (See Part IX, Chapter 2 for recommendation as to
total repeal of the Official Secrets Act . )
(16) The legislation should exempt from section 178 .2(1) of the
Criminal Code the communication of any information obtained
from an interception executed pursuant to the legislation by
members of the security intelligence agency for purposes within
the mandate of the security intelligence agency or for the
purpose of enabling the Advisory Council on Security and
Intelligence or the Parliament Committee on Security and
Intelligence to review the operation of the legislation .
(17) The legislation should require that the Solicitor General annually prepare a report to be laid before Parliament indicating the
number of warrants for interception which have been issued
during the year, the number of these which constitute renewals,
and the frequency of renewals and that the Solicitor General
prepare a report for the parliamentary Committee on Security
and Intelligence assessing the value of the intelligence product s
1075
�obtained from the warrants and problems encountered in
executing warrants under the legislation .
(18) The use by the security intelligence agency of (a) hidden optical
devices or cameras to view or film activities in places which are
not open to the public and (b) dial digit recorders ("pen
registers") should be permitted only under a system of warrants
subject to the conditions of control and review as are recommended above for electronic surveillance .
22 . WE RECOMMEND THAT the security intelligence agency be authorized by legislation to enter premises, to open receptacles and to remove
property for the purposes of examining or copying any document or
material when it is necessary to do so in order to obtain information
about activities directed towards, or in support of, espionage or sabotage,
foreign interference or political violence and terrorism, providing that
this investigatory power is subject to the same system of control and
review as recommended above for electronic surveillance .
23 . WE RECOMMEND THAT section 11 of the Official Secrets Act be
repealed .
24. WE RECOMMEND THAT, notwithstanding the present provisions of
the Post Office Act, the security intelligence agency be authorized by
legislation to open and examine or copy the cover or contents of articles
in the course of post when it is necessary to do so in order to obtain
information about activities directed towards or in support of espionage
or sabotage, foreign interference or serious political violence and terrorism, providing that this investigatory power is subject to the same system
of control and review as recommended above for electronic surveillance,
except that instead of requiring that a peace officer accompany persons
executing warrants issued for this purpose, the legislation should require
that the Post Office Department be notified when such warrants are
issued and expire and that Post Office officials co-operate with members
of the security intelligence organization in carrying out the procedure
specified in the warrant .
25 . WE RECOMMEND THAT legislation authorize the heads of federal
government institutions to release information concerning an individual's
name, address, phone number, date and place of birth, occupation and
physical description on receiving a written request from the security
intelligence agency stating that such information is necessary for the
purpose of locating or identifying an individual suspected of participating in one of the activities identified as a threat to the security of
Canada in the statute governing the security intelligence agency, and
that all other personal information held by the federal government, with
the exception of census information held by Statistics Canada, be
accessible to the security intelligence agency through a system of
judicially granted warrants issued subject to the same terms and conditions and system of review as recommended for electronic surveillance,
searches of premises and property, and the examination of mail .
1076
�26 . WE RECOMMEND THAT warrants issued for obtaining personal
information for security intelligence purposes be submitted to the Minister or head of the government institution which holds the information
and that the Minister be required to comply with the warrant unless the
Prime Minister directs the Solicitor General not to execute the warrant .
27 . WE RECOMMEND THAT the security intelligence agency obtain
personal information held by government institutions under the jurisdiction of provincial governments only from persons legally authorized to
release such information and that, with regard to any province in which
there is no authorized means of access to information to which the
Solicitor General of Canada considers that the security intelligence
agency should have access in order to discharge its responsibilities
effectively, the Solicitor General should seek the co-operation of the
province in amending its laws to make such access possible .
28 . WE RECOMMEND THAT the security intelligence agency's responsibilities for the development of a competent analytical capability be
explicitly stated in the statute establishing the agency .
29 . WE RECOMMEND THAT the Act establishing the security intelligence agency specify the reporting function of the agency and require
the Minister responsible for the agency to issue guidelines on how the
agency should conduct its reporting activities . These guidelines should
cover at least the following :
(a) conditions under which the agency can report information
about individuals ;
(b) conditions under which the agency can advise individuals outside governments and police forces about security threats ;
(c) (i) the general principle that the security intelligence agency
should report only information relevant to its mandate,
except that information which . it has collected by accident
which the guidelines specifically require or authorize it to
report to government or to the police;
(ii) the agency should report information which it has collected
by accident, which relates to an offence, to the appropriate
police force if, in the agency's opinion, to do so would not
be likely to affect adversely the security of Canada .
(iii) the types of information collected by accident which the
security intelligence agency may report to the appropriate
federal or provincial government include information pertinent to the economic interests of Canada .
(d) the manner in which the agency should handle ad hoc requests
for information from government departments and police
forces ;
(e) the manner in which the agency should reveal the bàsis for its
judgments, while at the same time providing reasonable protection for the sources of its information .
1077
�30 . WE RECOMMEND THAT when the Solicitor General receives information from the security intelligence agency relating to the commission
of an offence, and the agency considers that it would adversely affect the
security of .Canada to pass that information to the police, the Solicitor
General should consult with the Attorney General of Canada with
respect to the release of that information . If, after such consultation, the
Solicitor General decides that the security of Canada would not be
adversely affected by the release of that information he should instruct
the agency to release it to the appropriate police force . On the other
hand, if the Solicitor General decides that the release of the information
would adversely affect the security of Canada, he should so advise the
Attorney General of Canada who should proceed in accordance with
arrangements to be worked out with provincial attorneys general . (See
discussion in Chapter 8 of this Part . )
31 . WE RECOMMEND THA T
(a) the security intelligence agency retain, in one location, records
of all accidental by-products reported to government or to the
police, and that such records state what information was reported, how the information was collected, to whom it was given,
and the history of the investigation which produced the information ; and ,
(b) the independent review body have access to such records and
that it monitor closely the investigations which produced the
information to ensure that the investigations are not being
misdirected for a purpose irrelevant to the security of Canada .
32 . WE RECOMMEND THAT the agency, in addition to providing information about specific individuals and groups relevant to its mandate,
place greater emphasis than is now the case on providing government
with :
(a) analysis and advice on the latest developments, techniques, and
countermeasures relating to physical and V .I .P. security, and
security screening ; and ,
(b) reports which analyze broad trends rélating to threats to the
security of Canada and which advise government on ways to
counter these threats .
33 . WE RECOMMEND THAT the legislation governing the security
intelligence agency include a clause which expressly denies the agency
any authority to carry out measures to enforce security .
34 . WE RECOMMEND THAT members of the security intelligence
agency should not have peace officer powers and that, to remove any
doubt, the legislation establishing the organization should explicitly state
that members of the security intelligencè organization are not to be
considered as peace officers .
35 . WE RECOMMEND THAT the security intelligence agency not engage
in making known to employers in the private sector its availability t o
1078
�receive information about employees alleged to be subversives, and that
any such advice as to such availability should, if the government
considers such advice to be desirable, be transmitted through another
department or agency .
36 . WE RECOMMEND THÂT it not be a function of the'security
intelligence agency to publicize, outside government, threats to the
security of Canada ; and accordingly, the security intelligence agency
should not maintain liaison with the news media ; and further, that all
public disclosure about the activities of the security intelligence agency
should be made by responsible Ministers .
37 . WE RECOMMEND THAT the security intelligence agency not be
permitted to disseminate information, or misinformation in order to
disrupt or otherwise inflict damage on Canadian citizens or domestic
political organizations .
38 . WE RECOMMEND THAT if the security intelligence agency wishes
to use another government programme to help deceive one of the
agency's subjects of surveillance, the Solicitor General should seek the
concurrence of the Minister responsible for the programme in question .
39 . WE RECOMMEND THAT the security intelligence agency not be
permitted to use informants against domestic political organizations
primarily for the purpose of disrupting such organizations .
40 . WE RECOMMEND THAT an informant of the security intelligence
agency who has penetrated a political organization for intelligence
gathering purposes should be instructed that, when persons in the
organization have formed an intent to commit a specific crime, the
informant should try to discourage and inhibit the members of the
organization from carrying out that crime, but that the informant must
not transgress the law in order to discourage or inhibit the commission
of the crime .
41 . WE RECOMMEND THAT it not be a function of the security
intelligence agency to carry out defusing programmes and that the
agency not be permitted to use conspicuous surveillance groups for the
purpose of .intimidating political groups .
42 . WE RECOMMEND THAT for intelligence purposes falling within the
security intelligence agency's statutory mandate and subject to guidelines approved by the Cabinet Committee on Security and Intelligence,
the security intelligence agency be permitted to carry out investigative
activities abroad .
43 . WE RECOMMEND THAT . the . Director General of the security
intelligence agency inform the Minister responsible for the agency in
advance of all foreign operations planned by the security intelligence
agency .
44 . WE REÇOMMEND THAT in- cases which on the basis of policy
guidelines are deemed to involve a significant risk to Canada's foreig n
1079
�relations, the Minister responsible for the security intelligence agency
inform the Department of External Affairs sufficiently in advance of the
operation to ensure that consultation may take place .
45 . WE RECOMMEND THAT the Director General and appropriate
officials of the security intelligence agency should meet with the Under
Secretary of State for External Affairs and the responsible Deputy
Under Secretary on an annual basis to review foreign operations currently being undertaken or proposed by the security intelligence agency .
46. WE RECOMMEND THAT the statutory mandate of the security
intelligence agency provide for foreign liaison relationships subject to
proper control .
47 . WE RECOMMEND THAT the terms of reference for each relationship specify the types of information or service to be exchanged .
48 . WE RECOMMEND THAT the terms of reference for each relationship be approved by the Solicitor General and the Secretary of State for
External Affairs before coming into effect and that any disagreement be
resolved by the Prime Minister or the Cabinet .
49 . WE RECOMMEND THAT the Government establish a clear set of
policy principles to guide the security intelligence agency's relationships
with foreign security and intelligence agencies and that the Joint
Parliamentary Committee on Security and Intelligence be informed of
these principles .
50. WE RECOMMEND THAT'the information given to foreign agencies
by the security intelligence agency must be about activities which are
within the latter's statutory mandate ; that the information given must be
centrally recorded ; that the security intelligence agency know the reasons for the request ; and that the information be retrievable .
51 . WE RECOMMEND THAT the Director General approve of each joint
operation with a foreign agency and ensure that Canada control all
foreign agency operations in this country .
52 . WE RECOMMEND THAT the Solicitor General be informed of each
joint operation, or operation of a foreign agency, in Canada .
53 . WE RECOMMEND THAT the security intelligence agency have
liaison officers posted abroad at Canadian missions to perform security
liaison functions now performed by R .C .M .P . liaison officers, except
that in missions where the volume of police and security liaison work can
be carried out by one person, either an R .C .M .P . or a security intelligence liaison officer carry out both kinds of liaison work .
54 . WE RECOMMEND THAT the relationship between the liaison officer
representing the security intelligence agency and the Head of Post be
governed by the terms of reference as laid down for the Foreign Services
of the R .C .M .P ., but that the security intelligence agency's liaison
officer have the right to communicate directly with his Headquarter s
1080
�and independently of the Head of Post when the intelligence to be
transmitted is of great sensitivity . Except in extraordinary circumstances, which should in each case be reported by the Director General
to the Solicitor General, such communications, should be made a;vailable
to the Under-Secretary of State for External Affairs.
55 . WE RECOMMEND THAT the government examine, on a regular
basis, both the resources which are being devoted to the technical
security of Canadian missions abroad, and the policies and procedures
which are being applied to the security of those missions .
56 . WE RECOMMEND THAT the security intelligence agency's relationships with foreign agencies be subject to the following forms of review :
(a) An account of significant changes in these relationships be
included in the security agency's annual report to the Cabinet ;
(b) relations with foreign agencies be subject to continuing revie w
by the independent review body;
(c) the Joint Parliamentary Committee on Security and Intelligence be informed of the principles governing the security
agency's relations with foreign agencies and, to the extent
possible, of the terms of reference of particular relationships .
57 . WE RECOMMEND THAT the Solicitor General approve all agreements which the security intelligence agency makes with other federal
government departments and agencies and which have significant
implications for the conduct of security intelligence activities .
58 . WE RECOMMEND THAT the security intelligence agency, once it
has separated from the R .C .M .P ., negotiate a Memorandum of Understanding with the Department of External Affairs .
59 . WE RECOMMEND .THAT the Deputy Solicitor General, the Deputy
Minister of National Defence and the Chief of the Defence Staff
negotiate a memorandum of understanding to be ratified by their
respective Ministers .
60 . WE RECOMMEND THAT the security intelligence agency and the
R .C .M .P., with the approval of the Solicitor General, provide, upon
request, security screening se rv ices
(a) to provincial governments for public service positions which
have a bearing on the security of Canada ;
( b)I to provincial or municipal police forces .
61 . WE RECOMMEND THAT the security screening services provided by
the security intelligence agency for provinces and municipalities be
subject to the same conditions which apply to the screening se rvices for
federal government departments and agencies .
62 . WE RECOMMEND THAT, if the security intelligence agency obtains
security relevant information about provincial politicians or public servants in the course of an investigation unrelated to a security screenin g
1081
�programme for the Province in question, then the agency seek the
approval of the Solicitor General before reporting this information to the
appropriate provincial politician or official .
63 . WE RECOMMEND THAT the Solicitor General encourage a provincial government which uses these security sceening services either to
establish its own review procedures for security screening purposes or to
opt into the federal government's review system .
64 . WE RECOMMEND THAT the Solicitor General initiate a study of
V .I .P . protection in foreign countries with federal systems of government
with the aim of improving federal-provincial co-operation in this
country .
65 . WE RECOMMEND THAT the security intelligence agency, to facilitate the exchange of security relevant information with domestic police
forces and generally to encourge co-operation ,
(a) establish a special liaison unit for domestic police forces,
staffed, in part, by personnel with police experience ;
(b) develop written agreements with the major domestic police
forces to include, among other things, the types of information
to be exchanged, the liaison channels for effecting this
exchange, and the conditions under which joint operations
should be conducted .
66 . WE RECOMMEND THAT the Director General approve all joint
operations undertaken by the security intelligence agency and that the
Solicitor General develop guidelines for the use and approval of intrusive
investigative techniques in joint operations .
67 . WE RECOMMEND THAT the Solicitor General develop in conjunction with his provincial counterparts a mechanism for monitoring the use
by private security forces of investigative or other techniques which
encroach on individual privacy, freedom of association, and other liberal
democratic values .
68 . WE RECOMMEND THA T
(a) the federal government immediately initiate discussion with the
provinces on the procedures which should apply to the reporting
and investigation of criminal activity committed by members or
agents of the security intelligence agency ; an d
(b) the arrangements outlined in this chapter be followed on an
interim basis .
69 . WE RECOMMEND THA T
(a) the Director General should be a person of integrity and
competence ; he should have proven managerial skills but need
not have prior working experience in security intelligence matters; he should be knowledgeable about political and social
movements, international affairs and the functioning of govern1082
�ment ; he should have a' high regard for liberal democratic
principles ; and he should have sound political judgment, not
affected by partisan concerns ;
(b) the appointment of the Director General of the Securit~ IntelliI
gence Agency be made by the Governor in Council ;
(c) the Prime Minister consult the leaders of the opposition parties
prior to the appointment of the Director General .
70 . WE RECOMMEND THAT the following conditions of employment
for the Director General should be included in the statute establishing
the security intelligence agency :
(a) the Director General can be dismissed only for `cause' ;
(b) `cause' includes mental or physical incapacity ; misbehaviour ;
insolvency or bankruptcy ; or failure to comply with the provisions of the Act establishing the agency ;
(c) the Director General should be appointed for a five-year term ;
(d) no Director General may serve for more than 10 years .
71 . WE RECOMMEND THAT the Director General and his senior
managers act as a team in dealing with important policy and operationâl
matters affecting the security intelligence agency
. WE RECOMMEND THAT Canada's security intelligence agency
.72
encourage the infusion of new ideas and fresh approaches by ensuring
that a reasonable number of its senior managers, prior to joining the
agency in a middle or senior management capacity, have worked in
other organizations .
73 . WE RECOMMEND THAT the senior management team of Canada's
security intelligence organization have a wide diversity of backgrounds,
reflecting experience in both governmental and non-governmental institutions, in the law, in investigatory work, and in management . All of the
agency's senior managers should place a high priority on effectiveness,
on conducting the agency's operations legally and with propriety and on
upholding liberal democratic principles .
74 . WE RECOMMEND THAT the secûrity intelligence agency adopt the
following policies to help it determine who should work for the agency :
(a) the agency requires staff with a wide variety of backgrounds i n
. governmental, non-governmental, and police organizations ;
(b) police experience should be a prerequisite for only a small
number of specialized positions ;
(c) the agency should periodically hire persons from outside the
agency for middle and senior management positions ;
(d) having a university degree should not be a prerequisite for
joining the agency . Nonetheless, the agency should actively
recruit those with university training ;
1083
�(e) the agency should hire individuals with training in a wide
variety of academic disciplines;
(f) the agency should seek employees with the following character+ istics : patience ; discretion ; emotional stability ; maturity ; tolerance ; no exploitable character weaknesses ; a keen sense of, and
support for, liberal democratic principles ; political acumen ; and
the capacity to work in an organization about which little is
said publicly .
75 . WE RECOMMEND THAT the security intelligence agency adopt the
following recruiting procedures :
(a) it should widen its recruiting pool in order to attract the type of
personnel we have recommended, rather than rely on the
R .C .M .P . as its primary source of recruits ;
(b) apart from support staff, it should have only one category of
employee, to be known as intelligence officers . Intelligence
officers should not be given military or police ranks ;
(c) it should not rely primarily on referral by existing or former
employees to attract new recruits but rather should employ
more conventional methods, including recruiting on university
campuses and advertising in newspapers ;
(d) in addition to the personnel interview, it should develop other
means, such as psychological testing and testing for writing and
analytical ability, to ascertain the suitability of a candidate for
security intelligence work ;
(e) it should involve experienced and senior operational personnel
more actively in the recruitment process .
76 . WE RECOMMEND THA T
(a) the security intelligence agency initiate a more active secondment programme, involving federal government departments,
the R .C .M .P ., provincial police forces, labour unions, business,
provincial governments, universities, and foreign agencies ;
(b) secondment arrangements with foreign agencies should be
approved by the Minister responsible for the security intelligence agency .
77 . WE RECOMMEND THAT the security intelligence agency :
(a) develop an improved career planning capability in order to
effect greater specialization in career paths ;
(b) ensure that there is close collaboration between line and staff
personnel in the design and implementation of specialized
career paths .
78 . WE RECOMMEND THAT the number of job levels for intelligence
officers within the security intelligence agency be reduced .
1084
�79 . WE RECOMMEND THAT the security intelligence agency establish a
number of positions designed for senior intelligence officers who would
have no administrative responsibilities .
80 . WE RECOMMEND THAT security service training be redesigned so
that it is more suitable for better educated, more experienced recruits .
There should be less emphasis on `parade square' discipline and `molding' behaviour and more emphasis on developing an understanding of
political, legal and moral contexts and mastering tradecraft techniques .
81 . WE RECOMMEND THAT the security intelligence agency initiate a
variety of training programmes with an aim to exposing its members to
ideas from persons outside the agency .
82 . WE RECOMMEND THA T
(a) managers in operational jobs take an active role in the design
and implementation of training and development programmes ;
(b) opportunities for increased specialization be available for training and development staff .
83 . WE RECOMMEND THAT
(a) security intelligence agency employees not be allowed to unionize, and this be drawn clearly to the attention of each person
applying to join the agency ;
(b) the security intelligence agenc y
(i) adopt a managerial approach which encourages employee
participation in decision-making ,
(ii) encourage the formation of an employee association, and
(iii) tie agency salaries and benefits by a fixed formula to the
Public Service of Canada .
84 . WE RECOMMEND THA T
(a) employees of the security intelligence agency not belong to the
Public Service of Canada ;
(b) the employee benefits of the security intelligence agency be the
same as those enjoyed by federal public servants ;
(c) portability of employee benefits exist between the agency and
the federal government ;
(d) pension portability arrangements between the federal government and other organizations including other levels of government encompass the security intelligence agency ;
(e) for the purposes of being eligible to enter public service competitions, employees of the security intelligence agency be deemed
to be persons employed in the Public Service .
85 . WE RECOMMEND THAT the security intelligence agency establish
an employee counselling programme based on the two principles of
1085
�voluntary usage and confidentiality of information given to the
counsellors .
86 . WE RECOMMEND THAT the senior management of the security
intelligence agency
(a) emphasize the practice of seeking local and informal avenues of
resolution of grievances before resorting to formal procedures ;
(b) monitor carefully the use of formal grievance procedures as a
possible indicator of problem areas in current personnel
policies ;
(c) establish a two-stage formal grievance procedure, involving a
three-person grievance board at the first stage, and an appeal to
the Director General at the second stage ;
(d) ensure that no member be penalized directly or indirectly as a
result of lodging a grievance .
87 . WE RECOMMEND THAT the security intelligence agency develop a
program for dealing with improper behaviour whic h
(a) emphasizes remedial action rather than punishment ;
(b) requires the Director General, in the case of an alleged illegality, to suspend an employee with pay and to refer the case to
the Solicitor General ;
.
(c) places responsibility for dismissal with the Deputy Solicitor
General, subject to the advice of the Director General and his
senior management team ;
(d) emphasizes the necessity of the security intelligence agency
expending every effort, in appropriate instances, to help dismissed employees find new work ;
(e) provides for a procedure for relocating employees who are
suspected of being security risks to non-sensitive areas in other
federal government departments .
88 . WE RECOMMEND THAT the security intelligence agency develop
(a) a leadership style which relies less on giving orders and obedience and more on participation in decision-making, an d
(b) training courses, especially in small group decision-making
techniques, which will support such a leadership style .
89 . WE RECOMMEND THAT, to minimize the likelihood of internal
communication barriers developing, the senior management of the security intelligence agency should
(a) eliminate separate eating and social facilities based on job levels
within the agency;
(b) develop a regular forum for communicating with staff they
would not normally meet in the course of their work ;
1086
�(c) encourage ad hoc problem-solving groups, when appropriate, to
include staff from a variety of levels within the agency ;
(d) encourage the attendance of junior ranking members when
their work is discussed .
90 . WE RECOMMEND THAT the security intelligence agency include in
its key decision-making forums individuals who, because of their function, have different perspectives on the problems to be considered .
9 .1 . WE RECOMMEND THAT the legal services of the security intelligence agency be provided by the Department of Justice, and that the
Department of Justice assign to the security intelligence agency wellqualified lawyers of mature judgment in sufficient number to provide all
of the legal services required by the agency . ,
92 . WE RECOMMEND THAT the lawyers assigned to the agency serve
from five to ten years in that assignment and that there be a gradual
staggering of the appointments so as to ensure that there is always at
least one lawyer at the agency with several years' experiencé in its work .
93 . WE RECOMMEND THAT the agency's legal advisers provide the
agency with advice on the following matters :
(a) whether actions are in conformity with the law and agency
` guidelines ;
(b) the legality of each application for a warrant to perform an
intrusive technique and whether such application is in conformity with those agency guidelines with respect to its use ;
(c) whether a proposal to use certain other investigative techniques
is in conformity with the agency's guidelines .
94 . WE RECOMMEND THAT the advice of the legal adviser be binding
on the agency unless a contrary opinion is given by the Deputy Attorney
General of Canada .
95 . WE RECOMMEND THAT the legal adviser report to the Deputy
Attorney General of Canada any knowledge he acquires of any illegal
act by any member of the agency .
96 . WE RECOMMEND THAT the legal adviser counsel senior management of the agency in its dealings with senior officials, Ministers or
Parliamentary Committees with respect to the proposed legislative
changes affecting the work of the agency .
97 . WE RECOMMEND THA T
(a) major responsibility for auditing the operations of the security
intelligence agency for legality and propriety should rest with a
new independent review body . (The functions of this body will
be described in a later chapter of this report . )
(b) the security intelligence agency should have a small investigative unit for handling complaints and for initiating in-depth
studies of agency operations on a selective basis ; an d
1087
�(c) the security intelligence agency should not allocate resources
for managerial auditing, but instead should experiment with
other approaches to organizational change .
98 . WE RECOMMEND THAT the security intelligence agenc y
(a) review regularly how the `need to know' principle is being
applied within the agency and whether the balance between
security on the one hand and effectiveness on the other is
appropriate ;
(b) ensure that the principle is being applied to primarily operational matters ;
(c) ensure that the principle is not used as an excuse to prevent
either an auditing group or a superior from knowing about
questionable acts ;
(d) improve its training programmes with regard to the rationale
behind and the application of the `need to know' principle .
99 . WE RECOMMEND THAT screening procedures for security intelligence agency employees
(a) be more stringent than those employed for the Public Se rv ice ;
(b) ensure that the Deputy Solicitor General, on the , advice of the
Director General, is responsible for denying a security clearance
to an individual ;
(c) specify that the agency has a responsibility to advise an
individual who is not granted a security clearance why doubt
exists concerning his reliability or loyalty so long as sensitive
sources of security information are not jeopardized .
100 . WE RECOMMEND THAT the security intelligence agency have a less
stringent set of conditions than the Public Service for releasing an
employee for security reasons .
101 . WE RECOMMEND THAT the security screening appeal process for
agency employees be identical to that of the Public Service, except for
the application of more demanding screening standards .
102 . WE RECOMMEND THAT the security intelligence agency's internal
security branc h
(a) be staffed with more senior people who have the necessary
interv iewing and analytical skills ;
(b) develop a research and policy unit which would keep track of
and analyze all security incidents of relevance to the agency ;
(c) participate in or be kept fully informed of all investigations
relating to security.
103 . WE RECOMMEND THAT agency employees be encouraged to provide information about questionable activities to the independent revie w
1088
�body (the Advisory Council on Security and Intelligence), and that any
employees who do so should not be punished by the agency .
104 . WE RECOMMEND THAT the Government of Canada establish a
security intelligence agency, separate from the R .C .M .P ., and under the
direction of the Solicitor General and the Deputy Solicitor General .
105 . WE RECOMMEND THAT this agency be called the Canadian Security Intelligence Service .
106 . WE RECOMMEND THAT the Solicitor General and the Deputy
Solicitor General place high priority in developing ways to strengthen
the relationship between the security intelligence agency an d
(i) the R .C .M .P.
(ii) other Canadian police forces
( iii) foreign security agencies .
107 . WE RECOMMEND THAT the Cabinet make its decision quickly to
separate the Security Service from the R .C .M .P .
108 . WE RECOMMEND THAT the Solicitor General be given responsibility for implementing the establishment of the security intelligence
agency . He should appoint an implementation team to assist him,
consisting of at least the following : the Deputy Solicitor General, the
Commissioner of the R .C .M .P ., the head of the security intelligence
agency and senior officials from the Privy Council Office, Treasury
Board, Department of Justice, and the Public Service Commission .
109 . WE RECOMMEND THAT the Prime Minister appoint a Director
General for the security intelligence agency :
110 . WE RECOMMEND THAT some of the senior managers for the new
agency should come from outside the R .C .M .P .
111 . WE RECOMMEND THAT
(a) existing staff of the R .C .M .P . Security Service be assigned to
the new agency but continue to belong to either the Public
Service or the R .C .M .P . for an interim period to be established
by the Solicitor General . No current employees of the Security
Service should be forced to become permanent employees of the
security intelligence agency .
(b) no current member of the R .C .M .P. Security Service lose
employment with the federal government as a result of the
establishment of the new security intelligence agency .
112 . WE RECOMMEND THAT federal government positions requiring
security screening be precisely identified according to clearly defined
and carefully monitored standards . Top Secret clearances should be
reduced to the minimum required to protect information critical to the
security and defence of the nation .
1089
�113 . WE RECOMMEND THAT the security intelligence agency not be
involved in screening or selection procedures established to ensure the
suitability of persons for those government positions that do not require
access to information relevant to the security of Canada .
114 . WE RECOMMEND THAT the security intelligence agency not be
requested to undertake a security screening before the final selection of
a candidate for a position requiring a clearance .
115 . WE RECOMMEND THAT the Cursory Records Check for O'rder-inCouncil - appointments be discontinued . Regular security screening
procedures should be carried out for those appointed to positions requiring access to security related information .
116 . WE RECOMMEND THA T
(a) there be security and criminal records checks for M .P .s and
Senators who will have access to classified information ;
(b) any adverse information be reported by the Director General to
the leader of the party to which the M .P . or Senator belongs ;
an d
(c) the persons appointed receive a security briefing by the security
intelligence agency .
117 . WE RECOMMEND THAT security clearances be updated every five
years . This update should be the responsibility of a personnel security
officer in the department . It should not normally include a security
records check .
118 . WE RECOMMEND THAT security clearances for candidates transferring between classified positions be re-evaluated by a personnel
security officer in the new department . A transfer should not necessarily
include a check of the security intelligence agency's records .
119 . WE RECOMMEND THAT a person should be denied a security
clearance only if there are
(1) Reasonable grounds to believe that he is engaged in or is likely
to engage in any of the following :
(a) activities directed to or in support of the commission of
. acts of espionage or sabotage ;
(b) foreign interference, meaning clandestine or deceptive
action taken by or on behalf of a foreign power in Canada
to promote the interests of a foreign power ;
(c) political violence and terrorism, meaning activities in
Canada directed towards or in support of the threat or use
of serious acts of violence against persons or property for
the purpose of achieving a political objective in Canada or
in a foreign country ;
(d) revolutionary subversion, meaning activities directed
towards or intended ultimately to lead to the destruction or
overthrow of the liberal democratic system of government ;
1090
�or
(2) Reasonable grounds to believe that he is or is likely to becom e
(a) vulnerable to blackmail or coercion, or
(b) indiscreet or dishonest ,
in such a way as to endanger the security of Canada .
120. WE RECOMMEND THAT the existing Security Service files on
homosexuals be reviewed and those which do not fall within the guidelines for opening and maintaining files on individuals be destroyed .
121 . WE RECOMMEND THAT the federal government establish a pool of
security staffing officers under the direction of the Public Service
Commission with responsibility for :
(a) carrying out security screening procedures on behalf of federal
government departments and agencies ;
(b) conducting field investigations for security screening purposes ;
(c) assessing the information resulting from the various investigatory procedures related to security screening ;
(d) providing departments and agencies with advice on whether or
not to grant security clearances .
122 . WE RECOMMEND THAT Public Se rv ice Commission security staffing officers be mature individual s
(a) well versed in the variety of political ideologies relevant to
Canadian society ;
(b) sympathetic to the democratic principles which the security
screening process is designed to protect ;
(c) knowledgeable about and interested in human behaviour and
the various methods used by foreign intelligence agencies to
compromise people ;
( d) competent at interviewing a wide variety of people .
123 . WE, RECOMMEND THAT the Interdepartmental Committee on
Security and Intelligence decide what departments or agencies should
have responsibility for conducting their own security screening interviews and field investigations .
124 . WE RECOMMEND THAT the following changes be made to the field
investigation procedures :
(a) for Top Secret level clearances, the Public Service Commission
security staffing officers should interview three referees named
by the candidate . If the list of referees provided by the candidate is not satisfactory, then the Public Service Commission
should request additional referees . The security staffing officers
should also interview other persons as they see fit, except to
seek medical information ;
1091
�(b) for Top Secret and Secret level clearances, the Public Service
Commission security staffing officers should interview the
candidate ;
(c) good employment practices, such as checking a candidate's
credentials, academic records, and employment histories should
not be the responsibility of security staffing officers ;
(d) in those departments and agencies which are responsible for
conducting their own security screening interviews and field
investigations, the functions mentioned in (a) and (b) above
would be performed by their own security staffing officers .
125 . WE RECOMMEND THAT the security intelligence agency have
responsibility for:
(a) providing the Public Service Commission and departmental
security staffing officers with security relevant information
from its files about a candidate, his relatives and close
associates ;
(b) conducting an investigation when necessary to clarify information or to update its assessment of a particular candidate or
group relevant to the candidate's activities ;
(c) advising the Public Service Commission and the employing
department or agency through the security staffing officer on
whether or not a candidate should be granted a security
clearance ;
(d) advising the federal government on general matters affecting
the security clearance programme .
126 . WE RECOMMEND THAT the R .C .M .P ., as part of the security
screening procedures in future, conduc t
(a) a fingerprint records check and ,
(b) a check of its various criminal intelligence records
for all persons with access to classified information .
127 . WE RECOMMEND THAT pardoned or vacated criminal records not
be included in screening reports .
128 . WE RECOMMEND THAT the federal government widely publicize
any review and appeal procedures established for security screening
purposes and that the Interdepartmental Committee for Security and
Intelligence establish monitoring and control mechanisms to ensure that
departments and agencies follow these procedures .
129 . WE RECOMMEND THAT the Interdepartmental Committee for
Security and Intelligence prepare for the approval of the Cabinet
Committee on Security and Intelligence a set of internal review procedures for adverse security reports, to include at least the following
points :
1092
I
�(a) the procedures must be comprehensive . enough to include all
individuals who might be adversely affected by security clearance procedures ;
(b) decisions which adversely affect individuals for security reasons
should be made by the Deputy Minister of the department
concerned about the security problem ;
(c) before making such a decision, the Deputy Minister should
provide the individual in question with an opportunity to resolve
the reasons for doubt;
(d) before making his decision, the Deputy Minister should consult
appropriate officials in at least the Privy Council Office's
Security Secretariat .
130 . WE RECOMMEND THAT the federal government establish, by statute, a Security Appeals Tribunal to hear security appeals in the areas of
Public Service employment, immigration, and citizenship . In the case of
Public Service employment all individuals who have been or who suspect
that they have been adversely affected by security screening procedures
should have access to the Tribunal . The specific responsibilities of the
Tribunal concerning Public Service employment should be as follows :
(a) to advise the Governor in Council on all appeals heard by the
Tribunal ;
(b) to review all adverse screening reports of the security intelligence agency and the Public Service Commission's security
screening unit ;
(c) to report annually to the Interdepartmental Committee on
Security and Intelligence about its activities and about any
changes in security clearance procedures which would increase
either their effectiveness or their fairness .
131 . WE RECOMMEND THA T
(a) the Security Appeals Tribunal consist of five members appointed by the Governor in Council, any three of whom could
compose a panel to hear security appeals ;
(b) the chairman of the Tribunal be a Federal Court Judge ;
(c) the other members not be currently employed by a federal
government department or agency .
132 . WE RECOMMEND THAT the Security Appeals Tribunal disclose as
much information as possible to the appellant and that the Tribunal
have the discretion to decide what security information can be disclosed
to the appellant .
133 . WE RECOMMEND THAT the procedures of the Security Appeals
Tribunal be similar to those now established for appeals against the
dismissal from the Public Service or against deportation, with the added
feature that members of the security intelligence agency or personne l
1093
�security staffing officers be allowed to appear before the Tribunal to
explain the reasons for denying a security clearance .
134 . WE RECOMMEND THAT the security intelligence liaison officer at
the post abroad be involved in any decision, on application for permanent residency, to waive immigration security screening for humanitarian reasons or in cases of urgency .
135 . WE RECOMMEND THAT the security screening rejection criteria
applied to visa applicants reflect the temporary nature of their stay .
Where appropriate, non-renewable visas should be issued for applicants
who could not pass the security criteria for permanent immigration .
136 . * WE RECOMMEND THAT applicants for the renewal of temporary
permits or visas be required to undergo the security screening process .
137 . WE RECOMMEND THAT the humanitarian and flexible procedures
for dealing with Convention Refugees remain, but that the security
intelligence agency, in co-operation with other government departments
and agencies, help prepare regular threat assessment profiles of potential
refugee situations for the Contingency Refugee Committee, which
should be revive d
138 . WE RECOMMEND THAT the security intelligence agency, hold
security screening interviews with Convention Refugees after their
arrival in Canada, not as a matter of course, but only for cause .
139 . WE RECOMMEND THAT section 19(1)(e), (f) and
Immigration Act be repealed and the following substituted :
( g) of the
19 . (1) No person shall be granted admission if he is a member of any
of the following classes :
(e) persons who it is reasonable to believe will engage in any of the
following activities :
(i) activities directed to or in support of the commission of
acts of espionage or sabotage ;
(ii) foreign interference, meaning clandestine or deceptive
action taken by or on behalf of a foreign power in Canada
to promote the interests of a foreign power ;
(iii) political violence and terrorism, meaning activities in
Canada directed towards or in support of the threat or use
of serious acts of violence against persons or property for
the purpose of achieving a political objective in Canada or
in a foreign country .
(iv) revolutionary subversion, meaning activities directed
towards , or intending ultimately to lead to the destruction
or overthrow of the liberal democratic system of
government .
1094
�140 . WE RECOMMEND THAT administrative guidelines to interpret the
statutory classes of persons denied admission to Canada on, security
grounds be drafted for Cabinet approval .
141 . . WE RECOMMEND THAT officers from' the security intelligence
agency carry out immigration security screening functions abroad . If
they are tasked to obtain criminal and other intelligence pertinent to the
suitability of an immigrant, they should pass it on to the Immigration
Officer for assessment .
142 . WE RECOMMEND THAT the security intelligence agency crosscheck immigration screening information received . The security intelligence agency should assess the information on potential immigrants
received from a foreign intelligence agency in the light of the political
concerns and interests of the country of the providing agency .
143 . WE RECOMMEND THAT the security intelligence agency not be
authorized to transgress the laws of foreign countries in order to obtain
intelligence for immigration screening purposes .
144 . WE RECOMMEND THAT the criteria in s .83(1) of the Immigration
Act, as far as they relate to security matters, be amended to read
"contrary to national security" .
145 . WE RECOMMEND THAT the responsibilities of the Special Advisory
Board under subsection 42(a) of the Immigration Act be transferred to
the proposed Security Appeals Tribunal .
146 . WE RECOMMEND THAT the ministerial certificates for the deportation of temporary residents and visitors continue to be considered as
proof, and hence not subject to appeal, but that the security or criminal
intelligence reports upon which the deportation decision is based should
be subject to independent review by the same body that reviews the
evidence in the case of permanent residents, namely the Security
Appeals Tribunal .
147 . WE RECOMMEND THAT the Security Appeals Tribunal review all
the security reports written by the security intelligence agency where the
recommendation for deportation or denial of permanent residency status
or admittance was not followed by the Minister .
148 . WE RECOMMEND THAT the discretionary power of the Governor in
Council to reject citizenship on security grounds be retained . Upon
receiving a request for citizenship screening ; the security intelligence
agency should report any significant security information, not only to
the Citizenship Registration Branch for the rejection of citizenship, but
also to the appropriate immigration authorities for deportation purposes .
149 . WE RECOMMEND THAT the security intelligence agency continue
to screen all citizenship applicants .
150. WE RECOMMEND THAT the security intelligence agency no longer
process criminal record checks on citizenship applicants .
1095
�151 . WE RECOMMEND THAT when the security intelligence agency feels
that a competing security concern should take precedence over its
security screening role in citizenship the Minister responsible for the
security intelligence agency and the Minister responsible for the citizenship security clearance should be informed .
152 . WE RECOMMEND THAT a person be denied citizenship on security
grounds only if there are reasonable grounds to believe that he is
engaged in, or, after becoming a Canadian citizen, is likely to engage in,
any of the following activities:
(a) activities directed to or in support of the commission of acts of
espionage or sabotage ;
(b) foreign interference, meaning clandestine or deceptive action
taken by or on behalf of a foreign power in Canada to promote
the interests of a foreign power ;
(c) political violence and terrorism, meaning activities in Canada
directed towards or in support of the threat or use of serious
acts of violence against persons or property for the purpose of
achieving a political objective in Canada or in a foreign
country ;
(d) revolutionary subversion, meaning activities directed towards or
intended ultimately to lead to the destruction or overthrow of
the liberal democratic system of government ;
153 . WE RECOMMEND THAT any security intelligence agency interpretation of government security screening guidelines be reviewed for
approval by the Minister responsible for the agency . Approval to apply
the guidelines or to distribute them to other Ministers or interdepartmental committees should not be given until the Minister has satisfied
himself that there are no discrepancies between the guidelines and the
agency's interpretation .
154 . WE RECOMMEND THAT guidelines be drawn up and approved by
Cabinet interpreting the phrase "contrary to public order" as a ground
for the rejection of citizenship ; but that the security intelligence agency
not be responsible for reporting information concerning threats to public
order or reprehensible behaviour unless those threats fall within its
statutory mandate .
155 . WE RECOMMEND THAT any applicant recommended for denial of
citizenship on security grounds be able to appeal that decision to the
Security Appeals Tribunal . The Tribunal should follow the same procedures of appeal and review as for recommended denials of public service
and immigration security clearances .
156 . WE RECOMMEND THAT the Cabinet annually determine the government's intelligence requirements .
157 . WE RECOMMEND THAT the security intelligence agency prepare at
least annually a report on its activities for submission to the Cabine t
1096
�Committee on Security and Intelligence and that this report include an
analysis of changes in security threats, changes in targetting policies,
serious problems associated with liaison arrangements and legal difficulties arising from operational practices .
158 . WE RECOMMEND THAT the Prime Minister be the chairman of the
Cabinet Committee on Security and Intelligence and have the assistance
of a vice-chairman .
159 . WE RECOMMEND THAT the Privy Council Office Secretariat for
Security and Intelligence continue its existing functions with the exception of any responsibilities its seconded staff now has for the preparation
of long-term intelligence estimates and that the Secretary to the Cabinet
devote a considerable amount of time to security and intelligence
matters .
160 . WE RECOMMEND THAT the Cabinet and Interdepartmental Committees on Security and Intelligence assume active responsibility for
determining those security policy issues which require resolution and,
where necessary, instruct the Security Advisory Committee or working
groups of officials to prepare draft proposals for submission by stipulated deadlines .
161 . WE RECOMMEND THAT one or more Ministers be clearly designated as responsible for bringing forward policy proposals to Cabinet on
all aspects of security policy, and that the Solicitor General be the
Minister responsible for the development of policies governing the work
of the security intelligence agency .
162 . WE RECOMMEND THAT the Secretary to the Cabinet and the
Assistant Secretary to the Cabinet for Security and Intelligence continue to be responsible for overseeing the interdepartmental co-ordination
of security policies and that more emphasis be given to analyzing the
impact of security practices and policies on the departments and agencies of government .
163 . WE RECOMMEND THAT the collation and distribution of security
intelligence now carried out by the Security Advisory Committee be
transferred to the Intelligence Advisory Committee and that the work of
the Intelligence Advisory Committee in collating current intelligence
and advising on intelligence priorities be broadened to include security
intelligence and economic intelligence .
164 . WE RECOMMEND THAT the Intelligence Advisory Committee be
chaired by the Assistant Secretary to the Cabinet ( Security and
Intelligence) .
165 . WE RECOMMEND THAT the membership of the Intelligence Advisory Committee include, among others, the Director General of the
security intelligence agency, the Commissioner of the R .C .M .P . and
representatives of the Department of Finance and the Treasury Board .
1097
�166 . WE RECOMMEND THAT a Bureau of Intelligence Assessments be
established to prepare estimates of threats to Canada's security and vital
interests based on intelligence received from the intelligence collecting
departments and agencies of the government and from allied countries
and that it be under the direction of a Director General who reports to
the Prime Minister through the Secretary of the Cabinet .
167 . WE RECOMMEND THAT the Minister responsible for the security
intelligence agency be the Solicitor General .
168 . WE RECOMMEND THAT the Minister responsible for the security
intelligence agency should have full power of direction over the agency .
169 . WE RECOMMEND THAT the Minister's direction of the security
intelligence agency include, inter alia, the following areas :
(i) developing policy proposals for administrative or legislative
changes with regard to the activities of the security intelligence agency and presenting such proposals to the Cabinet
or Parliament ;
(ii) developing any guidelines which are required by statute
with respect to investigative techniques and reporting
arrangements;
(iii) continuous review of the agency's progress in establishing
personnel and management policies required by government ;
(iv) reviewing difficult operational decisions involving any
questions concerning legality of methods or whether a
target is within the statutory mandate ;
(v) reviewing targetting priorities set by the government and
ensuring that the agency's priorities and deployment of
resources coincide with the government's priorities ;
(vi) approving proposals by the Director General to conduct
full investigations and to apply for judicial authorization of
investigative techniques (e .g . electronic surveillance and
mail opening) ;
(vii) approving liaison arrangements with foreign countries after
consultation with the Secretary of State for External
Affairs ;
(viii) approving liaison arrangements with provincial and municipal police forces and governments ; an d
(ix) authorizing dissemination of security intelligence to the
media .
170 . WE RECOMMEND THAT the Director General be responsible, in the
normal course, for running the operations of the agency.
1098
�171 . WE RECOMMEND THAT the Director General be responsible to the
Deputy Minister for developing policy proposals with respect to the
agency's field of activities .
172 . WE RECOMMEND THAT the Minister` meet regularly with the
Director General and the Deputy Minister together, to discuss matters
relating to the agency and to receive reports from the Director General
on operational problems in the agency and policy proposals developed by
the agency .
173 . WE RECOMMEND THAT the Deputy Minister have such staff as he
considers necessary to :
(i) assess the policy proposals brought forward by the Director
General and to fill any gaps in security policy that are
identified ;
(ii) to appraise for the Minister the quality of the reports
produced by the agency ; an d
(iii) assist the Minister in carrying out all his other responsibilities in the security field .
174 . WE RECOMMEND THAT the Director General have direct access to
the Minister, without the knowledge or consent of the Deputy Minister,
when the Director General is of the opinion that the conduct of the
Deputy Minister is such as to threaten the security of the country .
175 . WE RECOMMEND THAT the Deputy Minister and the Director
General each have direct access to the Prime Minister, and not consult
with their Minister, in the following circumstances :
(i) if there are security concerns relating to any Minister ;
(ii) if, in the opinion of the Deputy . Minister or the Director
General, the conduct of the Minister is such as to threaten
the security of the country .
176 . WE RECOMMEND THAT recognition be given to the special need for
continuity in the office of the Minister . responsible for the security
intelligence agency .
177 . WE RECOMMEND THAT any disagreements between the Solicitor
General and the Auditor General with respect to :
(i) access by the Auditor General to information in the possession of the security intelligence agency ; an d
(ii) disclosure in the Auditor General's Report of classified
information obtained by him from the agenc y
be referred to the Joint Parliamentary Committee on Security and
Intelligence for resolution, and pending the creation of that Committee
the resolution all such disagreements be held in abeyance .
178 . WE RECOMMEND THAT the statute governing the security intelligence agency provide for the establishment of an Advisory Council o n
1099
�Security and Intelligence to review the legality and propriety of the
policies and practices (which includes operations) of the security and
intelligence agency and of covert intelligence gathering by any other
non-police agency of the federal government .
179 . WE RECOMMEND THAT the Advisory Council on Security and
Intelligence be constituted as follows :
(a) The Council should be comprised of three members, who should
be at arm's length with the Government of Canada, and at least
one of whom should be a lawyer of at least tenyears' standing .
(b) Members of the Council should be appointed by the Governor
in Council after approval of their appointments by resolution of
the House of Commons and Senate . One member should be
designated by the Governor in Council as the Chairman of the
Council .
(c) Members of the Council should serve for not more than six
years, and the termination dates of their appointments should
vary so as to maintain continuity .
(d) Subject to (c) above, members of the Council should hold office
during good behaviour subject to being removed by the Governor in Council on address of the Senate and House of
Commons .
(e) Members of the Council need not serve on a full-time basis but
must be able to devote up to five days a month to the work of
the Council .
180. WE RECOMMEND THAT the Advisory Council on Security and
Intelligence have the following powers and responsibilities :
(a) For purposes of having access to information, members of the
Council should be treated as if they were members of the
security intelligence agency and have access to all information
and files of the security intelligence agency .
(b) The Council should be authorized to staff and maintain a small
secretariat including a full-time executive secretary and a fulltime investigator, to employ its own legal counsel and to engage
other personnel on a temporary basis for the purpose of carrying out major investigations or studies .
(c) The Council should be informed of all public complaints
received by the security intelligence agency or by the Minister,
or by any other department or agency of the federal government, alleging improper or illegal activity by members of the
security intelligence agency or any other covert intelligence
gathering agency (except police) of the federal government, and
when it has reason to believe that a complaint cannot be or has
not been satisfactorily investigated it must be able to . conduct
its own investigation of the complaint .
1100
�(d) The Council should have the power to require persons, including members of the security intelligence agency or of any other
federal non-police agency collecting intelligence by covert
means, to testify before it under oath and to produce
documents .
(e) The Council should report to the Solicitor General any activity
or practice of the security intelligence agency or any other
federal non-police agency collecting intelligence by covert
means, which it considers to be improper or illegal and from
time to time it should offer the Solicitor General its views on at
least the following :
(i) whether an activity or practice of the security intelligence
agency falls outside the statutory mandate of the security
intelligence agency ;
(ii) the implementation of administrative directives and guidelines relating to such matters as the use of human sources,
the reporting of information about individuals to government departments and the role of the security intelligence
agency in the security screening process ;
(iii) the working of the system of controls on the use o f
intrusive intelligence collection techniques ;
(iv) the security intelligence agency's liaison relationship with
foreign agencies and with other police or security agencies
in Canada ;
(v) the adequacy of the security intelligence agency's response
to public complaints ;
(vi) any other matter which in the Council's opinion concerns
the propriety and legality of the security intelligence agency's activities .
(f) The Council should report, to the Minister responsible for any
federal non-police organization collecting intelligence by covert
means, any activity or practice of a member of such organization which in the Council's view is improper or illegal .
(g) The Council should report to the Joint Parliamentary Committee on Security and Intelligence at least annually on the
following :
(i) the extent and prevalence of improper and illegal activities
by members of the security and intelligence agency or any
other federal organization collecting intelligence by covert
means, and the adequacy of the government's response to
its advice on such matters ;
(ii) any direction given by the Government of Canada, to the
security intelligence agency or any other federal organization collecting intelligence by covert means, which the
Council regards as improper ;
1101
�(iii) any serious problems in interpreting or administering the
statute governing the security intelligence agency .
181 . WE RECOMMEND THAT Parliament enact legislation vesting authority in an organization to carry out security intelligence activities and
that such legislation include provision fo r
(a) the definition of threats to the security of Canada about which
security intelligence is required ;
(b) certain organizational aspects of the security intelligence
agency including : its location in government ; the responsibilities, manner of appointment and term of office of its Director
General ; the powers of direction of the responsible Minister and
Deputy Minister ; and, the employment status of its personnel ;
(c) the general functions of the organization to collect, analyze and
report security intelligence and to be confined to these activities, plus specific authorization of certain activities outside
Canada, liaison with foreign agencies and provincial and
municipal authorities and of the organization's role in security
screening programmes ;
(d) authorization of certain investigative powers and the conditions
and controls applying to the use of such powers ;
(e) mechanisms of external control to ensure an independent review
of the legality and propriety of security intelligence activities
and any other covert intelligence activities by agencies of the
Government of Canada except those performed by a police
force .
182 . WE RECOMMEND THAT the statute governing the security intelligence agency provide for the establishment of a Joint Committee of the
Senate and House of Commons to review the activities of the security
intelligence agency and of any other agency collecting intelligence (other
than criminal intelligence) by covert means .
183 . WE RECOMMEND THAT the Joint Committee on Security and
Intelligence have not more than ten members, that all recognized
parliamentary parties be represented on it, that the leaders of parliamentary parties personally select members of their parties for the
Committee and, if possible, serve themselves, that the Committee be
chaired by a member of an opposition party, that members serve for the
duration of a Parliament and that it retain the help of such specialists as
it considers necessary .
184 . WE RECOMMEND THAT the Committee be concerned with both the
effectiveness and the propriety of Canada's security and intelligence
arrangements and that its functions include - the following :
(a) consideration of the annual estimates for the security intelligence agency and for any other agency collecting intelligence
(other than criminal intelligence) by covert means ;
1102
�(b)~ examination of annual reports of the use made of "extraordinary" powers of intelligence collection (other than criminal
intelligence) authorized by Parliament ;
(c) consideration of reports directed to it by the Advisory Council
on Security and Intelligence ;
(d) the investigation of any matter .relating to security and intelligence referred to it by the Senate or House of Commons .
185 . WE RECOMMEND THAT the Joint Committee on Security and
Intelligence whenever necessary conduct its proceedings in camera, but
that it publish an expurgated report of all in camera proceedings .
186 . WE RECOMMEND THAT the security intelligence agency be directed to draft a policy for approval by the Minister to ensure the release of
historical material, unless such release can be shown to endanger the
security of Canada .
187 . WE RECOMMEND THAT a proclamation invoking the War Measures Act be debated in Parliament forthwith if Parliament is in session
or, if Parliament is not in session, within seven days of the proclamation .
Parliament should be informed of the reasons for the invocation of the
Act, either publicly in the House, in an in camera session or by means of
consultation with the leaders of the opposition parties, or through a
report to the Joint Parliamentary Committee on Security and
Intelligence .
188 . WE RECOMMEND THAT the War Measures Act limit the duration
of a proclamation issued by the Governor in Council to a specific period
not to exceed twelve months . Extensions for periods not to exceed twelve
months should require further approval by Parliament .
189 . WE RECOMMEND THAT orders and regulations to be brought into
force when the War Measures Act is invoked be drafted in advance.
190 . WE RECOMMEND THAT the War Measures Act be amended to
provide that such draft orders and regulations be tabled and âpproved by
Parliament prior to their being brought into force ; Any orders and
regulations under the War Measures Act which have not been so
approved in advance of the emergency should have to be tabled forthwith and should expire 30 days after coming into force unless approved
by Parliament in the meantime .
191 . WE RECOMMEND THAT section 6(5) of the War Measures Act be
amended to provide that powers that are to be permitted, notwithstanding the Canadian Bill of Rights, should be specifically identified in the
legislation and approved by Parliament .
192 . WE RECOMMEND THAT section 3(1)(b) of the War Measures Act
be amended . There should be no executive power in emergencies to exil e
1103
�or deport a Canadian citizen, nor should the Governor in Council have
the power to revoke Canadian citizenship .
193 . WE RECOMMEND THAT there be provision in the War Measures
Act for:
(a) a Board of Detention Review to consider the circumstances of
persons whose liberty has been restrained by actions taken or
purported to have been taken under the War Measures Act ; an d
(b) a Compensation Tribunal to award compensation to persons
whose rights have been infringed, without due cause, through
the application of emergency legislation .
194 . WE RECOMMEND THAT the War Measures Act be amende d
(a) to prohibit prolonged detention after arrest without the laying
of a charge; a charge should be laid as soon as possible and in
any event not more than seven days after arrest ;
(b) to prohibit the creation by the Governor in Council of new
courts to handle charges laid under the Act and Regulations ;
and
(c) to provide that if, because of the volume of cases arising out of
charges laid under the Act and regulations, the ordinary courts
of criminal jurisdiction cannot handle the caseload, such courts
should be enlarged or the jurisdiction of other existing courts
should be extended to deal with the overload .
195 . WE RECOMMEND THAT the War Measures Act be amended to
provide that an arrest under the War Measures Act should not be based
solely upon the fact of simple membership in an illegal organization .
196 . WE RECOMMEND THAT :
(a) no regulations passed pursuant to the War Measures Act have a
retroactive effect ; and
(b) if the regulations proscribe a course of conduct which was not
previously an offence, and the conduct began prior to the
making of the regulations, a reasonable period of grace be
granted during which any person may comply with the
regulations .
197 . WE RECOMMEND THAT certain fundamental rights and freedoms,
such as those specified in the Public Order (Temporary Provisions) Act,
those specified in Article 4 of the International Covenant on Civil and
Political Rights, and the right of citizens not to be deprived of citizenship or exiled, not be abrogated or abridged by the War Measures Act
or any other emergency legislation under any circumstances .
198 . WE RECOMMEND THAT the government give immediate attention
to the establishment of a Special Identification Programme .
1104
�199 . WE RECOMMEND THAT_the legislation dealing with national -e mergencies should prôhibit the making of regulations which would provide
for a system of detention upon order by a Minister or the Governor in
Council . Any detention should be consequent upon arrest, trial and
imprisonment in accordance with traditional judicial procedures .
200 . WE RECOMMEND THAT the identification of dangerous individuals
who should be arrested in situations of emergency of the kinds contemplated by the War Measures Act be carefully reviewed prior to the
outbreak of any crisis by a Committee on Arrests in Emergencies
external to the security intelligence agency . This Committee should be
responsible to the Interdepartmental Committee on Security and Intelligence or the Interdepartmental Committee on Emergency Preparedness
and should include representatives from the Department of the Solicitor
General and the Department of Justice, with a member from the
security intelligence agency serving in an advisory capacity . The responsible interdepartmental committee should annually submit a report on
the arrests programme to the Cabinet Committee on Security and
Intelligence.
201 . WE RECOMMEND THAT members of the Committee review and
record decisions on individual cases proposed for arrest or for extraordinary powers of search and seizure in case of an emergency .
202 . WE RECOMMEND THAT the members of the Committee who
review individual cases be fully briefed as to the methods used by the
security intelligence agency to obtain the supporting evidence . This
evidence should be discussed in the annual report to the Cabinet
Committee on Security and Intelligence .
203 . WE RECOMMEND THAT arrest lists be prepared only in respect of
persons who are believed on reasonable grounds to be serious security
threats in the event of emergency of the kinds contemplated by the War
Measures Act such as those who, on reasonable grounds, are believed to
be espionage agents, terrorists or saboteurs, or likely to become such .
204 . WE RECOMMEND THAT the security intelligence agency have the
responsibility to alert government to situations that might develop into
emergencies that would threaten the internal security of the nation .
Reports on such threats should be reviewed by the Solicitor General and
the Intelligence Advisory Committee and used by the Bureau of Intelligence Assessments in preparing long-term, strategic assessments of
security threats . Reports assessing the imminence and significance of
threats should be submitted to the Cabinet at an appropriate time.
205 . WE RECOMMEND THAT in times of national emergency, the security intelligence agency monitor all intelligence received from its own
sources and from sources of other agencies, and provide assessments of
such intelligence to the crisis centre established to co-ordinate the
government's response to the crisis .
1105
�206 . WE RECOMMEND THAT in national emergencies the government
seek the advice of the Director General of the security intelligence
agency as to matters to which security intelligence collected by the
agency would be relevant .
207 . WE RECOMMEND THAT the responsibility for assessing the security
requirements for vital points remain a protective security function of the
federal police agency . The proper role of a security intelligence agency is
to report intelligence that may be valuable towards ensuring that vital
points are adequately protected .
208 . WE RECOMMEND THAT during a national emergency involving
terrorism or political violence the security intelligence agency be responsible for advising these officials on the security implications of media
coverage of the crisis .
209. WE RECOMMEND THAT section 10 of the Official Secrets Act be
repealed .
210. WE RECOMMEND THAT sections 5 and 6 of the Official Secrets
Act not be retained in the new espionage legislation ; if a general
espionage offence is enacted, as recommended in the First Report
(Recommendation 5), it will not be necessary to preserve the other
particular espionage related offences in sections 3 ; 4, 5 and 6 of the
Official Secrets Act .
211 . WE RECOMMEND THAT there be no legislation requiring the
registration of foreign agents or making it an offence to be a secret
agent of a foreign power .
212 . WE RECOMMEND THAT the seditious offences now found in the
Criminal Code be abrogated .
213 . WE RECOMMEND THAT the federal government establish the
Office of Inspector of Police Practices, a review body to monitor how the
R .C .M .P . handles complaints and, in certain circumstances, to undertake investigations of complaints on its own .
214 . WE RECOMMEND THAT as alternatives to filing complaints directly
with the R .C .M .P . ,
'(a) provincial police boards and commissions continue to receive
complaints against the R .C .M .P ., and to forward copies of them
to the R .C.M .P . without revealing the name of the complainant
if so requested by the complainant ;
(b) the Inspector of Police Practices and local offices of the federal
Department of Justice, receive complaints against the R .C .M .P.
and forward copies of them to the R .C .M .P . without revealing
the name of the complainant if so requested by the
complainant .
These alternatives to sending a complaint directly to the R .C .M .P.
should be widely publicized by the Solicitor General, by the Force, b y
1106
�the Office of Inspector of Police Practices and by provincial police
boards and commissions .
215 . WE RECOMMEND THAT the Federal Government request the
courts to establish procedures whereby judges may send a formal report
to the Commissioner of the R .C .M .P . of cases of suspected police
misconduct .
216 . WE RECOMMEND THAT the Inspector of Police Practices be
authorized to receive allegations from members of the R .C .M .P. concerning improper or illegal activity on the part of other members of the
Force.
217 . WE RECOMMEND THAT the Inspector of Police Practices
endeavour to keep secret the identities of R .C .M .P. members who report
incidents of illegal or improper R .C .M .P . activity .
218 . WE RECOMMEND THAT R .C .M .P . officers be proscribed from
taking recriminatory personnel action against any member under their
command by reason only that the member filed, or is suspected of
having filed, an allegation of illegal or improper R .C .M .P . conduct with
the Office of the Inspector of Police Practices .
219 . WE RECOMMEND THAT members of the R .C .M .P . be under a
specific statutory duty to report evidence of illegal or improper conduct
on the part of members of the Force to their superiors . Where there is
reason to believe that it would be inadvisable to report such evidence to
their superiors they should be under a statutory duty to report it to the
Inspector of Police Practices .
220 . WE RECOMMEND THAT the R .C .M .P. retain the primary responsi=
bility for investigating allegations of improper, as opposed to illegal,
conduct lodged against its members .
221 . WE RECOMMEND THAT the Inspector of Police Practices be
empowered to undertake an investigation of an allegation of R .C .M .P .
misconduct whe n
(a) the complaint involves a member of the R .C .M .P . senior to all
members of the internal investigation unit ;
(b) the complaint involves a member of the internal investigation
unit ;
(c) the complaint is related to a matter which the Inspector is
already investigating ;
(d) the Inspector is of the opinion that it is in the public interest
that the complaint be investigated by him ; or
(e) the Solicitor General requests the Inspector to undertake such
an investigation .
222 . WE RECOMMEND THAT the Inspector of Police Practices be
empowered to monitor the R .C .M .P .'s investigations of complaints and
to evaluate the R .C .M .P .'s complaint handling procedures . The'Inspec1107
�tor should receive copies of all formal complaints of R .C .M .P . misconduct and reports from the R .C .M .P . of the results of its investigations .
223 . WE RECOMMEND THAT, as part of his monitoring and evaluating
role, the Inspector of Police Practices inquire into and review at his own
discretion or at the request of the Solicitor General any aspect of
R .C .M .P . operations and administration insofar as such matters may
have contributed to questionable behaviour on the part of R .C .M .P .
members .
224 . WE RECOMMEND THAT copies of all allegations of illegal conduct
on the part of R .C .M .P . members, which are received by any of the
bodies authorized to receive the allegations, be forwarded to the appropriate law enforcement body for investigation and concurrently to the
appropriate prosecutorial authorities .
225 . WE RECOMMEND THAT the Solicitor General adopt the necessary
administrative machinery to allow provincial attorneys general to direct
at their discretion members of municipal or provincial police forces to
investigate an allegation of criminal misconduct lodged against an
R .C .M .P. member .
226 . WE RECOMMEND THAT whenever the R .C .M .P . is the police force
undertaking the investigation into an alleged offence committed by one
of its members, a separate, special R .C .M .P . investigative unit be
directed to investigate the matter for internal (non-prosecutorial)
matters .
227 . WE RECOMMEND THAT an R .C .M .P. internal investigation into
alleged illegal conduct not be undertaken until the regular police
investigation has been substantially completed, unless there are exceptional circumstances which warrant an immediate internal inquiry .
228 . WE RECOMMEND THA T
(a) the Office of Inspector of Police Practices be empowered to
conduct an investigation into allegations of illegal conduct ;
(b) any criminal investigation take precedence over the Inspector's
investigation ;
(c) the R .C .M .P . halt any internal investigation that it is conducting for disciplinary purposes ; an d
(d) any relevant information discovered by the .Inspector during the
investigation be transmitted to the appropriate prosecutorial
authorities .
229 . WE RECOMMEND THAT criminal investigatory files continue to be
used by the R .C .M .P. for internal investigations .
230 . WE RECOMMEND THAT the R .C .M .P . advise complainants
whether it has found the allegation to be founded, unfounded, or
unsubstantiated .
1108
�231 . WE RECOMMEND THAT complainants have the right to appeal to
the Solicitor General if they are not satisfied with how the R .C .M .P . has
handled their complaint .
232 . WE RECOMMEND THAT, upon request ; the Inspector of Police
Practices advise the Solicitor General as to the quality and thoroughness
of any investigation of a complaint undertaken by the R .C .M .P . The
Inspector of Police Practices should also re-investigate a complaint at
the request of the Solicitor General .
233 . WE RECOMMEND THAT the Inspector of Police Practices report
directly to the Solicitor General the results of his office's investigations
of complaints alleging misconduct .
234 . WE RECOMMEND THAT the Inspector of Police Practices, as part
of his role of monitoring the complaint handling procedures of the
R .C .M .P ., bring to the attention of the Solicitor General any specific,
complaints which ; in the opinion of the Inspector, have not been properly'
handled by the R .C .M .P .
235 . WE RECOMMEND THAT any punishment given an R .C .M .P .
member arising from a complaint not necessarily be communicated to
the complainant . Rather, the Force should tell the complainant that it
recognizes the error, that it apologizes for the misconduct of its member,
that it has taken steps to ensure that the activity will not be repeated,
and that in those cases where the complainant has suffered damage or
loss it will make an ex gratia payment .
236 . WE RECOMMEND THAT the Inspector of Police Practices periodically review and report on the appropriateness of the disciplinary
measures taken by the R .C .M .P . in regard to questionable conduct on
the part of a member which affects the public .
237 . WE RECOMMEND THAT the Office of Inspector of Police Practices
be established within the Department of Solicitor General and that the
Inspector report directly to the Solicitor General .
238 . WE RECOMMEND THAT the Inspector of Police Practices be an
Order-in-Council appointment and that the following conditions of
employment be included in the statute establishing the office :
(a) the Inspector should be subject to dismissal only for `cause' ;
(b) 'cause' includes mental or physical incapacity ; misbehaviour ;
bankruptcy or insolvency ; or failure to comply with the provisions of the Act establishing the Office of Inspector of Police
Practices ;
(c) the Inspector should be appointed for a five-year term;
(d) no Inspector should serve for more than 10 years .
239 . WE RECOMMEND THAT the Inspector of Police Practices have
access to the Prime Minister on matters concerning improper behaviou r
1109
�on the part of the Solicitor General in the performance of his duties
vis-à-vis the R .C .M .P.
240 . WE RECOMMEND THAT the Inspector of Police Practices be a
lawyer who has at least 10 years standing at the Bar, and that he have a
small staff with experience in the field of police administration or
criminal justice .
241 . WE RECOMMEND THAT the Inspector of Police Practices be
empowered to obtain on secondment experienced police investigators
and other experts to conduct investigations, when appropriate, of misconduct on the part of R .C .M .P . members .
242 . WE RECOMMEND THAT the Inspector of Police Practices report
regularly to the Solicitor General on the results of, investigations and
annually to the Solicitor General on significant activities of-his Office
during the year . The Solicitor General should table this report in
Parliament .
243 . WE RECOMMEND THAT, subject to the restrictions which we have
proposed when the R .C .M .P . are carrying out duties relating to the
mandate of the security intelligence agency, the R .C .M .P. and the
Inspector of Police Practices provide each provincial attorney general
and each provincial police board with the following :
(a) information about all serious complaints in their province ;
(b) reports on the disposition of such complaints ;
(c) statistical analyses of complaints regarding R .C .M .P . misconduct .
244 . WE RECOMMEND THAT the Inspector of Police Practices shoul d
(a) obtain on secondment staff from provincial police forces, police
boards, or appropriate provincial government departments when
forming task forces to investigate allegations of R .C .M .P.
misconduct ;
(b) normally consult the appropriate provincial officials on recommendations he proposes to make arising out of a serious allegation in that province.
245 . WE RECOMMEND THAT the Solicitor Genera l
(a) initiate the establishment of a regular forum for Provincial and
Federal ministers and officials to discuss problems and share
information concerning complaint handling procedures ; an d
(b) ensure that provincial inquiries into allegations of R .C .M .P .
misconduct, to the extent of their constitutionally proper scope,
receive the full co-operation of the R .C .M .P . and the Inspector
of Police Practices .
246. WE RECOMMEND THAT the R .C .M .P. obtain all its legal advice
relating to matters arising out of its administrative activities as a n
1110
�agency of the Government of Canada from the federal Department of
Justice .
247 . WE RECOMMEND THAT the R .C .M .P . obtain all its legal advice
with respect to its federal law enforcement role from the federal
Department of Justice, and with respect to its law enforcement role
pursuant to a provincial or municipal contract from the appropriate
provincial attorney general .
248 . WE RECOMMEND THAT if the R .C .M .P . is in doubt as to which
governmental level is the appropriate one from which to seek its legal
advice in a particular matter it should get an opinion from .the federal
Department of Justice as to which is the appropriate level and abide by
that opinion .
249 . WE RECOMMEND THAT the Department of Justice assign sufficient
counsel to satisfy the requirements of the R .C .M .P .
250 . WE RECOMMEND THAT there be no Legal Branch of the R .C .M .P .
251 . WE RECOMMEND THAT THE R .C .M .P . continue to have within
the Force regular members with law degrees and to assign a sufficient
number of such members to work with the Department of Justice
counsel to ensure that the R .C .M .P .'s needs are explained and interpreted to those counsel .
252 . WE RECOMMEND THAT no member of the Force with a law degree
be assigned to any duty requiring him to give a legal opinion to another
member of the Force, with the exception of the normal assistance given
by any superior to a subordinate in the course of the investigation of an
alleged offence .
253 . WE RECOMMEND THAT members with law degrees who are
assigned to represent other members in disciplinary proceedings be
supervised by Department of Justice counsel .
254 . WE RECOMMEND THAT the Department of Justice counsel
assigned to the Force have a specific duty to report to the Deputy
Attorney General of Canada any past or future acts which he believes
may be unlawful, of any past or present member of the Force .
255 . WE RECOMMEND THAT the Deputy Solicitor General be considered as the deputy of the Solicitor General for all purposes related to
the R .C .M .P . and that the Commissioner of the R .C .M .P. report
directly to the Deputy Solicitor General rather than to the Solicitor
General as at present .
256 . WE RECOMMEND THAT the Solicitor General have full power of
direction over the activities of the R .C .M .P ., except over the `quasi-judicial' police powers of investigation, arrest and prosecution in individual
cases .
257 . WE RECOMMEND THAT the Commissioner of the R .C .M~P . keep
the Deputy Solicitor General, and through him the Solicitor General ,
1111
�fully informed of all policies, directions, guidelines and practices of the
Force, including all operational matters in individual cases which raise
important questions of public policy .
258 . WE RECOMMEND THAT if the Commissioner considers that the
Deputy Solicitor General is giving him direction based on partisan or
political considerations, the Commissioner take the matter up directly
with the Minister . We further recommend that if the Commissioner,
after consultation with the Deputy Solicitor General, considers that the
Solicitor General is giving him, the Commissioner, direction based on
partisan or political considerations, he should take the matter up directly
with the Prime Minister .
259 . WE RECOMMEND THAT in the contracts with the provinces covering the provision of R .C .M .P. policing services, the respective roles of
the responsible federal and provincial ministers be clarified, so that the
R .C .M .P . members involved have an accurate understanding of the
division of their obligations and duties vis-à-vis those ministers .
260 . WE RECOMMEND THAT the contracts with the contracting provinces incorporate as far as possible the principles of ministerial direction
recommended above for the federal level .
261 . WE RECOMMEND THAT the Solicitor General, in concert with his
counterparts in the provinces, initate a review of the current system of
controls governing the use of the R .C .M .P .'s investigatory methods .
262 . WE RECOMMEND THAT the Solicitor General refer to the Law
Reform Commission of Canada the matter of whether or not the
Criminal Code should be amended to allow peace officers in Canada,
under defined circumstances and controls, to make surreptitious entries .
263 . WE RECOMMEND THAT a committee be established with statutory
powers to review the use of electronic surveillance by all police forces in
Canada, including, but not limited to, the procedure by which authorizations are applied for .
264 . WE RECOMMEND THAT section 178 .2(1) of the Criminal Code be
amended so that information obtained as a result of lawful electronic
surveillance can be given to
(a) a foreign law enforcement agency ;
(b) any person who is involved in the preparation of the Solicitor
General's Annual Report to Parliament on the use of electronic
surveillance ;
(c) any person who is involved in the preparation of a provincial
attorney general's Annual Report to a provincial legislature on
the use of electronic surveillance ; an d
(d) any person authorized by federal legislation to review the use of
this investigative technique .
1112
�265 . WE RECOMMEND THAT section 178 .13 of the Criminal Code be
amended to permit peace officers executing authorizations under this
section to take such steps as are reasonably necessary to enter premises
or to remove property for the purpose of examining the premises or
property prior to installing a device or for the purpose of installing,
maintaining or removing an interception device, providing the judge
issuing the authorization sets out in the authorizatio n
(a) the methods which may be used in executing it ;
(b) that there be nothing done that shall cause significant damage
to the premises that remains unrepaired ;
(c) that there be no use of physical force or the threat of such force
against any person .
266 . WE RECOMMEND THAT section 178 .13 of the Criminal Code be
amended to permit peace officers executing authorizations under this
section to use the electrical power source available in the premises
without compensation .
267 . WE RECOMMEND THAT the Solicitor General seek the co-operation
of the provinces to effect the necessary administrative and legislative
changes to provincial and municipal regulations governing such matters
as electrical installations, fire protection and construction standards in
order to allow peace officers to install, operate, repair and remove
electronic eavesdropping devices in a lawful manner .
268 . WE RECOMMEND THAT, not withstanding the present provisions of
the Post Office Act, R .C .M .P . peace officers be authorized by legislation to examine or photograph an envelope and to open mail in order to
examine and test any substance found in the mail, subject to the
following conditions :
(a) this power is exercisable only on judicial authorization, subject
to the same safeguards as are now found in section 178 of the
Criminal Code;
(b) the offences concerning which this power can be exercisable are
limited to narcotic and drug offences ;
(c) the reading of an accompanying written, printed or typewritten
message other than a message accompanying an illicit drug or
narcotic is an offence;
(d) there is a procedure established (such as a statutory declaration
by the official supervising the opening of mail) to ensure that in
executing the judicial authorization no one has unlawfully read
any message contained in the mail . The declaration should be
filed with the Solicitor General .
269 . WE RECOMMEND THAT the Post Office Act should be .amended so
that it is clear that controlled deliveries of mail by R .C .M .P . peace
officers or their agents may be made lawfully .
1113
�270 . WE RECOMMEND THAT Schedule I of the Prohibited Mail Regulations be amended so that an article of mail is considered "non-mailable
matter" if there are grounds for suspicion or reasonable belief that the
article of mail contains an explosive .
271 . WE RECOMMEND THA T
(a) legislation authorize the heads of federal government institutions to release information concerning an individual's name,
address, phone number, date and place of birth, occupation and
physical description on receiving a written request from the
R .C .M .P . stating that such information is necessary for the
purpose of conducting a criminal investigation .
(b) all other personal information held by the federâl government
with the exception of census information held by Statistics
Canada, be accessible to the R .C .M .P. through a system of
judicially granted authorizations subject to the same terms and
conditions as are now found in section 178 of the Criminal
Code with regard to electronic surveillance .
272 . WE RECOMMEND THAT the R .C .M .P . obtain personal information
held by government institutions under the jurisdiction of provincial
governments only from persons legally authorized to release such information and that, with regard to any province in which there is no
authorized means of access to information to which the Solicitor General of Canada considers that the R .C .M .P. should have access in order to
discharge its policing responsibilities effectively, the Solicitor General
should seek the co-operation of the province in amending its laws to
make such access possible .
273 . WE RECOMMEND THAT the amendments which we proposed in
Part V, Chapter 4 to facilitate physical surveillance operations by the
security intelligence agency be made applicable to physical surveillance
in criminal investigations by the R .C .M .P .
274 . WE RECOMMEND THAT the R .C .M .P. establish administrative
guidelines concerning the use of undercover operatives in criminal
investigations . These guidelines should be approved by the Solicitor
General and should be publicly disclosed .
275 . WE RECOMMEND THAT to facilitate the obtaining of false identification documents in a lawful manner for R .C .M .P . undercover operatives in criminal investigations, federal legislation be amended, and the
co-operation of the provinces be sought in amending relevant provincial
laws, in a similar manner to that recommended for the false identification needed in physical surveillance operations of both the security
intelligence agency and the criminal investigation side .of the R .C .M .P .
276 . WE RECOMMEND THAT income tax legislation be amended to
permit R .C .M .P . sources in criminal investigations not to declare as
income payments received by them from the force and that other fisca l
1114
�legislation requiring deduction and remittance by or on behalf of
employees be amended to exclude R.C .M .P . sources . ~
277 .
WE RECOMMEND THAT section 383 of the Criminal Code of
Canada concerning secret commissions be amended to provide that a
person providing information to the R .C .M .P. in a duly authorized
criminal investigation does not commit the offence defined in that
section .
278 . WE RECOMMEND THAT the R .C .M .P . develop a programme
designed to assist its members who serve as undercover operatives in
criminal investigations to overcome the personality disorders associated
with long-term assignments in thisrole .
279 . WE RECOMMEND THAT the R .C .M .P . develop reporting and
review procedures both at the divisional and the national levels to enable
an internal review of the following cases :
(a) when a conviction is obtained even though thé accused's confession is held inadmissible;
(b) when counsel for the prosecution decides not to offer the
confession because he feels that there would be little or no
chance of its being'held to be admissible, given the manner in
which it had been obtained .
280 . WE RECOMMEND THAT the R .C .M .P . adopt the following policies
concerning interrogation :
(a) members of the Force have a duty to inform a pei•son in
- custody, within a reasonable time after being taken into custody, of his right to retain counsel ; and
(b) members of the Force should provide reasonable means to a
person in custody to communicate with his counsel without
delay upon the person making a request to,do so .
281 . WE RECOMMEND THAT the R .C .M .P . revise training materials and
programmes relating to interrogation to include proper instructions on
the right of an accused to retain and communicate with counsel .
282 . WE RECOMMEND THAT members of the R .C .M .P . be required to
advise persons in custody reasonably soon after their arrest that arrangements exist to enable them to apply for counsel, such counsel to be paid
for by the state if they cannot afford to pay counsel .
283 . WE RECOMMEND THAT the Criminal Code be amended to include
the following provision :
(1) Evidence shall be excluded if it was obtained ùnder such
circumstances that its use in the proceedings would tend to
bring the administration of justice into disrepute .
(2) In determining whether evidence should be excluded under this
section, all the circumstances surrounding the proceedings and
1115
�the manner in which the evidence was obtained shall be considered, including :
(a) the extent to which human dignity and social values were
breached in obtaining the evidence ;
(b) whether any harm was inflicted on the accused or others ;
(c) whether any improper or illegal act under (a) or (b) was done
wilfully or in a manner that demonstrated an inexcusable
ignorance of the law ;
(d) the seriousness of any breach of the law in obtaining the
evidence as compared with the seriousness of the offence with
which the accused is charged ;
(e) whether there were circumstances justifying the action, such as
a situation of urgency requiring action to prevent the destruction or loss of evidence .
284 . WE RECOMMEND THAT the Criminal Code be amended to include
a defence of entrapment embodying the following principle :
The accused should be acquitted if it is established that the conduct of a
member or agent of a police force in instigating the crime has gone
substantially beyond what is justifiable having regard to all the circumstances, including the nature of the crime, whether the accused had a
pre-existing intent, and the nature and extent of the involvement of the
police .
285 . WE RECOMMEND THAT the administrative guidelines concerning
the use of undercover operatives in criminal investigations which we
recommended earlier be established by the R .C .M .P ., include a direction
that no member of the R .C .M .P . and no agent of the R .C .M .P . counsel,
incite or procure an unlawful act .
1116
�BIBLIOGRAPH Y
A . ARTICLES
Andrew, Christopher . "Whitehall, Washington and the Intelligence Se rv ices ."
International Affairs, vol . 53, no . 3 (July, 1977) .
Angell, John E . . "The Democratic Model Needs a Fair Trial ." Criminology,
vol . 12, no . 4 (February, 1975) .
"Toward an Alternative to the Classic Police Organizational Arrangements : A Democratic Model ." Criminology, vol . 9 (August-November,
1971) .
Ashworth, A .J . "Defences of General Application : The Law Commission
Report No. 83(3) : Entrapment ." Criminal Law Review, ( March, 1978) .
"Excusable Mistake of Law ." Criminal Law Review, (November,
1974) .
Atkins, Les H . "The Parliamentary Process and the New Zealand Security
Se rv ice : The Passage of the Security Intelligence Service Act - 1969 ."
New Zealand Politics : A Reader, (1969) .
Baldwin, A .W . "History of Freedom of Information in the House of Commons ." Canadian Political Science Bulletin, vol . 7, no . 3 (January, 1978) .
Baldwin, H .W . "The Future of Intelligence ." Strategic Review, vol . 1, no . 3
(Summer, 1976) .
Balls, Herbert R . "Decision-Making : The Role of the Deputy Minister ."
Canadian Public Administration, vol . 19, no . 3 (Fall, 1976) .
Barlow, N .L .A . "Entrapment and the Common Law : Is There a Place for the
American Doctrine of Entrapment?" Modern Law Review, vol . 41 (May,
1978) .
."Recent Developments in New Zealand In the Law Relating to
Entrapment ." New Zealand Law Journal, July 20, 1976 .
Bell, Griffin . "Attorney General : The Federal Government's Chief Lawyer and
Chief Litigator ; or, One Among Many?" Fordham Law Review, vol . 46
(May, 1978) .
Betts, Richard K . "Analysis, War and Decision : Why Intelligence Failures are
Inevitable ." World Politics, vol. 31, no. 1(October, 1976) .
Black, Warren . "Novel Features of the Immigration Act, 1976 ." Canadian Bar
Review, vol . 56, no . 4 (December, 1978) .
Bourne, Robin . "Government Police Responsibility, Political Responsibility
and Accountability for Police Operation ." Speech given at the First
Reunion Dinner of a Government Expenditures Management Course,
Touraine, Quebec, January 26, 1978 .
1117
�."Incident Management and Jurisdictional Issues ." A paper presented
at the ICCC Seminar on Research Strategies for the Study of International Political Terrorism held at Evian, France, May 30-June 1, 1977 .
"Terrorism Incident Management in a Federal State ." Working Paper
No. 2, presented at the Emergency Planning Research Conference held at
Arnprior, Ontario, January 29-31, 1979 .
"The Need for Internal Security." Notes for an address to the
Canadian Institute for International Affairs (Niagara Branch), St . Catherines, Ontario, October 23, 1978 .
"Violence and Political Authority ." Notes for an address as one of the
Dunning Trust Lectures at Queen's University, Kingston, Ontario,
November 1, 1976 .
Bowden, T . "Guarding the State : The Police Response to Crisis Politics in
Europe ." British Journal of Law and Society, vol . 5 (Summer, 1978) .
Brookfield, F .M . "The Attorney General ." The New Zealand Law Journal,
September 5, 1978 .
"The Courts, Kelsen and the Rhodesian Revolution ." University of
Toronto Law Journal, vol . 19 (1969) .
Brookhiser, Richard, and Lynch, Kevin . "Hunting Down the F.B .I ." National
Review, May 26, 1978 .
Brown, Anthony . "The Ultra Ultra Secret ." The New York Review of Books,
vol . 23, no . 2 (February 19, 1976) .
Brown, Stuart, and Cleveland, Harlan . "The Limits of Obsession : Fencing in
The National Security Claim ." Administrative Law Review, vol . 28, no . 3
(Summer, 1976) .
Brun, Henri . "La séparation des pouvoirs, la suprématie législative et l'intimité
de l'exécutif." Les Cahiers de Droit, vol . 14 (1973) .
"L'exécutif et ses documents : orientation récente du droit canadien ."
Les Cahiers de Droit, vol . 15 (1974) .
Bull, Henry . "The Career Prosecutor of Canada ." Journal of Criminal Law,
Criminology and Police Sciences, vol . 53 (March, 1962) .
Burgess, Drummond . "Will `the man' get the Mounties ." Last Post, vol . 6
(September, 1977) .
Bush, George ; Cline, Ray ; Colby, William ; Helms, Richard and Ledeen,
Michael . "C .I .A . Round Table ." The Washington Quarterly, vol . 1, no . 4
(Autumn, 1978) .
Bushnell, S .I . "The Confession Cases : Erven, Horvath and Ward - Towards a
Dûe Process Rationale." The Supreme Court Law Review, vol . 1(1980) .
Campbell, D ., and Hosenball, M . "The Eavesdroppers ." Time Out, May 21,
1976 .
Canadian Association of University Teachers . "Special Report : Freedom of
Information ." Bulletin, (October, 1977) .
Cecil, Robert . "Legends Spies Tell ." Encounter, vol . 50, no . 4 (April, 1978) .
1118
�Cline, Ray S . "Policy without Intelligence ." Foreign Policy, vol . 17 (Winter,
1974-75) .
Colby, William . "Intelligence, Secrecy, and Security in a Free Society ."
International Security, vol . 1, no . 2(Fall, 1976) .
Cooper, H .H .A . "Terrorism and the Intelligence Function ." Chitty's Law
Journal, vol . 24, no . 3 (1976) .
Cox, Sarah . "Prosecutorial Discretion : An Overview ." American Criminal Law
. Review, vol . 13 (1976) .
Crane, Brian . "Freedom of the Press and National Security ." McGill Law
Journal, vol . 21 (Spring, 1975) .
Crofton, M .J . "Problems in the Use of Police Traps in South Africa : Their
Place in Our Law of Evidence and Criminal Procedure ." Natal University
Law Review, vol . 2 (1977) .
Crowder, G . "The Security Intelligence Service Amendment Act 1977• and the
State Power to Intercept Communications ." Victoria University of Wellington Law Review, vol . 9 (February, 1978) .
Dennis, Ian . "The Rationale of Criminal Conspiracy ." Law Quarterly Review,
vol . 93 (January, 1977) .
Dewar, Elaine . "The True North Strong and Free ." The Canadian, September
16, 1978 .
Dickens, Bernard . "Control of Prosecutions in the United Kingdom :" International and Comparative Law Quarterly, vol . 22 (January, 1973) .
Edwards, J .L1 .J . "Criminal Law and Its Enforcement in a Permissive Society . '
Criminal Law Quarterly, vol. 12 (October, 1970) .
Emanuelli, C .C ., and Slosar, S . Review of L'accession à la souveraineté et le
cas du Québec, by J . Brossard . Canadian Bar Review, vol . 56 (June,
1978) .
Finn, Paul . "Official Misconduct ." Criminal Law Journal, vol . 2 (1978) .
Fitch, H . Gordon, and Saunders, Charles B . "Blowing the Whistle : The Limits
of Obedience to the Organization ." Business and Society, vol . 17, no . 1
(Fall, 1976) .
Fordham, Peta . "Doubt and Treachery ." Review of Reluctant Judâs, by Geoff
Robertson . The Times (London), January 29, 1976 ,
Foster, W .F ., and Magnet, Joseph E . "The Law of Forcible .Entry ." Alberta
Law Review, vol . 15 (1977) .
Fox, Richard G . "The Salisbury Affair : Special Branches, Security and
Subversion ." Monash Law Review, vol . 5 (1979) .
Francis, Lloyd . "Freedom of Information : A Personal View ." Canadian Political Science Bulletin, vol . 7, no . 3 (January, 1978) .
Fraser, Blair . "The Phony Little Furor over Every Man's New Number ."
Maclean's Magazine, vol . 77 (May 16, 1964) .
1119
�Freedom at Issue . "Intelligence Agencies in a Free Society ." Freedom at Issue,
vol . 35 (March-April, 1976) .
Furlonger, R .W . "The Role of the Office of National Assessments ." Pacific
Defence Reporter, September, 1978 .
Gillies, Peter . "The Indictment of Criminal Conspiracy ." Ottawa Law Review,
vol . 10 (1978) .
Godfrey, E. Drexel . Jr . "Ethics and Intelligence ." Foreign Affairs, vol . 56
(April/July 1978) .
Graburn, L .K . "The Relationship of the Crown Attorney to the Attorney
General ." Criminal Reports (New Series), vol . 35 (1975) .
Greenwood, F. Murray . "The Legal Secession of Quebec : A review note."
University of British Columbia Law Review, vol . 12 (1978) .
Grosman, Brian . "Protection of Privacy : Illegally Obtained Evidence in Civil
Cases ." Uniform Law Conference of Canada, (1977) .
"The Role of the Prosecutor in Canada ." American Journal of
Comparative Law, vol . 18 (1970) .
Gruner, Richard . "Government Monitoring of International Electronic Communications : National Security Agency Watch List Surveillance and the
Fourth Amendment ." Southern California Law Review, vol . 51 (March,
1978) .
Grunis, A .D . "Police Control of Demonstrations ." Canadian Bar Review, vol .
56 (September, 1978) .
Gurry, Francis . "The Implementation of Policy through Executive Action ."
Melbourne University Law Review, vol . 11 (November, 1977) .
Hall, Jerome . "Ignorance and Mistake in Criminal Law ." Indiana Law
Journal, vol . 33, no . 1(Fall, 1957) .
Hancock, B .R . "The New Zealand Security Intelligence Service ." Auckland
University Law Review, vol . 1, no . 2 (1973) .
Harding, R .W . "Police Disciplinary Procedures in England and Western
Australia ." University of Western Australia Law Review, vol . 10 (June,
1972) .
Harno, Albert J . "Intent In Criminal Conspiracy ." University of Pennsylvania
Law Review, vol . 89 (March, 1941) .
Harris, R . "Reflections : Crime in the F .B .I ." The New Yorker, vol . 53 (August
8, 1977) .
"Reflections : Secrets ." The New Yorker, Vol . 54 (April 10, 1978) .
Hawkins, Freda . "Canadian Immigration : A New Law and a New Approach
to Management ." International Migration Review, vol . 11, no. 1(1977) .
Heinemann, G .W . "Should the K .P .D . be Readmitted ." [translation] Juristenzeitung, vol . 22, no . 14 (July 21, 1967) .
Henshel, Richard L . "Controlling the Police Power ." The Canadian Forum,
vol . 57 (November, 1977) .
Heydon, J .D . "Entrapment and Unfairly Obtained Evidence in the House of
Lords ." Criminal Law Review, March, 1980.
1120
�."The Problems of Entrapment ." Cambridge Law Journal, vol . 32, no .
21 (November, 1973) .
Hogarth, John . "The Individual and State Security ." The Social Sciences in
Canada, vol . 7, no. 1(March, 1973) .
Homig, Dieter . "Parliamentary Supervision of the Intelligence Services ."
[translation] Aus Politik und Zeit Geschichte . B42/77 (October 22,
1977) .
Hopton, T .C. "Grundnorm and Constitution : The Legitimacy of Politics ."
McGill Law Journal, vol . 24 (Spring, 1978) .
Hunt, Douglas C . "Evidentiary Rules Peculiar to Conspiracy Cases ." Criminal
Law Quarterly, vol . 16 (May, 1974) .
Hutchinson, Allan C ., and Withington, Neil R . "Horvath v . The Queen :
Reflections on the Doctrine of Confessions ." Osgoode Hall Law Journal,
vol . 18, no . 1(March, 1980) .
Jacob, Joseph . "Some Reflections on Government Secrecy ." Public Law,
(Spring, 1974) .
Kamisar, Y . "A Defence of the Exclusionary Role ." Criminal Law Bulletin,
vol . 15 (January-February, 1979) .
."Closing Arguments in the debate over the Exclusionary Rule ."
Judicature, vol . 62, no . 7 (February, 1979) .
."Is the Exclusionary rule an `illogical' or `unnatural' interpretation of
the Fourth Amendment?" Judicature, vol . 62, no . 7 (August, 1978) .
Laframboise, H .L . "Portfolio Structure and,a Ministry System : A Model for
the Canadian Federal Service ." Optimum, vol . 1(Winter, 1970) .
Laqueur, Walter . "Second Thoughts on Terrorism ." The Washington Quarterly, vol . 1, no . 4 (Autumn, 1978) .
Latimer, Thomas K . "U .S . Intelligence and the Congress", Strategic Review,
(Summer, 1979) .
Levine, Naomi . "List of Cases Related to the Canadian Bill of Rights as of
March 30, 1978 ." Criminal Reports, vol . 2 (1978) .
Levy, J .C . "Police Entrapment : A Note on Recent Developments ." Saskatchewan Law Review, vol . 35 (1970) .
Lockhart, John B . "Secret Services and Democracy ." Brassey Annual Review,
(1975-76) ,
"The Relationship between Secret Services and Government in a
Modern State ." The Journal of the Royal United Services Institute for
Defence Studies, vol . 119 (June, 1974) .
Lockwood, Thomas J . "A History of Royal Commissions ." Osgoode Hall Law
Journal, vol . 5 . no . 2 (October, 1967) .
Lowry, Ritchie . "Towards a Sociology of Secrecy and Security Systems ."
Social Problems, vol . 19, no . 14 (Spring, 1972) .
McBride, Tim . "The Operational Possibility of a Police State : . The S .I .S .
Amendment Act, 1977 ." Comment (New Series), vol . 2 (February, 1978) .
1121
�McDougal, M .S . ; Lasswell, H .D . ; and Reisman, M .W . "The Intelligence
Function and World Public Order ." Temple Law Quarterly, vol . 46, no . 3
(Spring, 1973) .
Maciejewski, H .B . "Parliament and the Intelligence Services ." [translation]
Aus Politik und Zeit Geschichte . B6/77 (February 12, 1977) .
"Parliament and the Intelligence Services : The Inadequate Supervisio n
of Secret Intelligence Services ." [translation] Aus Politik und Zeit Geschichte, B42/77 (October 22, 1977) .
Mackenzie, J .B . "Section 98, Criminal Code and Freedom of Expression in
Canada ." Queen's Law Journal, vol . 1(November, 1972) .
Mackinnon, Peter . "Conspiracy and Sedition as Canadian Political Crimes ."
McGill Law Journal, vol . 23 (Winter, 1977) .
"The Contrâct as Conspiracy : A Critique of Regina v . Sokolski [1977]
2 S .C .R . 523 ." Ottawa Law Review, vol . 10 (1978) .
McLean, Donald . "The Conspiracy Indictment ." Criminal Law Quarterly, vol .
21 (1978) .
McLearn, Brig . Gen . H .A . "Canadian Arrangements for the Aid of Civil
Powers ." Canadian Defence Quarterly, (Summer, 1978) .
Marcus, Paul . "Criminal Conspiracy : The State of Mind Crime : Intent,
Proving Intent, and Anti-Federal Intent ." University of Illinois, Law
Forum, vol . 3 (1976) .
"The Proposed Federal Criminal Code : Conspiracy Provisions ." University of Illinois Law Forum, vol . 5 (1978) .
Marx, Herbert . "The Emergency Power and Civil Liberties in Canada ."
McGill Law Journal, vol . 16, no . 1(March, 1970) .
Marx, T. Gary . "Thoughts on a Neglected Category of Social Movement
Participant : The Agent Provocateur and the Informant ." American Journal of Sociology, vol . 80, no . 2 (September, 1974) .
Matas, David . "Can Quebec Separate?" McGill Law Journal, vol . 21 (Fall,
1975) .
Mayer, R .A . "Legal Aspects of Secession ." Manitoba Law Journal, vol . 3, no.
1 (1968) .
Mayer, Stephen . "Privacy and the Social Security Number : Section 1211 of
the Tax' Reform Act of 1976 ." Rutgers Journal of Computers and the
Law, vol . 6 (1978) .
Nesson, Charles R . "Aspects of the Executive's Power over National Security
Matters : Secrecy Classifications and Foreign Intelligence Wiretaps ."
Indiana Law Journal, vol . 49 (Spring, 1974) .
New Statesman . "The Honourable Grammar Schoolboy. Profile : Sir Maurice
Oldfield ." New Statesman, vol . 96 (7 July, 1978) .
"Why James Callaghan wants to keep Cabinet Committees Secret ."
New Statesman, vol . 96 (November 10, 1978) .
Niederhoffer, Arthur . "Restraint of the Force : A Recurrent Problem ." Connecticut Law Review, vol . 1(1968) .
1122
�Northwestern University Law Review . "Present and Proposed Standards for
Foreign Intelligence Electronic Surveillance ." Northwestern University
Law Review, vol . 71, no . 1(March-April, 1976) .
Northwestern University School of Law . Internâtional Symposium . "The
Exclusionary Rule regarding Illegally Seized Evidence ." Journal of
Criminal Law, Criminology and Police Science, vol . 52, no . 3(1961) .
O'Connor, D . "Mistake and Ignorance in Criminal Cases ." Modern Law
Review, vol . 39 (November, 1976) .
O'Connor, Peter J . "Entrapment Versus Due Process : A Solution to the
Problem of the Criminal Conviction Obtained by Law Enforcement
Misconduct ." Fordham Urban Law Journal, vol . 7 (1978-9) .
Orchard, G .F . "Impossibility and the Inchoate Crimes ." The New Zealand
Law Journal, October 17, 1978 .
Oscapella, Eugene . "A Study of Informers in England ." The Criminal Law
Review (March, 1980) .
Page, Bruce . "The Secret Constitution ." New Statesman, vol . 96 (21 July,
1978) .
Parker, Graham . "Criminal Law - Police Practices - the Relevance of
Entrapment as a Defence - Public Duty as Negating Mens Rea ." The
Canadian Bar Review, vol . 48 (March, 1970) .
."Reform in the Criminal Justice System - A Canadian View 'Law
and Order' ." Boston University Law Review, vol . 49, no. 3 (Summer,
1969) .
Patenaude, Pierre . "Audio-Surveillance - droits de l'exécutif - activités
subversives - porte ouverte à l'arbitraire ." Revue du barreau canadien,
vol . 52 (3 mars 1974) .
."Les droits de l'exécutif à Paudio-surveillance lors d'activités subversives : porte ouverte à l'arbitraire?" Thémis vol . 8 (1973) .
Pollack, Benjamin F . "Common Law Conspiracy ." The Georgetown Law
Journal, vol . 35 (March, 1947) .
Powell, Clay M . "Conspiracy Prosecutions ." Criminal Law Quarterly, vol . 1 3
(December, 1970) .
Puzder, Andrew . "The Fourth Amendment and Executive Authorization of
Warrantless Foreign Security Surveillance ." Washington University Law
Quarterly, (Spring, 1978) .
Radic, Leonard . "Australians Favour Security Forces ." Melbourne Age, vol .
22 (June, 1978) .
Rankin, Murray T . "Burning Barns and Keable : Can a Provincial Crime
Inquiry Probe the R .C .M .P.?" The Supreme Court Law Review, vol . 1
(1980) .
."Freedom of Information in Canada : Will the Doors Stay Shut?"
Canadian Political Science Bulletin, vol . 7, no . 3 (January, 1978) .
Raskin, Marcus . "Democracy versus the National Security State ." Law and
Contemporary Problems, vol . 40, no . 3 (Summer, 1976) .
1123
�Ritchie, Roland . "The Crime of Conspiracy ." The Canadian Bar Review, vol .
16 (1938) .
Robertson, Gordon . "Courts shouldn't be the arbiter ." Financial Post, vol . 71
(December 17, 1977) .
"Official responsibility, private conscience and public information ."
Optimum, vol . 3, no . 3 (1972) .
"Too much wishful thinking, dangerous illusion?" Financial Post, vol .
71 (May 21, 1977) .
Rosenfield, Stephen . "Gathering Intelligence ."
1978) .
Guardian Weekly,
(July,
Rositzke, Harry . "America's Secret Operations : A Perspective ." Foreign
Affairs, vol . 53 ( January, 1975) .
Rossum, Ralph . "The Entrapment Defense and the Teaching of Political
Responsibility : The Supreme Court as Republican Schoolmaster ." American Journal of Criminal Law, vol . 6 (November, 1978) .
Roth, Jeffrey . "Prosecutor Perceptions of Crime Seriousness ." Journal of
Criminal Law and Criminology, vol . 69 ( Summer, 1978) .
Rowat, D .C . "Le secret administratif au Canada : conclusions d'une étude
approfondie ." Bulletin de la science politique au Canada, vol . 7, no . 3
(Janvier, 1978) .
"Security leaks in Norway and the Public Right to Know ." Canadian
Forum, vol . 58 (May, 1978) .
Sawatsky, John . "Guilt by Association : How the Mounties got their Man ."
The Canadian Review, ( December, 1976) .
Sayre, Francis . "Criminal Conspiracy ." Harvard Law Review, vol . 35 ( 1922) .
Scoville, Herbert, Jr . "Is Espionage Necessary for our Security ." Foreign
Affairs, vol . 54 ( April, 1976) .
Sellar, Watson . "A Century of Commissions of Inquiry ." Canadian Bar
Review, vol . 25, no . 1 ( January, 1947) .
Sellars, John . "Mens Rea and the Judicial approach to 'Bad Excuses' in the
Criminal Law ." The Modern Law Review, vol . 41, no . 3 (May, 1978) .
Sharp, Mitchell . "Decision-making in the Federal Cabinet ." Canadian Public
Administration, vol . 19 (Spring, 1976) .
Sherman, Lawrence W . "Law Enforcement in a Democracy : A Review of
[Goldstein's] Policing a Free Society ." Criminal Law Bulletin, vol . 13
( September/October, 1977) .
Silkenat, James . "Limitations on Prosecutor's Discretionary Power to Initiate
Criminal Suits : Movement toward a New Era ." Ottawa Law Review, vol .
5 (1971) .
Smith, K .J .M . "The Law Commission Working Paper Number 55 on Codification of the Criminal Law defences of General Application : Official
Instigation and Entrapment ." The Criminal Law Review, ( January,
1975) .
1124
�Spiotto, James . "The Search and Seizure Problem - two approaches : the
Canadian Tort remedy and the U .S . Exclusionary rule." Journal of Police
Science and Administration, vol . 1(1973) .
Starnes, John . "Canadian Internal Security : The Need for a New Approach, a
New Organization ." Canadian Defence Quarterly, (Summer, 1979) .
Stephens, Thomas W . "Bureaucracy, Intelligence and Technology : A Reappraisal ." World Affairs, (Washington) vol . 139, no . 3 (Winter, 1976-77) .
Stober, Michael . "Entrapment ." Revue générale de droit, vol . 7 (1976) .
Stuart, Don R . "Conspiracy ." Ottawa Law Review, vol . 8 (Winter, 1976) .
Sun, Connie . "The Discretionary Power to Stay Criminal Proceedings ." Dalhousie Law Journal, vol . 1(October, 1974) .
Taman, Larry . "Hauser and Control over Criminal Prosecutions in Canada ."
The Supreme Court Law Review, vol . 1(1980) .
Temkin, Jennifer . "When is a Conspiracy like an attempt - and other
impossible questions ." The Law Quarterly Review, vol . 94 (October,
1978) .
The Economist . "Seven Western Leaders try to make the sky safe ." Globe and
Mail, July 26, 1978 ,
Thyraud de Vosjoli, Phillippe . "So much has been swept under the Rug ." Life,
vol . 64 (April 26, 1968) .
Torrance, Judy . "The Response of Canadian Governments to Violence ."
Canadian Journal of Political Science, vol . 10 (September, 1977) .
Trevor-Roper, H .R . "Superagent ." New York Review of Books, vol . 23, no . 8
(May 13, 1976) .
Turpin, Colin . "Defence of Mistake of Law ." Cambridge Law Journal, vol . 37
(1978) .
Vaughan, M .B . "Common Law Conspiracy in Canada ." University of Toronto
Faculty of Law Review, vol . 23 (April, 1965) .
Waller, Louis . "The Police, the Premier and Parliament : Governmental Control of the Police ." Monash Law Review, vol . 6 (1980) .
Walters, K .D . "Your Employee's Right to Blow the Whistle ." Harvard
Business Review, vol . 53 (July, 1975) .
Ward, Norman . "The changing role of the Privy Council Office and Prime
Minister's Office : A Commentary ." Canadian Public Administration, vol .
15(Summer, 1972) .
Wardell, J .J . "The Official Secrets Act, 1951 and the Unauthorized Disclosure
of Information ." Auckland University Law Review, vol . 3, no. 1(September, 1976) .
Waters, James . "Catch 20 .5 : Corporate Morality as an Organizational Phenomenon ." Organizational Dynamics (Spring, 1978) .
Watt, J .D . "The Defense of Entrapment ." Criminal Law Quarterly, vol . 13
(1970-71) .
1125
�Westwoôd, J.T . "A Contemporary Political Dilemma : The Impact of Intelligence Operations on Foreign Policy", Naval War College Review, vol . 29,
no . 4 (Spring, 1977) .
Wharam, Alan . "Treason in Rhodesia ." Cambridge Law Journal (November,
1967) .
Wilkey, M .R . "The Exclusionary Rule : Why Suppres's Valid Evidence?"
Judicature, vol . 62, no. 5 (November, 1978) .
Williams, Glanville . "Discretion in Prosecuting ."
(April, 1956) .
Criminal Law Review,
"The New Statutory Offence of Conspiracy ." The New Law Journal,
vol 127 (December 1-8, 1977) .
Williams, Phillip . "Intelligence failures in National Security Policy ." Royal
Air Force Quarterly, vol . 13 (Autumn, 1973) .
Wilson, James Q . "Buggings, Break-Ins and the F .B .I ." Commentary, vol . 65
(June, 1978) .
B . BOOK S
Ackerman, Robert W . The Social Challenge To Business. Cambridge, Mass. :
Harvard University Press, 1975 .
Ackroyd, Carol ; Margolis, Karen ; Rosenhead, Jonathan ; and Shallice, Tim .
The Technology of Political Control . Markham, Ont . : Penguin Books ,
1977 .
Agee, Philip . Inside the Company: C.I.A . Diary . Markham, Ont . : Penguin
Books, 1975 .
Aldersôn, J .C ., and Stead, Philip John . The Police We Deserve . London :
Trinity Press, 1973 .
Alexander, Yonah, and Kilmarx, Robert A . International Terrorism . New
York : Praeger, 1976 .
Ambrose, Stephen, and Barber, James Jr . The Military and American Society :
Essays and Readings . New York : Free Press, 1972 .
American Bar Association . Special Committee on Standards for the Administration of Criminal Justice . Report . New York : Institute of Judicial
Administration ,
Anderson, Stanley V . Canadian Ombudsman Proposals . Santa Barbara : University of California, 1968 .
Ombudsman for American Government?
Prentice-Hall, 1968 .
Englewood Cliffs, N .J . :
_ and More, John E . Establishing Ombudsman Offices: Recent Experience in the United States. Honolulu : Ombudsman Workshop, 1971 .
Arendt, Hannah . Eichman in Jerusalem: A Report on the Banality of Evil .
New York: Penguin Books, 1976 .
1126
�Argyris, Chris, and Scheen, Donald A . Organizational Learning: A Theory of
Action Perspective . Reading, Mass . :. Addison-Wesley, 1978 .
Askenasy, Hans . Are We All Nazis? New Jersey : Lyle Stuart, 1978 .
Barnard, Chester . The Functions of the Executive . Cambridge, Mass . : Harvard University Press, 1968 .
Barron, John . K.G.B . : The Secret Work of Soviet Secret Agents . New York :
Bantam Books, 1976 .
Barth, Alan . Law Enforcement Versus the Law. New York : Collier Books,
1963 .
Bassiouni, M . Cherif. International Terrorism and Political Crimes . Spring•field, Ill. : Charles C . Thomas, 1975 .
Beesly, Patrick . Very Special Intelligence : The Story of the Admiralty's
Operational Intelligence Centre, 1939-1945 . London : Hamish Hamilton,
1977 .
Bell, Bowyer . Transnational Terror. Washington, D .C . : American Enterprise
Institute for Public Policy Research, 1975 .
Bercuson, David J . Confrontation at Winnipeg. Montreal : McGill-Queen's
University Press, 1974 .
Bittman, Ladislav . The Deception Game: Czechoslovak Intelligence in Soviet
Political Warfare . New York : Syracuse University Press, 1972 .
Blackstock, Nelson . Cointelpro: The F.B.I.'s Secret War on Political Freedom .
New York : Vintage Books, 1976 .
Blackstock, Paul W . The Strategy of Subversion . Chicago : Quadrangle Books,
1964 .
, ând'Schaf, Frank L ., Jr . Intelligence, Espionage, Counterespionage,
and Covert Operations: A Guide to Information Sources . Detroit : Gale
Research Company, 1978 .
Blum, Howard . Wanted: The Search for Nazis in America . New York :
Fawcett Crest Books, 1977 .
Blum, Richard H ., ed . Surveillance and Espionage in a Free Society . New
York : Praeger, 1972 .
Bok, Sissela . Lying; Moral Choice in Public and Private Life. New York:
Pantheon, 1978 .
Borden, Henry, ed . Robert Laird Borden: His Memoirs . Toronto : Macmillan,
1938 .
Bowden, Tom . Beyond the Limits of the Law: A Comparative Study of the
Police in Crisis Politics . London : Penguin Books, 1978 .
Bowes, Stuart . The Police and Civil Liberties . London : Lawrence and Wishart,
1966.
Boyle, Andrew . The Climate of Treason . London : Hutchinson, 1979 .
Brossard, Jacques . L'accession à la Souverainté et le Cas du . Québec. Montreal : Les Presses de L'Université de Montréal, 1976 .
Brown, Caroline and Brown, Lorne . An Unauthorized History of the R.C.M.P.
Toronto : James Lewis and Samuel, 1973 .
1127
�Bulloch, John . M.I.S: The Origin and History of the British Counter-espionage Service . London : Arthur Baker, 1963 .
Bunyan, Tony . The History and Practice of the Political Police in Britain.
London : Julian Friedman, 1976 .
Bunyard, R .S . Police Organization and Command . Estover, Plymouth : Macdonald and Evans, 1978 .
Burton, Anthony . Urban Terrorism : Theory, Practice and Response . London :
Leo Cooper; 1975 .
,
Canadian Association for the Prevention of Crime . Freedom of Information:
Comments on the Green Paper . Ottawa : Canadian Association for the
Prevention of Crime, 1978 .
Canadian Bar Association . Comments on the Green Paper on Legislation of
Public Access to Government Documents, and Recommendations for a
Model Bill on Freedom of Information in Canada . Ottawa : Canadian
Bar Association, 1978 .
Canadian Civil Liberties Association . The Accessibility of Information versus
The Protection of Secrecy. Ottawa : Canadian Civil Liberties Association,
1978 .
Cave-Brown, Anthony . Bodyguard of Lies. Toronto : Fitzhenry and Whiteside,
1975 .
Center for National Security Studies . Report No . 103: A Report comparing
the proposed F.B .I. Charter Act of 1979 with Attorney General Levi's
Domestic Security Guidelines, The Recommendations of the Church
Committee, and other proposals to regulate F .B.I. Investigative Activities. Washington : Center for National Security Studies, 1979 .
Chapman, Brian . British Government Observed. London : George Allen and
Unwin, 1965 .
The Canadian Police: A Survey. Manchester : University of Manchester, 1977 .
Police State . London : Macmillan, 1970 .
Clark, K ., and Legere, L .J ., eds . The President and the Management of
National Security . New York : Praeger, 1969 .
Cline, Ray S. Secrets, Spies and Scholars: Blueprint of the Essential C.I.A .
Washington : Acropolis Books, 1976 .
Clutterbuck, Richard . Living with Terrorism . New York : Arlington House,
1975 .
Cobler, Sebastian . Law, Order and Politics in West Germany . New York :
Penguin Books, 1978 .
Cohen, Stanley A . Due Process of Law : The Canadian System of Criminal
Justice . Toronto: Carswell, 1977 .
Colby, William, and Forbath, Peter. Honorable Men: My Life in the C .I.A .
New York : Simon and Schuster, 1978 .
1128
�The Committee for Public Justice ; The American Civil Liberrties Union ; and
The Center for National Security Studies . A Law to Control the FBI .
Washington : The Committee for Public Justice ; The ACCLU ; and The
CNSS, 1977 .
Copeland, Miles. The Real Spy World . London : Weidenfeld and Nicholson ,
1975 .
Cross, Rupert . Evidence. London : Butterworth, 1958 .
Crozier, Brian, ed . The Peacetime Strategy of the Soviet Union . London :
Institute for the Study of Conflict, 1973 .
Dawson, R .M ., and Dawson, W .F . Democratic Government in Canada. 4th ed .
Revised by Norman Ward . Toronto : University of Toronto Press; 1971 .
Dawson, R .M ., and Ward, Norman . The Government of Canada . 5th ed .
Toronto: University of Toronto Press, 1970 .
Dawson, W .F . Procedure in the Canadian House of Commons. Toronto:
University of Toronto Press, 1965 .
Deacon, Richard . A History of the Russian Secret Service . London : New
English Library, 1975 .
Debray, Régis . A Critique of Arms, Vol . I . Translated by Rosemary Sheed .
Markham, Ontario : Penguin Books, 1977 .
Denning, Sir Alfred . Freedom Under the Law . London : Stevens and Sons,
1949 .
The Discipline of Law . London : Butterworths, 1979 .
Dicey, A .V . Law of the Constitution . London : Macmillan, 1964 .
Dobson, Christopher, and Payne, Ronald . The Carlos Complex: A Study in
Terror . London : Coronet Books, 1977 .
Dorsen, N ., and Gillers, S ., eds . None of Your Business: Government Secrecy
in America . New York : Conference on Government Secrecy, 1973 .
Dulles, Allen . The Craft of Intelligence . New York : Harper and Row, 1963 .
Edwards, J . LI . J . Law Officers of the Crown . Toronto : Carswell, 1964 .
Mens Rea in Statutory Offences . London : Macmillan, 1955 .
Ministerial Responsibility for National Security as it relates to th e
Offices of Prime Minister, Attorney General and Solicitor General of
Canada . Ottawa : Department of Supply and Services, 1980 .
The Offices of The Attorney General and Solicitor General of
Canada: Functions, Responsibilities and Dimensions of Ministerial Responsibility. Toronto: University of Toronto Press, 1978 .
Elliff, John T . The Reform of F.B.I. Intelligence Operations . Princeton, N .J . :
Princeton University Press, 1979 .
Epstein, Edward J . Legend: The Secret World of Lee Harvey Oswald. New
York : McGraw-Hill, 1978 .
Ewing, David . Freedom Inside The Organization: Bringing Civil Liberties to
the Work Place . New York : E .P . Dutton, 1977 .
Facts on File . Political Terrorism . New York : Facts on File, 1975 .
1129
�Fain, T.G ., ed. in collaboration with Plant, Katherine C ., and Milloy, Ross .
The Intelligence Community . New York: R .R . Bowker, 1977 .
Falk, Stanley, and Bauer, Theodore . National Security Management : The
National Security Structure . Washington : Industrial College of the
Armed Forces, 1976 .
Faribault, Marcel . La Révision Constitutionelle . Montreal : FIDES, 1970 .
Felix, Christopher . A Short Course in the Secret War. New York: E.P . Dutton,
1963 .
Flaherty, David H . Privacy and Government Data Banks : An International
Perspective . London : Mansell, 1979 .
Flemming, Marlis. Under Protective Surveillance . Toronto : McClelland and
Stewart, 1976 .
Fontana, James A . The Law of Search Warrants in Canada . Toronto : Butterworths, 1974 .
Forrester, Ian S . and Ilgen, Hans Michael . The German Legal System . South
Hackensack, N .J . : Fred B . Rothman, 1972 .
Fowler, Norman . After the Riots: The Police in Europe . London : Davis-Poynter, 1979 .
Fox, Elliot M ., and Urwick, L ., eds . Dynamic Administration: The Collected
Papers of Mary Parker Follett . London : Pitman, 1973 .
Franck, Thomas M ., and Wiesband, Edward, eds . Secrecy and Foreign Policy .
New York : Oxford University Press, 1974 .
Franks, C .E .S . Parliament and Security Matters . Ottawa : Department of
Supply and Services, 1980 .
French, Richard . Freedom of Information and Parliament. Montreal : McGill
University, 1979 .
French, Richard and Béliveau, André . The R .C.M .P. and The Management of
National Security . Toronto : Institute for Public Policy, 1979 .
Friedland, M .L . National Security : The Legal Dimensions . Ottawa : Department of Supply and Se rvices, 1979 .
Galbraith, Jay . Designing Complex Organizations. Reading, Mass . : AddisonWesley, 1973 .
Gellner, John . Bayonets in the Streets: Urban Guerillas at Home and Abroad .
Toronto : Collier-Macmillan, 1974 .
Gérin-Lajoie, Paul . Constitutional Amendment in Canada . Toronto : University
of Toronto Press, 1950.
Glazebrook, P.R . ed . Reshaping the Criminal Law: Essays in Honour of
Glanville Williams . London : Stevens and Sons, 1978 .
Glenbow Alberta Institute . Royal Canadian Mounted Police: A Bibliography
of Material. Calgary : Glenbow Archives Publication Series, 1973 .
Goldstein, Herman . Policing a Free Society . Cambridge, Mass . : Ballinger
Publishing, 1977 .
Goode, Matthew R . Criminal Conspiracy in Canada . Toronto : Carswell, 1975 .
1130
�Green, L .C . International Law Through the Cases . 4th ed . Toronto : Carswell,
1978 .
Superior Orders in National and International Law . Leydon : Sijthoff,
1976 .
Grosman, Brian A . Police Command Decisions and Discretion . Toronto :
Macmillan, 1975 .
The Prosecutor : An Inquiry Into the Exercise of Discretion . Toronto :
University of Toronto Press, 1969 .
, and Finley, Michael J . Law Enforcement: Restoring the Balance.
Saskatchewan : University of Saskatchewan, 1977 .
Hagen, Louis . The Secret War for Europe: A Dossier of Espionage . Ne w
York : Stein and Day, 1969 .
Haggart, Ron, and Golden, Aubrey E . Rumors of War . Toronto : New Press,
1971 .
Hall, Richard . The Secret State : Australia's Spy Industry . North Melbourne,
Victoria : Cassell, Australia, 1978 .
Halperin, Morton ; Berman, Jerry ; Borosage, Robert ; and Marwick, Christine .
The Lawless State : The Crimes of the U.S. Intelligence Agencies . New
York: Pénguin Books, 1976 .
Hart, H .L .A. Punishment and Responsibility : Essays in the Philosophy of
Law . Oxford : Oxford University Press, 1973 .
Harvison, C .W. The Horsemen . Toronto : McClelland and Stewart, 1967 .
Hawkins, Freda . Canada and Immigration : Public Policy and Public Concern .
Montreal : McGill-Queen's University Press, 1972 .
Heuston, R .F .V . Essays in Constitutional Law. 2nd ed . London : Stevens and
Sons, 1964 .
Hilsman, Roger . Strategic Intelligence and National Decisions . Glencoe, Ill . :
Free Press, 1956 .
Hockin, T .A . Apex of Power : The Prime Minister and Political Leadership in
Canada. Scarborough, Ont . : Prentice-Hall, 1971 .
Hogg, Peter W . Constitutional Law of Canada . Toronto : Carswell, 1977 .
Holdaway, Simon, ed . The British Police . London : Edward Arnold, 1979 .
Hughes, John E . The Ordeal of Power. Toronto : McClelland and Stewart,
1963 .
Hunt, Carew R .N . The Theory and Practice of Communism . Harmondsworth,
Middlesex : Penguin Books, 1963 .
Jackson, R .J . ; Kelly, J .M . ; and Mitchell, T .H . Collective Conflict, Violence,
and the Media in Canada . Ottawa : Carleton University, Department of
Political . Science, 1977 .
Jennings, W . Ivor . Cabinet Government . Cambridge : The University Press,
1936 .
The Law and The Constitution . London : University of London Press,
1938 .
1131
�Jones, R .H . The Role of the Canadian Security Service . Unpublished M .A .
thesis . Ottawa : Carleton University School of Public Administration,
1973 .
Jones, R .V . Most Secret War: British Scientific Intelligence, 1939-1945 .
London : Hamish Hamilton, 1979 .
Kahn, David . The Codebreakers: The Story of Secret Writing . London :
Weidenfeld and Nicolson, 1974 .
Kelly, Nora, and Kelly, William . Policing in Canada . Toronto: Macmillan,
1976 .
The Royal Canadian Mounted Police : A Century of History . Edmonton : Hurtig Publications, 1973 .
Kemp, V .A .M . Without Fear, Favour or Affection ; Thirty-five years with the
Royal Canadian Mounted Police . Toronto : Longmans Green, 1958 .
Kent, Sherman . Strategic Intelligence for American World Policy. Hamden,
Conn . : Archon Books, 1965 .
Kesterton, Wilfred H . The Law and Press in Canada . Toronto : McClelland
and Stewart, 1976 .
Kitson, Frank . Low Intensity Operations: .Subversion, Insurgency, Peacekeeping . London : Faber and Faber, 1971 .
Lacoursière, Jacques . Alarme Citoyens. Ottawa : Editions La Presse, 1972 .
Langford, John W . Transport in Transition : The Reorganization of the
Federal Transport Portfolio . Montreal : McGill-Queen's University Press ,
1976 .
Laqueur, Walter . Terrorism . London : Weidenfeld and Nicolson, 1977 .
Lawrence, P .R ., and Lorsch, J .W . Developing Organizations: Diagnosis and
Actions . Reading, Mass . : Addison-Wesley, 1969 .
Lederman, W .R . Constitutional Amendment and Canadian Unity . Special
Lectures . Toronto : Law Society of Upper Canada, 1978 .
Leigh, L .H . Police Powers in England and Wales . London : Butterworths,
1975 .
Lenin, V .I . State and Revolution . New York : International Publishers, 1969 .
Lewis, David . Sexpionage: The Exploitation of Sex by Soviet Intelligence .
New York : Ballantine Books, 1977 .
Lieberman, Jethro K . How the Government Breaks the Law. Baltimore :
Penguin Books, 1973 .
Likert, Rensis, and Likert, Jane . New Ways of Managing Conflict . New York :
McGraw-Hill, 1976 .
Linden, Allen M . ed . Studies in Tort Law . Toronto : Butterworths, 1968 .
Lindsey, Robert . The Falcon and the Snowman : A True Story of Friendship
and Espionage . New York : Simon and Schuster, 1979 .
MacFarlane, Bruce A . Drug Offences in Canada . Toronto : Canada Law Books,
1979 .
1132
�McGarvey, Patrick . C.I .A . : The Myth and the Madness . . Baltimore : Penguin
Books, 1973 .
Mallory, J .R . The Structure of Canadian Government . Toronto : Macmillan,
1971 .
Manning, Morris . Protection of Privacy Act, Bill C-176: An Analysis and
Commentary. Toronto : Butterworths, 1974 .
Wiretap Law in Canada. Toronto: Butterworths, 1978 .
Marchetti, Victor, and Marks, J .D . The C.I.A . and the Cult of Intelligence.
New York: Dell, 1976 .
Mark, Sir Robert . In the Office of Constable: An Autobiography . Toronto:
William Collins, 1978 .
Marshall, Geoffrey . Police and Government: The Status and Accountability of
the English Constables . London : Methuen, 1967 .
Martin, David C . A Wilderness of Mirrors . New York : Harper-Row, 1980.
Masterman, J .C . The Double Cross System in the War of 1939 to 1945 . New
Haven : Yale University Press, 1972 .
Mewett, Alan W ., and Manning, Morris M . Criminal Law . Toronto : Butterworths, 1978 .
Miles, Raymond E . Theories of Management : Implications For Organizational Behaviour and Development . New York : McGraw-Hill, 1975 .
Milgrim, Stanley . Obedience to Authority ; An Experimental View . New York :
Harper and Row, 1974 .
Morgenthau, Hans . Politics in The Twentieth Century . Chicago : University of
Chicago Press, 1971 .
Moss, Robert . Urban Guerrillas . London : Trinity Press, 1972 .
Mollin, Jay . Terror and Urban Guerrillas. Miami : University of Miami Press,
1971 .
Muskos, Charles C . Jr. Peace Soldiers . Chicago : University of Chicago Press,
1976 .
National Conference on Human Rights . International Year for Human Rights .
Canada. Documents 1-10 . Ottawa : National Conference on Human
Rights, 1968 .
New Zealand Council for Civil Liberties . Report on the New Zealand Security
Service Intelligence Act . Wellington : New Zealand Council for Civil
Liberties, 1969 .
Security Intelligence Service Amendment Bill 1977 . Wellington : New
Zealand Council for Civil Liberties, 1977 .
Page, Bruce ; Leitch, David ; and Knightley, Philip . Philby: The Spy who
Betrayed a Generation . London : Andre Deutsch, 1968 .
Palmer, Raymond . Undercover: The Making of a Spy . London : Aldus Books,
1977 .
Paltiel, Khayyam . Political Party Financing in Canada . Toronto: McGrawHill, 1970 .
1133
�Parker, Graham . Recent Developments in the Law of Evidence . Toronto :
Richard De Boo, 1966 .
Parti Québecois . D'égal à Egal. Québec : Congrès national Parti Québecois,
1979 .
Pelletier, Gérard . The October Crisis . Toronto : McClelland and Stewart, 1971 .
Penton, M .J . Jehovah's Witnesses in Canada : Champions of Freedom of
Speech and Worship . Toronto : Macmillan/MacLean-Hunter, 1976 .
Phillips, Hood . Constitutional and Administrative Law. Agincourt, -Ont . :
Carswell, 1973 .
Pincher, Chapman . The Inside Story. London : Sidgwick and Jackson, 1978 .
Powers, Thomas . The Man Who Kept The Secrets : Richard Helms and the
C.I.A . New York : Alfred A . Knopf, 1979 .
Rankin, T . Murray . Freedom of Information in Canada : Will the Doors Stay
Shut? Ottawa : Canadian Bar Association, 1977 .
Ransom,, Harry . Central Intelligence and National Security . Cambridge,
Mass . : Harvard University Press, 1958 .
The Intelligence Establishment . Cambridge, Mass . : Harvard University Press, 1970 .
Rapoport, David C . Assassination and Terrorism . Toronto : Canadian Broadcasting Corporation, 1971 .
Ratushny, Ed . Self-Incrimination in the Canadian Criminal Process . Toronto:
Carswell, 1979 .
Robertson, Geoff . Reluctant Judas : The Life and Death of the Special Branch
Informer Kenneth Lennon . London : Temple Smith, 1976 .
Robertson, James . The Sane Alternative : Signposts to a Self-fulfilling Future .
London : Villiers Publications, 1978 .
Robson, John L . Law and Administration . New Zealand : Victoria University
of Wellington, 1979 .
The Ombudsman in New Zealand . New Zealand : Victoria University
of Wellington, 1979 .
Rowat, D .C ., ed . The Ombudsman . London : Allen and Unwin, 1965 .
Russell, Peter H . Freedom and Security: An analysis of the Policy issues
Before the Commission of Inquiry . Ottawa : Commission of Inquiry
Concerning Certain Activities of the Royal Canadian Mounted Police,
1978 .
Sallot, Jeff. Nobody Said No . Toronto : James Lorimer, 1979 .
Sawatsky, John . Men in The Shadows: The R .C.M.P. Security Service .
Toronto : Doubleday, 1980 .
Saywell, John . Quebec '70. Toronto: University of Toronto Press, 1971 .
Schreiber, Jan . The Ultimate Weapon : Terrorists and World Order . New
York : William Morrow, 1978 .
Seale, Patrick, and McConville, Maureen . Philby: The Long Road to Moscow .
New York : Penguin Books, 1978 .
1134
�Sherman, Lawrence W ., and The National Advisory Commission on Higher
Education for Police Officers . The Quality of Police Education . London :
Jossey-Bass, 1978 .
Simeon, Richard . Must Canada Fail? Montreal : McGill-Queen's University
Press, 1977 .
Skolnick, Jerome . Justice Without Trial: Law Enforcement in Democratic
Society . New York: John Wiley and Sons, 1975 .
Smith, Denis . Bleeding Hearts, Bleeding Country . Edmonton : Hurtig, 1971 .
Smith, Robert E . Privacy: How to Protect What's Left of it . New York :
Anchor Books, 1980 .
Solzhenitsyn, Alexander . Warning to the West . New York : Farrar, Strauss,
and Giroux, 1976 .
Stacey, C.P . Arms, Men and Governments: The War Policies of Canada,
1939-45 . Ottawa : Queen's Printer, 1970 .
Stahl, O . Glenn, and Staufenberger, Richard . Police Personnel Administration . Massachusetts : Duxbury Press, 1974 .
Stephenson, Carl, and Marcham ; F .G . Sources of English Constitutional
History - 2 vols . Rev . Ed . New York : Harper and Row, 1972 .
Street, Harry . Freedom, the Individual and the Law . Markham, Ont ., Penguin
Books, 1972
. .Strong,Keh Intelligence at the Top . London : Cassell, 1968 .
Men of Intelligence: A Study of the Roles and Decisions of Chiefs of
Intelligence from W. WI to W.W.II . New York : St . Martin's Press, 1971 .
Sutherland, Douglas. The Fourth Man: The Story of Blunt, Philby, Burgess
and Maclean . London : Arrow Books, 1980 .
Tarnopolsky, Walter S . The Canadian Bill of Rights . Toronto : McClelland
and Stewart, 1975 .
Taylor, Charles . Six Journeys: A Canadian Pattern. Toronto : Anansi, 1977 .
Taylor, Telford . Nuremberg and Vietnam : An American Tragedy . New York :
Bantam Books, 1971 .
Thayer, Frederick. An End to Hierarchy! An End to Competition! New York :
New Viewpoints, 1973 .
Thyraud de Vosjoli, Phillippe . Lamia . Boston : Little, Brown, 1970 .
Trowbridge, James . Easy Victories . New York : Houghton-Mifflin, 1973 .
Ungar, Sanford J . F.B.I. Boston, Mass . : Little, Brown, 1976 .
Vallières, Pierre . L'exécution de Pierre Laporte . Montréal : Editions QuébecAmérique, 1977 .
Watt, David . The Law of Electronic Surveillance in Canada . Toronto : Carswell, 1979 .
Watters, P ., and Gillers, S . Investigating the F.B .I. New York : Ballantine
Books, 1973 .
West, Rebecca . The New Meaning of Treason . New York : Viking Press, 1967 .
1135
�Whalen, Charles W ., Jr . Your Right to Know . New York : Random House,
1973 .
Wheare, Sir Kenneth C . Federal Government . 4th ed . New York : Oxford
University Press, 1963 .
Wilkinson, Paul . Political Terrorism . New York : Halstad Press, 1974 .
Terrorism and the Liberal State . Toronto : Macmillan/MacLeanHunter, 1977 .
Williams, David . Not in the Public Interest . London : Hutchinson, 1965 .
Wilson, James Q. The Investigators . New York : Basic Books, 1978 .
Thinking About Crime . Toronto : Random House, 1977 .
Wohlstetter, Roberta . Cuba and Pearl Harbor: Hindsight and Foresight . New
York : RAND Corporation, 1965 .
Zaslow, Morris . The Opening of the Canadian North, 1870-1914 . Toronto :
McClelland and Stewart, 1971 .
Zenk, Gordon Karl . Project SEARCH. Westport, Connecticut : Greenwood
Press, 1979 .
C. GOVERNMENT REPORT S
Australi a
Australia . Department of Administrative Services . Sir Robert Mark . Report
to the Minister for Administrative Services on the Organization of Police
Resources in the Commonwealth area and other related matters . Canberra : Australian Government Publishing Service, 1978 .
Australia . Law Reform Commission . Chairman : Mr . Justice M .D . Kirby .
Complaints Against Police . Canberra : Australian Government Publishing
Service, 1975 .
Complaints Against Police: Supplementary Report . Canberra : Australian Government Publishing Service, 1978 .
Criminal Investigation : An Interim Report . Canberra : Australian
Government Publishing Service, 1975 .
Australia . Parliament, Senate, Standing Committee on Constitutional and
Legal Affairs . Report on the Freedom of Information Bill 1978, and
aspects of the Archives Bill 1978 . Canberra : Australian Government
Publishing Service, 1979 .
Australia . Protective Security Review . Chairman : The Hon . Mr . Justice
R .M . Hope . Protective Security Review Report . Canberra : Australian
Government Publishing Service, 1979 .
Australia . Royal Commission on Intelligence and Security . Chairman : The
Hon . Mr . Justice R .M . Hope . First Report . Canberra : Australian Government Publishing Service, 1976 .
1136
�. Second Report . Canberra : Australian Government Publishing Serv ice,
1977 .
Third Report : Abridged Findings and Recommendations . Canberra :
Australian Government Publishing Service, 1977 .
Fourth Report . 2 vols . Canberra : Australian Government Publishing
Se rv ice, 1977 .
New South Wales . Law Reform Commission . Chairman : The Hon . Mr .
Justice J .H . Wootten . Working Paper : Illegally and Improperly Obtained
Evidence . Sydney : New South Wales Law Reform Commission, 1979 .
New South Wales . The Privacy Committee . Chairman : Mr . W .J . Orme .
Report: 1975-1978 . Sydney : The Privacy Committee, 1978 .
Annual Report : January-December, 1978 . Sydney : D . West, Government Printer, 1979 .
Background Paper: Lie Detectors. Sydney : The Privacy Committee,
1979 .
.
Background Paper : Police Department On-Line Access to Departmen t
of Motor Transport Traffic Conventions Records. Sydney : The Privacy
Committee, 1979 .
Discussion Paper: The Use of Criminal Records in the Public Sector .
Sydney : The Privacy Committee, 1977 .
Progress Report: Crime Intelligence Unit (CIU) . Sydney : The Privacy
Committee, 1979 .
The Special Branch Criminal Records in New South Wales . Sydney :
The Privacy Committee, 1978 .
Queensland . Committee of Inquiry into the enforcement of Criminal Law in
Queensland . Chairman : The Hon . Mr. Justice G .A .G . Lucas . Report to
W.D . Lickiss, Minister for Justice and Attorney General . Brisbane :
Government Printer, 1977 .
South Australia . Criminal Law and Penal Methods Reform Committee .
Chairman : The Hon . Madam Justice R .F . Mitchell . Second Report:
Criminal Investigations . Adelaide: Government Printer, 1974 .
South Australia . Inquiry into the Records held by the Special Branch of the
South Australian Police. Chairman : The Hon . Mr . Acting Justice J .M .
White . Special Branch Security Records : Initial Report to the Hon . D.A .
Dunstan by the Hon . Mr. Acting Justice White . Adelaide : Government
Printer, 1978 .
South Australia . Royal Commission on Dismissal from the Office of Commissioner of Police . Commissioner: The Hon . Madam Justice R .F . Mitchell . Report on the Dismissal of Harold Hubert Salisbury . Adelaide : D .J .
Woolman, Government Printer, 1978 .
Victoria . Board of Inquiry into Allegations Against Members of the Victoria
Police Force . Chairman: The Hon . Mr . Justice B .W . Beach . Report . 3
vols . Melbourne : C.H . Rixon, Government Printer, 1976 .
1137
�Victoria . Committee to Examine and Advise in Relation to the Recommendations made in Chapter 8 of Volume 1 of the Board of Inquiry into
Allegations against Members of the Victoria Police Force. Chairman : The
Hon . Mr. Justice J .G. Norris . Part I: Police Procedures Relating to the
Investigation of Crime . Melbourne : Government Printer, 1978 .
Part II. Investigation of Complaints Against Police . Melbourne :
Government Printer, 1978 :
Victoria . Victoria Police Force . Chief Commissioner S .I . Miller . Guidelines
Governing the Operation of the Special Branch . Melbourne : Victoria
Police Force, 1979 .
Canada
Alberta . Commission of Inquiry into Royal America Shows Inc . and its
activities in Alberta . Chairman : The Hon . Mr. Justice J .H . Laycraft .
Report of a public inquiry . Edmonton : Commission of Inquiry, 1978 .
Canada . Auditor General's Office . 100th Annual Report . Ottawa : Department of Supply and Services, 1978 .
Canada . Committee on Corrections . Chairman : The Hon . Mr . Justice Roger
Ouimet . Ottawa : Department of Supply and Services, 1969 .
Canada . Department of the Secretary of State . Legislation on Public Access
to Government Documents . Ottawa : Department of Supply and Services,
1977 .
Citizenship Registration Branch . Citizenship as Legal Access . Ottawa :
Department of Supply and Services, 1979 .
Canada . Department of the Solicitor General . Annual Report as required by
section 16(5) of the Official Secrets Act : 1975, 1976, 1977, 1978, 1979 .
Ottawa : Solicitor General's Office .
. Annual Report as required by the Criminal Code of Canada, section
178 .22 (Protection of Privacy Act) : 1975, 1976, 1977, 1978 and 1979.
Ottawa : Solicitor General's Office .
Annual Report of the Solicitor General of Canada for the fiscal year
ended March 31, 1969 . Ottawa: Queen's Printer, 1969 .
Annual Report 1969-70. Ottawa : Information Canada, 1970 .
Annual Report 1971-72 . Ottawa : Information Canada, 1972 .
Annual Report 1973-74 . Ottawa : Information Canada, 1975 .
Annual Report 1975-76 . Ottawa : Department of Supply and Services,
1976 .
Annual Report 1976-77 . Ottawa : Department of Supply and Serv ices,
1978 .
Annual Report 1977-78 . Ottawa : Department of Supply and Serv ices,
1978 .
Canada . Department of the Solicitor General . Research Division . Philip C .
Stenning . Firearms and the Private Security Industry in Canada . Ottawa :
Department of Supply and Serv ices, 1979 .
1138
�Canada . Department of the Solicitor General . Royal Canadian Mounted .
Police. Report of the R .C.M.P. on the fiscal year ending March 31, 1967.
Ottawa : Queen's Printer, 1968 .
Canada . Joint Task Force . Departments of Communication and Justice .
Chairman : Guy R . D'Avignon . Electronic Banking Systems and Their
Effects on Privacy . Ottawa : Queen's Printer, 1973 .
Privacy and Computers . Ottawa : Information Canada, 1974 .
Canada . Law Reform Commission . Access to Information: Independent
Administrative Agencies . Ottawa : Department of Supply and Se rvices,
1979 .
. Administrative Law : Commissions of Inquiry . Ottawa : Department of
Supply and Se rv ices, 1977 .
Criminal Law: Theft and Fraud. Ottawa: Department of Supply and
Services, 1977 .
Evidence: The Exclusion of Illegally Obtained Evidence . Ottawa : Law
Reform Commission, 1974 .
Report on Evidence. Ottawa : Information Canada, 1975 .
Search and Sefzure. Ottawa : Law Reform Commission, 1973 .
Theft and Fraud . Ottawa : Department of Supply and Services, 1979 .
Canada . Parliament . Special Joint Committee on Immigration . White Paper
on Immigration . Ottawa : Queen's Printer, 1969 .
Canada . Privy Council Office . Background Paper on Responsibility in the
Constitution Part I.• Minister Relationship with Departments . Ottawa :
Privy Council Office, 1974 .
. Crown Corporations : Direction, Control, Accountability . Ottawa :
Department of Supply and Services, 1977 .
Canada . Public Service Commission . Special Committee to Review Personnel
Management and the Merit Principle in the Public Service . Chairman :
Guy R . D'Avignon . Report . Ottawa : Department of Supply and Services,
1979 .
Canada . Royal Commission of Inquiry appointed to investigate the facts
relating to and the circumstances surrounding the communication by
public officials and other persons in positions of trust of Secret and
Confidential Information to-Agents of a Foreign Power. Chairmen : The
Hon . Mr . Justice R . Taschereau and The Hon . Mr . Justice R .L. Kellock.
Report . Ottawa : King's Printer, 1946 .
Canada . Royal Commission of Inquiry Concerning certain activities of the
Royal Canadian Mounted Police . Chairman : The Hon . Mr . Justice D .C .
McDonald . First Report : Security and Information. Ottawa : Department
of Supply and Services, 1980 .
Canada . Royal Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian
Mounted Police. Chairman : His Honour Judge R .J. Marin . Report .
Ottawa : Information Canada, 1976 .
1139
�Canada . Royal Commission on Complaints made by G .V . Spencer . Chairman : The Hon . Mr . Justice D.C . Wells . Report . Ottawa : Queen's Printer,
1966 .
Canada . Royal Commission on Financial Management and Accountability .
Chairman : Mr . A .T . Lambert . Third Draft of Paper on Ministerial
Responsibility. Ottawa : Department of Supply and Services, 1979 .
Canada . Royal Commission on matters relating to one Gerda Munsinger .
Chairman : The Hon . Mr . Justice W .F. Spence . Report . Ottawa : Queen's
Printer, 1966 .
Canada . Royal Commission on Security . Chairman : Mr . M .W . Mackenzie .
Report . Ottawa : Government Printer, 1969 .
Canada . Royal Commission on the Bren machine gun contract . Chairman :
The Hon . Mr. Justice Henry H . Davis . Report . Ottawa : J .O . Patenaude,
King's Printer, 1939 .
Canada . Science Council . Background Study No . 31 : Knowledge, Power and
Public Policy. Ottawa : Information Canada, 1974 .
New Brunswick . Commission of Inquiry into Matters Relating to the New
Brunswick Department of Justice and the Royal Canadian Mounted
Police . Chairman : The Hon . Mr . Justice Charles Hughes . Report . New
Brunswick : Government Printer, 1978 .
Ontario . Commission of Inquiry into the Confidentiality of Health Information . Chairman : The Hon . Mr . Justice Horace Krever . Report. (3 vols .)
Ontario : Queen's Printer, 1980 .
Ontario . Commission on Freedom of Information and Individual Privacy .
Chairman : Mr . D .C . Williams . Freedom of Information and Individual
Privacy: A Selective Bibliography. Toronto : Commission on Freedom of
Information, 1978 .
. Kenneth Kernaghan . Freedom of Information and Ministerial Responsibility . Toronto : Commission on Freedom of Information, 1978 .
D .V . Smiley . The Freedom of Information Issue : A Political Analysis .
Toronto : Commission on Freedom of Information, 1978 .
Timothy G . Brown . Government Secrecy, Individual Privacy, and the
Public's Right to Know: An Overview of the Ontario Law . Toronto :
Commission on Freedom of Information, 1979 .
D .C . Rowat . Public Access to Government Documents : A Comparative Perspective . Toronto: Commission on Freedom of Information, 1978 .
Ontario . Ministry of the Attorney General . Ontario Law Reform Commis-
sion . Report on the Law of Evidence. Ontario : Ministry of the Attorney
General, 1976 .
Ontario . Ministry of the Attorney General . Ontario Police Commission .
Report on Police Training. Toronto : Ministry of the Solicitor General,
1975 .
1140
�Ontario . Royal Commission Inquiry into Civil Rights . Chairman : The Hon .
Mr. Justice J .C . McRuer . Report, Volume 1 : The Exercise and Control of
Statutory Powers in the Administrative Process . Toronto : Queen's Printer, 1968 .
Report, Volume 2 : The Administration of Civil and Criminal Justice
in the Province. Toronto : Queen's Printer, 1968 .
Report, Volume 3: Safeguards Against the Unjustified Exercise of
Certain Special Powers . Toronto : Queen's Printer, 1968 .
Report, Volume 4: General Safeguards Against Unjustified
Encroachments or Infringements . Toronto : Queen's Printer, 1969 .
Report, Volume 5 : Application of General Principles to Specific
Statutory Tribunals . Toronto : Queen's Printer, 1971 .
Quebec . Groupe de Travail sur les fonctions policières au Québec . Rapport et
Annexes . Québec : Bibliothèque Nationale du Québec, 1978 .
Saskatchewan . Provincial Library . Bibliographic Services Division . Roya l
Canadian Mounted Police: A Bibliography . Regina : Saskatchewan Provincial Library, 1973 .
Great Britain
Great Britain . Commission of Inquiry into Allegations against Security
Forces of Physical Brutality in Northern Ireland arising out of events on
August 9, 1971 . Chairman : Sir Edmund Compton . Report . London : Her
Majesty's Stationery Office, 1971 . [Cmnd . 4823 ]
Great Britain . Committee of Privy Councillors appointed to Inquire into the
Interception of Communications . Chairman : Sir Norman Birkett . Report .
London : Her Majesty's Stationery Office, 1957 . [Cmnd . 283 ]
Great Britain . Committee on Data Protection . Chairman : Sir Norman
Lindop . Report . London : Her Majesty's Stationery Office, 1978 . [Cmnd .
7341 ]
Great Britain . Committee on Privacy . Chairman : The Rt . Hon . Kenneth
Younger . Report . London: Her Majesty's Stationery Office, 1972 . [Cmnd .
5012 ]
Great Britain . Committee on Security Procedures in the Public Service .
Chairman : Lord Radcliffe . Report . London : Her Majesty's Stationery
Office, 1962 . [Cmnd . 1681 ]
Great Britain . Departmental Committee on Section 2 of the Official Secrets
Act, 1911 . Chairman : Lord Franks . Report : Reform of Section 2 of the
Official Secrets Act, 1911 . London : Her Majesty's Stationery Office,
1972 . [Cmnd . 7285 ]
Volume 2: Written Evidence Submitted to the Committee . London :
Her Majesty's Stationery Office, 1972 . [Cmnd . 7285 ]
Volume 3: Oral Evidence Mainly from Government Witnesses .
London : Her Majesty's Stationery Office, 1972 . [Cmnd . 7285 ]
Volume 4: Oral Evidence Mainly from Non-Government Witnesses .
London : Her Majesty's Stationery Office, 1972 . [Cmnd . 7285 ]
1141
�Great Britain . Home Office . Baron Edward Shackleton . Review of the
Operation of the Prevention of Terrorism ( Temporary Provisions) Acts,
1974 and 1976 . London : Her Majesty's Stationery Office, 1977 .
Great Britain . Judicial Inquiry into the Security Se rv ice in the light of Mr .
Profumo's Resignation . Chairman : Lord Denning . Lord Denning's Report .
London : Her Majesty's Stationery Office, 1963 . [Cmnd . 2152 ]
Great Britain . The Law Commission . Chairman : The Hon . Mr . Justice
Cooke . Working Paper No . 63 : Codification of the Criminal Law, Conspiracies to effect a public mischief and to commit a Civil Wrong . London :
Her Majesty's Stationery Office, 1975 .
Great Britain . Royal Commission of Inquiry appointed to consider legal
procedures to deal with Terrorist activities in Northern Ireland . Chairman : Lord Diplock. Report. London : Her Majesty's Stationery Office,
1972 . [Cmnd . 5185 ]
Great Britain . Royal Commission on Tribunals of Inquiry . Chairman : Lord
Salmon . Report of the Commission under the Chairmanship of the Rt .
Hon. Lord Justice Salmon . London : Her Majesty's Stationery Office,
1966 . [Cmnd . 3121 1
Great Britain . Standing Advisory Committee on Human Rights . Chairman :
Mr . Cyril Plant . Report on ' the Protection of Human Rights by Law in
Northern Ireland. London : Her Majesty's Stationery Office, 1977 .
[Cmnd . 7009]
Great Britain . . Standing Security Commission . Chairman : The Rt . Hon . Lord
Justice Winn . Report, June 1965. London : Her Majesty's Stationery
Office, 1965 . [Cmnd . 2722 ]
Report, July 1966 . London : Her Majesty's Stationery Office, 1966 .
[Cmnd . 3151 ]
Report, June 1967. London : Her Majesty's Stationery Office, 1967 .
[Cmnd . 3365 ]
Report, November 1968 . London : Her Majesty's Stationery Office,
1968 . [Cmnd . 3856 ]
Report, January 1969 . London : Her Majesty's Stationery Office,
1969 . [Cmnd . 3892 1
Chairman : The Rt . Hon . Lord Diplock . Report, May 1973 . London :
Her Majesty's Stationery Office, 1973 . [Cmnd . 5362]
Report, July 1973 . London : Her Majesty's Stationery Office, 1973 .
[Cmnd . 5367 ]
New Zealan d
New Zealand . Chief Ombudsman . Sir Guy Powles . Security Intelligence
Service, Report . Wellington : A .R . Shearer, Government Printer, 1976 .
United States of America
United States . Comptroller General . F.B .I. Domestic Intelligence Operations:
An Uncertain Future . Washington : U .S . Government Printing Office,
1977 .
1142
�United States. Congress . Commission on the Organization of the Government for the Conduct of Foreign Policy : Chairman : Mr. R .D . Murphy.
Report . Washington : U .S . Government Printing Office, 1975 .
United Statés : Congress . House . Select Committee on Intelligence . Chairman : Mr . Otis G . Pike . Report: United States Intelligence Agencies and
Activities . Washington : U .S . Government Printing Office, 1976 .
United States . Congress . Senate . Committee on the Judiciary . Subcommittee
on Criminal Laws and Procedures . The Erosion of Law Enforcement
Intelligence and its impact on Public Security . Washington : U .S . Government Printing Office, 1977 .
,
United States . Congress . Senate . Select Committee on Intelligence . Subcommittee on Secrecy and Disclosure . National Security Secrets land the
Administration of Justice . Washington : U .S . Government Printing Office,
1978 .
United States . Congress . Senate . Select Committee to Study Governmental
Operations with respect to Intelligence Activities . Chairman: Senator
Frank Church . Final Report, Book I: Foreign and Military Intelligence .
Washington : U .S . Government Printing Office, 1976 .
Final Report, Book II.• Intelligence Activities and the Rights of
Americans. Washington : U .S . Government Printing Office, 1976 .
Final Report Book III: Supplementary Detailed Staff Reports on
Intelligence Activities and the Rights of Americans . Washington : U .S .
Government Printing Office, 1976 .
Final Report, Book IV: Supplementary Detailed Staff Reports on
Foreign and Military Intelligence . Washington : U .S . Government Printing Office, 1976 .
Final Report, Book V.• The Investigation of the assassination of
President John F. Kennedy: Performance of Intelligence Agencies . Washington : U .S . Government Printing Office, 1976 .
United States . Department of Justice . Office of the Attorney General .
Report of the Attorney General of the United States on the Administration of the Foreign Agents Registration Act, 1938 as amended for the
calendar year 1977 . Washington : U .S . Government Printing Office, 1977 .
United States . Department of Justice . Report of the Department of Justice
concerning its Investigation and Prosecutorial Decisions with respect to
Central Intelligence Mail Opening Activities in the United States . Washington : U .S . Government Printing Office, 1977 .
The Department of Justice Report on the relationship between the
United States Recording Company and the F .B .I. Washington : Department of Justice, 1978 .
Report of the Department of Justice Task Force to Review the F.B .I.
- Martin Luther King Jr. Security and Assassination Investigations .
Washington : Department of Justice, 1977 .
1143
�United States . President . Commission on C .I .A . Activities Within th e
United States . Report to the President . Washington : U .S . Government Printing Office, 1975 .
United States . President . Executive Order 12036 : U.S . Foreign Intelligence
Activities . Washington : U .S . Government Printing Office, January 24,
1978 .
1144
�APPENDIX "A "
CHAPTER I-1 3
An Act respecting public and departmental inquiries
SHORT TITL E
1 . This Act may be cited as the Inquiries Act, R .S., c .154, s .l .
PARTI.
PUBLIC INQUIRIES
2 . The Governor in Council may, whenever he deems it expedient, cause
inquiry to be made into and concerning any matter connected with the good
government of Canada or the conduct of any part of the public business
thereof. R .S ., c .154, s .2 .
3 . Where an inquiry as described in section 2 is not regulated by any special
law, the Governor in Council may, by a commission in the case, appoint
persons as commissioners by whom the inquiry shall be conducted . R .S ., c .154,
s .3 .
4 . The commissioners have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in
writing, and to produce such documents and things as the commissioners deem
requisite to the full investigation of the matters into which they are appointed
to examine . R .S ., c.154, s .4 .
5 . The commissioners have the same power to enforce the attendance of
witnesses and to compel them to give evidence as is vested in any court of
record in civil cases . R .S ., c .154, s .5 .
PART I I
DEPARTMENTAL INVESTIGATION S
6. The minister presiding over any department of the Public Service may
appoint at any time, under the authority of the Governor in Council, a
commissioner or commissioners to investigate and report upon the state and
management of the business, or any part of the business, of such department ,
1145
�either in the inside or outside service thereof, and the conduct of any person in
such service, so far as the same relates to his official duties . R .S ., c . 154, s .6 .
7. The commissioner or commissioners may, for the purposes of thè investigation, enter into and remain within any public office or institution, and shâll
have access to every part thereof, and may examine all papers, documents,
vouchers, records and books of every kind belonging thereto, and may summon
before him or them any person and require him to give evidence on oath, orally
or in writing, or on solemn affirmation if he is entitled to affirm in civil
matters, and any such commissioner may administer such oath or affirmation :
R .S ., c .154, s .7 .
8 . (1) The commissioner or commissioners may, under his or their hand or
hands, issue a subpoena or other request or summons, requiring and commanding any person therein named to appear at the time and place mentioned
therein, and then and there to testify to all matters within his knowledge
relative to the subject-matter of such investigation, and to bring with him and
produce any document, book, or paper that he has in his possession or under his
control relative to any such matter as aforesaid ; and any such person may be
summoned from any part of Canada by virtue of the subpoena, request or
summons.
(2) Reasonable travelling expenses shall be paid to any person so summoned at the time of service of the subpoena, request or summons . R .S ., c . 1 54,
s .8 .
9 . (1) If, by reason of the distance at which any person, whose evidence is
desired, resides from the place where his attendance is required, or for any
other cause, the commissioner or commissioners deem it advisable, he or they
may issue a commission or other authority to any officer or person therein
named, empowering him to take such evidence and report it to him or them .
(2) Such officer or person shall, before entering on any investigation, be
sworn before a justice of the peace faithfully to execute the duty entrusted to
him by such commission, and, with regard to such evidence, has the same
powers as the commissioner or commissioners would have had if such evidence
had been taken before him or them, and may, in like manner, under his hand
issue a subpoena or other request or summons for the purpose of compelling
the attendance of any person, or the production of any document, book or
paper . R .S., c .154, s .9 .
10 . (1) Every person wh o
(a) being required to attend in the manner provided in this Part, fails,
without valid excuse, to attend accordingly ,
(b) being commanded to produce any document, book or paper, in his
possession or under his control, fails to produce the same,
(c) refuses to be sworn or to affirm, as the case may be, or
(d) refuses to answer any proper question put to him by a commissioner, or
other person as aforesaid ,
is liable, on summary conviction before any police or stipendiary magistrate, or
judge of a superior or county court, having jurisdiction in the county or distric t
1146
�in which such person resides, or in which the place is situated at which he was
so required to attend, to a penalty, not exceeding four hundred dollars .
(2) The judge of the superior or county court aforesaid shall, for the
purposes of this Part, be a justice of the peace . R .S ., c .154 ; s .10 .
PART II I
GENERAL
11 . (1) The commissioners, whether appointed under Part I or under Part II,
if thereunto authorized by the commission issued in the case, may engage the
services of such accountants, engineers, technical advisers, or ôther experts,
clerks, reporters and assistants as they deem necessary or advisable, and also
the se rv ices of counsel to aid and assist the commissioners in the inquiry .
(2) The commissioners may authorize and depute any such accountants,
engineers, technical advisers, or other experts, or any other qualified persons,
to inquire into any matter within the scope of the commission as may be
directed by the commissioners .
(3) The persons so deputed, when authorized by order in council, have
the same powers that the commissioners have to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence, and
otherwise conduct the inquiry .
(4) The persons so deputed shall report the evidence and their findings, if
any, thereon to the commissioners . R .S ., c .154, s .11 .
12. The commissioners may allow any person whose conduct is being investigated under this Act, and shall allow any person against whom any charge is
made in the course of such investigation, to be represented by counsel . R .S.,
c .154, s .12 .
13 . No report shall be made against any person until reasonable notice has
been given to him of the charge of misconduct alleged against him and he has
been allowed full opportunity to be heard in person or by counsel . R .S., c .154,
s .13 .
PART I V
INTERNATIONAL COMMISSIONS AND TRIBUNALS
14. (1) The Governor in Council may, whenever he deems it expedient,
confer upon an international commission or tribunal all or any of the powers
conferred upon commissioners under Part I .
(2) The powers so conferred may be exercised by such commission or
tribunal in Canada, subject to such limitations and restrictions as the Governor
in Council may impose, in respect to all matters that are within the jurisdiction
of such commission or tribunal . R .S ., c .154, s.14 .
1147
��APPENDIX "B"
P.C . 1977-191 1
Certified to be a true copy of a Minute of a Meeting of the Committee of the
Privy Council, approved by His Excellency the Governor General on the 6
July, 197 7
WHEREAS it has been established that certain persons who were members of the R .C .M .P . at the time did, on or about October 7, 1972, take part
jointly with persons who were then members of la Sûreté du Québec and la
Police de Montréal in the entry of premises located at 3459 St . Hubert Street,
Montreal, in the search of those premises for property contained therein, and in
the removal of documents from those premises, without lawful authority to d o
so ;
WHEREAS allegations have recently been made that certain persons who
were members of the R .C .M .P . at the time may have been involved on other
occasions in investigative actions or other activities that were not authorized or
provided for by law ;
WHEREAS, after having made inquiries into these allegations at the
instance of the Government, the Commissioner of the R .C .M .P. now advises
that there are indications that certain persons who were members of the
R .C .M .P . may indeed have been involved in investigative actions or other
activities that were not authorized or provided for by law, and that as a
consequence, the Commissioner believes that in the circumstances it would be
in the best interests of the R .C.M .P . that a Commission of Inquiry be set up to
look into the operations and policies of the Security Service on a national basis ;
WHEREAS public support of the R .C .M .P . in the discharge of its
responsibility to protect the security of Canada is dependent on trust in the
policies and procedures governing its activities ;
AND WHEREAS the maintenance of that trust requires that full inquiry
be made into the extent and prevalence of investigative practices or other
activities involving members of the Royal Canadian Mounted Police that are
not authorized or provided for by law .
THEREFORE, the Committee of the Privy Council, on the recommendation of the Prime Minister, advise that, pursuant to the Inquiries Act, a
Commission do issue under the Great Seal of Canada, appointin g
Mr . Justice David C . McDonald of Edmonton, Alberta
Mr . Donald S . Rickerd of Toronto, Ontari o
Mr . Guy Gilbert of Montreal, Quebe c
to be Commissioners under Part I of the Inquiries Act :
1149
�(a) to conduct such investigations as in the opinion of the Commissioners
are necessary to determine the extent and prevalance of investigative
practices or other activities involving members of the R .C .M .P . that
are not authorized or provided for by law and, in this regard, to inquire
into the relevant policies and procedures that govern the activities of
the R .C .M .P . in the discharge of its responsibility to protect the
security of Canada ;
(b) to report the facts relating to any investigative action or other activity
involving persons who were members of the R .C .M .P. that was not
authorized or provided for by law as may be established before the
Commission, and to advise as to any further action that the Commissioners may deem necessary and desirable in the public interest ; an d
(c) to advise and make such report as the Commissioners deem necessary
and desirable in the interest of Canada, regarding the policies and
procedures governing the activities of the R .C .M .P. in the discharge of
its responsibility to protect the security of Canada, the means to
implement such policies and procedures, as well as the adequacy of the
laws of Canada as they apply to such policies and procedures, having
regard to the needs of the security of Canada .
The Committee further advise that the Commissioners :
I . be authorized to adopt such procedures and methods as the Commissioners may from time to time deem expedient for the proper conduct of
the inquiry ;
2 . be directed that the proceedings of the inquiry be held in camera in all
matters relating to national security and in all other matters where the
Commissioners deem it desirable in the public interest or in the interest
of the privacy of individuals involved in specific cases which may be
examined ;
3 . be directed, in making their report, to consider and take all steps
necessary to preserve
(a) the secrecy of sources of security information within Canada ; an d
(b) the security of information provided to Canada in confidence by
other nations ;
4 . be authorized to sit at such time and at such places as they may decide
from time to time, to have complete access to personnel and information
available in the Royal Canadian Mounted Police and to be provided
with adequate working accommodation and clerical assistance ;
5 . be authorized to engage the serv ices of such staff and technical advisers
as they deem necessary or advisable and also the se rv ices of counsel to
aid them and assist in their inquiry at such rates of remuneration and
reimbursement as may be approved by the Treasury Board ;
6. be directed to follow established security procedures with regard to their
staff and technical advisers and the handling of classified information at
all stages of the inquiry;
7 . be authorized to exercise all the powers conferred upon them by section
11 of the Inquiries Act ; and
1150
�8 . be directed to report to the Governor in Council with all reasonable
dispatch and file with the Privy Council Office their papers and records
as soon as reasonably may be after the conclusion of the inquiry .
The Committee further advise that, pursuant to section 37 of the Judges
Act, His Honour Mr . Justice McDonald be authorized to act as Commissioner
for the purposes of the said Commission and that Mr . Justice McDonald be the
Chairman of the Commission .
Certified to be a true copy
Copie certifiée conform e
H . Chass é
Assistant Clerk of the Privy Council
Le Greffier Adjoint du Conseil privé
1151
��APPENDIX "C "
COMMISSIO N
appointing
the Honourable Mr. Justice David C . McDonald ,
Donald S . Rickerd, Esquire,
and
Guy Gilbert, Esquire
to be Commissioners under Part I of the Inquiries Act, to inquire into the
relevant policies and procedures that govern the activities of the Royal
Canadian Mounted Police in the discharge of its responsibility to .protect
the security of Canada, and the Honourable Mr . Justice McDonald to be
the Chairman of the Commission .
DATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5th. August,. 1977. . . . . . .
... ... .... . ... ..
RECORDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10th .August, .1977 . . .
.... . . ..... .. . ....
Film 420 Document 6 0
. L . McCann ( signature )
DEPUTY REGISTRAR GENERAL OF CANAD A
Brian Dickson (signature )
DEPUTY OF THE GOVERNOR GENERA L
ELIZABETH THE SECOND, by the Grace of God of the United
Kingdom, Canada and Her other Realms and Territories QUEEN, Head of
the Commonwealth, Defender of the Faith .
Roger Tassé (signature )
DEPUTY ATTORNEY GENERA L
TO ALL TO WHOM these Presents shall come or whom the same may in
anyway concern,
1153
�GREETING :
WHEREAS it has been established that certain persons who were members of the Royal Canadian Mounted Police at the time did, on or about
October 7, 1972, take part jointly with persons who were then members of la
Sûreté du Québec and la Police de Montréàl in the entry of premises located at
3459 St. Hubert Street, Montreal, in the search of those premises for property
contained therein, and in the removal of documents from those premises,
without lawful authority to do so ;
AND WHEREAS allegations have recently been made that certain
persons who were members of the Royal Canadian Mounted Police at the time
may have been involved on other occasions in investigative actions or other
activities that were not authorized or provided for by law ;
AND WHEREAS, after having made inquiries into these allegations at
the instance of the Government, the Commissioner of the Royal Canadian
Mounted Police now advises that there are indications that certain persons who
were members of the Royal Canadian Mounted Police may indeed have been
involved in investigative actions or other activities that were not authorized or
provided for by law, and that as a consequence, the Commissioner believes that
in the circumstances it would be in the best interests of the Royal Canadian
Mounted Police that a Commission of Inquiry be set up to look into the
operations and policies of the Security Service on a national basis ;
AND WHEREAS public support of the Royal Canadian Mounted Police
in the discharge of its responsibility to protect the security of Canada is
dependent on trust in the policies and procedures governing its activities ;
AND WHEREAS the maintenance of that trust requires that full inquiry
be made into the extent and prevalence of investigative practices or other
activities involving members of the Royal Canadian Mounted Police that are
not authorized or provided for by law;
AND WHEREAS pursuant to the provisions of Part I of the Inquiries
Act, chapter I-13 of the Revised Statutes of Canada, His Excellency the
Governor General in Council, by Order in Council P .C . 1977-1911 of the sixth
day of July in the year of Our Lord one thousand nine hundred and seventyseven, has authorized the appointment of Our Commissioners therein and
hereinafter named
(a) to conduct such investigations as in their opinion are necessary to
determine the extent and prevalence of investigative practices or other
activities involving members of the Royal Canadian Mounted Police
that are not authorized or provided for by law and, in this regard, to
inquire into the relevant policies and procedures that govern the
activities of the Royal Canadian Mounted Police in the discharge of its
responsibility to protect the security of Canada ;
(b) to report the facts relating to any investigative action or other activity
involving persons who were members of the Royal Canadian Mounted
Police that was not authorized or provided for by law as may be
established before the Commission, and to advise as to any furthe r
1154
�action that the Commissioners may deem necessary and desirable in
the public interest ; an d
(c) to, advise and make such report as the Commissioners deem necessary
and desirable in the interest of Canada, regarding the policiés and
procedures governing the activities of the Royal Canadian Mounted
Police in the dischargè of its responsibility to protect the security of
Canada, the means to implement such pôlicies and procedures, as well
as the adequacy of the laws of Canada as they apply to such policies
and procedures, having regard to the needs of-the security of Canada .
NOW KNOW YOU that, by and with the advice of Our Privy Council
for Canada, We do by these Presents nominate, constitute and appoint the
Honourable Mr . Justice David C . McDonald, of the City of Edmonton, in the
Province of Alberta, Donald S . Rickerd, Esquire, of the City of Toronto, in the
Province of Ontario and Guy Gilbert, Esquire, of the City of Montreal, in the
Province of Quebec to be Our Commissioners to conduct such inquiry .
TO HAVE, hold, exercise and enjoy the said office, place and trust unto
the said David C . McDonald, Donald S . Rickerd and Guy Gilbert, together
with the rights, powers, privileges and emoluments unto the said office, place
and trust of right and by law appertaining during Our Pleasure .
AND WE DO hereby authorize Our said Commissioners to adopt such
procedures and methods as they may from time to time deem expedient for the
proper conduct of the inquiry .
AND WE DO hereby direct Our said Commissioners to hold the proceedings of the inquiry in camera in all matters relating to national security and in
all other matters where they deem it desirable in the public interest or in the
interest of the privacy of individuals involved in specific cases which may be
examined .
AND WE DO further direct Our said Commissioners, in making their
report, to consider and take all steps necessary to preserv e
(a) the secrecy of sources of security information within Canada ; and
(b) the security of information provided to Canada in confidence by other
nations .
AND WE DO hereby authorize Our said Commissioners to sit at such
time and at such places as they may decide from time to time,*to have complete
access to personnel and information available in the Royal Canadian Mounted
Police and to be provided with adequate working accommodation and clerical
assistance .
AND WE DO further authorize Our said Commissioners to engage the
services of such staff and technical advisers as they deem necessary or
advisable and also the services of counsel to aid them and assist in their inquiry
at such rates of remuneration and reimbursement as may be approved by the
Treasury Board .
AND WE DO hereby direct Our said Commissioners to follow established
security procedures with regard to their staff and technical advisers and the
handling of classified information at all stages of the inquiry .
1155
�AND WE DO further direct Our said Commissioners to report to the
Governor in Council with all reasonable dispatch and file with the Privy
Council Office their papers and records as soon as reasonably may be after the
conclusion of the inquiry .
AND WE DO hereby appoint the Honourable Mr . Justice McDonald to
be the Chairman of the Commission .
IN TESTIMONY WHEREOF, We have caused these Our Letters to be
made Patent and the Great Seal of Canada to be hereunto affixed .
WITNESS :
THE HONOURABLE BRIAN DICKSON, a Puisne Judge of the
Supreme Court of Canada and Deputy of Our Right Trusty and Wellbeloved Jules Léger, Chancellor and Principal Companion of Our Order of
Canada, Chancellor and Commander of Our Order of Military Merit upon
whom We have conferred Our Canadian Forces' Decoration, Governor
General and Commander-in-Chief of Canada .
AT OTTAWA, this fifth day of August in the year of Our Lord one
thousand nine hundred and seventy-seven and in the twenty-sixth year of Our
Reign .
BY COMMAND,
John Howard ( signature )
DEPUTY REGISTRAR GENERAL OF CANADA
1156
�APPENDIX "D "
OPENING STATEMENT OF THE COMMISSION
DECEMBER 6, 197 7
This Commission has been given a complex and demanding task . Some of
the legal issues it must consider are not as clear as some people think . Some of
the factual issues require a marshalling of evidence which is far from simple in
the circumstances, because one or more police forces are involved, and because
in respect of some issues there are a large number of particular instances and
people involved . The investigative and legal staff which this Commission has
undertaken to organize which is of a high quality, is not readily available to the
Attorney General of Canada or to his counterpart in the provinces, for after
all, it is members of the national police force itself and the policies, past and
present, of thatforce which are under investigation . Whether there is evidence
which would justify prosecution in some particular case is not a question which
could easily be answered by Crown attorneys, without there first having been
undertaken the kind of cross-jurisdictional investigation which this Commission
intends to carry out, and without the ability which this Commission has,
anywhere in Canada, to require the fullest co-operation of the R .C .M .P . - a
co-operation which is required by the terms of the Order-in-Council .
In its fact-finding function, in its consideration of the societal values which
are invoked by the issues raised by the facts, and in considering the nature of
the needs to protect the security of Canada and the laws and structures and
policies which should be adopted to satisfy those needs, this Commission
undertakes to the Canadian people that it will be unremitting and conscientious
in its work . The Commission invites the co-operation and the assistance of the
Canadian public .
Today the Commission continues its hearings into one allegation of an
investigative practice or procedure alleged to be "not authorized or provided
for by law" . Next week we shall move to Ottawa to begin our hearings into
another allegation . In January and the ensuing months we shall continue our
hearings into these matters, and begin our hearings into other allegations . We
shall begin our hearings into any particular matter, and we shall complete
them only when our counsel are satisfied that they are prepared to begin and to
complete the hearings . The Commission expects them to do a thorough job of
investigation and preparation . Nothing else in the long run will justify public
confidence in our inquiry . Nothing else will be fair either to the individuals
whose conduct is investigated or against who a charge is made in evidence . We
appreciate that there should be no dilatoriness in starting our inquiry into a
particular factual allegation and pushing it to a conclusion . Everyone should
bear in mind that starting an inquiry involves more than just starting a publi c
1157
�hearing . It involves investigation and preparation . It is urgent that the truth
should be revealed to the public as speedily as possible . Nevertheless, taking
more time in preparing the material for arriving at the truth is a small price to
pay in order to avoid injustice . Further time in preparing for the public hearing
will also give the Commission's counsel a better opportunity of discarding
irrelevant evidence . It is of the greatest importance that irrelevant evidence
should not be made public, particularly if it contains clearly groundless charges
against anyone .
The importance of having sufficient time for preparation of the evidence
before a public hearing is even greater in the case of this Commission than it is
in the case of many Commissions of Inquiry, because of the number of factual
allegations before it and, in some cases, the complexity of the facts . This
Commission's terms of reference require it to inquire into - and I am
referring to paragraph (a) - into the extent and prevalence of investigative
activities "not authorized or provided for by law" . "Extent" and "prevalence"
may, in some cases, require protracted investigation by the Commission's staff
before the Commission can decide what time should be spent in public hearings
- for example - if there were a large number of openings of letters by the
R .C .M .P ., counsel will have to consider all those cases in order to decide what
evidence will best be called at public hearings to enable the Commission to
determine "extent" and "prevalence", and to assess the need for such a
procedure . Only such preparation will enable the Commission to reach its
decision in an informed manner yet without spending months at public
hearings on the one subject .
Now, a few comments on procedure . First of all, a comment on the fact
that this Commission does not examine witnesses first in camera and then
publicly . It should be realized by those interested in the proceedings of the
Commission, that as a general rule, the witnesses who testify in public will not
previously have been seen or heard by the three Commissioners . Certainly, they
may have been interviewed by counsel for the Commission, but they will not
testify before the Commission first in private and then in public . The position
this Commission adopts is that set forth in the Report of the Royal Commission on Tribunals of Inquiry, in England in 1966, which was chaired by Lord
Justice Salmon, a report which has justly earned the respect of students of
Royal Commissions in Commonwealth countries and, in particular, has been
substantially followed by a report last year of a Committee of the Quebec Bar .
This is what the Salmon Report stated on this subject :
THE CASE FOR AND AGAINST A PRELIMINARY
HEARING O F
EVIDENCE IN PRIVAT E
A further suggestion has been made by some witnesses - that is, some
persons who appeared before that Inquiry - although many have disagreed
with it, that the Tribunal should hold a preliminary investigation in private .
At this investigation evidence should be called and submissions made to
enable the Tribunal to decide whether or not there was a prima facie case t o
1158
�support any allegation against any of the persons concerned . The advantage
of this course, so it is said, is that the Tribunal could thus protect innocent
persons from having groundless allegations or rumours against them pursued in the fierce light of publicity . Whilst we fully recognize the importance of protecting innocent persons against any possible injury to their
reputations which may be involved in a public hearing, we do not consider
that a preliminary hearing in private is the best means of affording them
this protection . Assuming that there are widespread rumours and allegations about the conduct of some innocent individual, it seems to us that if
the evidence is heard in private at a preliminary hearing and the Tribunal
thereafter announces that the rumours and allegations are groundless, there
is a real risk that the public will not be convinced and may consider that
something is being hushed up. Indeed a number of witnesses involved in
recent Tribunals of Inquiry and those appearing on their behalf have
stressed in evidence before us the importance they attach to being able to
destroy, the rumours and allegations by evidence given in public .
If on the other hand the Tribunal comes to the conclusion tha,t there is
enough in the rumours and allegations to warrant a public investigation, the
impression that this would make upon the public might well be unfortunate
from the point of view of the individual concerned . Moreover, there is
something unreal about evidence being taken in private and then being
rehashed before the same Tribunal in public . Besides, the untruthful
witness who has done badly under cross-examination at the first attempt
would be forewarned . This procedure would also entail considerable unnecessary delay for the publication of the Report would be postponed by the
time taken by the preliminary hearing without any corresponding advantage being secured .
Now, some remarks about the holding of all hearings in public. There is a
great interest in the extent to which this Commission will hold its hearings in
camera, ou à huis-clos . The subject is one which concerris the Commission
deeply . The subject arises for at least one good reason, namely : the following
direction which is given to the Commission by the Order-in-Council which
created it . It bears the number two . The Commission is directed :
. . .that the proceedings of the inquiry be held in camera in all matters
relating to national security and in all other matters where the Commissioners deem it desirable in the public interest or in the interest of the privacy of
individuals involved in specific cases which may be examined .
From a hasty reading of this direction, some observers have inferred that
there will be little evidence that the Commission will be able to hear in public .
In the view of the Commission, that is a false conclusion which the Commission
wishes to dispel in principle and in its practice . We cannot do better than
publicly adopt as a cardinal principle guiding our deliberations what Lord
Justice Salmon's Committee called the principle of publicity and these are the
words of that Commission :
It is.
. . of the greatest importance that hearings before a Tribunal of
Inquiry - which is what they call them in England - should be held in
public . It is only when the public is present that the public will have
complete confidence that everything possible has been done for the purpose
of arriving at the truth . . . .
1159
�When there is a crisis of public confidence about the alleged misconduct of
persons in high places, the public naturally distrusts any investigations
carried out behind closed doors . Investigations so conducted will always
tend to promote the suspicion, however unjustified,'that they are not being
conducted sufficiently vigorously and thoroughly or that something is being
hushed up . Publicity enables the public to see for itself how the investigation is being carried out and accordingly dispels suspicion . Unless these
inquiries are held in public they are unlikely to achieve their main purpose,
namely, that of restoring the confidence of the public in the integrity of our
public life . And without this confidence no democracy can long survive .
It has been said that if the inquiry were held in privâte some witnesses
would come forward with evidence which they would not be prepared to
give in public . This may well be so . We consider, however that although
secret hearings may increase the quantity of evidence they tend to debase
its quality. The loss of the kind of evidence which might be withheld
because the hearing is not in secret would, in our view, be a small price to
pay for the great advantages of a public hearing . .. .
The same point was made as follows in June, 1976, by the study
committee of the, Quebec Bar on Commissions of Inquiry, the members of
which were Me Harvey M . Yarosky (Chairman), Me Philippe Casgrain, Me
Joseph N . Nuss and Monsieur le Bâtonnier Michel Robert, and this is what
that report said under the title :
Public hearings v . In Camera hearings
We feel that as a general rule, it is important for commissions of inquiry to
be held in public . Only when the public is present, as has been the case with
our tribunals for some time, can we be sure that the rights of witnesses and
others will not be violated . Thus we can be confident that such commissions
will enjoy the credibility essential to what they are seeking to achieve .
Public presentation of arguments is the best guarantee of adherence to the
basic principles of justice . . .
. ..We realize that in some cases the desirability of public hearings can be
outweighted by other considerations . This may be so where matters involving public security or intimate personal, financial or other details are being
disclosed . In such cases the embarrassment and harm resulting from such
disclosures would outweigh the desirability of a public hearing .
When faced with such situations, the commissioners should have the power
to exclude the public from the hearings and to hold them in camera . We
recommend the adoption of a legislative text similar to section 4 of
Ontario's Public Inquiries Act, 1971, which reads as follows : [our
translation ]
and it was quoted by the Quebec Bar Reports as follows :
All hearings on an inquiry are open to the public except where the
commission conducting the inquiry is of the opinion that :
(a) matters involving public security may be disclosed at the hearing ; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing that are of such a nature, having regard to th e
1160
�circumstances, that the desirability of avoiding disclosure thereof in
the interest of any person affected or in the public interest outweighs
the desirability of adhering to the principle that hearings be open to the
public ,
in which case the commission may hold the hearing concerning any such
matter in camera .
That is the end of the quotation from the Quebec Bar Report .
Now, having stated that publicity is the general principle by which the
Commission will be guided, it is nevertheless the case that, even if the
Order-in-Council creating this Commisson had said nothing whatsoever about
hearing evidence in camera, the Commission would nevertheless be required by
the general law to do so if, for example, the evidence to be given would, if given
in public, prejudice the safety of the nation or its diplomatic relations in some
other country . The Commission would be bound by the general law - not by
any statutes or any Order-in-Council - to prevent the disclosure of such
evidence, whether or not any Minister of the Crown, or any lawyer for any
government, asked that that be done . The law is clear to that effect.
.In addition, if any party contended that it would not be in the public
interest that certain evidence be heard in public, then if the Commission agreed
with that contention, the Commission could hear the evidence in camera even if our Order-in-Council has said nothing whatsoever to that effect . There
is ample judicial authority which makes it clear that the duty to decide these
matters and exclude such evidence altogether, if the circumstances justify it,
applies to the ordinary courts of law . That being so, it is not surprising that
commissions of inquiry should generally be affected by the same considerations, although the procedural result may be different in that, instead of a
commission of inquiry having to exclude the evidence altogether, as would be
the case in a court of law, the commission may receive the evidence in camera .
In England, where the Inquiries Act gives the power to exclude the public
when the tribunal is of the opinion that :
.
.. it is in the public interest expedient so to do by reasons connected with
the subject matter of the inquiry or the nature of the evidence to be given ,
the Salmon Report, 11 years ago, recognized that those words up until that
time had only been construed in England as applying to cases in which hearing
the evidence in public would constitute a security risk . The Report observed,
however, that this was because no question had yet arisen as to whether a
discretion might be exercised in other cases . The Report thought that there
might be other cases in which such a discretion might be exercised, that is,
when a public hearing would defeat the ends of justice .
I shall refer again in a moment to what the Salmon Report said in this
regard .
I turn now to a specific consideration of the discretion contained in
paragraph 2 of the terms of reference, having discussed what the law would be
in any event . In respect of this direction, it is for the Commission, and not fo r
1161
�any other authority, to decide whether any of the criteria referred to in the
paragraph applies in a particular situation .
The meaning of the words "matters relating to national security" cannot
be defined exhaustively in advance of the need to apply the phrase to the facts
of particular situations . No attempt made by the Commission to define the
phrase can bind the Commission when it is faced with a particular situation .
Nevertheless, it is possible for the Commission to make some obse rv ations . '
In our view, the words "national security" must be taken to refer to the
security or safety of the nation . The safety of the nation may be threatened by
persons outside Canada or inside Canada . This double sense in which "national
security" may be used properly was noted earlier this year by Lord Simon of
Glaisdale, when he delivered one of the judgments in the highest court of
England, the House of Lords, in D . v. National Society for the Prevention of
Cruelty to Children, as follows :
Then, to take a further step still from the public interest in the administration of justice, the law recognizes other relevant public interests which may
not always even be immediately complementary . For example, national
security . If a society is disrupted or overturned by internal or external
enemies, the administration of justice will itself be among the casualties .
Silent enim leges inter arma . So the law says that, important as it is to the
administration of justice that all relevant evidence should be adduced to the
court, such evidence must be withheld if, on the balance of public interest,
the peril of its adduction to national security outweighs its benefit to the
forensic process . . . .
On the other hand, in the Commission's present view of the matter, not
every terrorist act or act of violence, actual or threatened, raises a question of
national security . A threatened or actual kidnapping or hijacking of an aircraft
or murder becomes a question of national security only if its object is the
overthrow of the state or of an elected government . In other words, the
threatened or apprehended or actual use of force, whether against one person
or a group of persons, becomes a question of national security only if its object
or one of its objects is the overthrow of the state or a government other than by
democratic means .
However, having said that, it does not follow that, simply because the
Commission may decide that a matter of police action does not relate to
national security, evidence in respect of it will necessarily be heard in public,
for it is still open to the Commission to hold, as it could have held without any
direction in the Order-in-Council, that it would not be in the "public interest"
to hear such evidence in public . In some cases, such as the examples just
mentioned, it might be considered not to be in the public interest to hear
evidence in public, the disclosure of which publicly would destroy the efficacy
of present legal methods by which the police hope and attempt to prevent
successful kidnappings or hijackings or murders for profit, unrelated to any
attempt the safety of the state or its government . Likewise, just as in a court of
law when evidence of the identity of an informer cannot be given - except in a
crminal case where it is necessary to allow the name of the informer to be given
in order to ensure that an accused person can present a legitimate defenc e
1162
�successfully - so a Commission of Inquiry, even if there were no direction
such as is found in paragraph 2 of our terms of reference, would be bound to
prevent the disclosure of the identity of an informer except, perhaps, in camera .
As Lord Diplock said in the same case I mentioned a moment ago :
The rationale of the rule as it applies to police informers is plain . If their
identity were liable to be disclosed in a court of law, these sources of
information would dry up and the police would be hindered in their duty of
preventing and detecting crime . So the public interest in preserving the
anonymity of police informers has to be weighed against the public interest
that information which might assist a judicial tribunal to ascertain facts
relevant to an issue upon which it is required to adjudicate should be
withheld from that tribunal . By the uniform practice of the judges which by
time of Marks v . Beyfus - which was decided about 1883 - had already
hardened into a rule of law, the balance has fallen upon the side of
non-disclosure except where upon the trial of a defendant for a criminal
offence disclosure of the identity of the informer would help to show that
the defendant was innocent of the offence . In that case, and in that case
only, the balance falls upon the side of disclosure .
The matter is discussed by the Salmon Report as follows :
We consider that the Tribunal should have a wider discretion, certainly as
wide as the discretion of a judge sitting in the High Court of Justice . This
discretion enables the public to be excluded in circumstances in which a
public hearing would defeat the ends of justice,- for example, where particulars of secret processes have to be disclosed - that is a reference, not to the
secret processes of the police, but to patents and trade marks - and in
infancy cases . We do not think however the discretion should necessarily be
confined to infancy cases or to trade secrets . It is impossible to foresee the
multifarious contingencies which may arise before a Tribunal of Inquiry .
We can imagine cases in which for instance a name might be required of a
witness and it would be just that he should be allowed to write it down
rather than state it publicly . The Tribunal might consider it desirable to
exclude the public from the inquiry for the purpose of making an explanation to a witness or admonishing him . The Tribunal might consider that thé
interests of justice and humanity required certain parts of evidence to be
given in private . This would be only in the most exceptional circumstances
which indeed may never occur. The discretion should however be wide
enough to meet such cases in the unlikely event of their occurring . Clearly
that discretion should be exercised with the greatest reluctance and care
and then only most rarely . .
. .
Finally, the Commission is directed by the Order-in-Council to hold its
proceedings in camera when the Commission deems it desirable "in the interest
of the privacy of individuals involved in specific cases which may be examined" . The scope of this phrase may overlap with "the public interest" in
hearing evidence in camera . Thus, it may be said not to be in the public
interest, or it may be said to be in the interest of the privacy of a witness, to
permit him to give some part of his evidence in camera if that part of the
evidence, although relevant to the Inquiry, nevertheless discloses some personal
matter not criminal in nature, which standing alone would be of no pertinence
to the issue of the fact being investigated .
1163
�.
The Commission hopes that this discussion of the circumstances in which
it may decide to hear evidence in camera will demonstrate to all that it has
devoted considerable attention to the problem . We wish to repeat that the
general principle guiding the Commission will be the desirability of hearing
evidence in public .
When a question arises as to whether a particular item of evidence or line
of inquiry should be received in camera, in some circumstances it may be
possible to hear argument by counsel in public . In other instances the argument
will be meaningful only if it itself, that is, the argument, is heard in camera,
where counsel can refer specifically to the documents or to the oral evidence it
is proposed to offer . In such an instance, the Commission reserves the right to
decide what counsel may be present while arguments are being heard, and for
that matter, what counsel may be present when evidence is being heard in
camera . The Commission has an obligation in law to ensure that no persons,
whether counsel or otherwise, will be placed in a position which might
endanger national security .
In the process of deciding whether on any of these grounds certain
evidence will be received in camera, the Commission will insist that its counsel
formally present to it the arguments for and against the proposition .
If argument as to whether evidence should be heard in camera is heard in
camera, and if the Commission then decides that the evidence will be heard in
camera, the Commission will attempt to deliver in public some reasons for its
decision which will convey some idea of the Commission's reasoning, although
it may not be possible to give very detailed reasons for doing so without
disclosing the very nature of the matter which it has been decided ought not to
be disclosed in public .
Now, some comments on certain aspects of the terms of reference, or
mandate of the Commission .
In making these remarks, we express our agreement with the Salmon
Report that a Commission of Inquiry " . . .should take an early opportunity of
explaining in public its interpretation of its terms of reference and the extent to
which the inquiry is likely to be pursued" .
First of all, some comments on the words "not authorized or provided for
by law", which are found in paragraphs (a) and (b) of our terms of réference .
The Commission will, of course, inquire into the facts of any allegations
made that persons who were at that time, at the time of the incidents in
question - they may still be members of the R .C .M .P . - were involved in
"investigative actions or other activities that were not authorized or provided
for by law" . While thus inquiring, we shall have to consider whether the facts
of a particular case, once established, were such that members of the R .C .M .P .
were involved in actions or activities "not authorized or provided for by law" .
What do those words mean, the words "by law"? Clearly, they include acts
which the Criminal Code defines as offences . Clearly, they include also acts
which other federal or provincial statutes define as offences . In addition, we
consider that those words require us to decide whether particular acts, even i f
1164
�they are not crimes or offences against statute, were nevertheless wrongs in the
eyes of the law of tort in the provinces other than Quebec, or of the law of
delict in Quebec .
Moreover, those broad words "not authorized or provided for by law",
require us even to consider whether, in the facts of a particular case, there was
a positive duty imposed upon the police by law to do the act - whether some
specific duty, . or their general duty to enforce the law .
We shall examine the very legislative and constitutional basis for the
existence of the R .C .M .P . generally, and for the existence of the security
service of the R .C .M .P. in particular .
It should be borne in mind that, in inquiring into actions or activities "not
authorized or provided for by law", we are not limited to activities of the
security service . Our terms of reference in paragraph (a) require us to inquire
into "the extent and prevalence" of such activities generally, and to, in
paragraph (b), "report the facts" relating to any such activities generally .
These obligations, in our view, are not limited to the activities of the security
service . In this manner our task may become very complex and large, and its
effect on other functions of the Commission's task will be the subject of a
watchful eye . Meanwhile, however, the Commission's investigative staff is at
work investigating complaints received, which are unrelated to the work of the
security service .
In addition to the legal questions I have just mentioned, which are raised
by the use of the words "not authorized or provided for by law", it is not the
Commission's intention to ignore the moral and ethical implications of police
investigative practices .
As to all matters of interpretation of the law, we earnestly invite counsel
to be of assistance to the Commission . During recent months, despite a great
deal of public discussion of the facts, or presumed facts of a number of
situations, some public analyses of whether particular acts were or were not
crimes or otherwise contrary to law, have been superficial . Lawyers who appear
before this Commission will be carrying out their duties to their clients and to
the Commission if they give serious consideration to those questions and are
able to provide argument in principle and on authority . Needless to say,
counsel for the Commission and ultimately the Commissioners themselves, will
be addressing their minds to these questions of law .
When the Commission makes its Report as to a particular allegation, it
will give its view as to whether the conduct proved constituted an action or
activity "not authorized or provided for by law" . Not only is the Governor in
Council, to which we are required to report, entitled to hear the answer to that
question, but the present and future members of R .C .M .P . are entitled to have
the benefit of the Commission's view as to the law .
Now, comments about the question of control of the R .C .M .P . by ministers of the Crown .
The Commission considers that, while inquiring into specific allegations,
and generally, it is empowered and obliged to determine what, in the past an d
1165
�present, have been and are the controls exercised by federal or provincial
ministers over the R .C .M .P .'s security service, and what methods and channels
have been used by the R .C .M .P .'s security service to report and account to
federal and provincial ministers .
Any witness who has information which will shed light on these questions
will be invited to testify before the Commission .
The Commission considers that these issues are raised by the obligations
expressly imposed upon the Commission by the terms of reference, "to inquire
into the relevant policies and procedures that govern the activities of the
R .C .M .P. in the discharge of its responsibility to protect the security of
Canada" - that paragraph (a) - and by the entirety of paragraph (c), which
I take the liberty of reading in full :
to advise and make such report as the Commissioners deem necessary and
desirable in the interest of Canada, regarding the policies and procedures
governing the activities of the R .C .M .P . in the discharge of its responsibility
to protect the security of Canada, the means to implement such policies and
procedures, as well as the adequacy of the laws of Canada as they apply to
such policies and procedures, having regard to the needs of the security of
Canada .
The point is that, if any federal cabinet minister, or any provincial cabinet
minister, has in law or in practice in the past or at the present time, some
power of control over the security function of the R .C .M .P ., that is a relevant
policy or procedure that "governs" - or governed - "the activities of the
R .C.M .P. in the discharge of its responsibility to protect the security of
Canada", and therefore it is relevant to both paragraph (a) and paragraph (c)
of our terms of reference .
The issues involved in this respect are serious . They will not be approached
by the Commission, any more than any other issues will be, until its counsel are
thoroughly prepared, so that the examination of such witnesses will be diligent
and meticulous .
In order to enable the Commission to reach an informed decision as to
what were, are and should be the extent of control by federal or provincial
ministers over the R .C .M .P .'s security service, when investigating particular
factual situations which illustrate these issues, the Commission will be grateful
to any counsel who can make learned and informed representations as to the
law and constitutional conventions and/or practices which are relevant to these
matters .
Now, some comments about the policies, procedures and laws governing
the national security function of the R .C .M .P .
I have already read paragraph (c) of the terms of reference . That
paragraph requires the Commission to make recommendations about the
policies and procedures and the laws governing the national security function
of the R .C .M .P .
The Commission will be obliged to decide what, in its view, the policies,
procedures and laws should be . This will require the Commission to conside r
1166
�what the needs of the security of Canada are, how those needs should be
protected effectively in terms of police work, and how that protection can be
achieved in a democracy which cherishes liberty . The assessment of these
needs, means and values will constitute a major challenge to the Commission .
Apart= from empirical and other research which the Commission's staff
will undertake, the Commission will welcome the receipt of considered opinions
about these issues from members of the public, including groups and associations . Written submissions will be welcome at any time . However, so as to
guard against the possibility that silence will greet the Commission's requests
for the opinions of the public, the Commission from time to time will hold
public hearings for the purpose of encouraging written or oral submissions by
persons, groups and associations in each of the provinces of Canada . These
hearings will not be into particular factual situations . However, the opinions
expressed may relate to issues which have been evoked by particular factual
allegations already under investigation by the Commission, or which are
otherwise in the public eye .
The first héarings for this purpose will be held in Montreal on January
16th - and I might say that the Commission expects that Me Sebastien will
appear as counsel for the Commission on that occasion, and the hearings will
be in this room - in Toronto on January 18th and Vancouver on January
20th. In due course, further such hearings will be held in other provinces . No
doubt we will hold such hearings again in Ontario, Quebec or British
Columbia, being the largest provinces of the country, before we write our final
Report .
1167
��APPENDIX "E "
REASONS FOR DECISION OF THE COMMISSION
DECEMBER 8, 197 7
The starting point for the cônsideration of the matter of the representation
by counsel before the Commission is the Inquiries Act of Canada, sections 12
and 13 . They read as follows :
The Commissioners may allow any. person whose conduct is being investigated under this Act and shall allow any person against whom any charge is
made in the course of such investigation to be represented by counsel .
Section 13 :
No report shall be made against any person unless reasonable notice has
been given to him of the charge of misconduct alleged against him and he
has been allowed full opportunity to be heard in person or by counsel .
The Commission has given careful consideration to the submissions made
on behalf of all interested parties on the issue of representation by counsel, in
particular those made on behalf of the Canadian Civil Liberties Association,
the Federation of Canadian Civil Liberties and Human Rights, Associations
and the Progressive Conservative Party of Canada . We appreciate the care that
has been taken in preparing those submissions .
It is clear that representation is to be granted to counsel for the Commission and to the following who are expressly referred'to in sections 12 and 13 of
the Inquiries Act of Canada : (1) counsel for any person against whom any
charge is made during the course of the investigation by this Commission ; (2)
counsel for any person whose conduct is being investigated by the Commission .
The second category, that is to say counsel for any person whose conduct
is being investigated by the Commission, includes counsel for any witness,
counsel for the Commissioner of the R .C .M .P . and counsel for the Solicitor
General of Canada . The Commissioner and the Solicitor General are responsible by statute for the R .C .M .P., and in that sense the conduct of their offices
is being investigated by the Commission .
Beyond those categories, it has been contended that the Commission ought
not to grant standing because sections 12 and 13 of the Inquiries Act do not
expressly provide for standing for any other persons .
We have examined the judicial decisions which have been referred to .
Those arising under provincial legislation are based on statutory provisions
very different from those . of the Federal Inquiries Act . Fôr example, the
present Ontario Inquiriés Act expressly requires a commission to give full
standing t o
any person who satisfies it that he has a substantial and direct interest in
the subject matter of the inquiry .
1169
�The previous Ontario Act was silent on the subject but in the case of Re
Ontario Crime Commission, Ex parte Feeley and McDermott [1962] OR .
872, the majority of the Ontario Court of Appeal held that persons against
whom imputations of serious crimes were made should be allowed to have
counsel with the power to cross-examine witnesses . Such persons are entitled
under section 12 of the federal Inquiries Act to be represented by counsel .
Thus, . the Ontario Crime Commission case is of no assistance to us in deciding
whether . we shôuld accord a privilege of counsel to persons who are not
specifically referred to in sections 12 and 13 of the Inquiries Act .
One decision which arises under the Federal Act is Advance Glass and
Mirror Coinpany Limited v . The Attorney General of Canada and McGregor
[1950] 1 D .L .R . 488 . All it decided is that a person who does have the right to
be "heard" under section 13 does not have the right to examine all witnesses .
There is nothing in the decision to prevent a federal Commission of Inquiry
granting a privilege or leave to a person's counsel to examine witnesses, even if
that person is not expressly referred to in sections 12 and 13 .
Having thus discussed some of the authorities, we prefer to approach the
question on the basis that sections 12 :and 13 do not limit the categories of
persons who may be granted standing . The Commission is the master of its
procedure . Subject to sections 12 and 13, it is within the discretion of the
Commission to decide who shall be granted standing . The issue in particular is
whether the two civil liberties groups and the Progressive Conservative Party of
Canada should in the discretion of the Commission be granted standing . Each
federal Commission of Inquiry must reach its decision as to how it exercises
this discretion, based on the circumstances of the case and especially the
origins of the Commission and the language of its empowering instrument .
A decision taken by one commission born of different circumstances
cannot be taken as a precedent binding or even of serious persuasive value by a
later commission . As far as the Berger Commission of Inquiry is concerned,
counsel for the Federation of Civil Liberties and Human Rights Associations
did not present us with a copy of the report of that Inquiry or whatever ruling
Mr . Justice Berger may have made on the question of standing . This Commission must, therefore, today consider the Berger Inquiry without the benefit of
such assistance .
It is not surprising that the Commission chaired by Mr . Justice Berger,
inquiring into the proposal for a Mackenzie Valley Pipeline, granted standing
to native persons groups and to the environmentalist groups . As far as the
fact-finding function of that Commission is concerned, in effect, counsel for
those groups were counsel for witnesses - for example, the many native
persons who testified .
In the instance of the Dorion Inquiry into an alleged attempt to bribe
counsel who was acting for the Government of the United States, applying on
behalf of that government for the extradition of one Lucien Rivard, it is clear
from Chief Justice Dorion's report that he regarded the matter as one arising
from allegations made against appointees of the governing political party . The
matter thus had a clear basis in allegations by the opposition political parties
against the governing political party, as a political party . It is not surprising
that Chief Justice Dorion, in the circumstances, granted standing to all the
political parties, indeed invited their participation .
1170
I
�Since the manner in which the discretion is to be exercised must be
decided in the circumstances facing a particular commission, we propose to
turn .to an examination of this Commission's mandate and proceed to decide
the issue .
Paragraph (a) of the terms of reference requires the Commission to
investigate certain facts . The facts in question are :
The extent and prevalence of investigative practices or other activities
involving members of the R .C .M .P . that are not authorized or provided for
by law .
I have orally stressed the nouns which represent the facts that paragraph (a)
requires us to examine . Paragraph (a) goes on :
the relevant policies and procedures that govern the activities of the
R .C .M .P . in the discharge of its responsibility to protect the security of
Canada .
Paragraph (b) requires the Commission :
to report the facts relating to any investigative action or other. activity
involving persons who were members of the R .C .M .P . that was not authorized or provided for by law as may be established before the Commission,
and to advise as to any further action that the Commissioners may deem
necessary and desirable in the public interest .
These two paragraphs require the Commission to investigate facts and report
what they were and then recommend what further action ought to follow . This
aspect of the Commission's work is a factual inquiry . Whether members of the
R .C .M .P . committed offences is a grave matter from the point of view of those
against whom any charges are made in evidence .
If this were a trial of a criminal charge, there would be a Crown
prosecutor and a defence counsel . No one else would be entitled to appear . No
political party or public interest group would be entitled to come to court and
claim either as a right or privilege that it should be allowed to examine and
cross-examine witnesses . The Crown prosecutor would have the duty to produce all evidence that he has of the accused's guilt .
Similarly, before this Commission, Commission counsel must equally
produce all evidence he has of the guilt of someone who is alleged to have done
wrong and must not conceal evidence of that person's innocence . But, unlike a
Crown prosecutor, he must also positively present to the Tribunal the existence
of evidence of innocence and, in that sense, Commission counsel has no
adversarial role .
Paragraph (a) and (b) of the terms of reference do not require this
Commission to pass any political judgments on members of the R .C .M .P ., but
rather require it to undertake a task which is not dissimilar to the task that
faces a criminal court .
The task that would be fulfilled in a criminal court by Crown counsel is
fulfilled and gone beyond by Commission counsel . If he is as independent,
well-qualified, diligent and able as we believe the several counsel for this
Commission to be, the public is entitled to have confidence in the work of this
Commission .
Moreover, to allow other counsel to appear with the right to cross-examine
persons whose conduct is under investigation and suspicion, would be as unfai r
1171
�to such a person as it would be to allow counsel other than the Crown
prosecutor to cross-examine an accused and his Defence witness at a trial . At a
criminal trial, the victims, after all, are not allowed to have their ,counsel
cross-examine the accused . That function is left to the Crown prosecutor . No
battery of counsel appears against an accused to wear him down one after
another .
A commission of inquiry already has the power to require a person
"charged" to testify to disclose his wrongdoing under oath, a power which no
criminal court has over an accused person .
To compound the inquisitorial nature of a commission of inquiry by
multiplying the number of cross-examiners a witness must face, would be to
move the proceedings of the commission that much closer to the atmosphere of
a Court of Star Chamber, a mechanism mercifully laid to rest in 1640 .
In the Ontario Crime Commission case, Mr . Justice Schroeder said :
It is no improper reflection upon counsel for the two political parties to
observe that they may well be more concerned with doing what they deem
best calculated to serve their own clients' ends and in so doing with
promoting interests perhaps violently opposed to those of the applicants .
In that case, the applicants were the persons accused of crimes .
I turn now to the application by counsel for the Attorney General of
Quebec . Counsel for the Attorney General of Quebec has asserted a right to
appear, or in the alternative, has asked that in our discretion we grant leave to
him to appear . With the greatest deference to the Attorney General, in the
Commission's view he does not have a right to appear before this Commission .
If there is an argument on the constitutional plane in support of the existence
of such a right, and I mean not only constitutional in the sense of the British
North America Act, but also in the sense of any constitutional convention or
any unwritten constitutional law which is just as much a part of our Constitution as the British North America Act is - if there is an argument on the
constitutional plane, then no such argument was placed before the
Commission .
If the Attorney General wishes at some stage to place such a representation before the Commission, we shall be happy to consider it . Otherwise, today,
we approach the question of the Attorney General's status in light of his
counsel's statement to the effect that the Attorney General does not ask for full
status . He said that the Attorney General does not wish to appear by counsel
daily, but may have an interest in intervening actively, if the members of the
Sûreté de Québec or of Municipal Police Forces in Quebec are referred to in
evidence . It is not clear in such a case what role counsel for the Attorney
General would wish to play .
As to counsel representing the interests of any members of the Sûreté du
Québec who testify or against whom allegations may be made by witnesses,
there is no difficulty in recognizing his standing . If counsel for the Attorney
General should then wish to represent their interests, it may be that there
would be duplication of representation . Perhaps the problem may be resolved if
and when it arises .
1172
�As for the interests of members of municipal police forces - and no one
has appeared before us asking for the right to appear on their behalf as yet again, the problem can be answered if and when it arises - at which time we
will know whether any other counsel comes forward, claiming to represent the
interests of a member of a municipal force .
For the moment, therefore, the Commission will welcome the attendance
at its hearings of counsel for the Attorney General without his being accorded
any formal standing at this time .
We turn now to paragraph (c) of the terms of reference . This paragraph
requires us. to make recommendations as to laws and policies and procedures in
the future . Obviously the Commission will welcome the suggestions of all
persons, and even more so if those suggestions have been developed carefully
and articulately with the assistance of counsel . There is no dobut about the
Commission welcoming this form of participation by counsel .
To enable the Commission to formulate recommendations, the Commission must know what the present policies and procedures are and what they
have been . One way to do that is to determine, in particular situations, what
policy was applicable and what procedure was followed . For this purpose it
may be necessary, in particular situations, to ask senior officers of the
R .C .M .P . and Ministers of the Crown what communications were made to the
Ministers, what the Ministers asked for, what they directed, and what they did
not ask for or direct . In pursuing such matters, the Commission is satisfied that
its counsel will ask the necessary questions and that before they ask the
questions they will be properly prepared by meticulous investigation . If any
other persons or counsel wish to suggest to Commission counsel some particular line of inquiry or some particular questions, Mr . Howard has already said
that such suggestions will be welcomed . If the suggestions thus made are not
acted upon, and no satisfactory explanation is given to the persons making the
suggestions for Mr . Howard and other counsel not adopting them, the persons
making those suggestions are at liberty to make such comments as they wish to
this Commission and in other forums . The Commission is prepared to assume
that its counsel will act upon constructive suggestions and, in this, if our
counsel do not do so, the Commission's staff's decision can be the subject of
proper comment to this Commission and in other forums . The Commission
invites counsel for such entities as the Progressive Conservative Party of
Canada, the Canadian Civil Liberties Association and the Federation of
Canadian Civil Liberties and Human Rights Associations to cooperate fully
with the Commission in a positive manner and not to retire from the scene
because the position it has urged upon the Commission has not been accepted .
It is to be borne in mind that, even as to paragraph (c), the power to ask
questions is directed only to the fact-finding process . At least as regards
hearings in public, the associations and party which have applied for standing
will be able to contribute, in the manner described, to that process . If they
want questions asked, they have only to suggest . The facts will be explored
exhaustively . No multiplication of counsel is likely to enhance the result .
The determination of what the proper policies and procedures should have
been in the past, or should be today, or should be in the future, lies not in the
domain of question and answer, but in that of representations and submission s
1173
�made to the Commission by all interested persons and organizations, by written
and oral submissions made either at special hearings to receive such submissions, such as the one in Montreal on January 16th, which are . being organized
by the Commission and will continue to be organized by it . At such hearings,
the opinions of political parties, civil liberties associations, and other groups, as
well as individuals, will be welcomed.
If particular past or present policy or procedure is stated by a Minister as
a fact in his evidence before us, the validity or propriety of such a policy or
procedure may be the subject of comment by members of opposition political
parties not only in briefs to this Commission, but of course, in Parliament or in
the media . In Parliament, comment may be made fully and questions may be
put to Ministers of the Government .
For the foregoing reasons, the Commission makes the following ruling :
1 . The following counsel will be recognized as having the right to examine
witnesses heard at public hearings of the Commission into any allegation
of an "investigative action or other activity involving persons who are
members of the R .C .M .P . that was not authorized or'provided for by
law" or into any fact relating to "policies or procedures governing the
activities of the R .C .M .P . in the discharge of its responsibility to protect
the security of Canada" :
Counsel for any person against whom any charge is made in the course of
the investigation by this Commission ;
Counsel for the Commission ;
Counsel for any person whose conduct is being investigated by the
Commission .
(In the investigation of facts at public hearings, counsel for persons, groups or
associations may draw to the attention of counsel for the Commission what
areas of inquiry should be entered into or what evidence should be presented,
and what specific questions should be asked . )
2 . On matters of law, in public hearings or when argument is heard at the
conclusion of the Commission's public hearings into any such allegations
or facts, any other persons, groups or associations will have the right at
that time to make submissions to the Commission in writing .
3 . At hearings of the Commission held in camera, the Commission shall
decide in the circumstances of the particular case who shall be permitted
to attend, which counsel shall be permitted to attend and what conditions may be imposed upon any persons or counsel permitted to attend,
all in the light of the law governing the inquiry .
In case anyone is in doubt, the effect of this ruling is that the following
counsel may appear before the Commission to represent their clients and
examine witnesses :
Counsel for the Commission ;
Me Fortier;
Me Nuss ;
Me Proulx ;
Me Lamontagne ;
Me Barakett .
1174
�APPENDIX "F "
REASONS FOR DECISION OF THE COMMISSION
OCTOBER 13, 197 8
'L
Introduction
From an early stage in the work of the Commission, the Commission has
had full access to'the files of the Royal Canadian Mounted Police . In order to
do its work effectively, including preparation for hearings, it was desirable that
the Commission obtain documents or photocopies of the documents from the
R .C .M .P . This need was expedited by the terms of the following letter dated
Novembér 6, 1977, from Mr . J .F . Howard, Q .C ., Çhief. Counsel to the
Commission, to Mr. Joseph Nuss, Q .C ., Counsel for the Solicitor General of
Canada :
This will confirm arrangements made between us with respect to the
delivery to the Commission of the documentary, material relating to matters
outlined in our letter of October 17th, in Commissioner Simmonds' letter to
me of October 26th, and in telephone conversations of October 31 between
the Secretary of the Commission and Assistant Deputy Commissioner
Quintal . It is understood that the arrangements will apply to future delivery
of documentary material to the Commission unless different arrangements
are made at the time . .
.
~,
The material being delivered to the Commission at its request is subject to
the following understanding :
1 . The material is being delivered to the Commission to avoid . the inconvenience of reviewing all of the documentary material at the R .C .M .P .
Headquarters at this time as contemplated by the . parâgi•aph numbered
4 in the Order-in-Council establishing the Commission ;
2 ., By delivery of the material, the Solicitor General of Canada (the
Minister) will not have been taken to waive the position that some of the
documents delivered, or parts thereof, fall under the directive in the
paragraph No . 2 of the Order-in-Council establishing the Commission,
as being material to be dealt with by the Commission in camera and
expressly reserve the right to make such contention ;
3 . Should there be a difference in the view of the Commission, and in the
view of the Minister as to whether the direction in paragraph 2 referred
to above applies to a particular document or part thereof and this
difference of view cannot be resolved, it is understood that notwithstanding that the document has been delivered to the Commission, the
delivery of such document shall not be invoked as a waiver of the right
to the Minister to raise any objection, as to its introduction in evidence
before the Commission and/or if so introduced that it be done at an in
camera session, and the Minister shall be entitled to invoke any remed y
'1175
.
�or any provision of law which may be applicable to the final disposition
of such view .
It is also understood that only those members of the Commission's staff
who have the requisite security clearance and who require a particular
document for the purposes of their work with the Commission shall have
access to such particular document amongst those delivered to the
Commission .
Pursuant to the terms of that letter, all documents requested by the
Commission, or photocopies of them, have been transmitted by the R .C .M .P .
to the Commission . Among these documents are many that fall within the class
of what Mr . Nuss calls "Government Documents" . That class according to Mr .
Nuss, is as follows :
Documents relating to the proceedings of Cabinet and its Committees,
documents relating to any other process of consultation among Ministers
and/or officials, and documents emanating from Ministers and/or officials
relating to the decision-making or policy formulation process including, but
without limiting the generality of the foregoing :
1 . Cabinet Papers
(a) Cabinet agendas, memoranda, minutes and decisions ;
(b) Cabinet committee agendas, minutes and reports ;
(c) Treasury Board submissions, minutes and certain decision letters .
2 . Ancillary Paper s
Ministerial briefing notes for use in Cabinet or in discussions or consultations among Ministers .
3 . Other Records and Paper s
Letters, memoranda, notes, records or other documents exchanged by
Ministers and/or officials or describing discussions or consultations
among Ministers and/or officials .
4 . Opinion, Advice or Recommendation s
Documents emanating from officials containing matter in the nature of
opinion, advice or recommendation or notes or other matter that relates to
the decision-making or policy formulation processes .
5 . Documents containing quotations from any of the above documents .
Some of the documents in the R .C .M .P.'s possession originated in the
R .C .M .P . Others are copies of documents theoretically originating from outside the R .C .M .P . but in part drafted by the R .C .M .P . - such as memoranda
to Cabinet ultimately signed by a Solicitor General . Others are copies of
documents originating outside the R .C .M .P ., of which a copy had been sent to
the R .C .M .P .
Outside the terms of Mr . Howard's letter, some documents falling within
the categories enumerated by Mr . Nuss may be obtained by the Commission
from sources other than the R .C .M .P ., for example by subpoena, or from other
Government Departments .
The examination of witnesses to date has not been hampered by the failure
to resolvde whether documents within the categories enumerated by Mr . Nuss
1176
�may be received in evidence by the Commission in public . This is because the
Commission has so far examined mostly witnesses who have been involved at
the operationbal level in various investigative practices or actions, or other
activities which, it may be argued, were "not authorized or provided for by
law" (to use the words of paragraphs (a) and (b) of the Commission's terms of
reference, which are set forth in Order-in-Council P .C . 1977-1911), and for
everybody's convenience, a copy of the Order-in-Council is attached . Such
witnesses, by reason of their status, are unlikely to have been authors or
recipients of, or to have had knowledge of, documents in the classes enumerated by Mr . Nuss .
However, the Commission is about to commence the examination of
present and past senior officials of the R .C .M .P. and of Ministers to the extent
that their evidence may be relevant to any of the issues of fact so far inquired
into . It is clear that the examination of these witnesses will in part require the
production of a number of documents in the categories enumerated by Mr .
Nuss, or at the very least the testimony of the witnesses about the contents of
the documents or about the conversations or discussions recorded by the
documents .
Some time ago the Commission indicated to counsel that it wished to hear
representations as to whether such evidence should be received by the Commission in public or in camera . For that reason the Commission scheduled a day
during which counsel might make their submissions . Those submissions were
made on October 5 . These reasons for decision have been prepared as promptly
as possible, in order that counsel may have the benefit of the Commission's
opinion during the preparation for the evidence of senior officials and
Ministers .
The question has been considered on the basis of the contention by Mr .
Nuss and Mr . Michel Robert, his co-counsel, that these documents as a class
ought not to be produced in public. The counsel who were heard on the matter
were Mr . Nuss and Mr . Robert, who represent the Solicitor General and
"interests of the Departments . . ." and which in the original manner in which it
was placed before the Commission was in the French ("ministères" in the
French original) of the Government of Canada, including the Office of the
"Prime Minister" (statement by Mr . Nuss to the Commission, September 11,
1978, vol . 72, p . 11407), and Mr . Howard, Chief Counsel for the Commission .
2 . The nature of a Commission of Inquiry
In approaching this problem, it is desirable to keep in mind the purpose
and function of a Commission of Inquiry .
The Commissioners were appointed under Part I of the Inquiries Act,
R .S .C . 1970 ch . I-13 pursuant to section 2 of the Act which empowers the
Governor in Council to
cause inquiry to be made into and concerning any matter connected with
the good government of Canada or the conduct of any part of the public
business thereof.
Clearly the matters which this Commission is directed to deal with are
connected "with the good government of Canada" and with "the conduct o f
1177
�any part of the public business" of the Government of Canada, and I will not
bother reading quotation marks from now on .
When the Governor in Council deemed it "expedient" to cause such an
inquiry to be made., it created an organism of the executive branch of
government to "investigate", "inquire", "report the facts" and "to advise" with
respect thereto . The Commission is not a court . It is not a branch of the
judiciary . It fulfills executive or administrative functions . As Cattanach, J .
observed in Copeland v . McDonald, Rickerd and Gilbert (Federal Court of
Canada, August 4, 1978) the gulf is wide between "the position of a judge in
court and that of a fact-finding and advisory body which can only be classed as
administrative notwithstanding that both hold hearings" .
The Governor in Council, in creating such a Commission as this, asks this
newly and specially created unit of the executive branch of government to
examine some particular aspect of the government, (that is, the executive) . The
executive branch, through its chosen executive instrument, is examining itself.
This must not be forgotten by those who expect the Commission to do as they
wish and as it wishes (assuming they are one and the same) . The Commission
is created by the executive (the Governor in Council) and its terms of reference
can be altered - indeed its very existence can be abrogated - by another
Order-in-Council at any time .
On the other hand, a Commission of Inquiry is not a unit of the executive
branch of government like other government departments and agencies . Short
of direction by Order-in-Council, it cannot be directed by a Minister or even by
the Cabinet to interpret its terms of reference in a particular manner, or to
follow this procedural course or that . It is for the Commissioners to interpret
the instrument that gave birth to the Commission .
Moréover, the Commissioners, unlike other arms of the executive branch,
are by statute given powers which members of the executive branch - even
"Royal Commissions" appointed under the Great Seal but not pursuant to
statute - do not enjoy : the power to summon witnesses, and to require them to
give evidence on oath or affirmation, and to produce documents and things (all
under section 4 of the Inquiries Act), and "the same power to enforce the
attendance of witnesses and to compel them to give evidence as is vested in a
court of record in civil cases" (section 5) . These are extraordinary powers,
ordinarily available neither to the common citizen nor to members of the
government service . These powers set commissions appointed pursuant to Part
I of the Inquiries Act apart from the remainder of the executive .
In addition, commissioners are usually persons who have not been members of the executive branch . They are, in effect, brought temporarily within
the ranks of the executive to carry out the task of diagnosis and prescription .
Very often a judge is the sole commissioner or chairman of a'group of
commissioners . One reason a judge is chosen is that his livelihood is secure in
that he can be removed from office only by joint address of the Houses of
Parliament . This fact, which lies at the root of the cherished independence of
the judiciary, increases thé likelihood that the inquiry will not be influenced by
considerations to which ordinary segments of the executive are susceptible .
Putting it another way, it ensures that the inquiry will be conducted at arm's
length from the executive . It further ensures that all decisions taken by th e
1178
�Commission, whether procedural or substantive, will be commensurate with a
judge's duty to honour the principle that the reciprocal of judicial independence is judicial, non-partisan impartiality . Commissioners are appointed
because of some real or imagined distinction or ability which the Governor in
Council hopes they will bring to a dispassionate inquiry into the issues . Also, it
is hoped that these qualities will enhance the possibility that their recommendations will enjoy public as well as governmental respect, so as to restore
confidence and trust in that part of the business of government which is under
review . (Sometimes, commissioners may have no claim to merit other than
stamina and a thick skin, which is all we claim for ourselves . )
Observers who expect that a commission of inquiry will be a mere
instrument of the government that created it are wrong . It is true that a
commission is part of the executive branch and does not exercise judicial
functions . On the other hand, it is an instrument of self-criticism which, unlike
the executive,branch which has created it, nevertheless by tradition exercises a
spirit of detachment from the wishes of its creator as it pursues its assigned
tasks, except in so far as those wishes have been expressed in the creating
instrument and the general procedural lâw .
3 . Who has the power to decide whether evidence shall be received in
camera ?
(a) Introductory
The Commission's interpretation of its terms of reference in this regard
has not changed since it made its opening statement in Montreal on December
6, 1977 . At that time, we said :
I turn now to a specific consideration of the discretion contained in
paragraph 2 of the terms of reference . In respect of this direction, it is for
the Commission, and not for any other authority, to decide whether any of
the criteria referred to in the paragraph applies in a particular situation . .
.
(Emphasis is added by us as is emphasis in other quotations . )
We then discussed briefly some perceptions of the words "matters relating
to national security" and continued : •
However, it does not follow that, simply because the Commission decides
that a matter of police action does not relate to national security, evidence
in respect of it will necessarily be heard in public . For it is still open to the
Commission to hold that it would not be in the "public interest" to hear
such evidence in public .
The Commission then quoted a passage from the Salmon Committee's
Report on Tribunals of Inquiry, published in England in 1966, which stressed
that what the English called a Tribunal of Inquiry should have a wide
discretion to meet cases where the public interest would require a hearing to be
in camera . We then referred to the remaining criterion found in paragraph 2,
which directs the Commission to hold its proceedings in camera when the
Commissioners deem it desirable "in the interest of the privacy of individuals
involved in specific cases which may be examined" . We then concluded :
The Commission hopes that this discussion of the circumstances in which it
.may decide to hear evidence in camera will demonstrate to all that it has
devoted considerable attention to the problem . We wish to repeat that the
1179
�general principle guiding the Commission will be the desirability of hearing
evidence in public .
Until the argument heard October 5, there had been no indication from
any counsel that his client did not accept the statements just quoted . However,
the matter now having been raised, the Commission will state in detail its
reasons for its interpretation of paragraph 2, while emphasizing that the
conclusion is the same as was stated last December 6 .
(b) Who has the power to decide whether evidence must be received in
camera because it relates to national security?
During the course of argument, Mr . Nuss asserted that where evidence
"relates to national security", the Commission must accept the decision of the
Solicitor General that the evidence relates to national security - and that
should read where a question rises as to national security . The Commission
does not accept that view . The Order-in-Council says that the Commissioners
2 . be directed that the proceedings of the inquiry be held in camera in all
matters relating to national security and in all other matters where the
Commissioners deem it desirable in the public interest or in the interest
of the privacy of individuals involved in specific cases which may be
examined .
The Commission's interpretation of the direction is that, if the Solicitor
General makes a submission to the Commission that some particular evidence
relates to national security, it is for the Commission to reach its own decision .
While the Commission will give careful consideration and substantial weight to
any reasonable submission made on behalf of the Solicitor General, or for that
matter, on behalf of any other Minister of the Crown, that evidence relates to
national security, the decision of the Minister is not conclusive .
While the Commission arrives by its own reasoning at this interpretation,
it finds some comfort in knowing that at the time of the creation of the
Commission the then Solicitor General shared it . On July 6, 1977, the
Honourable Francis Fox said (Hansard p . 7378) :
The terms of reference are quite clear that if, in the opinion of the
Commission, there is a matter of national security which is at stake, it has
the power and is indeed directed to sit in camera .
(c) Who has the power to decide whether it is desirable in the public
interest that evidence be received in camera ?
During the course of argument the Commission came to realize that the
submission made by Mr . Nuss was not only that, on principle and on the
authorities, all the documents on his list ought not "in the public interest" to be
disclosed in public, but that the decision as to that matter does not rest with the
Commission at all but rather with (he said) the Privy Council . Assuming that
he and Mr. Robert appeared before this Commission on behalf of "the Privy
Council", which is far from clear to us, we understand his submission to mean
that, once the Privy Council has decided that such documents are not to be
produced in public, that decision is binding upon the Commission .
The practical result of that proposition would be the same as the result of
the proposition which we first understood Messrs . Nuss and Robert to be
making ; namely, that in deciding whether the Commissioners "deem it desir1180
�able in the public interest" that the proceedings be held in camera, the
authorities led to only one possible conclusion that such documents must be
received in evidence in camera . If the Commission were to accept that view of
the authorities, then, as we have just said, the result would be the same .
However, there is an important difference between the decision being that of
the Commissioners, on the merits of the case, and, on the other hand, the
decision being that of "the Privy Council" .
The question of the effect of such a decision of "the Privy Council" does
not in fact arise for decision at this point, because Mr . Nuss did not advise the
Commission that the Privy Council has decided that the Commission is not to
receive any such documents in public . Such a decision could be made only by
another Order-in-Council . If the Privy Council, by another Order-in-Council
should so decide, the Commission would then have to re-examine its position in
the light of the terms of the new Order-in-Council .
However, at the present time, the Commission must interpret and apply
the terms of Order-in-Council P .C . 1977-1911, which created the Commission .
The Order-in-Council states, in part, as follows :
The Committee (of the Privy Council) further advise that the
Commissioners :
2 . be directed that the proceedings of the inquiry be held in camera in all
matters relating to national security and in all other matters where the
Commissioners deem it desirable in the public interest or in the interest
of the privacy of individuals in specific cases which may be examined .
Counsel for the Commission submits that the words of paragraph 2 of the
Order-in-Council delegate to the Commission whatever power the Executive
might otherwise have, to decide that certain evidence not be produced at all or
not be produced in public . Mr . Nuss contends, however, that there can be no
delegation of the power which, he says, must always rest with a Minister or the
Privy Council to decide what it is in the public interest not to produce at all, or
not to produce in public .
The Commission considers that by using the words found in para . 2 the
Governor in Council has clearly directed the Commission to arrive at its own
judgment as to whether, either in regard to a particular class of evidence or in
regard to a particular item of evidence, it is "desirable in the public interest"
that the proceedings be held in camera . It is well established by the authorities
that the word "deemed" imports that a judgment is to be exercised : see De
Beauvoir v . Welch (1827), 7 B . & C . 265, 108 English Reports 722 at 727 .
For these reasons, the Commission's interpretation of Order-in-Council
P .C . 1977-1911 leads it to reject the contention that the decision as to what
proceedings should be held in camera on the ground of "public interest" rests
outside the Commission .
4 . Considerations which the Commission may take into account in future
specific cases
It is true that in a number of court decisions, although comments on the
question have frequently not been essential to the decision, judges in England,
Australia and Canada have asserted an absolute privilege for governmen t
1181
�documents originating at a high level . See, for example, Smith v . East India
Co. (1841) 1 Ph . 50, and Beatson v . Skeen (1860) 5 H . & N . 838 .
In Conway v . Rimmer [1968] A .C . 910, several members of the House of
Lords spoke without limitation of the privilege from production which applies
to such documents . For example, Lord Reid said :
I do not doubt that there are certain classes of documents which ought not
to be disclbsed whatever their content . may be . Virtually everyone agrees
that Cabinet minutes and the like ought not to be disclosed until such time
as they are only of historical interest . But I do not think that many people
would give as the reason that premature disclosure would prevent candour
in the Cabinet . To my mind the most important reason is that such
disclosure would create or fan ill-informed or capricious public or political
criticism . The business of government is difficult enough as it is, and no
government could contemplate with equanimity the inner workings of the
government machine being exposed to the gaze of those ready to criticize
without adequate knowledge of the background and perhaps with some axe
to grind . And that must, in my view also apply to all documents concerned
with policy making within departments including, it may be, minutes and
the like by quite junior officials and correspondence with outside bodies .
Further it may be that deliberations about a particular case require
protection as much as deliberations about policy . I do not think that it is
possible to limit such documents by any definition . But there seems to me to
be a wide difference between such documents and routine reports . There
may be special reasons for withholding some kinds of routine documents,
but I think that the proper test to be applied is to ask, in the language of
Lord Simon in Duncan's case, whether the withholding of a document
because it belongs to a particular class is really necessary for the proper
functioning of the public service .
Lord Hodson said the privilege applied to, for example, "Cabinet minutes,
dispatches from ambassadors abroad and minutes of discussions between heads
of departments" and heads of departments are the English equivalent of
Deputy Ministers in the Canadian system . Lord Pearce added "Cabinet
correspondence, letters or reports on appointments to office of importance and
the like" . Lord Upjohn added "high level interdepartmental minutes and
correspondence pertaining to the general administration of the naval, the
military and air force services" and "high level interdepartmental communications" . Incidentally, Lord Upjohn expressly rejected, as a rationale for the
privilege, that it would encourage candour and freedom of expression . Instead
he said simply that the "reason for the privilege is that it would be quite wrong
and entirely inimical to the proper functioning of the public service if the
public were to learn of these high level communications, however innocent of
prejudice to the state the actual contents of any particular document might be :
that is obvious" .
Australian cases in which the same view has been taken are Lanyon v .
Commonwealth (1974) 3 A .L .R . 58, and Australian National Airlines Commission v . Commonwealth (1975) 132 C .L .R . 582 .
On the other hand, in Manitoba Development Corporation v . Columbia
Forest Products Ltd. (1973) 3 W .W .R . 593, Nitikman, J . refused to recognize
a class claim for privilege for "documents pertaining to the policy-making and
decision-making conduct of the Executive Council of the Government o f
1182
�Manitoba" . The .privilege had been claimed on the ground that the production
of the documents ."would create or fan ill-informed or capricious public or
political criticism", language which . of course had been taken by the Minister
there claiming privilege directly from the judgment of Lord Reid .
These cases are of great interest . However, the Commission is not a court
of law . Principles of admissibility of evidence applicable to a court of law do
not necessarily apply to the proceedings of .a commission of inquiry . That is
well. established by court decisions . Moreover, some. commissions of inquiry
have as their subject matter questions of the conduct of high officers of state .
Unlike the role of a court trying a case between private litigants or between a
private litigant and the state, in a commission of inquiry such as this the very
objects of-the inquiry may include facts the disclosure of which = whether
through government documénts or not - may create or fan ill-informed or
capricious public or political criticism .
Because of these differences between the role of a court and the role of a
commission of inquiry, it is incorrect to suggest that procedural rules applicable to litigation are applicable automatically to commissions of inquiry .
Even in the courts, the recent judgment of Lord Widgery, C .J ., in
Attorney General v . Jonathan Cape Ltd . [1975] 1 Q .B . 752, is of great interest .
There, the issue to be decided was whether, upon the application of the
Attorney General, the court should grant an injunction to restrain the defendant from publishing the memoirs of the late R .H .S . Crossman, a Cabinet
Minister in the 1960s, which included his record of discussions in Cabinet . At
p . 764, Lord Widgery C .J . said
:It has always been assumed by lawyers and, I suspect, by politicians, an d
the Civil Service, that Cabinet proceedings and Cabinet papers are secret,
and cannot . be publicly disclosed until they have passed into history . It is
quite clear that no . çourt .will compel the production of Cabinet papers in
the course of discovery in an action, and the . Attorney General contends
that not only will the court refuse to compel the production of such matters,
but it will go further and positively forbid the disclosûre of such papers and
proceedings if publication will be contrary to the public interest .
The latter is a reference to the trial of the action as compared with production .
before_ trial on discovery . He continued :
The basis of this contention is the confidential character of these papers and
proceedings, derived from the convention of . joint Cabinet responsibility
whereby any policy decision reached by the Cabinet has to be supported
thereafter by all members of the,Cabinet whether they approve of it or not,
unless they feel compelled to resign . It is contended that Cabinet decisions
and papers are confidential for a period to the extent at least that they must
not be referred to outside the Cabinet in such a way as to disclose the
attitude'ôf individual Ministers in the argument which preceded,the decision . Thus, there may be no objection to a Minister disclosing (or leaking,
as it was called) the fact that a Cabinet meeting has taken place, or, indeed,
the decision taken, so long as the individual views of Ministers are not
identified .
At p . 765, Lord Widgery, Ç .J . said : .
'
.
1183
�. . . it must be for the court in every case to be satisfied that the public
interest is involved, and that, after balancing all the factors which tell for or
against publication, to decide whether suppression is necessary.
At p . 769, he said :
. . . The Cabinet is at the very centre of national affairs, and must be in
possession at all times of information which is secret or confidential . Secrets
relating to national security may require to be preserved indefinitely .
Secrets relating to new taxation proposals may be of the highest importance
until Budget day, but public knowledge thereafter . To leak a Cabinet
decision a day or so before it is officially announced is an accepted exercise
in public relations, but to identify the ministers who voted one way or
another is objectionable because it undermines the doctrine of joint
responsibility .
It is evident that there cannot be a single rule governing the publication of
such a variety of matters . In these actions we are concerned with the
publication of diaries at a time when I I years have expired since the first
recorded events . The Attorney General must show (a) that such publication
would be a breach of confidence ; (b) that the public interest requires that
the publication be restrained, and (c) that there are no other facets of the
public interest contradictory of and more compelling than that relied upon .
Moreover, the court, when asked to restrain such a publication, must closely
examine the extent to which relief is necessary to ensure that restrictions
are not imposed beyond the strict requirement of public need .
Applying those principles to the present case, what do we find? In my
judgment, the Attorney General has made out his claim that the expression
of individual opinions by Cabinet Ministers in the course of Cabinet
discussions are matters of confidence, the publication of which can be
restrained by the court when this is clearly necessary in the public interest .
The maintenance of the dôctrine of joint responsibility within the Cabinet is
in the public interest, and the application of that doctrine might be
prejudiced by premature disclosure of the views of individual Ministers .
There must, however, be a limit in time after which the confidential
character of the information, and the duty of the court to restrain publication, will lapse.
He then held that, ten or eleven years having elapsed since the Cabinet
discussions described in the memoirs, there ought not to be an injunction to
restrain publication as he was not satisfied that "publication would in any way
inhibit free and open discussion in Cabinet hereafter" . He held likewise as to
the disclosure of advice given by senior civil servants .
The Commission is not prepared to apply to its own proceedings a rule
more absolute than that applied by Lord Widgery . The Commission will
balance all the factors which tell for or against any document being made
public .
The Commission does not intend to close its eyes to the importance which
under certain circumstances the protection of state secrets could call for,
whether this be done by keeping documents or oral evidence from public
knowledge . But when this concern arises the Commission must invoke a
number of factors which in each case will be weighed on their merits .
1184
�Without limiting the number of factors which may be pertinent in a
particular case, the Commission readily recognizes that, faced by an objection
to the giving of certain evidence in public on the grounds that it is of a secret
nature the Commission could take into consideration :
1 . The role of a Commission of Inquiry . The Governor in Council did not
direct this Commission to receive all its evidence in camera . Thus the Governor
in Council may reasonably be taken to have accepted the principle of publicity
articulated in the Salmon Report, which I referred to earlier and was quoted in
this Commission's opening statement on December 6th, 1977, as follows :
It is . . . of the greatest importance that hearings before a Tribunal of
Inquiry should be held in public . It is only when the public is present that
the public will have complete confidence that everything possible has been
done for the purpose of arriving at the truth . . .
When there is a crisis of public confidence about the alleged misconduct of
persons in high places, the public naturally distrusts any investigation
carried out behind closed doors . Investigations so conducted will always
tend to promote the suspicion, however unjustified, that they are not being
conducted sufficiently vigorously and thoroughly or that something is being
hushed up . Publicity enables the public to see for itself how the investigation is being carried out and accordingly dispels suspicion . Unless these
inquiries are held in public they are unlikely to achieve their main purpose,
namely, that of restoring the confidence of the public in the integrity of our
public life . And without this confidence no democracy can long survive .
It has been said that if the inquiry were held in private some witnesses
would come forward with evidence which they would not be prepared to
give in public . This may well be so . We consider, however that although
secret hearings may increase the quantity of the evidence they tend to
debase its quality . The loss of the kind of evidence which might be withheld
because the hearing is not in secret would, in our view be a small price to
pay for the great advantages of a public hearing .
. .
2. Con fl icting with the principle of publicity is the rationale of any privilege
relating to state documents and discussions among officers of state . The
Commission believes that the rationale must be found in more than an
assertion that, as was said in one case, it would be wrong for such evidence to
be disclosed, and it seems to us that the judgment of Lord Widgery C .J . in the
Jonathan Cape case rested not on any such sphinx-like rationale but on that of
the extent to which the suppression of such evidence is necessary to encourage
candid exchanges of opinions about policy among persons at high levels of
government, whether or not they actually had an expectation that the opinions
were being exchanged in confidence . In most such situations there will have
been an expectation of confidentiality, so that the effect is the same whether
the rationale is the one or the other . It will be noted that this rationale is
designed to protect exchanges of opinions about policy . The rationale is
deserv ing of great weight where it is properly applicable . It is not applicable to
statements of fact . The distinction was observed in Halperin v . Kissinger, 1975,
401 Federal Supplement 272, where the court said :
. ..Executive privilege
1185
�- as the Americans call it exists to protect the decision-making process . The guarantee of confidentiality assures freedom "to explore alternatives in the process of shaping
policies and making decisions and to do so in a way many would be
unwilling to express except privately . .." The realm of advice, opinion, and
policy formulation should be protected from public scrutiny in order to
encourage candid discussion and independence by policy-makers in the
executive branch .
It does not necessarily follow that statements of fact contained in records
or in memories of discussions, or in letters, require the same protection in order
to encourage candid discussion and independence by policy-makers . Disclosure
of such statements of fact will not always impede the executive decision-making process, or deter future frank discussions by government officers .
3 . "The public has an interest in preventing government malfeasance . Exposure
of past wrongdoing might inhibit future abuses by government employees"
(Wallace, (1976) 76 Columbia Law Review 142) . Disclosure of crimes, frauds
and misdeeds is permissible if the disclosure is justified in the public interest, in
which case that public interest may override any private interest in confidence ;
as is established by, amongst others, two cases : Garside v . Outram (1856) 26
L .J .Ch . 113 ; Initial Services Ltd. v . Putterill [1968] 1 Q .B . 396 (English Court
of Appeal) . The same view of the public interest in the administration of
criminal justice resulted in rejection of a claim of "executive privilege" in
Nixon v . United States (1974) 418 U.S . 683 .
4 . The status of the possessor or of the originator of the information may be
significant . The older cases seemed to treat all documents of the central
government as "state secrets" and accordingly, as a class, privileged from
production . That view does not prevail today . Conversely, it cannot be assumed
that documents of some other level of government are to be treated differently
as a class : D. v . National Society for the Prevention of Cruelty to Children
(1978) A .C . 171 (House of Lords) .
5 . As has already been obse rv ed, witnesses already heard by the Commission,
whose conduct may lead the Commission to make a "charge"'against them (to
use the word found in sections 12 and 13 of the Inquiries Act), may have a
proper interest in knowing of the testimony of senior officials of the Security
Se rvice and of persons in high levels of government from whom they may have
received express or implied authority to carry out the acts under investigation .
This is not intended as an exhaustive list of the considerations which may
be pertinent when the Commission must decide whether in regard to a
particular document or oral evidence, the proceedings should, in the public
interest, be held in camera.
In quantitative term's it may turn out to be rare that the Commission will
have to reach a decision as to what is in the public interest . Frequèntly it
should be possible for counsel to establish in public the existence of relevant
facts without making specific reference to such documents and without eliciting oral testimony about discussions recorded by such documents . Again, in
many cases a document in the class of "government documents" will be one
which will, in any event, in the Commission's view, "relate to national
security", and thus be receivable in camera on that ground .
1186
�The Commission is optimistic that in the future, as in the past, a spirit of
reasonableness will enable counsel and the Commission to arrive at a result in a
particular case which achieves the Commission's desire to hear as much
evidence as possible in public while at the same time ensuring both that the
national security is not endangered and that the public interest is served .
The Commission also wishes to point out that if the ingenuity and
diligence of counsel fail to find a way of solving a problem involving a
document, the Commission will not decide that' the document should be
received in public, without first giving all counsel the opportunity to make
representations . Then, if the Commission does not accept the representations
made against public disclosure it will not cause the document to be produced in
public without giving counsel reasonable time to seek such remedies or take
such action as they may wish .
5 . The Official Secrets Act, section 4(1 )
As was pointed out during argument, if the Commission, contrary to the
submission of counsel for the government departments, including the Prime
Minister's Office, should decide that a particular document should be received
in evidence in public, it may be that the disclosure of the document would be a
violation of section 4(1) of the Official Secrets Act, the relevant parts of which
read as follows :
4 .(1) Every person is guilty of an offence under this Act who, having in his
possession or control any secret official code word, or password, or any
sketch, plan, model, article, note, document or information that . . . has been
entrusted in confidence to him by any person holding office under Her
Majesty, or tht he has obtained or to which he has had access . .
.owing to
his position as a person who holds or had held office under Her Majest y
(a) communicates the. . . document or information to any person, other
than a person to whom he is, authorized to communicate with, or a
person to whom it is in the interest of the State his duty to communicate it .
.
.
It might be said that a violatiori would occur in either of two situations :
First : One interpretation of the sub-section requires the adjectives "secret
official" to be read as applicable only to the noùns "codé word, or pass
word" . If so, it might be contended that any disclosure of a document or
information entrusted to the Commission in confidence, would be a violation of section 4(1) even if the document or information were not "secret
official" . There may be a violation when the Commission communicates
any document or information which it had received in confidence from the
government (including the Privy Council Office or the R .C .M .P .), or has
obtained it from the RCMP by virtue of the duty imposed upon the RCMP
to provide access to the Commission to all its documents, or has obtained it
from a government department by subpoena .
Second : If on the contrary, the adjectives "secret official" apply to
"any. .. document or information", then it is only documents and information which are "secret" and "official" that are covered by section 4(l) .
Thus, the section would apply only to a document or information which is
"Secret" or "Top Secret" .
1187
�In each of these two situations, a violation would occur only if the
Commission does not have the "authority" to disclose it in public . There is an
unresolved issue here, as to whether such authority must be given expressly or
may be given by implication .
Moreover, in each of these situations, a violation would occur only if it
were not "in the interest of the State" to communicate the document or
information to the public by receiving it in evidence in public . It would be a
nice legal question whether, in a particular case, receiving a certain document
or information in evidence in public would be in the interest of the State, for it
might be contended that the receipt of the evidence in public is in the interest
of the State in that the State has an interest in the public having confidence in
the proceedings of a commission of inquiry before which thereare questions of
the conduct of persons holding high public office .
These are difficult questions as to which the Commission need not now
reach a conclusion, and as to which the Commission has received no indication
what the position of the Attorney General of Canada is . In Attorney General v .
Jonathan Cape Ltd., the Attorney General of England and Wales, conceded
that the defendants were not in breach of the Official Secrets Act . During the
course of argument, Mr . Nuss was unable to advise the Commission whether
he and Mr . Robert appeared on behalf of the Attorney General, at most he
could say that he appeared on behalf of government "Departments" (in
French, "ministères") which would include the Department of Justice, but he
was unable to assert that he had instructions to speak on behalf of the Attorney
General of Canada . Moreover, he admitted that he did not have any instructions in respect of the applicability of section 4(1) of the Official Secrets Act .
So this aspect of the matter must be left, to be faced if and when a
situation should arise which requires it to be considered by the Commission . In
the absence of an opinion by the Attorney General of Canada that the
disclosure in public of any particular document or information, or of any
particular class of documents or information, would be a violation of the
Official Secrets Act, this decision of the Commission has been reached on the
assumption that no such question arises .
6 . Do the Terms of Reference preclude the Commission from hearing
evidence of ministerial knowledge of activities by members of the
R.C.M.P. unrelated to national security?
During the course of argument, Mr . Nuss submitted that when the
Commission is inquiring into "the activities of the R .C .M .P. in the discharge of
its responsibility to protect the security of Canada" (paragraph (c) of the terms
of reference), it has jurisdiction to inquire into and report on "the policies and
procedures governing" those activities . From his remarks we infer that, in his
submission, the power to inquire into the "policies and procedures governing"
those activities permits the Commission to hear the testimony of persons who
are not and have not been members of the R .C .M .P . but have had a role in
shaping or applying the "policies and procedures" governing "those activities",
or to receive in evidence documents relating to the role of such persons - that
is, when the question is one of the discharge of the responsibility of the
R .C .M .P . to protect the security of Canada .
1188
�However, as we understand Mr . Nuss, his submission is that when the
Commission is inquiring into the matters referred to in paragraphs (a) and (b)
and which do not relate to "policies and procedures" that govern "the activities
of the R .C .M .P . in the discharge of its responsibility to protect the security of
Canada", the Commission -does not have the power to hear the testimony of
persons who are not and have not been members of the R .C .M .P . but have had
a role in shaping or applying the "policies and procedures" governing those
activities, or the power to receive in evidence documents relating to the role of
such persons . It would follow logically that objection would be taken also to
evidence by any member of the R .C .M .P . or any other witness as to the
statements or conduct of persons who, although never members of the
R .C .M .P ., nevertheless had a role in shaping the "policies and procedures"
governing those activities .
This is a novel proposition as far as the Commissioners are concerned . It
has not previously been advanced by counsel for the Solicitor General, who
now are counsel for the Departments of the Government of Canada .
On May 25, 1978, during the hearings into the relationship between the
R .C .M .P . Criminal Investigation Branch and the Department of National
Revenue, when objection was taken to the production in public of correspondence between two Ministers it was on the ground that in the public interest
such correspondence ought not to be disclosed in public . It was not asserted
either formally or informally to the Commission that the correspondence was
immaterial as relating to a matter beyond the Commission's terms of reference .
While it is for the Commission to interpret for itself the provisions of
Order-in-Council 1977-1911, it is of interest to note the following statements
made in the House of Commons on November 8, 1977, by the then Solicitor
General The Hon . Francis Fox, M .P . in Hansard at p . 709 .
I believe that any fair observer would say the terms of reference that have
been given to the Royal Commission are extremely wide .
Why did we set up a Royal Commission of Inquiry? A Royal Commission
of Inquiry was set up last July in response to a number of allegations that
were made known to the government at that time . Prior to that the Leader
of the Opposition was pressing for a royal commission . He then asks the
following question during this debate : by whom were these acts committed
and at whose direction? I would venture to suggest that the basic purpose of
the Royal Commission of Inquiry is to get at the bottom of exactly who
committed the acts and at whose direction . I think if you look at the terms
of reference Mr . Speaker, an hon . member on the other side says change the terms of
reference. If you look at the terms of reference -
Mr . Clark :
We have .
Mr . Fox :
If you have, I suggest you re-read them . They are extremely wide . I should
like to make one point very clear once again, a point that has been made
time and time again in the course of debate in the House, that is, that the
chairman and members of that commission have all the powers required
1189
�under the terms of reference to look at an illegal act, if there is one, and to
follow the nexus all the way up to wherever leads .
The Solicitor General did not limit the applicability of his statement to
illegal acts committed by members of the Security Service or relating to
national security .
The Commissioners, who must themselves interpret P .C . 1977-1911 without relying on a statement by another person, such as that of Mr . Fox, do not
accept the proposition now advanced by counsel for the Departments .
This Commission was appointed pursuant to Part I of the Inquiries Act,
R .S .C . 1970 ch . I-13, entitled "Public Inquiries" . The first section of that Part
of the Inquiries Act is section 2,-which reads as follows :
2 . The Governor in Council may, whenever he deems it expedient, cause
inquiry to be made into and concerning any matter connected with the good
government of Canada or the conduct of any part of the public business
thereof.
The terms of reference of this Commission of Inquiry are clearly concerned
with both "the good government of Canada" and "the conduct of (a) part of
the public business" of the government of Canada . The preamble of Order-inCouncil P .C . 1977-1911, dated July 6, 1977 which appointed the Commissioners and stated the terms of reference, makes it clear that the Governor in
Council was concerned that there be "full inquiry" into "the extent and
prevalence of investigative practices or other activities involving members of
the Royal Canadian Mounted Police that are not authorized or provided for by
law", so as to "maintain" public "trust in the policies and procedures governing
its activities" without which there cannot be "public" support of the R .C .M .P .
"in .the discharge of its responsibility to protect the security of Canada" .
In other words, with respect to "investigative practices or other activities
involving members of the R .C .M .P . that are not authorized or provided for by
law", the preamble indicates that the Commission is to inquire into "policies
and procedures governing" the activities of the R .C .M .P . without limitation to
the policies and procedures governing the Security Service of the R .C .M .P ., for
there can be public support for the work of the Security Service only if there is
public trust 'in the policies and procedures governing all the 'investigative
practices and other activities of the R .C .M .P . of which the Security Service is a
part .
Paragraph (a), in so far as that paragraph relates to investigative practices
and activities not relating to matters of the security of Canada, must be read
together with paragraph (b). If the Commission finds that an "investigative
practice" or "action" or "other activity" has involved members of the
R .C .M .P . and "are" or "was" not authorized or provided for by law, then the
Commission has a duty to "report the facts" relating to any such investigative
action or other activity involving persons who were members of the R .C .M .P .
The effect of the contention by Mr . Nuss is that in the absence of any
duty being specified in (b) to report on "policies and procedures" governing
such investigative action or other activity, the scope of the inquiry must stop
short of inquiring into whether, for example, a Solicitor General knew of an
investigative practice that violated the provisions of a federal statute or that
constituted a violation of the rights of citizens enforceable in the civil law an d
1190
�yet authorized the investigative practice to continue or at least condoned it by
not directing that the practice cease .
To accept that view of the meaning of the Order-in-Council, in the
Commission's view, would mean that the Commission would be precluded from
rendering a full and proper "report" on the facts "relating to" any investigative
action or other activity involving persons who were members of the R .C .M .P .
that was not authorized or provided for by law . For it would require the
Commission, to attempt the difficult and artificial task of differentiating
between the activities of the Criminal Investigation Branch of the R .C .M .P .
and the Security Service of the R .C .M .P . in terms of considering the role and
function of the Solicitor General and of other Ministers of the Crown . Such a
distinction would not be founded upon any satisfactory rationale .
Moreover, if the Commission were to accept the contention of Mr . Nuss, it
would find itself in an invidious position when deciding as required by
paragraph (b) what advice to give to the Governor in Council "as to any
further action that the Commissioners may deem necessary and desirable in
the public interest" . For example, the Commission will wish to consider what
advice it will give to the Governor in Council as to whether the facts which the
Commission reports, and the evidence of those facts, should be referred to the
appropriate Attorney General for his consideration .
Among the facts which the Commission will wish to report in some cases
will be whether members of the R .C .M .P . who, in the opinion of the Commission have, or might be held in a court to have, committed a wrongful act, were,
doing so upon the direction or with the consent or at least without the
disapproval of a Minister of the Crown, for that might be a fact which any
Attorney General might consider relevant to the process of his deciding
whether or not to prosecute the members of the R .C .M .P .
Conversely, the Attorney General, while satisfied that he should launch a
prosecution . against a member or members of the R .C .M .P ., if he were so
satisfied, might wish to prosecute all those against whom there is evidence upon
which a prosecution might be successful as parties to the offence under section
21 of the Criminal Code or to a conspiracy to commit an unlawful act .
Finally, to interpret the terms of reference in such a way as to permit the
Commission to report on wrongful acts by members of the R .C .M .P . without
also reporting on the extent to which they had from Ministers express or tacit
authority to perform those acts would not only compel the Commission to
deliver an incomplete report on the relevant facts but would also be unfair to
the members of the R .C .M .P. who while "charged" by the Commission (to use
the word found in sections 12 and 13 of the Inquiries Act) would have reason
to feel that facts tending to exonerate them perhaps from guilt and perhaps
from punishment had not been inquired into, or had not been reported upon,
and would,never come to the attention of the appropriate Attorney General .
1191
��APPENDIX "G "
REASONS FOR DECISION OF THE COMMISSION
JULY 11, 197 9
The Commission will now adjourn until September its public hearings into
the numerous factual matters before it . This does not mean that the Commission is stopping work . Quite the contrary .
Counsel for the Commission will be preparing to complete the testimony
of certain witnesses, and preparing for forthcoming witnesses . The evidence yet
to be heard, on those issues which have already been before the Commission,
relates to the questions of accountability by the R .C .M .P . and by Ministers .
The evidence yet to be heard is not of interest only to historians : unless the
story is told fully in terms of these issues, the Commission considers that any
attempts to enhance accountability and control in the futûre are more likely to
founder .
Only by going into the story fully will it be possible to judge fairly the
extent to which investigative practices and activities not authorized or provided
for by law were limited to one period of time or to one geographical area or to
one part of the R .C .M .P . Likewise, only by detailed evidence will it be possible
to judge, and to judge fairly, the extent to which there was a pattern at the
senior levels of the R .C .M .P . of failing to report to the responsible Minister
investigative practices not authorized or provided for by law, and a pattern of
resistance by the R .C .M .P . to decided policies of government regarding the
R .C .M .P . Similarly, only by detailed evidence will it be possible to judge fairly
the extent to which Ministers and senior officials outside the R .C .M .P. were
parties to, or knew of, investigative practices and activities not authorized or
provided for by law .
It is not possible to reach fair and just conclusions on these issues without
taking this further evidence . If we do not do so, the Commission will be open to
criticism that we have failed to get to the bottom of issues of complicity,
knowledge, accountability and control .
Part (c) requires the Commission to make recommendations on the
policies and procedures governing the R .C .M .P . in the discharge of its responsibilities to protect the security of Canada . It also calls upon the Commission to
render advice on the adequacy of the laws of Canada as they apply to such
policies and procedures . In preparing its recommendations on these policy
matters, the Commission is studying in depth the purpose and mandate of a
security service, its structure, personnel policies, its methods of internal management and discipline, its methods of collecting, analyzing and disseminating
information and its role in security screening for the public service, immigration and citizenship . The Commission must review the Security Service's
relationship with provincial governments and police forces and with foreig n
1193
�agencies. In considering all of these matters the Commission is concerned with
both the consonance of Security Se rv ice activities with democratic values, and
the effectiveness of the Security Se rv ice . In addition to examining the Security
Service, the Commission must also be prepared to make recommendations on
other branches of the R .C .M .P . which have responsibilities for protecting the
security of Cânâda, for example in the areas protecting V .I .P .s and federal
property.
The Commission has been giving careful consideration to the most effective means of government control of a security se rv ice, including the role of
Parliament in this process . This part of the Commission's work includes an
assessment of the way in which responsibility for ' the Security Serv ice and
security policy is divided between the Solicitor General's Department and an
interdepartmental committee system based on the Privy Council Office .
Finally, the Commission is carrying out intensive research and review of
those laws which have a direct bearing on the national security responsibilities
of the R .C .M .P . This work includes consideration of possible reforms of the
Official Secrets Act, alternatives to the War Measures Act, and the impact of
the Human Rights Açt and proposed Freedom of Information legislation on the
work of a security service .
In respect to certain topics on the policy side of the Commission's
programme, the work of the Commission is sufficiently advanced that it is now
commencing preparation of its report on those topics . To move in this .direction
means that there must be time to write drafts of such reports . It is not possible
to do so while hearings and other forms of Commission business are taking
place .
The Commission repeats what it has made clear on other occasions : that it
is determined to find answers to complex questions of policy and law . Some
such questions have been known in one part or another of the R .C .M .P . for
years . Others have been identified as legal issues only recently in the sense that
they have been ' the subject of precise identification, discussion and disclosure,
either to this Commission or to government . To many of them the final answers
are not so clear and simple that they can be produced overnight by any one
person, or grôup of persons . As for matters of law, the Commission repeats that
it can countenance only police and security service activities which are lawful
and proper: the rule of law must prevail . In saying that, as the Commission
indicated in its opening statement on December 6, 1977, it is . not just the
criminal law that is to be taken into account . Applying the precept .that, the rule
of la w must prevail is not easy when it comes to deciding what may be
permitted as lawful investigative or other practices .
Many of the legal problems, if they are to be solved by recognizing that
the - police or the security agency is to have the power to do certain things in
certain circumstances, may require the attention of both Parliament and the
provincial legislatures . The Commission's task is to make recommendations as
to what powers are needed, - what controls are needed, -and what lèvel of
legislative authority - will have to act in order to provide the solution .
1-194
�APPENDIX "H "
REASONS FOR DECISION OF THE COMMISSION
MAY 22, 198 0
.
On January 24, 1980, Mr . J .F . Howard, Q .C ., Chief Counsel to the
Commission, wrote to counsel for the Commissioner and many members and
past members of the R .C .M .P ., as follows :
. : . We are currently preparing detailed written Submissions of Counsel on
the topics dealt with at the hearings of the Commission . These submissions
will contain Statements of the Legal Issues which we consider to be raised
by the Statements of Facts .
The intention is to assist the Commission in determining whether or not
conduct disclosed in the Statement of Facts is or may be lawful or on the'
other hand unlawful and thus conduct "not authorized or provided for by
law" . While it is not our general intention to argue for any particular •
conclusion as to the determination which should be made by the Commission, we do intend to attempt to identify aspects of the conduct reviewed
which could constitute activities prohibited by law whether under the
Criminal Code, other Statutes, or at Common Law . You will appreciate,
however, that in some cases the absence of any dispute as to the facts or as
to the applicable law may lead Commission Counsel to state their conclusion that it would appear that the conduct described in the Statement of
Facts is clearly unlawful .
We intend, upon the direction of the Commission, to forward copies of the
written submissions to counsel who have been involved in the hearings with
an invitation to make submissions as to the accuracy and completeness of
the Submissions . Where individuals are named as participating in actions
which the submissions indicate may amount to misconduct, copies will also
be forwarded either to counsel for such persons or to the persons themselves . At that time an indication will be given as to the time of the formal
presentation of the Submissions to the Commission and the time within
which the persons concerned should indicate to the Commission whether or
not they wish an opportunity to be heard in person or by counsel . It is our
view that this procedure will constitute at least initial compliance with the
requirements of s.13 of the Inquiries Act . .
.
As a result of receiving this letter, counsel for the R .C .M .P. indicated that
they wished to have an opportunity to make submissions about the extent to
which the Commission should make reports against a person that he had
committed an unlawful act, and about whether and to what extent notices
should be given to members under section 13 of the Inquiries Act . The
submissions of counsel for the R .C .M .P . and of counsel for the Commission
were made orally on March 6, 1980 . On April 9, 1980, counsel made an oral
submission on behalf of the Attorney General of Canada (not, it should b e
1195
�noted, on behalf of the Solicitor General) . These reasons will consider the
arguments that were presented on both dates .
It is necessary first to set forth the Commission's terms of reference and
the provisions of the Inquiries Act that were referred to in argument .
The Commission's terms of reference (P .C . 1977-1911) are as follows :
(a) to conduct such investigations as in the opinion of the Commissioners
are necessary to determine the extent and prevalence of investigative
practices or other activities involving members of the R .C .M .P . that
are not authorized or provided for by law and, in this regard, to inquire
into the relevant policies and procedures that govern the activities of
the R .C .M .P . in the discharge of its responsibility to protect the
security of Canada ;
(b) to report the facts relating to any investigative action or other activity
involving persons who were members of the R .C .M .P. that was not
authorized or provided for by law as may be established before the
Commission, and to advise as to any further action that the Commissioners may deem necessary and desirable in the public interest ; an d
(c) to advise and make such report as the Commissioners deem necessary
and desirable in the interest of Canada, regarding the policies and
procedures governing the activities of the R .C .M .P. in the discharge of
its responsibility to protect the security of Canada, the means to
implement such policies and procedures, as well as the adequacy of the
laws of Canada as they apply to such policies and procedures, having
regard to the needs of the security of Canada .
The relevant portions of the Inquiries Act are as follows :
Part III - Genera l
11 .( l) The commissioners, whether appointed under Part I or under Part II,
if thereunto authorized by the commission issued in the case, may engage
the se rvices of such accountants, engineers, technical advisers, or other
experts, clerks, reporters and assistants as they deem necessary or advisable,
and also the services of counsel to aid and assist the commissioners in the
inquiry .
(2) The commissioners may authorize and depute any such accountants, engineers, technical advisers, or other experts, or any other qualified
persons, to inquire into any matter within the scope of the commission as
may be directed by the commissioners .
(3) The persons so deputed, when authorized by order in council, have
the same powers that the commissioners have to take evidence, issue
subpoenas, enforce the attendance of witnesses, compel them to give
evidence, and otherwise conduct the inquiry .
(4) The persons so deputed shall report the evidence and their findings,
if any, thereon to the commissioners .
12 . The commissioners may allow any person whose conduct is being
investigated under this Act, and shall allow any person against whom Any
charge is made in the course of such investigation, to be represented by
counsel .
1 3 . No report shall be made against any person until reasonable notice has
been given to him of the charge of misconduct alleged against him and h e
1196
�has been allowed full opportunity to be heard in person or by counsel .
The Commission has now virtually completed its formal hearings concerning a number of investigative practices and activities which involved members
of the R .C .M .P. It is therefore preparing to report the facts referred to in
paragraph (b) of the terms of reference .
The position of Mr . Thomson, one of the several counsel who have
appeared for the Commissioner and most of the members of the R .C .M .P . who
have been witnesses, was supported by Mr . Yarosky, who appeared for several
members . Mr. Nuss, on behalf of the Attorney General of Canada, made a
submission as well . The issues they raised may be described as follows :
1 . Should the Commission report on the legal qualities of the acts of
individuals in particular cases ?
(a) Is the Commission limited to making findings as to whether "practices" and "activities" were unlawful ?
(b) If the Commission finds legal fault in the conduct of a particular
individual, does it impinge upon the functions of the courts or of the
disciplinary process ?
11 . Do the provisions of section 13 of the Inquiries Act apply to the
Commission ?
We shall now discuss these issues in detail :
1.
Should the Commission report on the legal qualities of the acts of
individuals in particular cases?
(a) The Submissions of Mr . Thomson and Mr . Yarosky: Is the Commission
limited to making findings as to whether "practices" and "activities" were
unlawful ?
Mr. Thomson's principal submission is that this Commission does not have
the power to conclude that the action or investigative activity of any particular
member of the R .C .M .P . has been a criminal act or other form of misconduct .
He contends that if appropriate, such matters should be dealt with in the courts
or in disciplinary proceedings . Both he and Mr . Yarosky say that the Commission can make findings as to whether practices and activities were unlawful but
not findings as to the blame to be assigned to any particular individual for any
particular act . In other words, the Commission can make findings only as to
what might be called systematic activities - not as to legal responsibility to be
assigned to any particular individual in the case of any one of those systematic
activities, or in any isolated case unrelated to a systematic practice .
If this view were accepted, it would be unnecessary for the Commissioners
and their counsel to address their minds to the question of the manner in which
section 13 of the Inquiries Act should be complied with . If the submissions by
Mr . Thomson and Mr . Yarosky are accepted, the report would not make any
"report . . .against any person" and consequently counsel for the Commission
would not assert any charge of misconduct against any person . Consequently
no notice need be given under section 13 .
In support of his submissions, Mr . Thomson contends that some limiting
significance ought to be attached to the failure of the Governor in Council, i n
1197
�adopting Order-in-Council 1977-1911, to require the Commission to report as
to "unlawful" or "illegal" acts . He argues that, if the Governor in Council had
wished us to report on "unlawful" or "illegal" acts, those words would have
been used in the Order-in-Council, and that the failure to use those words
means that the Governor in Council expects us to report on something other
than unlawful or illegal acts by particular persons . However, we attach no
limiting significance to the failure to use such language . On the contrary, we
consider, that the phrase "not authorized or provided for by law" was chosen so
as to extend the frontiers of the matters concerning which the Commission
would investigate and report beyond offences against the Criminal Code or
other federal or provincial statutes or regulations or municipal bylaws, and
beyond civil wrongs . We pointed out in our statement on December 6, 1977 :
Moreover, those broad words . . . require us even to consider whether, in the
facts of a particular case, there was a positive duty imposed upon the police
to do the act - whether some specific duty, or their general duty to enforce
the law .
We might now elaborate that point as follows : In addition to wrongdoing, the
words "not . : . provided for by law" require us to report on any investigative
action or other activity that, even though not an offence or a civil wrong, was
nevertheless not authorized by the R .C .M .P . Act or by regulations made under
that Act or by the standing orders of the Commissioners of the R .C .M .P. or by
the orders of a superior .
(b) The submission of Mr. Nuss on behalf of the Attorney General : If the
Commission finds legal fault in the conduct of a particular individual, does it
impinge upon the functions of the courts or of the disciplinary process ?
On this issue, Mr . Nuss pointed out quite accurately that a Commission of
Inquiry is not a court of law and can render no judgment of acquittal or
conviction . He warned that the proceedings and the report of the Commission
ought not to appear to impinge ( i .e . have an impact upon) or usurp the domain
of the courts of law . Referring to Mr . Howard's letter, Mr . Nuss expressed the
Attorney General's concern that :
This manner of proceeding might lead to the Commission embarking on the
type of consideration or examination of facts and law which is normally the
exclusive preserve of our Courts of Justice, even though the Commission's
purpose is not and cannot be the determination of guilt or innocence .
Mr . Nuss then observed that :
If the Commission examines the incident on which it is going to report, by
entertaining a detailed consideration of all the elements which constitute an
offence, and then states whether the proof is such as to make out these
elements ; and if the Commission then is invited to consider possible
defences and either rejects them or accepts them, then, for all practical
purposes, a process so close to that of a trial has taken place as to be
indistinguishable from it, except that instead of a formal verdict of guilt or
innocence, one has a report .
The Attorney General is apprehensive of the unfairness to the individual,
real or perceived, which might result : a type of conviction without the
safeguards of a trial by a body other than a Court of law .
1198
�- : . Mr . Nuss did :not express any concern about the fact that in most of the
situations before. the -Commission in which there has been evidence concerning
a specific .- incident . the evidence has been heard in public . . -Indeed, in his
representations he accepted that "at a Commission ; of Inquiry . .. the evidence
is ~public right .from the start" . Yet he implied that hearing the evidence . in
public is "unfair" or "appears" to be unfair ; for he said that :
If as a result'of the report, charges are brôught before a Court ; against â
person, whose conduct has been so scrutinized by this Commission of
Inquiry, .which appears to be using . the same test as a Court, then the
unfairness or appearance of unfairness is compounded .
By speaking of compounding", he appears to say that if the Commission hears
argument and' then reports as to whether on the' facts of a situation the
elements of-an offence are to be found and as to whether any defences apply,
and this is followed by charges in a court ôf' lâw, that process itself would be
unfair or would ' appear to be unfair to the accused . This unfairness or
appearance of unfairness resulting from the evidence having been heard in
public is' "compounded"by the laying of charges . The Attorney General has
not previously expressed concern that the hearing of the evidence lbefore this
Commission in, public is itself unfair or would• appearto be, unfair : Perhaps his
concern might be directed at the fundamental issue whether public_ cômmissibns of inquiry, : which have become so . common in Canada, •should be used as
an instrument of the investigation of facts where the government reserves the
right to proceed in the courts against the individuals whose conduct is
investigated by the commission . In England, the Royal Commission on Tribunals of Inquiry (chaired by Lord Salmon), reporting in 1966, said :
The, publicity . ; . which such hearings usually attract is so wide and so:
overwhelming that .it would be virtually impossible-for any person against
whom an adverse finding was made to obtain a fair trial afterwards. So far .
no such person has ever been prosecuted . This again may be justi fi ed in the
public interest because Parliament having decided to set up an inquiry
under' the Âet has already considered whether or not civil or criminal
proceedings would resolve the matter and has decided that theywotild nôt . '
.
Such, consideration does not appear so, clearly to be given by the Governments
of Canada or of the provinces when they appoint commissions of inquiry . In
England a commission of inquiry, at least if it is to sit in public ;•is a mechanism
of investigation that should be used only if the decision has been made not :to
prosecute the individuals whose conduct the Commission is bound to investigate if it is to carry'out'its mandate .
It appears that the present real concern "ôf the Attorney General relates to
(a) the content ' of-the submissions which counsel for the, Commission will make
publicly to the Commission as to specific incidents in which the, evidencé names
individuals who :,participated, and (b) . .the content of the, report , by the
.
.• ,
Commissioners . . •, • : ., . - - .
With respect, the representations made on behalf of the Attorney•General
do not assist the Commission in resolving a fundamental dilemma : That
dilemma,arises as follows :, .On the one hand, as Mr . Nuss. .quite correctly
observes, there is the possibility•of unfairness or the appearance of unfairness i f
1199
�the Commission makes a report against a person, and he is then charged with
an offence . Mr . Nuss appears to be suggesting that therefore the Commission
ought not to make a report against a person and that counsel for the
Commission ought not to scrutinize the evidence to see whether the elements of
an offence are present or whether any defence is available .
What is the alternative? Mr . Nuss does not say what the alternative is,
other than to say that the Attorney General "trusts" that we "will proceed in
such a manner as to lay" his concerns "to rest" . So we are left to guess what
manner would lay his concerns to rest . Would his view be that our report
should narrate the facts of a particular incident, as we find them on the basis of
the evidence placed before us, but that we refrain from any analysis of those
facts as to whether they constitute an "activity not authorized or provided for
by law"? We must carry out the duties imposed upon us by the Governor in
Council pursuant to Part I of the Inquiries Act . We are required to "report the
facts relating to any . . . activity that was not authorized or provided for by
law" . How can we decide to report a certain set of facts unless we have
determined that the activity they disclose "was not authorized or provided for
by law"? How can we determine that the activity they disclose "was not
authorized or provided for by law" unless we analyze whether the facts, as
disclosed by the evidence before us, constitute an offence or a civil wrong or in
some other way conduct "not authorized or provided for by law"? The answer
is that we must, if we are to undertake our duty according to law, undertake
such an analysis . And, if we are required to undertake such an analysis, we
prefer to have the fullest possible assistance of counsel for the Commission and
such assistance as other counsel are prepared to provide to us . Thus there is a
dilemma created on the one hand by our duty in law to carry out our
directions, and on the other hand by our desire so far as possible to meet the
legitimate concerns expressed by the Attorney General .
It should be borne in mind that the dilemma arises only in those situations
in which :
(a) the Commission has detailed evidence of the specific acts in a specific
case and the names of all or some of the participants, and when the
activity may constitute a transgression of the Criminal Code or other
statute law (other than the R .C .M .P. Act) or the law of tort or delict ;
(b) the Commission has detailed evidence of specific acts in a specific case,
the names of all or some of the participants, and perhaps, but not
necessarily, evidence as to exactly what all the participants did, and
where the activities are not likely to be a transgression of those laws
referred to in (a) but where they may constitute a major service
offence under sec . 25 of the RCMP Act . An example might be by the
member conducting himself "in a scandalous . . . (or) .
.. disgraceful . .
.
manner" .
The dilemma does not arise where, for one reason or another, the conduct
concerning which the Commission may report cannot, as described by the
Commission, give rise to any criminal or disciplinary proceedings against an
individual . This may be because:
(i) the Commission's evidence is as to the general nature and purpose of
the activities but the Commission does not have any evidence of th e
1200
�names of participants or the particulars of any specific instances . There
are a number of investigative techniques, the use of which by members
of the RCMP may not have been authorized or provided for by law,
which have been investigated by the Commission as to the "extent and
prevalence" of the use of the technique without the Commission having
obtained evidence of the particular cases in which over the years or
decades the technique was used, or, consequently, of the identity of the
individuals involved, whether members of the RCMP or not . To have
collected such evidence in regard to the use of these techniques would
frequently have been impossible, since no records were kept, or, if kept,
records would no longer be available . Moreover, to try to reconstruct
the individual situations would have required a much larger investigative and legal staff and would inevitably prove to be an exercise in
futility ; or
(ii) the Commission's evidence is as to a general practice or system and the
names of some participants but not all of them, and as to which even if
the Commission has the names of some participants it does not have
the particulars of any specific case so that the Commission is in no
sense considering any specific "offence" ; o r
(iii) the Commission's evidence is as to specific acts in a specific case but
not the names of the participants, or at least not all of them, and as to
which none of the participants has given evidence ; or
(iv) the Commission has detailed evidence of the specific acts in a specific
case, the names of all or some of the participants, and perhaps, but not
necessarily, evidence as to exactly what all the participants did and the
activities cannot be said to be a transgression of the Criminal Code or
other statute law or of the law of tort or delict, or a major service
offence under section 25 of the RCMP Act . Nevertheless, if they
occurred, they may be, in the opinion of the Commission, conduct
which is "not authorized by law" in the sense that it is beyond the
duties of a member so to conduct himself: i .e ., if such conduct is not
within the phrase "such security and intelligence services as may be
required by the Minister" (quoting sec . 44(e) of the Regulations) .
It should also be borne in mind that, after reviewing the facts of a
particular situation as disclosed by the evidence before the Commission, we
may choose not to say that in our opinion the evidence discloses that a
particular individual committed a particular offence . Instead, if the evidence
justifies our doing so, we may choose to say that the evidence before us justifies
the appropriate Attorney General considering laying a charge, or that it
discloses no evidence of any offence by that individual . In so doing, we may
identify the evidence which points to inculpation and that which points to
exculpation . One cannot do that without reference to the legal principles that
define what the facts in issue are with regard to a particular offence . However,
it Js possible that we may recommend to the Governor in Council that our
analysis of the legal position in the particular case and our recommendation .as
to what should be done should not be published until the matter is finally
disposed of by a decision either not to prosecute or launch disciplinary
proceedings, or, if there is a decision to prosecute or launch disciplinary
proceedings, the final disposition of such criminal or disciplinary proceedings .
1201
�Moreover, even if we do not make that recommendation, it is open to the
Governor in Council to decide to follow that procedure .
We shall welcome the submissions of counsel as to whether any of these
possibilities is appropriate to our report as to a particular matter, when counsel
make their submissions about the various activities within a few weeks . There
can be no more precise or detailed statement by us as to what would bé
appropriate in the particular circumstances of a particular case until we have
heard the submissions of counsel for the Commission and of other counsel . All
we can now say is that we do not accept the proposition that, in reporting on
the participation of a particular individual, we are precluded from analysing
the legal qualities that are attached to his conduct as established by the
evidence before the Commission .
It is important that we lay stress upon the fact, whatever our report may
say about the legal significance of the facts of a particular case, it does not
follow that, if the same case were presented in a court of law, the court would
necessarily reach the same conclusion . Counsel for the Commission have done
their utmost to elicit all relevant evidence, whether favourable or unfavourable
to an individual, but there may be evidence that has not been made known to
our counsel and that would be placed before a court of law, either favourable
or unfavourable to the accused, that would result in the facts having a different
complexion . Moreover, some evidence which has been before the Commission
might not be before a court, such as the evidence of an accused person whose
evidence . before this Commission, given under the protection of section 5 of the
Canada Evidence Act, would not be admissible for the prosecution .
II .
Do the provisions of section 13 of the Inquiries Act apply to the
Commission ?
(a) Mr . Thomson also argued that the Governor in Council by having, in
Order-in-Council 1977-1911, expressly authorized the Commissioners to exercise all - the powers conferred upon them by section 11 of the Inquiries Act,
must be taken not to have intended that sections 12 and 13 of the Inquiries Act
would apply . Sections 11, 12 and 13 together make up Part III of the Inquiries
Act . We do not accept Mr . Thomson's contention . The powers set forth in
section 11 are not, available to a Commission of Inquiry unless the instrument
creating the Commission of Inquiry expressly says so : that is the meaning of
section 11(1) when it says :
The Commissioners . .., if thereunto authorized by the Commission issued in
the case. . .
Only ; therefore, if the Order-in-Council expressly incorporates, by referènce
(as it does) the powers contained in section 11 do we have, for example, the
power to employ clerical staff, reporters, counsel and investigators ., On the
other hand, sections 12 and 13 apply to all Commissions of Inquiry without the
creating instrument having to say so . Section 12 deals with when a Commission
may allow a person to be represented by counsel, and when it must do so .
Section 13 imposes a requirement of notice if a report is to be made against a
person . These latter two sections, then, permit or reqûire safeguards for the
protection of the individual who is faced with extraordinary powers given-to the
1202
�Commission of Inquiry . They apply whether the creating instrument says so or
not . The fact that Order-in-Council 1977-1911 does not refer to them is of no
significance .
(b) Mr . Thomson submitted that it is in the public interest that the work of this
Commission be concluded as soon as possible . We agree . We also agree with
him that a number of inembers of the RCMP have had to wait a long time
without knowing what the final result of the revelations will be in terms of their
position in law or their careers, and that no doubt their morale has been
affected . We would add that if their morale has been affected adversely,
probably their working effectiveness has been adversely affected as well .
However, we wish to observe that the responsibility for that situation cannot be
laid at the feet of this Commission . In almost all the cases of conduct involving
possible offences which have come before the Commission, the evidence of
wrongdoing - or possible wrongdoing - has been heard in public, or, if first
heard in camera, it has been released to the public . The evidence has thus been
available to the appropriate Attorneys General if they had wished to investigate further so as to enable them to reach decisions as to whether or not
prosecute . In the case of one province, in which many of the acts occurred, that
province was represented throughout many of our public hearings by counsel
with a watching brief. In the case of matters not investigated on the basis of
individual cases by this Commission, such as surreptitious entries in criminal
investigations, one province - British Columbia - conducted its owri investigation and reached a decision, announced publicly about seventeen months ago,
that there would be no prosecutions . Therefore, in many cases it has been open
to the appropriate authorities with prosecutorial discretion to execute that
discretion one way or another . The absence of our report to the Governor in
Council should not, in many cases, have hindered such action .
It is true that, as far as disciplinary proceedings within the R .C.M .P . are
concerned, the Commissioner of the R .C .M .P . is awaiting this Commission's
report before reaching a decision as to whether such proceedings are to be
undertaken . However, we believe that it would have been inappropriate and
unwise to attempt to report on some situations without reporting on them all at
the same time . Only by adopting this procedure can we and others regard the
conduct of various members of the R .C .M .P . as a whole .
We would have been pleased to be able to give our repôrt on these factual
matters sooner . However, from the beginning, we interpreted our terms of
reference as requiring us to report not only as to the conduct of members of the
R .C .M .P. - but also as to that of other persons, such as responsible Ministers
of the Crown, who may have authorized or condoned conduct not authorized or
provided for by law . Paragraphs (a) and (b) of our terms of reference use the
words involving members of the R .C .M .P . but do not say that, in investigating
extent and prevalence, and reporting the facts, we are to be limited to referring
to members of the R .C .M .P. This interpretation of the terms of reference was
adopted from the outset by the Government of Canada in public statements,
and was in our own announced interpretations as well . We considered that, if
the evidence did establish such ministerial implication, that would be a factor
of great bearing upon our report on the facts and our advice as to what furthe r
1203
�action we would deem necessary and desirable in the public interest . Put more
simply, it might help the case of the member of the R .C .M .P. who acted if he
knew of such purported authorization or actual condonation . As we have said
often, to fail to explore this potential thoroughly, would have resulted in a
Commission process that would be out of balance and unfair .
It is largely the exploration of this potential that has delayed our ability to
report . We do not regret it, and in any event, apart from its importance to
paragraphs (a) and (b), the evidence of these former Ministers and senior
officials has had much significance in terms of paragraph (c) - that is in
regard to the recommendations we shall make as to the laws, policies and
procedures that ought to govern the R .C .M .P. in protecting the security of
Canada .
(c) Some other points were made by Mr . Thomson or Mr . Yarosky, but they
need not be commented on at this time . Some of them no doubt will be made
again when argument is heard on the merits of the various situations, and we
can take them into account in preparing our report .
Conclusion
Therefore, we are instructing counsel for the Commission to prepare thei r
submissions, in which, in addition to summarizing the evidence, they will
identify the legal issues and, where individuals are named, they may discuss the
conduct of those persons in the light of the law . Then, before oral submissions
are made to us, our counsel will, pursuant to section 13 of the Inquiries Act,
give notice to any persons whose conduct is described in our counsel's submission as constituting actual or possible misconduct, of the charge of misconduct .
1204
�APPENDIX "I "
PRACTICE DIRECTION OF THE COMMISSION
JUNE 20, 198 0
Pursuant to the Commissioner's power to direct the practice and procedure before the Commission, we hereby give the following direction to counsel
for the Commission and to other counsel appearing before the Commission .
In our reasons for decision dated May 22, 1980, we referred to a number
of different categories of situation which are before us . Among them were the
following :
(a) The Commission has detailed evidence of the specific acts in a specific
case and names of all or some of the participants, and when the activity
may constitute a transgression of the Criminal Code or other statute
law (other than the R .C .M .P . Act) or the law of tort or delict ;
(b) The Commission has detailed evidence of specific acts in a specific
case, the names of all or some of the participants, and perhaps, but not
necessarily -ëvidence as to exactly what all the participants did, and
where the activities are not likely to be a transgression of those laws
referred to in (a) but where they may constitute a major service
offence under sec . 25 of the R .C .M .P . Act . An example might be by
the member conducting himself "in a scandalous . . .(or) . . . disgraceful.
.. manner" .
In our reasons we indicated that in our report on such situations we were not
precluded from analyzing the legal qualities that attach to the conduct of a
participant as established by evidence before the Commission . In those reasons
were were not asked to, and did not, deal in any way with the form or manner
of presentation by counsel for the Commission in regard to the above two
situations . We now do so .
In our reasons for decision we concluded as follows :
Therefore, we are instructing counsel for the Commission to prepare their
submissions, in which, in addition to summarizing the evidence, they will
identify the legal issues and, where individuals are named, they may discuss
the conduct of those persons in the light of the law . Then, before oral
submissions are made to us, our counsel will, pursuant to sec . 13 of the
Inquiries Act, give notice to any persons whose conduct is described in our
counsel's submission as constituting actual or possible misconduct, of the
charge of misconduct .
We observed in our reasons as follows :
However, it is possible that we may recommend to the Governor in Council
that our analysis of the legal position in the particular case and Our
recommendation as to what should be done should not be published uhtil
the matter is finally disposed of by a decision either not to prosecute o r
1205
�launch disciplinary proceedings, or, if there is a decision to prosecute or
launch disciplinary proceedings, the final disposition of such criminal or
disciplinary proceedings . Moreover, even if we do not make that recommendation, it is open to the Governor in Council to decide to follow that
procedure .
We shall welcome the submissions of counsel as to whether any of these
possibilities is appropriate to our report as to a particular matter when
counsel make their submissions about the various activities within a few
weeks .
As we indicated, whatever our recommendations may bein that regard, the
Governor in Council in the interest of fairness and the protection of the due
process of the administration of justice, might decide not to publish our report
as to those situations until the matter is finally disposed of in the courts or the
disciplinary process . The intention of such a decision would be to ensure
fairness for a person accused in the courts or subjected to disciplinary
proceedings . Such an intention would be frustrated in advance if we were to
have our counsel make public their notices of "charges of misconduct" given
under section 13 of the Inquiries Act, or if there were to be public presentations
by counsel for the Commission asserting that this person or that person had
committed a particular offence .
If these steps were taken in public, the public identification of a person as,
allegedly, a . person who has committed an offence would make it that much
more difficult for the person, if subsequently charged, to receive a fair trial,
perhaps anywhere in Canada . If those steps were taken in public, we would
thereby have contributed to the possibility of serious prejudice to those
individuals . We do not intend to adopt procedures which would possibly have
that result.
The policy of Parliament as to the publicity to be attached to pre-trial
proceedings is demonstrated by the provisions of section 467 of the Criminal
Code, which requires a justice holding a preliminary inquiry, prior to the
taking of evidence, if an accused makes application for such an order, to make
an order
directing that the evidence taken at the inquiry shall not be published in
any newspaper or broadcast before such time a s
(a) the accused who made the application is discharged, or
(b) if the accused who made the application is committed for trial or
ordered to stand trial, the trial is ended .
Application of that policy in the extreme to the circumstances of a commission
of inquiry into whether there was activity "not authorized or provided for by
law" would have required all the evidence of an individual's conduct to be
heard in camera . From the beginning, however, we decided against that course .
In our opening statement, delivered on December 6, 1977, we said that we
could not do better than publicly adopt as a cardinal principle guiding our
deliberations what the English Royal Commission on Tribunals of Inquiry,
chaired by Lord Justice Salmon, called the principle of publicity :
It is .
.. of the greatest importance that hearings before a Tribunal of
Inquiry should be held in public. It is only when the public is present tha t
1206
�the public will have complete confidence that everything pôssible has been
done for'the purpose of arriving at the truth . . .
When there is a crisis of public confidence about the alleged misconduct of
persons in high places, the public naturally distrusts any investigation
carried out behind closed doors . Investigations so conducted will always
tend to promote the suspicion, however unjustified, that they are not being
conducted sufficiently vigorously and thoroughly or that something is being
hushed up. Publicity enables the public to see for itself how the investigation is being carried out and accordingly dispels suspicion . Unless these
inquiries are held in public they are unlikely to achieve their main purpose,
namely, that of restoring the confidence of the public in the integrity of our
public life . And without this confidence no democracy can long survive .
It has been said that if the inquiry were held in private some witnesses
would come forward with evidence which they would not be prepared to
give in public . This may well be so . We consider, however that although
secret hearings may increase the quantity of the evidence they tend to
debase its quality . The loss of the kind of evidence which might be withheld
because the hearing is not in secret would, in our view be a small price to
pay for the great advantages of a public hearing .
. .
It will be observed that what Lord Justice Salmon's Report was speaking
of was the evidence before an Inquiry and the desirability of the investigation
of the facts being carried out in public . If the evidence is heard in public, then
members of the public can form their own judgment as to the state of the
public institution under investigation and the conduct of its members . It is
another thing to extend the principle of publicity necessarily to the consideration by the Commission of the legal significance of the evidence. At this stage,
no new evidence is presented . No fact will be hidden from the public's scrutiny
if submissions are made in private by counsel for the Commission and counsel
for the witnesses .
Therefore our conclusion is that, to be fair to the individuals concerned,
and so as not to risk prejudice to the administration of justice, these steps
should be taken by private communication . In reaching this conclusion, we
have attempted to strike a balance between, on the one hand, the proper place
of the principle of publicity and, on the other hand, the protection of the
privacy of individuals in the sense that the due process of the administration of
justice is not adversely affected by the procedure we follow .
Nevertheless, we wish to emphasize that, in regard to most of the
situations that will be found in categories (a) and (b), the applicable legal
issues will be the subject of public presentation, not in regard to specific cases
but as to the situations generally, both by written submissions of counsel which
are made public and by public oral submissions . Thus, for example, the various
possible offences that arise from surreptitious entries as a general class of
conduct will be analyzed publicly, both from the inculpatory and the exculpatory viewpoints .
For these reasons, the following procedure will be adopted :
1 . Written submissions by Commission counsel and other counsel in so far as
they relate to those two categories of situation referred to at the beginning o f
1207
�this Practice Direction, will be communicated privately to the Commission and
will not be released by the Commission to the public at this time .
2 . Notices given to individuals under section 13 of the Inquiries Act will be
given privately and will not be publicized by the Commission .
3 . Any submissions which may follow the giving of such notices will be made
in private .
This direction is, of course, subject to variation in the event that any
person who wishes the Commission to follow some other procedure in his case
should apply to the Commissioners to have any of the steps handled otherwise,
and in that case the Commissioners will decide what the procedure will be .
I
1208
�APPENDIX "J"
P .C. 1979-88 7
Certified to be a true copy of a Minute of a Meeting of the Committee of the
Privy Council, approved by His Excellency the Governor General on the 22
March, 1979 .
WHEREAS a commission of inquiry (hereinafter referred to as the
"Commission") was established under Part I of the Inquiries Act by Order in
Council P .C . 1977-1911 of July 6, 1977 to inquire into certain activities of the
Royal Canadian Mounted Police ;
WHEREAS the Honourable Mr . Justice David C . McDonald, Mr .
Donald S . Rickerd and Mr . Guy Gilbert were appointed by such Order in
Council as Commissioners to conduct such inquiry (hereinafter referred to as
the "Commissioners") ;
WHEREAS the said Commissioners have requested access to and copies
of Cabinet and Cabinet Committee minutes which are relevant to the matters
within the Commission's terms of reference as set out in the said Order in
Council ;
WHEREAS it is a matter of convention and practice in Canada that
access to records of Cabinet meetings and of Cabinet Committee meetings has
been restricted to the Prime Minister and the Ministers who were members of
the Cabinet at the time the meetings took place, the Secretary to the Cabinet,
and such persons on the Secretary's staff as the Secretary authorizes to see
them, on a confidential basis, where necessary for the proper discharge of their
duties ;
WHEREAS this convention and practice is, in the opinion of the Committee, essential for the proper functioning of the Cabinet system of government ;
WHEREAS the Prime Minister, on behalf of his Ministry, has recommended to the Committee that, having regard to the particular nature of the
inquiry being conducted by the Commission, an exception be made to the
convention and practice in order to enable the Commissioners to ascertain
whether any such documents relating to the terms of reference of the Commission contain evidence establishing the commission of any act involving members of the RCMP or persons who were members of the RCMP that was not
authorized or provided for by law, or evidence implicating a Minister in such
act ; and
WHEREAS the Secretary to the Cabinet, as the custodian of the records
of all Cabinet and Cabinet Committee meetings of previous ministries, has
recommended the adoption of such an exception in respect of such records .
THEREFORE, the Committee of the Privy Council, on the recommendation of the Prime Minister, and with the concurrence of the Secretary to the
Cabinet, advise that :
1209
�(1) subject to paragraph (5) the Commissioners shall be granted access to
read the minutes of any Cabinet or Cabinet Committee meeting held
prior to the establishment of the Commission which relate to the terms
of reference of the Commission as set out in Order in Council P .C .
1977-191 I and which on reasonable and probable grounds they believe
provide evidence establishing the commission of any act involving
members of the RCMP or persons who were members of the RCMP
that was not authorized or provided for by law, or evidence implicating
a Minister in such act;
(2) where the Commissioners are of the view that any minute or portion of
a minute to which they have been granted access as provided for in
paragraph (I) above contains evidence establishing the commission of
any act involving members of the RCMP or persons who were members of the RCMP that was not authorized or provided for by law, they
may request the Secretary to thè Cabinet to deliver a copy of any such
minute, or portion thereof, to the Commission, and the copy of any
such minute or portion thereof so requested shall be delivered to the
Commissioners ;
(3) if the Commission after a hearing on the issue, wishes to make public
the contents of any such Minute or portion thereof referred to in
paragraph (2), or to refer publicly to the existence of such Minute or
portion thereof, it shall first request the Secretary to the Cabinet to
secure from the appropriate authority declassification of such Minute
or portion thereof ;
(4) the Secretary to the Cabinet shall provide the Commissioners access to
such indexes or other information as may reasonably be necessary to
enable them to determine the minutes of the Cabinet or Cabinet
Committee meetings to which they wish to be granted access for the
purposes of paragraph (I) above ;
(5) the Commissioners shall be granted access to the minutes of any
Cabinet or Cabinet Committee meeting emanating from the Ministry
of the Right Honourable John G . Diefenbaker only with the concurrence of the said the Right Honourable John G . Diefenbaker, it having
first been communicated by him in writing to the Secretary to the
.Cabinet ;
(6) this order being at variance with the normal conventions and practices
of the Cabinet system of government, is :
(a) subject to paragraph (3) above, for the sole purpose of enabling the
Commissioners personally to have access to minutes of Cabinet or
Cabinet Committee meetings as provided in paragraph (I) above ;
and ,
(b) to have effect only until such time as the Commission acting under
the authority of Order in Council P.C . 1977-1911 shall have made
its final report to the Governor in Council .
Certified to be a true copy - Copie certifiée conforme
P .M . Pitfield (signature )
Clerk of the Privy Council - Le Greffier du Conseil priv é
1210
�1 APPENDIX "K "
P.C. 1979-161 6
Certified to be a true copy of a Minute of a Meeting of the Committee of the
Privy Council, approved by His Excellency the Governor General on the 2
June, 1979 .
WHEREAS a commission of inquiry (hereinafter referred to as the
"Commission") was established under Part I of the Inquiries Act by Order in
Council P .C . 1977-1911 of July 6, 1977 to inquire into certain activities of the
Royal Canadian Mounted Police ;
WHEREAS the Honourable Mr . Justice David C . McDonald, Mr .
Donald S : Rickerd and Mr . Guy Gilbert were appointed by such Order in
Council as Commissioners to conduct such inquiry (hereinafter referred to as
the "Commissioners") ;
WHEREAS, for the purposes of the said Inquiry, by Order in Council
P .C . 1979-887 of March 22, 1979, an exception was made to convention and
practice in Canada governing access to records of Cabinet and Cabinet
Committee meetings ;
AND WHEREAS it is desirable to amend paragraph 5 of the said Order
in Council P .C . 1979-887 by extending to the Right Honourable ' Pierre E .
Trudeau the same rights and privileges in respect of his Ministry as are by that
paragraph extended to the Right Honourable John G . Diefenbaker in respect
of his Ministry .
THEREFORE, the Committee of the Privy Council, on the recommendation of the Prime Minister advise that paragraph (5) of the said Order in
Council P .C . 1979-887 be revoked and the following substituted therefor :
"(5) the Commissioners shall be granted access to the minutes of any
Cabinet or Cabinet Committee meeting emanating from the Ministry
of the Right Honourable John G . Diefenbaker only with the concurrence of the said the Right Honourable John G . Diefenbaker, it
having first been communicated by him in w,riting to the Secretary to
the Cabinet ;
(5 .1) the Commissioners shall be granted access to the minutes of any
Cabinet or Cabinet Committee meeting emanating from the Ministry
of the Right Honourable Pierre E . Trudeau only with the concurrence of the said the Right Honourable Pierre E . Trudeau, it having
first been communicated by .him in writing to the Secretary to the .
Cabinet for Federal-Provincial Relations or such other person as may
from time to time be designated by the Right Honourable Pierre E .
Trudeau for such purposes . "
The Committee, recognizing that there is a distinction between the
authority to declassify a document and the authority to release a confidence o f
1211
�the Queen's Privy Council for Canada, further advise that paragraph (3) of the
said Order be amended to rea d
"(3) If the Commission after a hearing on the issue, wishes to make public
the contents of any such Minute or portion thereof referred to herein
or to refer publicly to the existence of such Minute or portion thereof,
it shall first request the Secretary to the Cabinet or in the case of a
Minute or portion thereof to which paragraph 5 .1 applies, the Secretary to the Cabinet for Federal-Provincial Relations or such other
person as may from time to time be designated by the Right Honourable Pierre E . Trudeau for such purposes to secure from the appropriate authorities release of the confidences of the Queen's Privy Council
for Canada contained in any such Minute or portion thereof and
declassification of the same . "
Certified to be a true copy - Copie certifiée conforme
P .M . Pitfield (signature )
Clerk of the Privy Council - Le Greffier du Conseil priv é
1212
�APPENDIX "L "
COMMISSION PERSONNEL
(Full- and Part-time, 1977-1981 )
Administrative Staff
Marcel Lacourcière
Valerie Madde n
Henriot Mayer
Gisèle McIntyre
Ronald McKinnon
Paulette Monette
Linda Newman
Larry O'Brie n
Paul O'Brien
Marcelle Pilet
Louise Plummer
Paulette Proulx
Jo-Anne Ranki n
Guy Robitaille
Mary Rous
Peter Schofiel d
Mary Shae
Lise Sicotte
Moyra Tooke
Dorothy Villeneuve
Linda Anderson
Paula Barr y
Ann Bowering
William Brennan
Yvette Collins
Rita Cook-Lauzier
Jane Davey
Madeleine De Carufel
Irene Du y
Maureen Fermoyle
Peter Glarvin
Barbara Glover
Keith Gorman
Anne Hoope r
Alix Houston
Joan Huston
Vicky Hallé
Kristina Jensen
Harry Johnson
Laurie Klee
Investigative Staff
Alistair Macleod
Ernest Marti n
John McKendr y
Guy Bélanger
Clifford Christian
Wilbert Craig
Henry Kostuc k
Legal Counsel
Colin McNairn
John Nelligan, Q .C .
Simon Noël
,*Eugene Oscapella
*Mark Pac i
*Bruno Pateras, Q .C .
*Timothy Ray
*J .J . Robinette, Q .C .
David Abbey
Pierre Barsalou
Hon . Angelo Branca, Q .C .
*A .J . Campbell, Q .C .
Brian Crane, Q .C .
*Eleanore Cron k
Winston Fogarty
Dale Gibson
1213
�*Ross Goodwin
Margaret Hodgson
*John Howard, Q .C .
*W .A . Kelly, Q .C .
*Louis LeClerc
*Sydney Lederman
*Eva Marszewski
*Allan Rock
*Pierre Sébastien, Q .C .
*Richard Scott, Q .C .
*John Sopinka, Q .C .
*Yvon Tarte
Keith Turner, Q .C .
Bryan, Williams ,
Those persons indicated by an asterisk (*) have appeared before the Commission as Commission Counsel, or in Court on behalf of the Commissioners .
Research Staff
Yolanda Banks
Patricia Close
Judy Doyle
Alasdair MacLaren
Kenneth McFarlan e
Leonard Preyra
John LI .J . Edwards
Richard Elson
M .L. Friedland
Greg Goldhawk
John Graham
Marke Raines
Claudine Roy
Peter Russel l
Elizabeth Saunderson
Denise Vezin a
1214
�APPENDIX "M "
COMMISSION OF INQUIRY
CONCERNING CERTAIN
ACTIVITIES OF THE ROYAL
CANADIAN MOUNTED POLIC E
Notice as to submissions
by members of the publi c
Order-in-Council P .C . 1977-1911 dated July 6, 1977, appointed the undersigned as Commissioners under Part I
of the inquiries Act
(a) to conduct such investigations as in the opinion of the Commissioners are necessary to determine the
extent and prevalence of investigative practices or other activities involving members of the R .C.M .P . that
are not authorized or provided for by law and, in this regard, to inquire into the relevant policies and
procedures that govern the activities of the R .C .M .P. in the discharge of its responsibility to protect the
security of Canada;
(b) to report the facts relating to any investigative action or other activity involving persons who were
members of the R .C .M .P . that was not authorized or provided for by law as may be established before the
Commission, and to advise as to any further action that the Commissioners may deem necessary and
desirable in the public interest ; and
(c) to advise and make such report as the Commissioners deem necessary and desirable in the interest of
Canada, regarding the policies and procedures governing the activities of the R .C .M .P . in the discharge of
its responsibility to protect the security of Canada, the means to implement such policies and procedures,
as well as the adequacy of the laws of Canada as they apply to such policies and procedures, having regard
to the needs of the security of Canada .
Pursuant to its mandate, the Commission proposes to investigate and in due course to hold hearings concerning
matters brought to its attention which fa(f within the terms ojthe joregoing .
The Commission invites individuals and organizations having knowledge of any facts relating to such matters, or
wishing to express any opinions in respect of such matters, to communicate with the Commission, if possible in
writing. Such individuals and organizations are not asked to communicate in detail to the Commission now if
they would prefer not to give such details until the Commission's staff is able to interview them .
Any written communications should be sent by mail to :
Commission of inquiry concerning
certain activities of the R.C.M .P .
P.O. Box 1982
Station "B"
Ottawa, Canada
K
I
P
5R5
Tel . (613) 593-782 1
Such communications should contain the signature, printed name, address and telephone number of the person or
organization making the communication .
Any other persons who wish to be placed on the Commission's general mailing list should write the Commission
at the address given above, asking that that be done . Please be sure to give your address.
In due course a further notice will be published as to such public hearings as the Commission may deem
expedient for the proper conduct of the inquiry .
Mr. Justice D . C. McDonald, Chairman
of the Commissio n
D . S. Rickerd, Commissioner
Guy Gilbert, Q.C., Commissioner
Chief Counsel to the Commission :
J . F . Howard, Q.C .
Secretary of the Commission :
H . R . Johnson
1215
��APPENDIX "N "
COMMISSION OF INQUIRY
CONCERNING CERTAIN
ACTIVITIES OF THE ROYAL
CANADIAN MOUNTED POLICE
NOTICE
The Commission will not be in a position to investigate any
allegations by members of the public of investigative practices or
other activities involving members of the RCMP that were not
authorized or provided for by law, if such allegations are received
by the Commission after November 19, 1979 .
This termination date is necessary to allow the Commission to
complete its work in this area . Any allegation received after that
date will be referred back to the sender with the Commission's
advice as to where it might most appropriately be sent in the
alternative .
Any allegations should be made in writing to the Commission of
Inquiry, PO Box 1982, Station B, Ottawa, Ontario, KIP 5R5 .
Mr . Justice D . C . McDonald, Chairman
of the Commission
D . S . Rickerd, Q .C ., Commissioner
Guy Gilbert, Q .C ., Commissione r
Chief Counsel of the Commission
J . F . Howard, Q .C .
Secretary of the Commission
H . R . Johnso n
P .O . Box 1982 Station "B"
Ottawa, K 1 P 5R5
Tel . (613) 593-782 1
1217
��APPENDIX "O "
WITNESSES WHO TESTIFIED BEFORE THE
COMMISSIO N
Ex-Staff Sergeant Gilbert Albert - R .C .M .P .
The Honourable Warren Allmand
Staff Sergeant Leonard F . Andrichuk - R .C .M .P .
Rita Baker - R .C .M .P .
Robert Joseph Bambrick
Commissio n
- Canadian Employment
and Immigration
Superintendent Patrick Banning - R .C .M .P .
Superintendent Archibald Barr - R .C .M .P .
Robert
Lawlor
Commissio n
Beatty
- Canadian Employment
and Immigration
Donald Beavis - Retired employee of Privy Council Office
Sergeant Pierre Bédard - R .C .M .P .
Chief Superintendent Gustav Begalki - R .C .M .P .
Inspector Bernard Blier - R .C .M .P .
Sergeant Dale Boire - R .C .M .P .
Paul Boisvert - Canada Post Office
Sergeant Serge Boisvert - R .C .M .P .
Inspector Luc Boivin - R .C .M .P .
Corporal Guy Bonsant - R .C .M .P.
Staff Sergeant Gérard Boucher - R .C .M .P .
Robin Bourne - Assistant Deputy Minister - Department of the Solicitor
Genera l
Maurice Bradshaw - Department of National Revenue
Superintendent Pierre Jacques Brière - R .C .M .P .
Sergeant Claude Brodeur - R .C .M .P .
Ex-Sergeant Ian Douglas Brown - R .C .M .P .
Ex-Staff Sergeant Gilles Brunet - R .C .M .P .
Inspector Alan Donald Spencer Burchill - R .C .M .P.
Kenneth Burnett - Former civilian member - R .C .M .P .
Arthur Butroid - retired employee of Canadian Employment and Immigration Commission
1219
�Corporal Robert Cadieux - R .C .M .P .
Sergeant Barry Charles Cale - R .C .M .P.
John Ralph Cameron - Former employee of the Department of the Solicitor
Genera l
Deputy Commissioner (Retired) Raoul Carrière - R .C .M .P .
Jean Castongua y
André Chamard
Corporal Normand Chamberland - R .C .M .P.
Pierre Champagne - Québec Police Forc e
Yvon Charlebois - Executive Secretary - Unemployment Insurance
Commissio n
Assistant Commissioner Stanley Vincent Maurice Chisholm - R .C .M .P .
Donald Henry Christie, Q .C . - Department of Justic e
Jérôme Choquette, Q .C .
Inspector Randil Bruce Claxton - R .C .M .P.
Sylvain Cloutier - Deputy Minister of Transpor t
Darryl Allan Clute - Senior Projects Officer - Department of National
Revenu e
Chief Superintendent Donald Cobb - R .C .M .P .
Lieutenant Roger Cormier - Montreal Urban Community Police Force
Ernest Côté - Former Deputy Solicitor Genera l
Detective Inspector Jean Coutellier - Québec Police Force
Inspector Richard Doublas Crerar - R .C .M .P .
Superintendent Marcellin Coutu - R .C .M .P .
The Honourable Bud Culle n
Constable Richard Daigle - R .C .M .P .
Director General Michael Reginald Joseph Dare - R .C .M .P .
Inspector James Nathaniel Dawe - R .C .M .P .
Ex-Staff Sergeant François D'Entremont - R .C .M .P .
Bernard Dertinger - Canadian Employment and Immigration Commission
Assistant Commissioner (Retired) Howard Crossfield Draper - R .C .M .P.
Sergeant Bernard Dubuc - R .C .M .P .
Superintendent Robert Layton Duff - R .C .M .P .
Sergeant Louis Duhamel - R .C .M .P .
Corporal James Michael Dupuis - R .C .M .P .
Superintendent Joseph Ferraris - R .C .M .P .
Constable Gilles Forgues - Montreal Urban Community Police
Force Staff Sergeant Hughes Fortin - R .C .M .P .
The Honourable Francis Fox
Inspector Jean Gagnon - R .C .M .P .
1220
�Corporal Michel Gareau - R .C .M .P .
Superintendent Robert Bruce Gavin - R .C .M .P .
Assistant Commissioner Bertrand Giroux - R .C .M .P.
Sergeant Maurice Goguen - R .C .M .P .
The Honourable Jean=Pierre Goye r
Corporal Jean Michel Hanssens - R .C .M .P .
Warren Hart
Sergeant John Douglas Hearfield - R .C .M .P.
Commissioner (Retired) William Leonard Higgitt - R .C .M .P .
Sergeant Richard George Hirst - R .C .M .P .
Staff Sergeant Kenneth Hollas - R .C .M .P .
Superintendent Foster Archibald Howe - R .C .M .P .
Inspector Laurent Hugo - R .C .M .P .
Chief Superintendent Bruce James - R .C .M .P .
Assistant Commissioner Henry Jensen - R .C .M .P .
Robert Howell Jones - R .C .M .P .
Staff Sergeant Arnold Kay - R .C .M .P .
Deputy Commissioner (Retired) William Henry Kelly - R .C .M .P .
Sergeant Tony Kozij - R .C .M .P .
André Lafores t
Ex-Constable Robert James Laird - R .C .M .P .
The Honourable Marc Lalond e
Sergeant Paul Langlois - R .C .M .P .
Superintendent Raymond Hugh Lees - R .C .M .P .
Jean-Marc Legros - Canadian Employment and Immigration Commission
Michel Lema y
Staff Sergeant Joseph Albert Bernard Limoges - R .C .M .P .
"M" - a retired employee of Canadian Employment and Immigration
Commissio n
Kenneth John MacDonald - Department of the Solicitor General
Inspector Robert Ian MacEwan - R .C .M .P .
Inspector Stanley Maduk - R .C .M .P .
John Lawrence Manion - Secretary of the Treasury Boar d
Sergeant Detective Claude Marcotte - Montreal Urban Community Police
Force
Superintendent Ernest Allan Marshall - R .C .M .P .
Corporal Peter Marwitz - R .C .M .P .
Donald Spencer Maxwell - former Deputy Minister of Justice
Ex-Staff Sergeant Donald McCleery - R .C .M .P .
1221
�The Honourable George Mcllrait h
Sergeant Wayne Arthur McMorran - R .C .M .P.
Raynald Michau d
Jean Pierre Mongea u
Commissioner Maurice Nadon (Retired) - R .C .M .P .
Inspector Georges Noël - R .C .M .P .
Superintendent Joseph Albert Nowlan - R .C .M .P :
Katharine O'Malle y
John Gordon Palmer - Canadian Employment and Immigration Commission
Sergeant Henri Pelletier - R .C .M .P .
Staff Sergeant Ervin Pethick - R .C .M .P .
Peter Michael Pitfield - Secretary to the Cabinet
Ex-Staff Sergeant John Robert Plummer - R .C .M .P .
Staff Sergeant James Pollock - R .C .M .P .
Inspector Paul Pothier - R .C .M .P .
Ex-Staff Sergeant Robert Potvin - R .C .M .P .
Corporal Richard Presseau - Québec Police Force
Sergeant Victor Probram - R .C .M .P.
Inspector Thomas Marvin Quilley - R .C .M .P .
Sergeant George Rehman - R .C .M .P .
Maurice Riche r
Chief Superintendent James Andrew Baron Riddell - R .C .M .P .
Robert Gordon Robertson - former Secretary to the Cabinet
Chief Superintendent Henry Francis Robichaud - R .C .M .P .
Sergeant Edmund Philip Rockburne - R .C .M .P .
Ex-Constable Robert Samson - R .C .M .P .
Assistant Commissioner Murray Stanley Sexsmith - R .C .M .P .
Chief Superintendent Roger Shorey - R .C .M .P .
Commissioner Robert Henry Simmonds - R .C .M .P .
Staff Sergeant Charles Victor Smith - R .C .M .P .
John Starnes - Former Director General - R .C .M .P .
Maurice St-Pierre - former Director General, Québec Police Force
Fernand Tangua y
Roger Tassé - Deputy Minister of Justice
Staff Sergeant James Thompson - R .C .M .P.
Jean-Guy Trembla y
Rt . Honourable Pierre Elliott Trudeau - Prime Minister of Canada
Leonard Lawrence Trudel - Former employee of Privy Council Office
The Honourable John N . Turner
1222
�Marie-Claire Dubé-Vani - former Civilian Member - R .C .M .P .
Assistant Commissioner Thomas Stanley Venner - R .C .M .P .
Inspector Claude Vermette - R .C .M .P .
Inspector James Warren - R .C .M .P .
Hugh Williams - Canadian Employment and Immigration Commission
Inspector James Sutar Worrell - R .C .M .P .
Superintendent William John Wylie - R .C .M .P .
Mr . "X "
. .X„
Superintendent Ronald Yaworski - R .C .M .P .
Inspector Alcide Yelle - R .C .M .P .
Chief Superintendent Charles Yule - R .C .M .P .
1223
��APPENDIX "P "
COUNSEL WHO HAVE APPEARED
BEFORE THE COMMISSIO N
OTHER THAN COUNSEL FOR THE COMMISSIO N
Representing
Name
The Commissioner and members
of the R .C .M .P . (until
G . Lapointe, Q .C .
Raphael Schachter
November 10, 1977 )
Certain employees of the Post
Office Department .
Pierre Lamontagne, Q .C .
The Commissioner and certain
Richard Mongeau
Michèlle Goui n
past and present members and
employees of the R .C .M .P .
Hélène Leroux
Victoria Percival
Philippe Roy
Jacques Tetrault, Q .C .
The Commissioner of the
R .C .M .P . (relative to the
hearing on February 6, 1979,
with respect to liaison with
the Department of National
Revenue. )
The Commissioner and members
Claude Thomson, Q .C .
Mark P. Frawley
of the R .C .M .P . for hearings
Jeffrey S. Leo n
relative to Warren Hart an d
J .S . Warren and for various
other matters .
Joseph R . Nuss, Q .C .
The Government of Canada,
Le bâtonnier
including present and former
Michel Rober t
ministers and officials not
H . Lorne Murphy, Q .C .
otherwise represented .
Allan Lutfy ( except
between June 30 ,
1978 and March 4,
1980 )
Allan Lutfy*
Stephen Foster*
(from June 5, 1979 to
March 4, 1980)
Harvey Yarosky
Natalie Isaacs
- the Right Honourable Pierre
Elliott Trudea u
Bernard Blier
Michael Gareau
Robert Potvin
Stanley Madu k
1225
�Mark Jewett
The Department of National
Revenu e
Claude Lanctot
G .A . Allison, Q.C .
Jean C . Sarazi n
Robert Samso n
Jérome Choquette, Q .C .
Certain employees of the
Unemployment Insurance
Commissio n
Canada Employment and
Immigratio n
Warren Black
André Chamar d
Pierre Cloutier
J .C . Major, Q .C .
Certain employees of the
Department of National
Revenu e
Montreal Urban Community
Police
The Progressive Conservative
Party of Canada
Guy Lafrance
Michael A . Meighe n
Gerald Tremblay
Jean Bellevue
Mario Bilodeau
Claude Gagnon
B .F . Flynn
Michel Proul x
Le Procureur Général du Québe c
David Gibbon s
Canadian Federation of Civil
Liberties and Human Rights
Association of Canada
La ligue des droits de l'homme
Canadian Civil Liberties
Associatio n
La Sûreté du Québec et ses
membres
Normand Caron
Walter Tarnopolsky
Alan Borovoy
Irwin Code r
Edward Greenspan, Q .C .
Allan Strade r
Paul Lamoureu x
- Patricia Metivie r
L . Yves Fortier, Q .C .
Simon V . Potter
Robert J . Carter, Q .C .
- The Hon . Jean-Pierre Goyer and
Lt . Col . J .R . Camero n
Raymond Baraket t
- The Hon . Warren Allmand and J .
MacDonal d
- Donald R . McCleery, Gilles
Brunet and Gilbert Albert
- The Hon . Bud Culle n
A .H . Campea u
John E . Rouatt
David W . Scott, Q.C .
George D . Hunter
Richard E . Shadley
- L .D . Brown, J .R . Plummer and
W . McMorra n
- Senator the Hon . George J .
Mcllrait h
- Paul Potvi n
- Michel Hanssen s
Pierre A . Michaud, Q .C .
André Wery
Barry S. Wortzman
Hubert Mantha
- The Hon . Francis Fox
- Jean-Pierre Mongeau
- Warren Har t
- Hugh William s
1226
�APPENDIX "Q "
PLACES AND DATES OF HEARINGS TO RECEIVE
BRIEF S
AND PERSONS AND ORGANIZATIONS THA
D
TPRESN
BRIEFS AT THOSE HEARING S
MONTREAL - October-19, 1977 .
La ligue des droits de l'homme du Québec Canadian Civil Liberties
Associatio n
MONTREAL - January 16, 197 8
La ligue des droits de l'homme .du Québe c
Syndicate des Postiers du Canada - Canadian Union of Postal Workers
L'association des vétérans de la Gendarmerie Royale du Canada
R .C .M .P . Veteran's Associatio n
TORONTO - January 18, 1978
Canadian Labour Congress '
Quaker Committee on Jails and Justice
Mr . D . Campbel l
Mr . X
Church of Scientology
Communist Party of Canada
Peoples' Republic of Poetry
North American Labour Party
Revolutionary Workers League
Mr . O . Batchelo r
The Law Union of Ontario
Professor J . Arva
. Samuel Ros syMr
VANCOUVER - January 20, 1978
Law Union of British Columbia
Francis Wingate
British Columbia Civil Liberties Associatio n
Canadian Bar Association, Criminal Justice Sub-section of
the British Columbia Branc h
Ricardo Tettimanti
Kenneth McAllister
1227
�REGINA - January 30, 1979
Regina Chamber of Commerce
Buckland Consultants Ltd .
Mr . C .F . Plat t
FREDERICTON - January 8, 197 9
Hon . R . Logan, Q .C . - Attorney General of New Brunswick
Nova Scotia Civil Liberties Association
OTTAWA - January 23, 197 9
Canadian Association of University Teachers
Foundation for Human Developmen t
Mr . Lawrence A . Greenspon
Mr . Arthur A . Wardrop
OTTAWA - January 24, 197 9
National Capital Region Civil Libefties Association
Professor Richard D . French
Mr . J . Ross Colvi n
VANCOUVER - January 31, 1979
Rev . James Manl y
British Columbia Civil Liberties Associatio n
VANCOUVER - February 1, 1979
Law Union of British Columbi a
OTTAWA - October 2, 1979
Canadian Bar Association
OTTAWA - October 3, 1979
Canadian Civil Liberties Associatio n
OTTAWA - April 17, 1980
Canadian Civil Liberties Associatio n
OTTAWA - July 23, 1980
Canadian Bar Association
1228
�APPENDIX "R "
FORMAL BRIEFINGS
1 . Surveillance of Members of Parliament and Candidate s
2 . Surveillance of Separatist Movements in the Parti Québecois
3 . R .C .M .P . Security Service - Human Sources
4 . R .C .M .P . Security Service - Records Managemen t
5 . R .C .M .P . Security Service Automated Information Services
6 . R .C .M .P. Security Service - Surveillanc e
7 . Surveillance of Labou r
8 . Internal Control Mechanism s
9 . R .C .M .P . Security Service - Technical Service s
10 . R .C .M .P . Security Service Relations with the Provinces
It . The Mandate of the Security Servic e
12 . R .C .M .P . Security Service - Security Screening
13 . Surveillance of Native Organizations
14 . R .C .M .P. Personnel and Management Policies
15 . Criminal Intelligenc e
16 . Commission of Offences by Sources
16 . 17 . R .C .M .P . Legal Branc h
18 . R .C .M .P . Security Service - Counter-Espionage
19 . R .C .M .P . Security Service - Counter-Subversion
20 . Public Service Security Clearance
21 . Immigration Security Clearances
22 . Citizenship Security Clearance s
23 . R .C .M .P. Security Service Key Sectors Targetting
24 . R .C .M .P . Security Service and the Medi a
25 . R .C .M .P . "P" Directorate (Protective Policing)
26 . Security Service Activities Outside Canad a
1229
��APPENDIX "S "
MEETINGS WITH ACADEMIC S
In Toronto
In Montreal
W .F . Bowker, Q .C .
B .A . Grosman, Q .C .
J . Hogart h
J .M . Piott e
G . Côté-Harper
A . Normandeau
H . Bru n
C. Hector
A . Jodouin
A . Morel
P. Garan t
A . de Mestra l
C .D . Shearing
R .S . Mackay, Q .C .
T . Elto n
A . Morel
P. Garant
G . Marshall
L . Taman
J .U .J . Edwards
J .D . McCamus
P .H . Russell
1231
��APPENDIX "T "
CONTRACTED STUDIES AND CONSULTANT S
1 . Brun, Henri: The Division of Constitutional Jurisdiction Between the
Federal Government and the Provincial Governments with respect to
National Security
2 . Brooks, Neil: Admissibility of Illegally Obtained Evidence
3 . Chapman, Brian : Consultant on the Structure and Organization of Police
and Security Forces in Foreign Countries
4 . Edwards, J .LI .J. : Ministerial Responsibility as it relates to the offices of
Prime Minister, Attorney General and the Solicitor General of Canad a
5 . Fox, Richard and Waller, P . Louis : Police and Security in Australia
6 . Franks, C.E .S . : The Role of Parliament in Security Matter s
7 . Friedland, Martin L. :
(1) National Security : The Legal Dimensions
(2) Review of the Law relating to Entrapment
8 . Grant, Alan : R .C .M .P . Interrogation Techniques
9 . Green, L .C. : Section 63 of the Criminal Cod e
10 . Hogg, Peter : The Constitutional boundaries between Federal and Provincial authority with respect to the investigations and prosecutions of criminal offence s
11 . Larouche, Angers: Legal Opinion on the Legal Position in Quebec Civil
Law with respect to Surreptitious Entries as that problem has been
developed in evidence before the Commissio n
12 . Leigh, L .H . : Consultant on the recent experiences of the United Kingdom
Administration in dealing with activities of the Security Servic e
13 . Magnet, Joseph :
(1) Privacy and Commissions of Inquir y
(2) Public Intervention Before Commissions of Inquiry
(3) Definition of National Securit y
(4) Definition of Public Interes t
14 . Marshall, Geoffrey : Consultant on Police and Government in Britain
15 . Meredith, Harry A . : Consultant on Personnel Managemen t
16 . Nolan, John E . Jr. : United States Law Governing Mail Surveillance
17 . Robson, J.L . : New Zealand Experience with National Security Issues
18 . Ryan, Stuart : Judicial Authorization of Electronic Surveillanc e
1233
�19 . Scalia, Antonin : United States Intelligence La w
20 . Stenning, Philip C. : Police Commissions, their development, composition,
duties and power s
21 . Williams, D.G .T. : The British Experience with respect to matters under
the mandate of the Commission of Inquiry
We are also indebted to the Honourable Mr . Justice Campbell Grant, the
Honourable Mr . Justice G .-R . Fournier and the Honourable Angelo Branca,
Q .C ., for their assistance in reviewing the practice of applications for judicial
authorization of electronic surveillance .
1234
�APPENDIX "U "
ORGANIZATION of the R.C.M.P.
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1235
��APPENDIX "V "
ORGANIZATION of the SECURITY SERVIC E
L
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1237
��APPENDIX "W "
INFORMAL MEETING S
1 . R .H . Vogel, Q .C ., Deputy Attorney General, British Columbia
2 . A . Leal, Q .C ., Deputy Attorney General, Ontari o
3 . R . Gosse, Q .C ., Deputy Attorney General, Saskatchewan
4 . A . Bissonnette, Deputy Solicitor Genera l
5 . E .P. Black, Deputy Under Secretary of State for External Affairs
6 . R .P. Bourne, Assistant Deputy Solicitor Genera l
7 . M .R . Dare, Director General of the Security Service
8 . T .D . Finn, Assistant Secretary to the Cabine t
9 . A .E . Gotlieb, Under Secretary of State for External Affair s
10 . M .W . Mackenzie, Chairman, Royal Commission on Security (1969)
11 . M . Massé, Secretary to the Cabine t
12 . D . Maxwell, Q .C ., Former Deputy Minister of Justice
13 . C .R . Nixon, Deputy Minister of National Defenc e
14 . K . O'Neill, Chief, Communications Security Establishment, Department
of National Defenc e
15 . P .M . Pitfield, Q .C ., Secretary to the Cabinet
16 . R .G . Robertson, Former Secretary to the Cabine t
17 . Commodore J . Rodocanachi, Director General of Intelligence and Security, Department of National Defenc e
18 . R .H . Simmonds, Commissioner of the R .C .M .P .
19 . J . Starnes, Former Director General of the Security Servic e
20 . R . Tassé, Q .C ., Deputy Minister of Justice and Former Deputy Solicitor
Genera l
21 . R . Watson, Q .C ., Department of Justice, R .C .M .P . Counse l
1239
��APPENDIX "X"
In the Federal Court of Canad a
Trial Division
OTTAWA, Friday, the 4th day of August, 1978
PRESENT : THE HONOURABLE MR . JUSTICE CATTANAC H
IN THE MATTER of the Inquiries Act, R .S .C . 1970 c . I-13
- and IN THE MATTER of a Commission under the Great Seal of Canada issued
pursuant to Order in Council P.C . 1977-1911 to MR . JUSTICE DAVID C .
McDONALD, MR . DONALD S . RICKERD and MR . GUY GILBERT to
be Commissioners under Part I of the Inquiries Act to inquire into certain
activities of the Royal Canadian Mounted Police ;
- and IN THE MATTER of an Application for a Writ of Prohibition under section
18(a) of the Federal Court Act, R .S .C . 1970 c . 10 ( 2nd Supp.) :
BETWEEN :
PAUL D . COPELAND on his own behalf and on behalf of all members
of the Law Union of Ontario,
Applicant ,
- and MR . JUSTICE DAVID C . McDONALD, DONALD S . RICKERD
and GUY GILBERT, members of the Commission of Inquiry into
certain activities of the Royal Canadian Mounted Police,
Respondents .
JUDGMENT
THIS application having come on for hearing before this Court at Toront o
on the 26th and 29th days of June, 1978, in the presence of counsel for the
respondents as well as for the applicant, and the Court after hearing what was
alleged by counsel having reserved its decision ,
IT IS THIS DAY ORDERED AND ADJUDGED that the said application be and it is dismissed with costs .
1241
�J .F .C .C .
In The Federal Court of Canada
Trial Divisio n
IN THE MATTER of the Inquiries Act, R .S .C . 1970 c . I-13 .
- and IN THE MATTER of a Commission under the Great Seal of Canada issued
pursuant to Order In Council P.C . 1977-1911 to MR . JUSTICE DAVID C .
McDONALD, MR . DONALD S . RICKERD and MR . GUY GILBERT to
be Commissioners under Part I of the Inquiries Act to inquire into certain
activities of the Royal Canadian Mounted Police ;
- and IN THE MATTER of an Application for a Writ of Prohibition under section
18(a) of the Federal Court Act, R .S .C . 1970 c . 10 ( 2nd Supp .) :
BETWEEN :
PAUL D . COPELAND on his own behalf and on behalf of all members
of the Law Union of Ontario,
Applicant ,
- and MR . JUSTICE DAVID C . McDONALD, DONALD S . RICKERD
and GUY GILBERT, members of the Commission of Inquiry into
certain activities of the Royal Canadian Mounted Police,
Respondents .
REASONS FOR JUDGMEN T
CATTANACH, J.
As indicated in the style of cause this is an application by way of an
originating notice of motion pursuant to section 18(a) of the Federal Court Act
for a writ of prohibition prohibiting the respondents, as members of a Commission of Inquiry for the purpose of inquiring int o
certain activities of the Royal Canadian Mounted Police, from continuing
their inquiry on the ground of the bias, in the legal sense, of each
commissioner .
Immediately antecedent to the hearing of this motion the applicant moved
for leave to call the respondents and two newspaper reporters to testify orally in
open court in relation to issues of fact raised by the present application
pursuant to Rule 319(4) .
I declined to grant the leave requested because, in my opinion, no special
reason was established for so doing .
By virtue of Rule 319, the rule is that the allegations of fact on which a
motion is based shall be proved by affidavit . That a witness may be called to
testify in open court in relation to an issue of fact raised in the application, i s
1242
�the exception . The exception is granted only by leave when special reason is
shown .
The adverse party to a motion may file an affidavit in reply and that
affidavit too is to be directed to the facts . That is all an adverse party is
required to do and he need not file an affidavit in reply unless he considers it
expedient to do which the respondents in this matter did not .
As I appreciated the purpose of calling the three respondents to testify
orally as well as the two newspaper reporters, it was to exact an admission or
denial from the commissioners of the allegations of fact in the supporting
affidavit to the principal motion, from which an inference of bias might be
made, and the source of the information of the newspaper reporters for their
published stories .
I failed to see the necessity for so doing . I expressed the view that there
were adequate allegations of fact in the supporting affidavit to the principal
motion from which bias, in its legal sense, may be inferred, but in go stating I
did not make a finding of bias and I made it clear that I did not intend to so
imply .
An application by way of motion is in no way akin to the trial of a .cause of
action which is based on antecedent pleadings .
I did not fault the applicant in adopting the procedure which he did and as
he is entitled to do but I could not refrain from expressing the view that if the
applicant wished to examine the respondents ( and he could not cross-examine
them on their affidavits because the respondents did not consider it necessary
to file such affidavits and were under no obligation to do so) then if the
applicant had adopted the alternative course open to him of filing a statement
of claim an examination for discovery of the respondents would have been
available to him .
While I verbally rejected the application I have considered it expedient to
reduce to writing at this stage the reasons I gave orally for doing so .
There is a further matter also preliminary in its nature which may be
considered also at this stage .
The applicant brings this motion on his own behalf and on behalf of all
members of the Law Union of Ontario .
Thus it is a class motion . For a matter to be appropriate for the institution
of a class or representative action ( and for the purposes of this particular
subject matter only I shall consider a class motion as synonymous with a class
cause of action) the persons in the class must have the same interest . There
must be a common interest and a common grievance and the relief sought in its
nature must be beneficial to all .
In Naken et al . v . General Motors of Canada Ltd. (17 O .R . (2d) 193)
Griffiths J . speaking for the Divisional Court said at page 195 :
"The first important principle to be extracted from these cases is that a
plaintiff is only permitted to sue in a representative capacity on behalf of a
class when the cause of action being asserted is common to all members of
the class, not similar, but identical . "
In the affidavit of Paul D . Copeland in support of the motion it is alleged
that the members of the Law Union of Ontario is an unincorporated association of one hundred and eighty progressive and socialist lawyers, law student s
1243
�and legal workers . Thus the Law Union of Ontario is but a collection of
individuals .
In paragraph 10 of Mr . Copeland's affidavit he alleges that he verily
believes that he has been the victim of criminal and other illegal activity by
members of the Royal Canadian Mounted Police on the grounds that his
clients have been the victims of such activities, that confidential telephone
communications with a potential witness had been illegally intercepted, that his
office has been the subject of surveillance, that he was regarded as a threat to
the security of the Canadian Penitentiary Service and because his legal partner
was the victim of illegal acts by the R .C .M .P . and that because of that
association he was also a victim .
These allegations are personal to Mr . Copeloand . They are not common to
him and the members of the Law Union of Ontario nor are there such
allegations with respect to all or any members of the Law Union of Ontario .
Therefore this motion is not properly brought by Mr . Copeland in a
representative capacity on behalf of all members of the Law Union of Ontario
and I have entertained the motion as being brought on his own behalf
exclusively .
With respect to the members of the Law Union of Ontario the motion is
therefore dismissed .
Counsel for Mr . Copeland, because of the allegations in his affidavit aboyé
mentioned, contended that he was a victim of R .C .M .P . illegal activity which
may well be the subject of investigation by the Commission and in fact Mr .
Copeland has so requested and there has been a tentative indication given that
these particular matters will be investigated if deemed appropriate and at the
appropriate time .
Accordingly it is contended that Mr . Copeland is entitled to have his
allegations of illegal activities by the R .C .M .P. with respect to himself investigated by a completely unbiased panel .
It was then contended Mr . Copeland could reasonably apprehend that the
Commission might not act in an entirely impartial manner and that is a ground
for disqualification .
The supporting affidavit to the motion has many allegations and has
annexed thereto numerous exhibits running through the alphabet and starting
through the alphabet a second time, the gist of which may be summarized .
The allegations are that Mr . Justice McDonald, prior to his appointment,
had been an active, energetic and political partisan in the Province of Alberta
for the political party which now forms the Government of Canada and which
was responsible for the appointment of all three commissioners . Similar
allegations are made of political partisanship by Mr . Rickerd and Mr . Gilbert .
It is further alleged that Mr . Justice McDonald, after his appointment
accompanied the present Prime Minister in a private DOT aircraft on an
official visit to the Orient in the capacity of a news correspondent . It is also
alleged that Mr . Rickerd and Mr . Gilbert had close personal and business
relationships with members of the Cabinet particularly the then Solicitor
General responsible for the R .C .M .P. It is alleged that the Commission has
expressed the view that certain alleged illegal activities by the R .C .M .P . may
have been justified by the interests of national security . It is a function of th e
1244
�Commission to determine the extent to which the members of the Government,
the Cabinet and the Liberal party were aware of, authorized or were in any
way complicit in illegal activities of the R .C.M .P .
These allegations were the subject matter of many newspaper reports,
given wide distribution and prominence in the newspapers because the stories
were newsworthy . The press clippings are among the exhibits to the affidavits .
Still further summarized the gist of the allegations is that, these circumstances lead to the suspicion, to be reasonably entertained that the Commission
will serve as a whitewash of the R .C .M .P . and members of the Government
and that Mr . Copeland, as a victim of these activities, cannot expect a fair
shake from a Commission so appointed and so comprised .
The most recent test of bias to be applied and a discussion thereof is in the
reasons for judgment' delivered by Laskin C .J .C . for the majority of the
Supreme Court of Canada in Committee for Justice and Liberty et al . v .
National Energy Board ( [1976] 68 D .L .R . (3d) 716) where he said at pages
732-3 :
(The past activity of the Chairman of the Board), in my opinion, cannot but
give rise to a reasonable apprehension, (of bias) which reasonably wellinformed persons could properly have, of a biased appraisal and judgment
of the issues to be determined on a s . 44 application .
This Court in fixing on the test of reasonable apprehension of bias, as in
Ghirardosi v . Minister of Highways (B .C:) (1966 ) , [1966] S .C .R . 367 and
again in Blanchette v. C.I .S . Ltd. [1973] S .C .R . 833 (where Pigeon J . said'
that "a reasonable apprehension that the Judge might not act in an entirely
impartial manner is ground for disqualification"), was merely restating
what Rand J ., said in Szilard v . Szasz, [1955] S .C .R . 3 at pp . 6-7, in
speaking of the "probability or reasoned -suspicion of biased appraisal and .
judgment, unintended though it may be" . This test .is grounded in a firm
concern that there be no lack of public confidence in the impartiality of
adjudicative agencies, and I think that emphasis is lent to this concern in
the present case by the fact that the National Energy Board is enjoined to
have regard for the public interest .
The majority held that Mr . Crowe, the Chairman of the National Energy
Board, because of his previous association with a party before the Board, was
the object of a reasonable apprehension of bias . Similar circumstances applied
in Szilard v . Szasz .
In the plethora of decidèd cases expressions such as "reasonable apprehension of bias", "reasonable suspicion of bias" and "real likelihood of bias" have
been used interchangeably without distinction .
In his dissenting judgment in the National Energy Board case, de Grandpré J . with whom Martland And Judson J .J . concurred, applied the same test as
did Laskin C .J .C . but arrived at a different result .
de Grandpré J . said at pp .
.
735-6 :
.. the apprehension of bias must be a reasonable one, held by reasonable
and right-minded persons, applying themselves to the question and obtaining thereon the required information .
1245
�He could :
. . . see no real difference between the expressions found in the decided
cases, be they "reasonable apprehension of bias", "reasonable suspicion of
bias", or "real likelihood of bias" . The grounds for this apprehension must,
however, be substantial and I entirely agree with the Federal Court of
Appeal which refused to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience" .
I can perceive no difference in principle to the approaches between the
judgment of Laskin C .J .C . and de Grandpré J . but it is significant that de
Grandpré J . does refer to "real likelihood of bias" whereas the majority
excluded that formula .
It may be that a "real likelihood of bias" imposes a higher standard on an
applicant for prerogative relief than does a "reasonable apprehension of bias"
but in view of the majority's silence as to the test of a "real likelihood" such
expressions of the test as to whether "a reasonable man would consider there
was a likelihood of bias", which has been frequently propounded, may not be
an accurate statement of the law .
Accordingly the question immediately arises as to what issues are to be
determined by the Commission .
For there to be an issue to be determined there must be a lis inter partes,
that is to say a dispute between parties to be decided by the Commission .
Lord Simmonds in Labour Relations Board of Saskatchewan v . John
East Iron Works Ltd. ([1948] 4 D .L.R . 673) said at page 680 :
It is a truism that the conception of the judicial function is inseparably--bound up with the idea of a suit between parties, . . .
Thus if there is a lis inter partes the function is judicial in the case of
courts of law and equally so in the case of a tribunal where issues between
parties are decided where the function is more properly described as
quasi-judicial .
Conversely if there is no issue or lis to be determined then the function of
the tribunal is described as administrative and the principles of natural justice,
particularly the common law concept of bias, do not apply with the same full
force and effect to such a tribunal as they apply to a quasi-judicial tribunal
which is required to determine a quasi-lis .
Incidentally in Committee for Justice and Liberty v. National Energy
Board (supra) therè was such a quasi-lis . There the Board had before it the
question for decision whether to issue a certificate in respect to the proposed
Mackenzie Valley pipeline to an applicant therefor to which other interested
parties upon whom the Board had conferred status were opposed .
In Guay v . Lafleur ([1965] 47 D .L .R . (2d)226) Cartwright J . (as he then
was) said that the maxim, audi alteram partem (one of the cardinal principles
of natural justice) does not apply to an administrative officer whose function is
simply to collect information and make a report and who has no power to
impose a liability or to give a decision affecting the rights of parties .
In ré Pergamon Press Ltd. ([1970] 3 W .L .R . 792) the English Court of
Appeal held that inspectors appointed to investigate the affairs of a company
under Companies legislation were masters of their own procedure but were
required to act fairly and, therefore, were required to give anyone whom the y
1246
�proposed to condemn or criticize in their report a fair opportunity to answer
what was alleged against him .
In the Federal Companies Act as I once knew it, that right was the subject
of precise statutory enactment .
But Lord Denning M .R . in his characteristically precise and incisive
language said :
They are not even quasi-judicial, for they decide nothing, they determine
nothing .
Accordingly a tribunal is to be categorized as either quasi-judicial or
administrative by the function it performs and its powers . The category into
which a tribunal falls is of paramount importance in determining what
common law principles of natural justice are applicable and consideration must
also be given to the legislation to which the tribunal owes its existence .
The present Commission of Inquiry, of which the respondents are members, owes its existence to the Inquiries Act, as stated in the style . Under Order
in Council, P .C . 1977-1911 a Commission issued appointing the respôndents to
be commissioners under Part I of the Inquiries Act .
Their functions are therein outlined to be :
(a) to conduct such investigations as in the opinion of the Commissioners
are necessary to determine the extent and prevalence of investigative
practices or other activities involving members of the R .C .M .P . that
are not authorized or provided for by law and, in this regard, to inquire
into the relevant policies and procedures that govern the activities of
the R .C .M .P . in the discharge of its responsibility to protect the
security of Canada ;
(b) to report the facts relating to any investigative action or other activity
involving persons who were members of the R .C .M .P . that was not
authorized or provided for by law as may be established before the
Commission, and to advise as to any further action that the Commissioners may deem necessary and desirable in the public interest ; and
(c) to advise and make such report as the Commissioners deem necessary
and desirable in the interest of Canada, regarding the policies and
procedures governing the activities of the R .C .M .P . in the discharge of
its responsibility to protect the security of Canada, the means to
implement such policies and procedures, as well as the adequacy of the
laws of Canada as they apply to'such policies and procedures, having
regard to the needs of the security of Canada .
I have omitted the introductory portion and the procedure provisions .
Paragraph (a) requires the Commission to "investigate" and to "deter=
mine" the extent and prevalence "of certain investigative practices" of and to
"inquire into" certain policies of the R .C .M .P .
By paragraph (b) the Commission is required to "report the facts", and to
"advise as to any further action that the commissioners deem necessary and
desirable in the public interest" .
By paragraph (c) the Commission is required "to advise and make such
report as the commissioners deem necessary and desirable" .
In the procedural portion of the Order in Council which I have not
reproduced, the commissioners are "directed to report to the Governor in
Council" .
1247
�The key words in the functions of the Commission are to "investigate",
"inquire", "report the facts" and "to advise" with respect thereto .
Thus at its very highest the Commission is but a fact-finding, reporting
and advisory body .
Paraphrasing and applying the words of Lord Denning, M .R . to the
commissioners herein, they are not even quasi-judicial, for they decide nothing,
they determine nothing .
The Commission reports to the Governor in Council and it is for him to
decide what shall be done . He may implement the advice given in the report in
whole or in part or he may consign the report to oblivion . The Action to be
taken thereon is exclusively his decision .
In contrasting the position of a judge in court and that of a fact-finding
and advisory body which can only be classed as administrative, notwithstanding that both hold hearings, the gulf is so wide between them that the common
law standards of bias are not applicable to the latter .
In my view bias in the Commission, even if it should be found to exist and
I make no such finding, is irrelevant .
In so stating I have not overlooked the comment In re Pergamon Press
(supra) that the inspectors appointed under Companies legislation to give to
anyone whom they propose to condemn or criticize, "a fair opportunity to
answer what was alleged against him" .
In Maxwell v . Department of Trade and Commerce (Times Newspaper
L .R . June 25, 1974) the Court of Appeal dealt with the same inquiry as that
dealt with in the Pergamon Press case and refused to apply any requirement
other than the inspectors must be "fair to the best of their ability" .
If a person is aggrieved by a decision that should have been made on a
quasi-judicial basis then that person, in my view, may resort to proceedings in
the nature of certiorari or may invoke a review of that decision under section
78 of the Federal Court Act .
But if a person is aggrieved by a decision that is required to be made on
the basis of it being fair to the best ability of those who decide, then the
remedy is political not judicial .
That being so it applies with much greater force to a tribunal which makes
no decision .
Counsel for Mr . Copeland relied strongly on the judgment of the Supreme
Court in Saulnier v . Quebec Police Commission and Montreal Urban Community ([1976) 1 S .C .R . 572) in support of his position that, even though the
respondent commissioners would not have any decision to make, their recommendations would or might form the basis for action to be taken by the
Governor in Council which might prejudicially affect Mr . Copeland's interests .
In that case, Pigeon J . speaking for the Court, distinguished the case of Guay
v . Lafleur in the following passage at page 578 :
With respect, I must say that the function of the Commission is
definitely not that of the investigator concerned in Guay v . Lafleur. That
investigator was charged only with collecting information and evidence . The
Minister of National Revenue could then unquestionably make use of the
documentary evidence collected, but not of the investigator's conclusions . It
is for this reason that it was held the investigator could refuse to allow th e
1248
�taxpayer concerned to be present or be represented by counsel at the kind of
investigation provided for by the Income Tax Act . The situation is quite
different under the Police Act, s .24 of which reads as follows :
24 . The Commission shall not, in its reports, censure the conduct of a
person or recommend that punitive action be taken against him unless it has
heard him on the facts giving rise to such censure or recommendation . Such
obligation shall cease, however, if such person has been invited to appear
before the Commission within a reasonable delay and has refused or
neglected to do so . Such invitation shall be served,in the same manner as a
summons under the Code of Civil Procedure .
This provision indicates that in this essential particular the Police Act
differs fundamentally from the Income Tax Act . If this Court held that the
latter Act did not require application of the audi allenam partem rule, this
was because it had first concluded that the kind of investigation provided
for by the Act involved no conclusion or finding as to the rights of the
taxpayer concerned . The Police Act, on the other hand, besides expressly
recognizing the application of the audi alteram partem rule, clearly indicates that the investigation report may have important effects on the rights
of the persons dealt with in it . It does not appear necessary for me tolabour
this point, as I cannot see how it can be argued that the decision is not one
which impairs the rights of appellant, when it requires that he be degraded
from his position as Director of the City of Montreal Police Department,
and the sole purpose of subsequent proceedings is to determine the lower
rank to which he should be assigned, that is the extent of the degradation .
In my opinion Casey J .A ., dissenting, properly wrote, with the concurrence of Rinfret J .A . :
I believe that the Lafleur case is clearly distinguishable from the one
now being discussed . In Lafleur the Supreme Court was concerned with the
Income Tax Act - here we have a Quebec statute . In that case it had to
decide whether the doctrine audi alteram partem applied : here it is written
right into the Act by sec . 24 . Finally there it was said that " . . .the
appellant has no power to determine any of the former's (Respondent's)
rights or obligations" . In my opinion Appellant (i .e . the Commission) has
done just that .
Appellant has rendered a decision that may well impair if not destroy
Respondent's reputation and future . When I read the first and fourth
considerants and the conclusions of the sixth recommendation and when I
recall that the whole purpose of these reports is to present facts and
recommendations on which normally the Minister will act the argument
that no rights have been determined and that nothing has been decided is
pure sophistry .
In the Saulnier case the inquiry was into the conduct of Saulnier as a
police officer under the applicable statutory provision . The report, from which
there was no appeal, was held to have impaired his rights while in the LaJTeur
case the rights of the person investigated under the Income Tax Act remnained
intact, since he had access to the courts by way of appeal from any assessment
that might arise from information collected by the investigator .
Here the situation is that it is not even the conduct of Mr . Copeland, but
that of the R .C .M .P ., that is to be investigated, and while there is no appeal
neither is there any report to be made on Mr . Copeland's conduct . No
1249
�prejudice to any personal right or interest of his is foreseeable as a result of the
inquiry or of any action that may be taken by the Governor in Council on the
report of the Commission when eventually submitted . At most Mr . Copeland
may, and perhaps will be a witness at some stage of the inquiry, in which event
he will undoubtedly be entitled to the same rights and protections as any
witness.
In the event that any adverse report is to be made against him as a
witness, he will also be entitled to the protection afforded by section 13 of the
Inquiries Act, that is to say the right to be told what is alleged against him as
misconduct on his part and the right to a full opportunity to be heard in person
or by counsel on his behalf. But this will be the full extent of his rights in
respect of the making of such an adverse report . Though prescribed here by the
statute, these rights are, in my opinion, precisely the same as those upheld by
the Court of Appeal in the absence of a like statutory provision in the
Pergamon Press case .
The application therefore fails and it will be dismissed with costs .
A . Alex . Cattanach
J .F .C .C .
Ottawa, Ontario
August 4, 1978
1250
�APPENDIX "Y"
In the Federal Court of Canad a
DATES OF HEARING : June 26 & June 29 ,
197 8
PLACES OF HEARING : Toronto, Ontario
COUNSEL :
Court No . T-2550-78
Michael Mandel, Esq .
J . House, Esq . for the Applican t
BETWEEN
J .J . Robinette, Q .C . for the Responden t
PAUL D . COPELAND et al . ,
SOLICITORS OF RECORD :
Applicant ,
- and -
MR . JUSTICE DAVID C .
McDONALD et al . ,
Michael Mandel, Esq .
Barrister and Solicito r
Room 327, Osgood Hall Law School
York Universit y
4700 Keele Stree t
Downsview, Ontario for the Applican t
Respondents .
Messrs . McCarthy & McCarthy
Barristers and Solicitor s
Toronto, Ontario for the Respondent
REASONS FOR JUDGMEN T
Federal Court of Canada
Trial Division
TORONTO, MONDAY THE 2nd DAY OF JUNE, 1980
PRESENT : THE HONOURABLE MR . JUSTICE GIBSON
N THE MATTER of the Inquiries Act, R .S .C . 1970 c . I-1 3
1251
�IN THE MATTER of a Commission under the Great Seal of Canada issued
pursuant to Order in Council P .C . 1977-1911 to MR . JUSTICE DAVID C .
McDONALD, MR . DONALD S . RICKERD and MR . GUY GILBERT to
be commissioners under Part I of the Inquiries Act to inquire into certain
activities of the Royal Canadian Mounted Police ;
- and IN THE MATTER of an Application for a Writ of Certiorari with mandamus
in aid under section 18(a) of the Federal Court Act, R .S .C . 1970 c . 10 (2nd
Suppl) :
BETWEEN :
ROSS DOWSON AND JOHN RIDDELL, on their own behalf and on
behalf of all former members of the League for Socialist Actio n
Applicants
- and The Commission of Inquiry into certain activities of the Royal Canadian Mounted Police
Respondent
Upon motion dated the 20th day of May, 1980 on behalf of the Applicantsfor a Writ of Ceretiorari with Mandamus in aid quashing the decision of the
Respondent, dated the 9th day of April, 1980, refusing the Applicants the right
to examine witnesses before the Commission of Inquiry into certain activities of
the Royal Canadian Mounted Police, and requiring the Commission to reconsider and to grant the Applicants such right .
ORDER :
Order-in-Council P .C . 1977/ 1911 authorised the Commissioners referre d
to in such Order to investigate certain conduct of the R .C .M .P . only and not
the Applicants .
Such Commissioners are "a fact finding, reporting and advisory body"
(C .F . Copeland case (1978) 2 F .C . 815 Cattanach, J . )
The submission that the Commissioners have breached Section 12 of The
Inquiries Act or acted unfairly within the meaning of the cases is without
merit . Not only is the applicants' conduct not under investigation but also no
charge has been made against the applicants within such statutory provision or
within the meaning of the cases where the concept of fairness is discussed and
relevant .
For these and other reasons this application accordingly is dismissed with
costs .
For these and other reasons this applicatiôn accordingly is dismissed with
costs .
"H .F . Gibson "
1252
�APPENDIX "Z"
REASONS FOR DECISION OF THE COMMISSION
DELIVERED ON FEBRUARY 23, 197 9
(Note by the Commissioners :
On February 23, 1979, the Commissioners delivered to cotinsel for the
principal interested parties reasons for decision as to certain documents which
had been made exhibits at hearings in camera . These reasons led to the release
of a number of documents where a considerable amount of testimony that had
been received in camera was released to the public on March 28, 1979 . It is not
proposed here to publish reasons that were given in regard to certain specific
documents . However, the following portions are of more general interest and
the Commissioners believe that they should be declassified and published . )
1 . KNOWLEDGE BY CABINET MINISTERS AND SENIOR OFFICIALS OF TRANSGRESSIONS OF THE LAW BY R .C .M .P .
Introductory Comment s
The Commission has approached consideration of those of the following
documents which might be described as 'Government documents' in the light of
the statement made by the Commission on October 13, 1978 . As it then said :
The Commission will balance all the factors which rest for or against any
document being made public .
It will be recalled, too, that the Commission itemised some considerations that
would be appropriately taken into account when considering whether it would
decide that a particular document or particular evidence of a meeting or of the
contents of a document would or would not be released in public .
At the risk of repétition, it will be recalled that the Commission itemised
these factors :
(a) The role of a Commission of Inquiry in investigating allegations of
misconduct, and the importance of a public hearing in that the public
will derive from it complete confidence that everything possible has .
beén done for the purpose of arriving at the truth .
(b) The importance of encouraging candid exchanges of opinion about
policy among persons at .high levels of government, by not disclosing
records of expressions of opinion . Statements of fact are to be distinguished from expressions of opinion .
(c) The desirability of disclosing government misconduct or wrongdoing .
In addition to the authorities referred to by the Commission in its reasons
delivered October 13, 1978, reference may be made now to the decision of th e
1253
�High Court of Australia delivered November 9, 1978 in Sankey v . Whitlam
(1978) 21 A .L .R . 505 . In that case, as Gibbs A .C .J . said at p . 26 :
If the defendants did engage in criminal conduct, and the documents are
excluded, a rule of evidence designed to serve the public interest will instead
have become a shield to protect wrongdoing by ministers in the execution of
their office .
Stephen J . said, at p . 34 :
. . . the need to safeguard the proper functioning of the executive arm of
government and of the public service (seems) curiously inappropriate when
to uphold the claim is to prevent successful prosecution of the charges :
inappropriate because what is charged is itself the grossly improper functioning of that very arm of government and of the public service which
assists it . . . if (the charges) are now to be met with a claim to Crown
privilege, invoked for the protection of the proper functioning of the
executive government, some high degree of public interest in non-disclosure
should be shown before this privilege should be accorded .
(d) The status of the possessor or originator of the information .
(e) The interest of persons who have already been witnesses before the
Commission, in knowing of documents containing evidence of the
conduct of senior officials of the R .C .M .P. and of persons in high levels
of government, which may have a bearing on whether the conduct of
those witnesses was authorized expressly or by implication, or at least
tolerated or condoned .
The Commission also pointed out that the foregoing was not intended to
be an exhaustive list of pertinent considerations .
Thus, for example, the evidence given in public by Mr . Higgitt included
statements reflecting on the conduct of senior officials and Cabinet Ministers,
and an indication that certain specified documents supported adverse inferences against such persons . A pertinent consideration in respect to some of the
documents under consideration is that those persons would have no way to
meet that evidence in public without their counsel being able to refer to the
actual content of such documents in public . Not to allow them to do so would
expose the Commission to the risk of being an instrument of injustice and
unfairness, a consideration far more important in the generally accepted scale
of values than such possibility as there may be that disclosure in these instances
would adversely affect the efficiency of the governmental process .
Of considerable importance is the evidence of Mr . Starnes generally as to
the extent to which senior officials and cabinet ministers knew that members or
agents of the R .C .M .P . had committed offences . It is true that all of Mr .
Starnes' evidence in this regard has been given in camera . Not to disclose
publicly the documents to which Mr . Starnes refers in his in camera evidence
would have the result that in effect none of his testimony on this vital issue
could be made public - whether his testimony upon being examined by
counsel for the Commission or that upon being cross-examined . In other words,
his testimony on this issue would remain behind closed doors . Yet it is obvious
to all that, as Director General of the Security Service, he had access in writing
And in person to senior officials and to Cabinet Ministers . To keep hi s
1254
�testimony, and the documentary passages which form such an important part
of his testimony, from the public eye would, not engender "confidence that
everything possible has been done for the purpose of arriving at the truth" .
Another pertinent consideration is that the documents to be considered are
now at least eight years old . In Sankey v . Whitlam, at p . 69, Mason J . said :
I would also agree with (Lord Reid) that the efficiency of government
would be seriously compromised if Cabinet decisions and papers were
disclosed whilst they or the topics to which they relate are still current or
controversial . But I base this view, not so much'on the probability of
ill-informed criticism with its inconvenient consequences, as upon the
inherent difficulty of decision-making if the decision-making processes of
Cabinet and the materials on which they are based are at risk of premature
publication . . . I should have thought that, if the proceedings or the topics to
which those proceedings relate, are no longer current, the risk of injury to
the efficient working of government is slight and that the requirements of
the administration of justice should prevail . ..(The documents) are Cabinet
papers, Executive Council papers or high level -documents relating to
important policy issues ( . . but . .) they are not recent documents ; they are
.
.
three and a half to five years old . They relate to issues that are no longer
current, for the most part policy proposals of Mr . Whitlam's Government
which were then current and controversial but have long since ceased to be
so, except for the interest which arises out of the continuation of these
proceedings .
The third of the considerations in the list given in the Commission's
reasons of October 13, 1978, did not include, but could have included, the
observation that it is desirable and in the public interest not only to produce in
public such documents as disclose government malfeasance, but also, when
government malfeasance is alleged or suspected, to produce such documents as
exonerate those suspected from any such suspicions . In the courts, what is
commonly described as Crown privilege does not apply in criminal cases, as
Viscount Simon said in Duncan v . Cammell Laird [1942] A .C . 624 . We have
already observed that it does not apply to protect an accused, nor ought it to
apply so as to prevent an accused from raising a defence . As Kellock J . said in
the Supreme Court of Canada in Reg. v . Snider [1954] 4 D .L .R . 483 at p .
490-1 :
. . there is . . . a public interest which says that `an innocent man is not to
.
be condemned when his innocence can be proved' : per Lord Esher M .R . in
Marks v. Beyfus (1890) 25 Q :B .D . 494 at p . 498 .
Thus evidence of sources of police information "must be forthcoming when
required to establish innocence at a criminal trial" : per Lord Simon of
Glaisdale in D . v . National Society for the Prevention of Cruelty to Children
[1977] 2 W .L .R . 201 at p . 221 . It is true that the proceedings before this
Commission are not criminal proceedings and this is not a court of law .
Nevertheless, questions have arisen before this Commission as to whether
members of the R .C .M .P . have committed criminal acts, and the Commission
may conceivably in its report make a`charge' of misconduct against them .
Those members have a legitimate interest in being able to make representations to the Commission, if the facts permit them to do so, that their conduc t
1255
�was in accordance with policy accepted, condoned, or even encouraged by
senior officials of government and cabinet ministers . Yet they are in no position
to do so unless the evidence in this regard is made public . (This is the fifth of
the considerations listed in the Commission's reasons of October 13, 1978) .
Moreover, the conduct of such senior officials and Cabinet Ministers may be
the subject of a`charge', and they cannot effectively make representations to
the Commission unless the documents disclosing policy vis à vis the R .C .M .P .
in relation to these matters are made public.
2 . SPARG
It was alleged by Mr . Eldon Woolliams, M .P ., on September 7, 1971 that
"secretly and without notice to the public and without the consent of this
Parliament, the government has organized a civilian security force, so-called,
operating solely . . under and accountable only to the Solicitor General" .
.
(House of Commons, Debates, September 7, 1971, p . 7546 . )
It was alleged by Mr . Robert McCleave, M .P., on September 9, 1971 that
"some in the Mounted Police, I think, feel (the security planning and research
group) constitutes an infringement upon themselves" and that "the group has
no statutory basis and no accountability" . He also asked whether the group
would be "a Canadian version of the Central Intelligence Agency" . (House of
Commons, Debates, September 9, 1971, pp . 7698-9 . )
On September 21, 1971, the Solicitor General, the Hon . Jean-Pierre
Goyer, made a statement on the establishment of the Security Planning and
Research Group . (House of Commons, Debates, September 21, 1971, pp .
8026-27 . )
Immediately thereafter Mr . Woolliams expressed "suspicion" about the
statement, and questioned whether the Minister's "word" was "sufficient to
satisfy Parliament in this regard" . (House of Commons, Debates, September
21, 1971, p . 8027 . )
These are just some examples of doubts and suspicions that were cast upon
the original role and function of the group .
The implication was that an agency had been established that would
parallel or even replace, the Security Service .
The net impression which it was possible to draw from the suspicions was
that in some irregular and sinister fashion, however ill-defined such might be,
the Security Service was being supplanted and the R .C .M .P .'s legitimate role
was being suppressed .
If such had been the case, it might accurately have been characterized as
an improper circumscription of the duty imposed by the R .C .M .P . Act upon all
members of the force who are peace officers "to perform all duties that are
assigned to peace officers in relation to the preservation of the peace, the
prevention of crime, and of offences against the laws of Canada" and "to
perform such other duties and functions as are prescribed by the Governor in
Council or the Commissioner" .
The evidence of Mr . John Starnes, if accepted, makes it clear that, far
from his opposing the establishment of SPARG, he supported the development .
Thus this is a case in which it is desirable, not only that the report of th e
Commission clarify the origins and functions of the body, but that any loss of
confidence in the Security Service that may have come about in consequence o f
1256
�these suspicions and allegations should be allayed (if the evidence so justifies)
by the investigation being'conducted so'faras possible in the open .
There may be portions of the evidence in relation to SPARG, the
publication of which would not advance the interests of clarifying the origins
and functions of SPARG and would at the same time adversely affect national
security or in some other way damage the public interest .
It will therefore be necessary to strike the balance line by line, or
document by document, of the evidence . If counsel are not able to agree, the
Commission will render the necessary decisions - as to specific areas of
disagreement . .
1257
�
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TABLE OF CONTENTS
Page
Part 1 GENERAL INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. . .
Part 11 GOVERNMENT KNOWLEDGE OF R .C .M .P . ACTIVITIES
. .
NOT AUTHORIZED OR PROVIDED FOR BY LAW . . . . . . . . .. . .1 3
Part 1I1 KNOWLEDGE OF SENIOR MEMBERS OF THE R .C .M .P.,
SENIOR GOVERNMENT OFFICIALS AND MINISTERS
OF CERTAIN R .C .M .P . INVESTIGATIVE PRACTICES
THAT WERE NOT AUTHORIZED OR PROVIDED FOR
. .. .
BY LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. 9 . . . . .
... .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 89. . . . . .
Chapter I
. . ...
Surreptitious entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 93. . . . . .
Chapter 2
.....
Electronic surveillance . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . ... 109 . . . .
Chapter 3
.. . .. . . . .
Mail check operations . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 127
Chapter 4 Access to and use of confidential information held by the federa l
. ...
government - Criminal investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 149
Chapter 5 Access to and use of confidential information held by the federal
.. . .
government - Security Service . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . ... . 15. 9 .
..
Cha p ter 6 Counterin g . . . . . . . . . . . . .. .. .. . . . . .. .. .. . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 . . . . . . . . . . . .
Chapter 7
. . ...
Physical su rv eillance . . . . . . . . . . . . . . . . . . . . . . . . .: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .17 3 . . . .
Part IV SPECIFIC CASES NOT REQUIRING RECOMMENDA. .. .
TION FOR FURTHER ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.9. .
. .....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . .. .. . . . .. .. .. . . . .. . . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 179
Chapter I
.. .
Mr. Higgitt's memorandum re Surveillance on campuses . . . . . . . . . . .. .181
Chapter 2
. ..
R .C .M .P . dealings with the Royal Commission on Security . . . . . . . . . 183
Chapter 3
.
Certain aspects of the crisis of October 1970 and its aftermath . . . .. 189
Chapter 4
Background to certain Security Se rv ice activities in Quebec following the October crisis, and an analysis of three attempts to
. .. . . . .
recruit human sources :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .207 .
. .. ...
Chapter 5 The failure to report Operation Ham to Ministers . . . . . . . . . . . . . . . . . . 231 . .
Chapter 6
.. . . . . .
The Keeler mail incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. ... 235. . . .
Chapter 7
Presence of Security Service source at .a meeting with the Hon. ...
ourable Warren Allmand and taping of conversation . . . . . . . . . . . . . . . . 24 3
xiii
�Chapter 8 Northstar Inn incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .259. .
.. . . . .
Chapter 9 Destruction of an article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .269 . . . .
.....
Chapter 10 A report on certain matters, principally complaints from member s
of the public . . . . . . . . . . . . . .. .. .. . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. . . .. .. .. 271 . .
.. . . . . .
Chapter I I
The treatment of defectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 33. 9. . . .
... .
Part V SPECIFIC CASES REFERRED FOR POSSIBLE DISCIPLINARY ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 34 .7
. . . .. .. .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . .. .. .. .. .. .. .. .. .. .. .. . . . . . . . . . . . . . . . . . .. . . .. .. .. .. .. .. .. . . .. .. .. .. .. .... .347 . .
. ... .
Chapter I Memorandum of an officer of the RCMP concerning the Incom e
Tax Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. .. .. . . .. .. .. .. .. .. .. . . . . . . . . . . . . . . . .. . . . 349 . . . . . . . . . .
. ... ..
Chapter 2 Application to provincial attorneys general for licences under
section 311 of the Criminal Code . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 35 .1 . . . . . . . . . . .
....
Chapter 3
Destruction of Checkmate files . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .361
.. . . .
Chapter 4
Reporting Operation Bricole and certain other activities "not
authorized or provided for by law" to Ministers and senior
officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 9. . . . . . .
. ... ..
Chapter 5 An allegation that an attempt was made to prevent facts from
being disclosed to the Solicitor General and to persuade a
member to be untruthful . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. .. .. .. . . .. .. .. .. .. .. .. .. . 41. 7 . .
... .
Part VI SPECIFIC CASES REFERRED FOR POSSIBLE PROSECUTION AND DISCIPLINARY ACTION . . . . . . . . . . . . . . . . . . . . . . . . ... .449 . . .
....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. .. .. . . . .. . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 449
... ..
Chapter I
Human sources - Security Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 . . . . .
. .... .
Chapter 2 Specific surreptitious entry cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .45 .5 . .
. ....
Chapter 3 Specific cases of access to and use of confidential informatio n
held by the federal government . . . . . . . . . . . . . . .. .. .. .. . . .. .. .. . . . . . . . . . . . . . . ... .463. . . . . .
....
Chapter 4 Specific mail check cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .467"'_.
.. .. . . . . . .
Chapter 5 Attempts to recruit human sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .471. . . . . . . . . . . . .
...
Chapter 6 The Minerve Communiqué . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 473 . . . . . . . . . . .
. .....
Chapter 7 Burning of a barn . . . . . . . . . . . . . . . :. .. .. .. .. .. .. .. .. . . . . . . . . .. . . .. .. .. .. .. .. .. . . . . . . . . . .. 475. . . .
. .. ...
Chapter 8 Removal of dynamite . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .477. . . . . . .
. ...
Chapter 9 Operation Bricole . . . . . . . . . . . . . .. .. . .. .. . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479. . . . . . . . . . . .
. ... ..
Chapter 10 Operation Ham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. .. .. . . . . . . . . . . . . . . . . . . . .* . .481 . . . . . . . . .
. ..
Chapter 11 Matters concerning an undercover operative, Warren Hart . . . . . . . . . 483
. ..
Chapter 12 Checkmate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 501 . 1
. . . .. . . . .
xiv
�Part VII EXECUTIVE POWERS IN REGARD TO PROSECUTIONS . . 50 3
Part V111 RECOMMENDATIONS CONCERNING PUBLICATION
.. ...
OF THIS REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .517 . . .
Appendix A :
Statement by The Commission's Chief Counsel regarding The
Commission and its relationships with the Provincial Attorneys
. .. .. . . .
General . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 52 3 .
xv
�Commission of Inquiry
Concerning Certain Activities of the
Royal Canadian Mounted Polic e
Third Report"
Certairi- C. .,l1ll .P: . Activities
.
and thé " Question of
Govern m ent a l Knowledge
��CERTAIN R .C.M .P . ACTIVITIES
AND THE QUESTION O F
GOVERNMENTAL KNOWLEDGE
��COMMISSION OF INQUIRY
CONCERNING CERTAIN ACTIVITIES OF TH E
ROYAL CANADIAN MOUNTED POLIC E
Third Repor t
CERTAIN R .C .M .P . ACTIVITIES
AND THE QUESTION O F
GOVERNMENTAL KNOWLEDG E
August, 1981
�©Minister of Supply and Services Canada 198 1
Available in Canada through
Authorized Bookstore Agent s
and other bookstores
or by mail from
Canadian Government Publishing Centre
Supply and Services Canada
Ottawa, Canada, K 1 A OS 9
Catalogue No . CP32-37/1981-3E
Canada : $7.00
ISBN 0-660-10953-0 Other Countries : $8 .40
Price subject to change without notice
�May 15, 198 1
TO HIS EXCELLENC Y
THE GOVERNOR IN COUNCI L
MAY IT PLEASE YOUR EXCELLENC Y
We, the Commissioners appointed by Order in Council P .C . 1977-1911
dated 6th July, 1977, to inquire .into and report upon certain activities of the
Royal Canadian Mounted Police ,
BEG TO SUBMIT TO YOUR EXCELLENCY
THIS THIRD REPORT ENTITLED :
"CERTAIN R .C .M .P . ACTIVITIES AND THE
QUESTION OF GOVERNMENTAL KNOWLEDGE "
Mr . Justice D .C. McDonald (Chairman )
D .S . Rickerd, Q .C .
-s w
i
,~~~
Guy Gilbert, Q .C .
��le 15 mai 198 1
A SON EXCELLENC E
LE GOUVERNEUR EN CONSEI L
QU'IL PLAISE À VOTRE EXCELLENC E
Nous, les Commissaires nommés en vertu du décret du conseil C .P . 19771911 du 6 juillet 1977 potir faire enquête sur certaines activités de la
Gendarmerie royale du Canada et faire rapport ,
AVONS L'HONNEUR DE PRÉSENTER À VOTRE
EXCELLENCE CE TROISIÈME RAPPORT INTITULÉ :
«CERTAINES ACTIVITÉS DE LA GRC ET LA
CONNAISSANCE QU'EN AVAIT LE GOUVERNEMENT »
M . le juge D .C . McDonald, présiden t
D .S . Rickerd, c .r .
-sJ. ., /
.
( .
Guy Gilbert, c .r .
'K
��NOTE BY COMMISSIONER S
We are not publishing a Foreword to this Report . We invite the reader to
read the Foreword to our Second Report in which we express gratitude to the
many people who have helped us to perform our duties .
Our published reports are as follows :
FIRST REPORT : "Security and Information "
- submitted to the Governor in Council October 9,
1979 in one official language .
- formally submitted to the Governor in Council in
both official languages November 26, 1979 .
- released by Prime Minister Clark to the press January 11, 198 0
- later in 1980 published by the Department of Supply
and Services .
SECOND REPORT : "Freedom and Security Under the Law "
- submitted to the Governor in Council January 23,
1981, in one official language, and subsequently
translated into the other .
- printed, after deletion of some passages on various
grounds, by the Department of Supply and Services,
August, 1981, for public release at an early date
thereafter .
THIRD REPORT : "Certain R .C .M .P . Activities and the Question of
Governmental Knowledge" .
- submitted to the Governor in Council May 15, 1981,
in one official language, and subsequently translated
into the other .
- printed, after deletion of some passages on various
grounds, by the Department of Supply and Services,
August, 1981, for public release at an early date
thereafter . (It is expected that some further sections
of the Third Report will be published at a later date :
see the Commissioners' Note to Part VI, and comments in Part VIII) .
ix
�In addition, on August 28, 1980, we submitted a "Special Report" to the
Governor in . Council . In it we reported information that had been supplied to
us by Mr . Warren Hart concerning an alleged murder to which he had referred
publicly in a television interview broadcast in January,
Montreal .
1979, on CFCF-TV,
We considered that the information should be communicated to the
Governor in Council so that the Government could in turn communicate it to
the Attorney General of Ontario for investigation . We add that we have been
advised that the information was communicated to the Attorney General of
Ontario and that the police force having jurisdiction on criminal matters in
Ontario conducted an investigation .
We do not intend to publish our Special Report, for in it we did not assert
the truth or the contrary of the information given to us by Mr . Hart, and we
consider that it would be unfair to an individual, who was named, to publish
what as far as we were concerned was an uninvestigated allegation .
August 5, 1981
x
�NOTE
All references to "Ex . -" are to exhibits filed at our hearings . Those exhibits
filed in camera are indicated by the letter "C" in the exhibit number .
Similarly, all references to "Vol . -, p . -" are to the indicated volume and
page of public testimony before the Commission, or of testimony originally
given in camera but later made public in the volume indicated . However, if the
Volume number has a "C" before it, that indicates that the testimony was
given in camera and has not been made public .
A complete set of the transcripts of the public hearings of the Commission may
be found at the following libraries :
Faculty of Law Metropolitan Toronto Library
University of Victoria 789 Yonge Stree t
Victoria, British Columbia Toronto, Ontario
Vancouver Public Library Law Librar y
750 Burrard Street University of Windsor
Vancouver, B .C . Windsor, Ontario
Library Bibliothèque du Barreau
Faculty of Law Palais de justice
University of Alberta 12, rue St-Louis
Edmonton, Alberta Québec, Québe c
Library Bibliothèque de la Ville de Montréal
University of Saskatchewan Montréal, Québe c
Saskatoon, Saskatchewa n
Davoe Library Dalhousie University Library
University of Manitoba Halifax, Nova Scotia
Winnipeg, Manitob a
National Librar y
395 Wellington Street
Ottawa, Ontario
Library of Parliament
Ottawa, Ontario
xi
��TABLE OF CONTENTS
Page
Part 1 GENERAL INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. . .
Part 11 GOVERNMENT KNOWLEDGE OF R .C .M .P . ACTIVITIES
. .
NOT AUTHORIZED OR PROVIDED FOR BY LAW . . . . . . . . .. . .1 3
Part 1I1 KNOWLEDGE OF SENIOR MEMBERS OF THE R .C .M .P.,
SENIOR GOVERNMENT OFFICIALS AND MINISTERS
OF CERTAIN R .C .M .P . INVESTIGATIVE PRACTICES
THAT WERE NOT AUTHORIZED OR PROVIDED FOR
. .. .
BY LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. 9 . . . . .
... .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 89. . . . . .
Chapter I
. . ...
Surreptitious entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 93. . . . . .
Chapter 2
.....
Electronic surveillance . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . ... 109 . . . .
Chapter 3
.. . .. . . . .
Mail check operations . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 127
Chapter 4 Access to and use of confidential information held by the federa l
. ...
government - Criminal investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 149
Chapter 5 Access to and use of confidential information held by the federal
.. . .
government - Security Service . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . ... . 15. 9 .
..
Cha p ter 6 Counterin g . . . . . . . . . . . . .. .. .. . . . . .. .. .. . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 . . . . . . . . . . . .
Chapter 7
. . ...
Physical su rv eillance . . . . . . . . . . . . . . . . . . . . . . . . .: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .17 3 . . . .
Part IV SPECIFIC CASES NOT REQUIRING RECOMMENDA. .. .
TION FOR FURTHER ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.9. .
. .....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . .. .. . . . .. .. .. . . . .. . . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 179
Chapter I
.. .
Mr. Higgitt's memorandum re Surveillance on campuses . . . . . . . . . . .. .181
Chapter 2
. ..
R .C .M .P . dealings with the Royal Commission on Security . . . . . . . . . 183
Chapter 3
.
Certain aspects of the crisis of October 1970 and its aftermath . . . .. 189
Chapter 4
Background to certain Security Se rv ice activities in Quebec following the October crisis, and an analysis of three attempts to
. .. . . . .
recruit human sources :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .207 .
. .. ...
Chapter 5 The failure to report Operation Ham to Ministers . . . . . . . . . . . . . . . . . . 231 . .
Chapter 6
.. . . . . .
The Keeler mail incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. .. ... 235. . . .
Chapter 7
Presence of Security Service source at .a meeting with the Hon. ...
ourable Warren Allmand and taping of conversation . . . . . . . . . . . . . . . . 24 3
xiii
�Chapter 8 Northstar Inn incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .259. .
.. . . . .
Chapter 9 Destruction of an article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .269 . . . .
.....
Chapter 10 A report on certain matters, principally complaints from member s
of the public . . . . . . . . . . . . . .. .. .. . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. .. .. .. .. . . .. .. .. 271 . .
.. . . . . .
Chapter I I
The treatment of defectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 33. 9. . . .
... .
Part V SPECIFIC CASES REFERRED FOR POSSIBLE DISCIPLINARY ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 34 .7
. . . .. .. .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . .. .. .. .. .. .. .. .. .. .. .. . . . . . . . . . . . . . . . . . .. . . .. .. .. .. .. .. .. . . .. .. .. .. .. .... .347 . .
. ... .
Chapter I Memorandum of an officer of the RCMP concerning the Incom e
Tax Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. .. .. . . .. .. .. .. .. .. .. . . . . . . . . . . . . . . . .. . . . 349 . . . . . . . . . .
. ... ..
Chapter 2 Application to provincial attorneys general for licences under
section 311 of the Criminal Code . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 35 .1 . . . . . . . . . . .
....
Chapter 3
Destruction of Checkmate files . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .361
.. . . .
Chapter 4
Reporting Operation Bricole and certain other activities "not
authorized or provided for by law" to Ministers and senior
officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 9. . . . . . .
. ... ..
Chapter 5 An allegation that an attempt was made to prevent facts from
being disclosed to the Solicitor General and to persuade a
member to be untruthful . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. .. .. .. . . .. .. .. .. .. .. .. .. . 41. 7 . .
... .
Part VI SPECIFIC CASES REFERRED FOR POSSIBLE PROSECUTION AND DISCIPLINARY ACTION . . . . . . . . . . . . . . . . . . . . . . . . ... .449 . . .
....
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. .. .. . . . .. . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 449
... ..
Chapter I
Human sources - Security Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 . . . . .
. .... .
Chapter 2 Specific surreptitious entry cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .45 .5 . .
. ....
Chapter 3 Specific cases of access to and use of confidential informatio n
held by the federal government . . . . . . . . . . . . . . .. .. .. .. . . .. .. .. . . . . . . . . . . . . . . ... .463. . . . . .
....
Chapter 4 Specific mail check cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .467"'_.
.. .. . . . . . .
Chapter 5 Attempts to recruit human sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .471. . . . . . . . . . . . .
...
Chapter 6 The Minerve Communiqué . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 473 . . . . . . . . . . .
. .....
Chapter 7 Burning of a barn . . . . . . . . . . . . . . . :. .. .. .. .. .. .. .. .. . . . . . . . . .. . . .. .. .. .. .. .. .. . . . . . . . . . .. 475. . . .
. .. ...
Chapter 8 Removal of dynamite . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .477. . . . . . .
. ...
Chapter 9 Operation Bricole . . . . . . . . . . . . . .. .. . .. .. . . .. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479. . . . . . . . . . . .
. ... ..
Chapter 10 Operation Ham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. .. .. . . . . . . . . . . . . . . . . . . . .* . .481 . . . . . . . . .
. ..
Chapter 11 Matters concerning an undercover operative, Warren Hart . . . . . . . . . 483
. ..
Chapter 12 Checkmate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 501 . 1
. . . .. . . . .
xiv
�Part VII EXECUTIVE POWERS IN REGARD TO PROSECUTIONS . . 50 3
Part V111 RECOMMENDATIONS CONCERNING PUBLICATION
.. ...
OF THIS REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .517 . . .
Appendix A :
Statement by The Commission's Chief Counsel regarding The
Commission and its relationships with the Provincial Attorneys
. .. .. . . .
General . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 52 3 .
xv
��PART I
GENERAL INTRODUCTIO N
1 . Our terms of reference, as set forth in our Commission, and the Order-inCouncil ( P .C . 1977-1911) authorizing its creation, are as follows :
(a) to conduct such investigations as in their opinion are necessary to
determine the extent and prevalence of investigative practices or other
activities involving members of the Royal Canadian Mounted Police
that are not authorized or provided for by law . . .
(b) to report the facts relating to any investigative action or other activity
involving persons who were members of the Royal Canadian Mounted
Police that was not authorized or provided for by law as may be
established before the Commission, and to advise as to any further
action that the Commissiôners may deem necessary and desirable in
the public interest .
(c) to advise and make such report as the Commissioners deem necessary
and desirable in the interest of Canada, regarding the policies and
procedures governing the activities of the R .C .M .P . in the discharge of
its responsibility to protect the security of Canada, the means to
implement such policies and procedures, as well as the adequacy of the
laws of Canada as they apply to such policies and procedures, having
regard to the needs of the security of Canada .
2 . Our Second Report, entitled "Freedom and Security under the Law", dealt
essentially with the mandate given to us in paragraph ( c), cited above . We did,
however, also cover certain aspects of the mandate found in paragraphs (a) and
(b), particularly in Part III of our Report where we reported in general terms
on a number of practices that have been employed by the R .C .M .P . and that
.
were or might have been "activities . . not authorized or provided for by law",
and on the "extent and prevalence" of such activities . We sought to avoid, as
far as possible, the reporting of specific acts or activities . We made that effort
for two reasons .
3 . First, the description of specific situations was not necessary to the
reasoning that led to our recommendations in matters of policy and law .
4 . Second, the description of specific situations cannot be accomplished
adequately without naming the individuals who were involved, and naming
individuals may be taken to imply comment on their conduct . Where such
comment would be negative, we could not report unless a notice was first given
to the individual of the charge of misconduct that might be made against him
in the Report, and we gave him an opportunity to make representations in
person or by counsel . Such a procedure is required by section 13 of th e
1
�Inquiries Act . This procedure is lengthy and requires painstaking care . It could
not be completed until very recently. Consequently, it was not possible to
include such matters in our Report on policy and legal questions submitted in
January 1981 .
5. The process of giving notices and hearing representations in response to
them has been completed and we are therefore now in a position to deal, in this
Third Report, with a number of incidents involving conduct of named members
of the R .C .M .P. We shall state whether, in our opinion, the conduct of certain
individuals was "not authorized or provided for by law" .
6 . In addition to dealing with the specific incidents, we shall also cover, in
this Report, several matters which fall within paragraph (c) of our Commission . They were not included in our Second Report, either because the research
has been completed since submission of that Report, or because they have to be
discussed in conjunction with a particular incident in order to be understood .
7 . Although this Report is essentially a catalogue of a number of incidents,
we have attempted to structure it not only so that conclusions can be reached
with respect to each incident but also so that the incidents can be placed within
a broader framework . We therefore examine first, in Part II, the extent to
which senior government officials and Ministers, in the context of Cabinet
committees and interdepartmental committees, were made aware, in general
terms, of the fact that the R .C .M .P . were committing acts "not authorized or
provided for by law" . We then narrow the focus, in Part III, to an examination
of the degree of knowledge by senior government officials and Ministers of
particular practices "not authorized or provided for by law" of the R .C .M.P .
The chapters in Part III correlate with chapters in Part III of our Second
Report where we described those practices in detail .
8. The chapters of Parts IV, V and VI contain descriptions of the many
incidents that we . have inquired into, and the conclusions we have reached,
concerning the participants . We have divided these incidents into three categories, based on the conclusions that we have drawn and the recommendations
which we have made with respect to the participants . In the first category,
which are all found in Part IV, although we may have been critical of
individuals involved, we have made no recommendations for any further
consideration of their conduct, for reasons stated in the introduction to that
Part . Part V contains a number of incidents involving conduct on the part of
members of the R .C .M .P . which, although not in our opinion unlawful in any
other respect, might be contrary to the provisions of the R .C .M .P . Act and thus
make the members subject to internal disciplinary proceedings . The incidents
described in Part VI all give rise to conduct by members which may, in our
opinion, have been illegal .
9. Having reviewed all the incidents, we turn, in Part VII, to a discussion of
the factors which might be considered by the appropriate authorities in
deciding what, if any, action ought to be taken, by way of prosecution or
disciplinary proceedings, against individuals whose conduct is considered to be
in breach of the general statute law or the R .C .M .P . Act .
2
�10. Finally, in Part VIII, we make our recommendations with respect to
publication of this Report . Those recommendations are made with a view to
ensuring the fairest possible treatment for individuals who may be prosecuted
or disciplined for their conduct .
11 . This Report on a number of specific incidents and general practices
involving members of the R .C .M .P ., and like parts of our Second Report, is
based on our formal hearings, interviews with officials within and outside the
R .C .M .P ., and examination of documents . .Our report as to specific incidents is
almost, but not entirely, the product of formal hearings . One exception to that
generalization is the selection of matters that have arisen principally from
complaints made to us by members of the public (Part IV, Chapter 10), as to
which our Report is based mainly on the work of our investigators . Early in
most chapters we list the volumes in which the testimony concerning the
subject-matter can be located, but we do not, in the text, give page references
for each point . The reader who wishes to refer to the transcripts will have little
difficulty in locating the testimony in which he is interested . However, in some
chapters where the testimony concerning the subject matter is located over a
broad range of volumes we have cited page references throughout the text .
12. The scholar, journalist or general reader who in the future reviews the
transcripts of our public and in camera hearings will find passing references to
problems, or sometimes detailed hearings about particular matters, that are not
referred to in any way in our Reports - not even in the classified Reports
delivered to the Governor in Council . This should not occasion surprise . The
absence of a discussion of such a matter in any of our Reports will mean no
more than that we concluded, after inquiring into the matter, that there was no
object in our reporting on it from the point of view of either paragraph (b) or
paragraph (c) of our terms of reference . In other words, we concluded that the
evidence did not establish that there was any "action or other activity involving
persons who were members of the R .C .M .P . that was not authorized or
provided for by law" (para . (b) of our terms of reference) . We felt it was not
"necessary" and "desirable in the interest of Canada" to refer to the matter in
our Reports in order to make a full and informative report "regarding the
policies and procedures governing the activities of the R .C .M .P . in the discharge of its responsibilities to protect the security of Canada" or to give
advice as to the "means to implement such policies and procedures" or "the
adequacy of the laws of Canada as they apply to such policies and procedures"
(para . (c) of our terms of reference) . Another way of putting the point we are
making is that some of our inquiries have led, in the result, to what in our
opinion have been "blind alleys" in terms of whether we need to report on
them .
13 . In this Report we describe the conduct of a number of individuals as
being "not authorized or provided for by law" or as "unacceptable" or
"improper" . An explanation of what we mean by those words is necessary
before we move to a review of the conduct of the individuals .
3
�The meaning of activities not authorized or provided for by la w
14 . In our Second Report we explained how we have interpreted the phrase
"not authorized or provided for by law" . For ease of reference, we reproduce as
follows what we said :
38 . In our opening statement on December 6, 1977 (Appendix D), we
stated that the words "not authorized or provided for by law" directed us to
inquire into and report on acts which were offences under the Criminal
Code or under other federal or provincial statutes, or were wrong in the
eyes of the law of tort in the common law provinces or of the law of delict in
Quebec . We stated also that in interpreting those words we did not intend
to ignore the moral and ethical implications of police investigative
procedures .
39 . Also in our opening statement we pointed out that those words
required us to examine the legislative and constitutional basis for the
existence of the R .C .M .P . generally, and for the existence of the Security
Service of the R .C .M .P . in particular .
40 . In reasons for decision pronounced on May 22, 1980 (Appendix H),
we added that those words also require us to examine whether a particular
act or practice, even if not an offence or civil wrong, was nevertheless
beyond the statutory authority of the R .C .M .P., or was itself not authorized
by normal procedures within the R .C .M .P .
41 . In our opening statement we stated that in our report of a particular
allegation we would give our view as to whether the conduct established by
the evidence constituted an action or activity "not authorized or provided
for by law" . We confirmed that position in the reasons for decision dated
May 22, 1980, but noted that our functions were not those of a court of law
and that we could not render a judgment of acquittal or conviction . We
stated that the duty imposed upon us to "report" facts that disclose an
activity which was "not authorized or provided for by law" could not be
perfôrmed unless we undertook an analysis as to whether the facts, as
disclosed by the evidence before us, constituted an offence or a civil wrong
or in some other way conduct "not authorized or provided for by law" . At
the same time, we recognized that, in situations w here there is evidence as
to the acts of specific individuals in specific cases, a dilemma arises as to
how we can "report" publicly, including a commentary on the legal status
of the acts as it appears on the evidence before us, without causing
unfairness or the appearance of unfairness to any such individual if he is
then tried on a criminal or other charge after all the publicity that the
report may be given . In our separate Report on activities in which there is
such evidence of specific cases we shall face this dilemma . It does not
require further comment here . However, we might say that in a Practice
Directive dated June 20, 1980 (Appendix I), we attempted to reduce the
scope of the dilemma by directing that legal submissions concerning such
cases where there is evidence about individuals ( as compared with cases
where there is merely evidence about general practices) be given to us in
private.
4
�The meaning of "unacceptable" and "improper" as those words are used in
this Report, and their relationship to "activities not authorized or provided
for by law "
15 . In this and the next Parts of this Report, we frequently describe the
conduct of a member or a past member of the R .C .M .P . as being "unacceptable" or "improper" . It is appropriate to explain the sense in which those words
are used .
16. At the outset, we wish to state that, in our opinion, it is axiomatic that
any unlawful conduct is tinacceptable and improper . One statute describing
unlawful conduct to which we specifically draw attention is the R .C .M .P . Act,
and particularly section 25 of that Act which deals with major service offences .
The very broad provisions of section 25(o) make it a major service offence if a
membe r
conducts himself in a scandalous, infamous, disgraceful, profane or immora l
manner.
As the interpretation of those words is ultimately in the hands of the Commissioner of the R .C .M .P ., to whom the final appeal lies, it seems to us to be
unhelpful to pass judgment on whether the conduct which we consider unacceptable or improper falls within any of those categories . However, whenever
we do refer to the conduct of a serving member of the R .C .M .P . as unacceptable, we intend that, and we recommend that, the R .C .M .P. consider whether
proceedings under section 25(o) or any other subsection of that section would
be appropriate . If the person is no longer a serving member of the R .C .M .P ., he
would not appear to be subject to proceedings under section 25 .
17. However, even if a form of conduct is not unlawful under the Criminal
Code or any other federal or provincial statute (including the R .C .M .P . Act) or
any non-statutory rule of law, it may nevertheless be considered to be unacceptable or improper . We therefore must discuss the sense in which we use
those words .
18 . Reference to dictionary definitions, both French and English, confirms a
broad range of meaning attaching to the words "unacceptable" and "improper" . Clearly the precise shade of meaning that the use of the words implies
when they are used in this Report must depend on the context in which they
are used. Thus, the commission of a serious crime is "unacceptable" or
"improper" in a sense that evokes indignation more than a lawful act that is a
violation of Force policy but does not have any consequences external to the
Force . Assuming that the two examples represent extreme ends of the spectrum, there may be many shades of "unacceptability" or "impropriety" in
between and it does not seem to us to be useful to attempt a detailed analysis in
the abstract .
19. What is more important is that by our use of these words we are
indicating that we think that the conduct described, on the part of members of
any police force, particularly one with great pride in its record of upholding the
law, such as the R .C .M .P ., cannot be tolerated and is to be discouraged . The
manner in which the discouragement should be attempted may vary fro m
5
�attempts at positive remedial action to rebuke to specific punishment . Again,
the result should depend upon the context. We shall ordinarily try to explain
the reasons for which we think the conduct is unacceptable or improper, and
our doing so will assist others to understand the sense in which we have used
the words in a particular case .
20 . In applying our judgment as to what the conduct of a good policeman
should be, we have attempted to apply those standards which we believe to
have been recognized in our Canadian society . We realize that in attempting to
interpret and apply objective standards of such an imprecise nature, we must
draw, to a certain extent, on our own assessment of what those standards are .
Not only is there no avoiding that process : we believe that that is what, after
all, is expected of Commissioners of an Inquiry .
21 . Our use of the words "unacceptable" and "improper" is in each case a
rebuke to the person concerned . The degree of criticism will depend on the
reasons that are given or that may be obvious in the circumstances . In arriving
at a conclusion that a member's conduct was "unacceptable" or "improper",
we shall take into account the context of the conduct - the circumstances that
gave rise to it and surrounded it . The presence or absence of a malicious intent,
the presence or absence of a motive of self-interest, the prejudice that may have
been caused to someone or its absence, the effect of the conduct on the
reputation and honour of the police force, the degree of seniority of the person
whose conduct is in question, whether the conduct was an independent act or
one that was part of an "accepted" systematic practice, whether the conduct
represented disobedience or mere lack of judgment - these are among the
circumstances that will be taken into account . No body of jurisprudence exists
to guide us in weighing the conduct of members when we are assessing
"acceptability" or "propriety" apart from the commission of offences . The fact
of rebuke by a Commission of Inquiry may itself serve as a warning to the
members and to other members in the future not to engage in such conduct . As
we have said, whether any further action of a disciplinary nature should be
taken is a matter for the discretion of the R .C .M .P. according to its proper
procedures .
22. We consider this to be an appropriate juncture at which to make
recommendations as to how our findings as to unlawful, unacceptable and
improper conduct should be dealt with . In our opinion the public ought to be
informed as to the disposition of the charges of misconduct made by us against
members . We recommend that the Solicitor General and the Inspector of
Police Practices (a position whose creation we recommended, and whose
functions we defined, in our Second Report, Part X, Chapter 2) should keep
under continuous review (a) the manner in which the provincial and federal
attorneys general deal with the potential illegalities identified by us, and (b)
the way in which the R .C .M .P . deals with members whose conduct is found by
us to be unacceptable or improper . We further recommend that, within two
years of the publication of this Report, and periodically thereafter, the Solicitor
General report publicly on the status of each case of misconduct . Those cases
which emanate from the Security Service, and are of a sensitive national
security nature, should be referred to the Parliamentary Committee on Secu6
�rity and Intelligence, whose creation we also recommended in our Second
Report . Similarly, the Solicitor General should expect to be fully informed
from time to time by the Commissioner of the R .C .M .P. as to disciplinary
proceedings launched in regard to the matters we have reported on and their
result (including the nature of punishment imposed) . The Commissioner should
report also as to decisions taken not to institute disciplinary proceedings .
23 . This is also an appropriate point at which to record a further recommendation . We consider that copies of the public version of both our Second
Report and this Report should be readily accessible to members of the
R .C .M .P . and to members of the security intelligence agency whose creation
we recommended in our Second Report . We recommend that the R .C .M .P .
and the security intelligence agency should submit plans to the Solicitor
General that ensure that, at government expense, copies are made readily
accessible to members of the R .C .M .P ., personnel of the agency, and all
Department of Justice counsel assigned to the R .C .M .P . The goal should be
broad acquaintance with our recommendations throughout the R .C .M .P . We
do not think it sufficient that members of the Force should know of our
recommendations and our reasons only from newspaper accounts or such
information as is officially issued by Headquarters . It is especially important
that a copy be available to all members who are involved in training programmes, whether they are initial training programmes or programmes for
experienced members .
The relationship of deceitful conduct by members of the R .C.M.P . toward the
government, to the notion of "unacceptability "
24 . It may here be pertinent to give an . example of conduct which in our
opinion is "unacceptable" even though the Commissioner of the R .C .M .P . may
not, perhaps, regard it as covered by any of the adjectives found in section
25(o) of the R .C.M .P . Act . We refer to conscious misleading of a Solicitor
General or of a Parliamentary Committee as to some fact, by a member of the
R .C .M .P . Such conduct is unacceptable . In this regard we can see no difference between a Commissioner, or Deputy Commissioner or other officer of the
R .C .M .P . or a Director General of the R .C .M .P . Security Service, and a
Deputy Minister or Assistant Deputy Minister or other public servant in any
other department of government . In both categories, surely, the public servant,
be he policeman or not, is bound to be truthful, candid and forthcoming with
his Minister . Indeed, he is "bound" not only by propriety and ethics but also by
law. For, if he is not truthful, forthright and candid, it seems to us that he fails
to carry out a duty that is implied in his contract of employment - a duty to
be all those things to his Minister, and indeed to any committee of Ministers or
public servants or of Parliament to which he may be called upon to report . A
failure to carry out that duty may quite properly, to use the words found in our
terms of reference, be described as an "activity . . . not authorized by law" .
25 . When we speak of "truth", "candour" and being "forthcoming", we
intend to convey that a Minister is entitled to expect a public servant to meet
those standards not only when a Minister expressly asks a question, but even
when silence will cause a Minister to be misled or to be ignorant of that whic h
7
�his position in responsible government should require him to know . It would
therefore be unacceptable to attempt to prevent the Minister from learning of
illegalities being committed by members of the Force, and it would also be
unacceptable not to volunteer such information, if such be known . An Assistant
Commissioner of the Force told us :
Q. I think that to bring this thing to a level of understanding, at least, and
not necessarily of agreement, do you not see that hiding the truth is a
lie, form of lie ?
A . . No, sir. I see a great difference between lying to a Solicitor General, if
he asks you a question, and not volunteering information .
(Vol . 190, p . 28063 . )
We fail to appreciate the difference . The same officer told us in January 1980 :
I would have thought that after all this time your Commission has been
sitting, it would have become rather obvious that the Security Service kept
certain operational things from the Solicitor General .
(Vol . 190, p . 28058 . )
His candour was startling - even though we had then completed over two
years of our inquiry . For, although it is clear from other remarks made by that
officer that, in discussing the period up to 1977, he was not suggesting that
members of the Security Service had lied to Solicitors General, he clearly
accepted that the management of the Security Service had, by its silence
" . .. kept certain operational things from the Solicitor General" . He said he
was thinking of such things as Operation Cathedral ("the opening of mail was
clearly illegal") (Vol . 190, pp . 28053-4) . The following question and answer
then appear :
Q. . .
.are you stating today openly and unequivocally that the Force had
meant never to let the Solicitor General, whoever he was, know of
practices or operations that were not authorized or provided for by law ?
A . Yes, sir .
26 . Until such a senior officer made those remarks to us, although we had a
suspicion that there might be some such underlying reason, we had been
prepared to accept the explanations offered to us that several incidents
apparently involving lack of candour were either aberrations from the accepted
norms of conduct or, in certain cases, could be subject to a different interpretation . We had assumed that the senior management of the R .C .M .P. would find
it natural to be candid and open with the civilian authority . The issue of
candour to Ministers had already been raised in connection with specific
practices, but there had, until then, been no suggestion - at least none that
had made an impression upon us - that the issue should be scrutinized in a
more general fashion . We referred to the issue in very general terms in our
Second Report, Part III, Chapter 1 . The issue is reflected in more specific
terms in several chapters of this Report : see, for example, all of Part V .
8
�The conduct of senior public servants, Ministers and other persons not
members or ex-members of the R .C.M .P.
27. In this Report we shall also report on the extent to which persons who
were senior public servants or Ministers participated in, or knew of and
tolerated, the acts of members of the R .C .M .P . reported on . In our Second
Report this is what we said concerning our interpretation of our terms of
reference in regard to such persons :
45 . In the reasons of October 13, 1978, we concl"uded that our duty to
report on the facts "relating to any investigative action or other activity"
involving "members of the R .C .M .P . that was not authorized or provided
for by law" might result in our reporting "whether members of the
R .C .M .P . who, in our opinion, have, or might be held in a court to have,
committed a wrongful act, were doing so upon the direction or with the
consent or at least without the disapproval of a Minister of the Crown, for
that might be a fact which any Attorney General might consider relevant to
the process of his deciding whether or not to prosecute the members of the
R .C .M .P ." . We added that our Report would be incomplete as to relevant
facts, and unfair to any members of the R .C .M .P . against whom in our
Report we might make a "charge of misconduct" (to use the language of
section 13 of the Inquiries Act) and who might otherwise feel that facts
tending to exonerate them had not been brought to light, unless we inquired
into and reported on the extent to which such members had express or tacit
authority from Ministers to perform wrongful acts . We now add that the
considerable time we have taken to examine the issues of approval or
knowledge or toleration, express or implied, by government officials of
wrongful acts by members of the R .C .M .P . has led us inevitably into the
receipt of much testimony and the examination of many documents which
relate to the relationship between government officials and the R .C .M .P .
This testimony and these documents have been invaluable to us in giving us
a comprehension of that relationship as a formulation for our recommendations under paragraph (c) . As we, in this Report, summarize this evidence
as a preliminary to making recommendations as to the future relationship
between the government and the R .C .M .P . or between the government and
the security intelligence agency, it will be difficult to avoid using language
which may appear to some readers as an expression of opinion about the
quality of the conduct of a Minister or his competence . Because of this, we
think that it is important that we say something about our interpretation of
our terms of reference as they may relate to the review of political
judgment or the quality of decisions made by Ministers of the Crown .
46 . We have had no hesitation in considering ourselves entitled to inquire
into, and report on, any implication on the part of such persons in specific
acts "not authorized or provided for by law" in which members of the
R .C .M.P. are involved, or any implication on the part of such persons in
wrongdoing generally by members of the R .C .M .P . This would include
complicity or knowledgeable acceptance before the event, and also knowledge after the event . Moreover, we have inquired into, and will report on,
the extent to which such persons knew of the existence of any policies or
practices of the R .C .M .P., the implementation of which would result in acts
not authorized or provided for by law .
9
�47 . When the facts pass from the domain of issues of complicity in, or
encouragement or tolerance or knowledge of, wrongdoing, to that of the
quality of the conduct of a Minister or public servant in a general sense, we
consider that we should be very cautious . While, in so far as the R .C .M .P .'s
duties in connection with the protection of the security of Canada are
concerned, paragraph (c) permits us to inquire broadly into laws, policies
and procedures that affect the exercise of .those duties, we draw a distinction between (i) inquiring into past and present laws, policies and procedures and reporting upon them as matters of fact, and (ii) passing judgment
on the correctness of the decisions, or sometimes the lack of decision, that
have led to the existence or absence of a law or a policy or a procedure . We
have tried to avoid the latter as much as possible, for we do not consider
that we are empowered to. pass judgment on the quality of a Minister's
"management" . Yet we emphasize that our caution does not apply so as to
cause us to refrain from comment if a Minister has been involved in
illegality - whether by active participation before or after the event,
knowledge of illegal activity combined with a failure to stop it or deal with
it in some other way, or wilful blindness .
28 . Our terms of reference empower us to conduct investigations to determine
"the extent and prevalence of investigative practices or other activities involving members of the R .C .M .P ." and "to report the facts relating to any
investigative action or other activity involving persons who were members of
the R .C .M .P. that was not authorized or provided for by law ." No one has
suggested to us that we could not report facts that might involve persons who
are not members of the R .C .M .P . - if doing so were considered by us to be
necessary to give effect to our terms of reference . It was, however, forcefully
submitted to us that our terms of reference did not authorize us to "investigate" the conduct of non-members of the R .C .M .P . or to "report" our opinions
or judgments about their conduct . We think this submission has considerable
merit, subject to what we say in the following paragraph . We think it fair to
add that this submission was first made, not by counsel for any Minister or
public servants, but, very ably, by counsel for a human source .
29 . In the case of senior public servants or Ministers, we propose to report
upon their conduct as it relates to activities involving members of the R .C .M .P.
that were not authorized or provided for by law, in two cases :
Firstly, if we consider that the conduct amounts to :
(i) active participation before or after an event, o r
(ii) knowledge of illegal activity combined with a failure to stop it
or deal with it in some other way, o r
(iii) wilful blindness ;
and secondly, if it is related to, or part of, the relationship between government
officials and the R .C .M .P . and is thus, in our opinion, relevant to the
consideration of the policies and procedures governing the activities of the
R .C.M .P . under paragraph (c) of our terms of reference . We will, quite
naturally, be referring on a number of occasions to the fact that conduct does
not fall within any of the above-noted categories, and hence no criticism of the
person involved is warranted .
10
�30 . In the case of other persons (including human sources) who are not
members or past members of the R .C .M .P ., whose conduct has come before us,
their conduct will be reported on by us if they participated actively in a given
activity with, or upon the encouragement of, members of the R .C .M .P . Since
there may be some doubt as to the ambit of our terms of reference in such
cases as far as passing judgment is concerned, we will report only the facts that
might involve such persons to the extent considered necessary to give effect to
what is clearly within our terms of reference but we will leave it to others to
pass judgment .on such facts as they affect those persons .
11
��PART II
GOVERNMENT KNOWLEDGE OF R .C .M .P.
ACTIVITIES
NOT AUTHORIZED OR PROVIDED FOR BY
LA W
TABLE OF CONTENTS
. .. .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1 5 . . . . . . . . . . . . . . .
Section A : The Inter-relationship of the Law and Order Documents
and the issue of government knowledge of Security Service
activities .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 26. . . . . . . . . . . . . . .
.. .
(a) The evidence of former Commissioner Higgitt . . . . . . . . . . . . . . . . . . . . .. . 26 . . . . . . . . . .
. ...
(b) The evidence of Mr . John Starnes .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 . . . . . . . . . . . . . . .
. .. ..
(c) The first stream of Law and Order Documents .
. . . . . . . . . . . . . . . . . .. . 30 . . . . . . . . . .
. ...
(d) The December 1, 1970 meeting of the Cabinet Committee o n
Priorities and Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . .. . . .. . . . .. 34
(e) The second stream of Law and Order Documents .
. . . . . . . . . . . . . . . .. . 54 . . . . . . . .
. ...
(f) Disposition of the two streams of documents after December 21 ,
1970 .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .61 . . . . . . . . . . . . . . . .
.. .
(g) Overview and conclusions .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6. 3 . . . . . . . . . . . . . . .
. .. .
Section B : R .C .M .P . attitude towards members or sources engaged in
"sensitive or secret operations" . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6. 8 . . . . . . . . . . . . . . .
. .. .
Section C : What, if anything, did Mr . Starnes tell Mr . Mcllraith on
November 24, 1970? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .7 .3. . . . . . . . . . . . . . .
..
Appendix to Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . .. . . .. . . . ... .. ... .. .. . . .. . .8 1.
. .
13
�NOTE BY THE COMMISSIONER S
There have been no deletions to Part II except for two short passages one, from a letter written by the Honourable Jean-Pierre Goyer to the
Honourable Herb Gray (ex . M-23), the other, from a letter written by Mr .
Starnes to the Honourable Jean-Pierre Goyer (Ex . HC-2) . The nature of these
deletions is explained in footnotes found on pages 28 and 29 where we quote
from these letters .
August, 1981
14
�INTRODUCTION
1 . The mandate of this Commission is to conduct an investigation into the
extent and prevalence of the investigative practices or other activities involving
members of the R .C .M .P . that are not authorized or provided for by law, to
inquire into "the relevant policies and procedures that govern the R .C .M .P . in
the discharge of its responsibility to protect the security of Canada" and,
further, to "advise as to any further action that the Commissioners may deem
necessary or desirable in that public interest" . Our investigation of these
"relevant policies and procedures" governing the R .C .M .P . has led us to
examine the knowledge of the Ministers of the Crown and the Cabinet
Committee members responsible for the conduct of the Force in the discharge
of its responsibility .
2 . In carrying out our mandate we have heard and examined detailed
evidence over many months with respect to whether or not responsible Ministers of the Crown (including successive Solicitors General) and senior officials
of government were aware. of particular activities engaged in by the R .C .M .P .
which were not authorized or provided for by law . That evidence is reviewed in
Part III of this Report . The question for consideration in the present part is
whether those Ministers of the Crown and senior officials of government were
made aware of such activities in a general way, that is without being provided
with, or requesting, specific instances .
3 . In this connection we repeat what was said by this Commission in Part I of
its Second Report :
We have had no hesitation in considering ourselves entitled to inquire into,
and report on, any implication on the part of such persons in specifiç acts
`not authorized or provided for by law' in which members of the R .C .M .P .
are involved, or any implication on the part of such persons in wrong-doing
generally by members of the R .C .M .P. This would include complicity or
knowledgeable acceptance, and also knowledge after the event . Moreover,
we have inquired into, and will report on, the extent to which such persons
knew of the existence of any policies or practices of the R .C .M .P ., the
implementation of which would result in acts not authorized or provided for
by law .
4 . Why are we reporting the state of knowledge of senior public officials and
Ministers? First, because whether they had such knowledgë, and, if they did,
what they did or not do in consequence, is relevant to assist the Governor in
Council and other readers in appreciating the "policies and procedures" that
have in the past governed "the activities of the R .C .M .P . in the discharge of its
responsibility to protect the security of Canada" . This in turn will enable the
Governor in Council and other readers to understand the system of controls
which we have proposed in our Second Report .
15
�5 . Second, if such knowledge was imparted to a responsible Minister by the
Director General of the Security Service or the Commissioner of the R .C .M .P .,
and a positive direction to cease such activities was not given by the responsible
Minister, then, depending upon the particular facts, it may be argued, whether
successfully or not, that there was a tacit assent to the continuation of such
activities. Such inference, if it were to be drawn properly from the facts, is
therefore related to "the relevant policies and procedures that govern the
R .C .M .P . in the discharge of its responsibility to protect the security of
Canada" . It may also be relevant to the position in law of members of the
R .C .M .P . who have committed offences . For, while in Part IV of our Second
Report we disagree with the contention, it might be contended in a court of law
that knowledge at the level of Ministers or senior government officials that the
R .C .M .P . had been engaged in illegal activities in a general sense is relevant to
the guilt or innocence at law of the individual members of the R .C .M .P.
involved in such activities . If they are found guilty of illegal acts, it might be
contended that such knowledge is a consideration properly to be taken into
account by the court in imposing sentence .
6 . We dealt with this issue in our Reasons for Decision of October 13, 1978,
(Second Report, Appendix "F") when we said :
Among the facts which the Commission will wish to report in some cases
will be whether members of the R .C .M .P . who, in the opinion of the
Commission have, or might be held in a Court to have, committed a
wrongful act, were doing so upon the direction or with the consent or at
least without the disapproval of a Minister of the Crown, for that might be
a fact which any Attorney General might consider relevant to the process of
his deciding whether or not to prosecute the members of the R .C .M .P . . . .
Finally, to interpret the terms of reference in such a way as to permit the
Commission to report on wrongful acts by members of the R .C .M .P .
without also reporting on the extent to which they had from Ministers
express or tacit authority to perform those acts would not only compel the
Commission to deliver an incomplete report on the relevant facts but would
also be unfair to the members of the R .C .M .P . who while `charged' by the
Commission (to use the words found in Sections 12 and 13 of the Inquiries
Act) would have reason to feel that facts tending to exonerate them perhaps
from guilt and perhaps from punishment had not been inquired into, or had
not been reported upon, and would never come to the attention of the
appropriate Attorney General .
7. Again in Part IV of our Second Report we said :
In conclusion, while the blame to be attached to `foot soldiers' for breaking
the law cannot be absolved by the failure of management to provide clear
and proper instructions, the consequences which flow from such law
breaking may be affected by that failure . It is a factor that, depending on
all the circumstances may properly be taken into account in the exercise of
prosecutorial discretion, the determination of the appropriate sentence, or
the decision whether to grant a pardon .
8 . The issue of whether Ministers of the Crown were aware of illegal
R .C .M .P. activities has been explored by taking the testimony of Prim e
16
�Minister Trudeau, some former Solicitors General, their Deputies, certain
other public servants, the present and some past Commissioners of the
R .C .M .P . and the present Director General of the Security Service and his
predecessor, covering the period from 1968 onward . We have also examined
documents in R .C .M .P. files, which occasionally have included internal
R .C .M .P. memoranda summarizing what was said at meetings of Cabinet
Committees and of committees of public servants which had been attended by
R .C .M .P. officers .
9 . When, in the fall of 1978, our counsel first examined some of the persons
referred to, it became apparent that our inquiry into this issue - which by this
time had been raised by allegations by former Commissioner Higgitt and Mr .
Starnes, the former Director General, that the record would show that Ministers had been informed - could not be regarded as thorough unless we had
access to the Minutes of meetings of Cabinet and of Cabinet Committees . In
our reasons for decision dated October 13, 1978 ( Second Report, Appendix
"F") we recognized the importance that has been attached by the courts to the
confidentiality of Cabinet minutes and other high level minutes and correspondence, but we also listed some potentially countervailing considerations .
Later, in reasons for decision delivered in camera on February 23, 1979, part
of which was reproduced in our Second Report, Appendix "Z", we pointed out
that one of those considerations was as follows :
(e) The interest of persons who have already been witnesses before the
Commission, in knowing of documents containing evidence of the
conduct of senior officials of the R .C .M .P. and of persons in high levels
of government, which may have a bearing on whether the conduct of
those witnesses was authorized expressly or by implication, or at least
tolerated or condoned .
We added :
Another pertinent consideration is that the documents to be considered
.
are now at least eight years old . In Sankey v . Whitlam, . . Mason J . said :
I also agree with [Lord Reid] that the efficiency of government would be
seriously compromised if Cabinet decisions and papers were disclosed whilst
they or the topics to which they relate are still current or controversial . But
I base this view, not so much on the probability of ill-informed criticism
with its inconvenient consequences, as upon the inherent difficulty of
decision-making if the decision-making processes of cabinet and the materials on which they are based are at risk of premature publication . . . I
should have thought that, if the proceedings, or the topics to which those
proceedings relate, are no longer current, the risk of injury to the efficient
working of government is slight and that the requirements of the administration of justice should prevail . .[The documents] are Cabinet papers,
.
Executive Council papers or high level documents relating to important
policy issues E . . . but . ..] they are not recent documents ; they are three and a
half to five years old . They relate to issues which are no longer current, for
the most part policy proposals of Mr . Whitlam's Government which were
then current and controversial but have long since ceased to be so, excep t
17
�for the interest which arises out of the continuation of these proceedings .'
[our emphasis ]
We also stated :
.
.. it is desirable and in the public interest not only to produce in public
such documents as disclose government malfeasance, but also, when government malfeasance is alleged or suspected, to produce such documents as
exonerate those suspected from any such suspicions. In the courts, what is
commonly described as Crown privilege does not apply in criminal cases, as
Viscount Simon said in Duncan v . Cammell Laird .' We have already
observed that it does not apply to protect an accused, nor ought it to apply
so as to prevent an accused from raising a defence . As Kellock J . said in the
Supreme Court of Canada in Reg. v . Snider : '
. . . there is . . . a public interest which says that `an innocent man is not to
be condemned when his innocence can be proved' : per Lord Esher M .R . in
Marks v . Beyfus.^
Thus evidence of sources of police information "must be forthcoming
when required to establish innocence at a criminal trial" : per Lord Simon of
Glaisdale in D. v . National Society for the Prevention of Cruelty to
Children .s It is true that the proceedings before this Commission are not
criminal proceedings and this is not a court of law . Nevertheless, questions
have arisen before this Commission as to whether members of the R .C .M .P .
have. committed criminal acts, and the Commission may conceivably in its
report make a`charge' of misconduct against them . Those members have a
legitimate interest in being able to make representations to the Commission,
if the facts permit them to do so, that their conduct was in accordance with
policy accepted, condoned, or even encouraged by senior officials of government and cabinet ministers . Yet they are in no position to do so unless the
evidence in this regard is made public . (This is the fifth of the consideratiôns listed in the Commission's reasons of October 13, 1978 .) Moreover,
thé conduct of such senior officials and Cabinet Ministers may be the
subject of a`charge', and they cannot effectively make representations to
the Commission unless the documents disclosing policy vis-à-vis the
R .C .M .P. in relation to these matters are made public .
10 . Those observations were delivered in regard to the rendering public of
certain passages from high level documents that had already been referred to
by former Commissioner Higgitt and Mr . Starnes at in camera hearings . The
same reasoning applies to the question whether, if we, as Commissioners,
obtained access to them, we should be able to produce them, even in camera, in
the presence of such persons as counsel for Messrs . Higgitt and Starnes .
(1978-79) 142 C.L .R . I at pp . 97-100 . There are slight clerical differences between
the decision in the unofficial form in which it was available to us in February 1979,
and the decision as now reported in the Commonwealth Law Reports . We have
revised our quotation here so as to comply with the reported decision .
2[(942] A .C . 624 (House of Lords) .
'[1945] 4 D.L .R . 483 at pp . 490-1 .
°(1890) 25 Q .B .D . 494 at p . 498 .
5[1977] 2 Weekly L .R . 201 at p . 221 .
18
�11 . Because our counsel had asked the government to produce some such
documents, Order-in-Council P.C . 1979-887 (reproduced in our Second
Report, Appendix "J") was adopted on March 22, 1979 . It read, in part :
WHEREAS the said Commissioners have requested access to and
copies of Cabinet and Cabinet Committee minutes which are relevant to the
matters within the Commission's terms of reference as set out in the said
Order in Council ;
WHEREAS it is a matter of convention and practice in Canada that
access to records of Cabinet meetings and of Cabinet Committee meetings
has been restricted to the Prime Minister and the Ministers who were
members of the Cabinet at the time the meetings took place, the Secretary
to the Cabinet, and such persons on the Secretary's staff as the Secretary
authorizes to see them, on a confidential basis, where necessary for the
proper discharge of their duties ;
WHEREAS this convention and practice is, in the opinion of the
Committee, essential for the proper functioning of the Cabinet system of
government ;
WHEREAS the Prime Minister, on behalf of his Ministry, has recommended to the Committee that, having regard to the particular nature of
the inquiry being conducted by the Commission, an exception be made to
the convention and practice in order to enable the Commissioners to
ascertain whether any such documents relating to the terms of reference of
the Commission contain evidence establishing the commission of any act
involving members of the RCMP or persons who were members of the
RCMP that was not authorized or provided for by law, or evidence
implicating a Minister in such act ; and
WHEREAS the Secretary to the Cabinet, as the custodian of the
records of all Cabinet and Cabinet Committee meetings of previous ministries, has recommended the adoption of such an exception in respect of such
records .
THEREFORE, the Committee of the Privy Council, on the recommendation of the Prime Minister, and with the concurrence of the Secretary to the Cabinet, advise that :
(1) subject to paragraph (5)* the Commissioners shall be granted access to
read the minutes of any Cabinet or Cabinet Committee meeting held
prior to the establishment of the Commission which relate to the terms
of reference of the Commission as set out in Order in Council P .C .
1977-1911 and which on reasonable and probable grounds they believe
provide evidence establishing the commission of any act involving
members of the RCMP or persons who were members of the RCMP
that was not authorized or provided for by law, or evidence implicating
a Minister in such act ;
(2) where the Commissioners are of the view that any minute or portion of
a minute to which they have been granted access as provided for in
paragraph (1) above contains evidence establishing the commission of
any act involving members of the RCMP or persons who were mem-
* This paragraph is not quoted because it relates to access to Minutes of
the administration of the Rt . Hon . John G . Diefenbaker .
19
�bers of the RCMP that was not authorized or provided for by law, they
may request the Secretary to the Cabinet to deliver a copy of any such
minute, or portion thereof, to the Commission, and the copy of any
such minute or portion thereof so requested shall be delivered to the
Commissioners;
(3) if the Commission after a hearing on the issue, wishes to make public
the contents of any such Minute or portion thereof referred to in
paragraph (2), or to refer publicly to the existence of such Minute or
portion thereof, it shall first request the Secretary to the Cabinet to
secure from the appropriate authority declassification of such Minute
or portion thereof ;
(4) the Secretary to the Cabinet shall provide the Commissioners access to
such indexes or other information as may reasonably be necessary to
enable them to determine the minutes of the Cabinet or Cabinet
Committee meetings to which they wish to be granted access for the
purposes of paragraph (I) above ;
12. As a result of this Order-in-Council, we, from time to time, read certain
Minutes of meetings of the Cabinet, of Cabinet Committees and meetings of
Ministers of the administration of the Right Honourable Pierre Elliott Trudeau
from 1968 to 1974, certain drafts of such Minutes, and certain handwritten
notes of such meetings . The Clerk of the Privy Council interpreted paragraph
(1) of P .C . 1979-887 in a liberal fashion so that we had access to such
documents upon request .
13 . However, there were limitations on our ability to satisfy ourselves as to
whether we had seen all such minutes and documents which were relevant to
our concerns. Those limitations arose out of the convention of the confidentiality of cabinet documents . That convention was modified to a certain extent
under the terms of the Order-in-Council . Under the Order-in-Council, before
we could examine any minute or document, we had to have some ground for
believing that it was relevant . We could arrive at that conclusion in one of two
ways . Either some external source, such as testimony of an individual or
examination of other documents, would have to ignite our interest, or a review
of the indexes to Cabinet documents would have to give some inkling of
relevant information which might be found in a particular minute or document .
14 . With respect to external sources, we reviewed such documents in the
possession of the R .C .M .P . and asked such questions of witnesses as we
considered necessary to identify possible relevant minutes and documents
relating to meetings of Ministers, whether in Cabinet, Cabinet committee or
otherwise . We know of no other way to tackle this aspect and we consider what
we have done in this regard to have been as thorough as it could be .
15 . We are less sanguine about the process of examination of the indexes to
Cabinet documents and minutes . For this process to work in a wholly satisfactory way, we would have to be sure that the indexes disclosed sufficient
information to enable us to identify any relevant minute or document . We have
no way of satisfying ourselves that they do . Yet, the alternative to the process
followed would have been an examination of all Cabinet documents and
minutes - something which would clearly not have been acceptable to an y
20
�government or the custodians of the documents and minutes . However, we are
bound to note that, without such full and unrestricted access, .our inquiry must
be regarded as being less thorough than if we had had unlimited access .
16. However, we have had access to those minutes that appeared from either
other sources or an examination of the indexes to be of potential importance,
particularly during the period of November and December 1970 . To that
extent we believe our inquiry to have been as thorough as is consistent with the
traditions of Cabinet confidentiality . It has been a long and difficult process,
but the result, we think, enables the history to be narrated accurately in what
follows, so far as is allowed by the sometimes enigmatic quality of written
records and the failure of human memory .
,
17 . As a result of the access provided pursuant to Order-in-Council P .C .
1979-887, dated March 22, 1979, we attended at the Privy Council Office, on
March 30, 1979, to examine the minutes of Cabinet meetings and meetings of
Cabinet Committees that, from the evidence of such witnesses as Mr . Starnes
and Commissioner Higgitt, appeared to us as of potential relevance "to the
issues before us . As a result of reading a section of the minutes of the meeting
of the Cabinet Committee on Priorities and Planning that had been held on
December 1, 1970, we requested delivery to us of a copy of that part of the
minutes . For reasons that included the intervention of two federal elections, in
May 1979 and February 1980, and a question whether we had satisfied the
conditions set forth in P .C . 1979-887 that entitled us to such delivery, it was
not effected until April 30, 1980 . The delivery was not effected under the
provisions of the Order-in-Council . The Clerk of the Privy Council stated, in
his letter delivering the minutes to us, that the Deputy Attorney General and
government counsel had advised him that our letters requesting delivery of the
whole or a portion of the minutes of the meeting did not comply with the
provisions of Order-in-Council P.C . 1979-887 . The Clerk of the Privy',Council
further advised tha t
Notwithstanding this conclusion, the Prime Minister, in the exercise of
his prerogatives, has decided to authorize government counsel to deliver to
you a copy of the entire portion of the minute of the December I, 1970
meeting referred to in your letter of April 10,, 1979, together with related
material . The Prime Minister has made this decision in order to remove any
question whether the Commission had before it the material necessary to
enable it to arrive at a final determination of the matters under consideration by it .
At the same time we were given a copy of some' longhand notes that had been
made at the meeting of December 1, 1970, by the two recording secretaries,
Mr . L .L . Trudel and Mr . M .E . Butler . Hearings based on these documents
were held in camera on the following dates, when the following witnesses were
heard :
June 26, 1980 - Mr . John Starnes ; Mr . Leonard Lawrence Trudel
(Vol . C96 )
July 22, 1980 - Right Honourable Pierre Elliott Tiudeau (Vol . C98).
September 18, 1980- Mr . Robert Gordon Robertson (Vol . C108 )
21
�December 4, 1980
- Mr . Raoul Carrière ; Mr . Leonard William Higgitt ;
Mr . Peter Michael Pitfield (Vol . C117A)
January 28, 1981 - The Honourable John Napier Turner; Mr . Donald
Henry Christie (Vol . C118 )
February 25, 1981 - Mr . Michael E . Butler (Vol . C119)
At these hearings the extract from the Minutes, the extract from the notes by
Mr. Trudel and the extract from the notes by Mr . Butler were marked as a
single exhibit : Ex . VC-1 .
18 . Two of our senior counsel were thoroughly familiar with the evidence that
had been developed, with a great deal of difficulty, in regard to studies and
discussions at high levels of government in 1970 concerning the difficulties
faced by the R .C .M .P . in carrying out its security and intelligence work in the
framework of existing laws . One or other of these two counsel, or our
Secretary, interviewed every additional person who was shown by the minutes
as being present at the meeting of December 1, 1970, Cabinet Ministers and
officials alike, except one who was living in Europe . Every person interviewed,
as was the case with every person who testified, lacked any memory of the
words attributed to Mr. Starnes in Mr . Trudel's notes, or of the discussion
recorded in the notes of the two secretaries and in the Minutes . We therefore
called to testify only those persons who were most likely to have been specially
interested in the subject matter because of the positions they held in 1970, and
who therefore were more likely to have a memory of the matter than the
others .
19. When we were about to prepare our Report on what had occurred at
various discussions in 1970, including that of December 1, the Privy Council
Office delivered to us (on March 27, 1981) a copy of some longhand notes that
had been made at a meeting of the Security Panel on November 27, 1970, by
its recording secretary, Mr . Donald Beavis . We had already inquired, as best
we could, into certain discussions that occurred at that meeting . We were
advised by the Privy Council Office that these longhand notes had been
discovered by the Privy Council Office staff not long before they were delivered
to us . Mr. Beavis, who had testified before us on other matters on February 12,
1980 (Vol . C84, released publicly in edited form as Vol . 313), died in August
1980 . Because the notes contained words which Mr . Beavis attributed to Mr.
Starnes at that meeting that were strikingly similar to the words attributed to
Mr . Starnes in Mr . Trudel's handwritten notes of the December 1 meeting, we
held hearings as soon as possible - on April 2, 1981 - at which the witnesses
were Mr . Starnes and Mr . R . Gordon Robertson (Vol . C129A) . In 1970 Mr.
Robertson was Secretary to the Cabinet and Clerk of the Privy Council, and he
chaired the meeting of the Security Panel held on November 27 . Neither Mr.
Starnes nor Mr. Robertson had any memory of the words which the notes
attributed to Mr . Starnes . As we considered it to be unlikely that other persons,
shown in the minutes as having been present, would have any better memory
than Mr . Starnes and Mr . Robertson of the events of ten years ago, we have
not called any more of the persons present to testify in regard to what Mr .
Starnes said at that meeting . In any event, we are, in our Report, treating the
notes as acceptable evidence that Mr. Starnes did utter the words attributed to
him in Mr . Beavis' notes .
22
�20 . As a final precaution, to ensure as best we could that there were no other
documents or notes which we had not seen or been aware of, our Secretary
wrote, on April 9, 1981, to the Clerk of the Privy Council . That letter read as
follows :
As you are aware, the Commission has inquired into certain subjects
which appeared on the agenda of the following meetings :
1 . November 24, 1970 - Meeting of the Cabinet Committee on Priorities
and Planning
2 . November 27, 1970 - Meeting of the Special Committee of the
Security Pane l
3 . December I, 1970 - Meeting of the Cabinet Committee on Priôrities
and Plannin g
4 . December 21, 1970 - Meeting of the Cabinet Committee on Security
and Intelligenc e
The portion of the November 27, 1970 meeting which is of interest to
the Commissioners is that relating to the discussion of an R .C .M .P . paper
entitled "Police Strategy in Relation to the F .L .Q ." . In that connection the
Commissioners have examined the minutes of the meeting and the handwritten notes taken at the meeting by the recording secretary, Mr. Beavis .
With respect to the December 1, 1970 meeting the relevant portion is
that which dealt with Cab. Doc . 1323-70, which consisted of the "Maxwell
Memorandum" and a two-page document entitled "Various Questions
Raised by Law and Order Paper" . With respect to this meeting the
Commissioners have seen the minutes of the meeting and the handwritten
notes taken at the meeting by the recording secretary, Mr . Trudel, and by
the secretary of the committee, Mr . Butler .
With respect to the December 21, 1970 meeting the relevant portion is
that which dealt with a paper entitled "R .C .M .P. Strategy for Dealing with
the F.L .Q . and Similar Movements" . The Commissioners have seen the
minutes of the meeting dealing with this subject matter . They have also
seen a memorandum dated December 23, 1970 from Mr . Starnes to his
immediate subordinate recording what took place at the December 21st
meeting with regard to that paper .
The purpose of this letter is to enquire from you as to whether, in
addition to the documents the Commissioners have seen, as noted above,
there are, so far as you are aware, any other documents in the possession of
the Privy Council Office or elsewhere which record in any way the
discussions which took place at the four meetings mentioned above with
respect to the topics of concern to this Commission . The Commissioners
would like your advice as to the existence of any and all such documents of
which you are aware .
Without limiting the above request, the Commissioners would like to
examine the handwritten notes of the recording secretary at the meeting of
December 21, 1970 or any other drafts or notes that may be available as
they relate to the discussion of the documents mentioned above .
Also, from an examination of the minutes of the November 27th
meeting of the Security Panel and Mr . Beavis' handwritten notes made at
that meeting, it appears most likely that the minutes were prepared not onl y
23
�from his notes but from someone else's notes . Since Mr . Wall was also at
that meeting, Mr . Robertson, in his testimony before the Commission,
speculated that it was likely that Mr . Wall also had notes of the meeting .
We have written to Mr . Wall asking him if he has any such notes in his
personal possession but, having regard to the practice in the Privy Council
Office, it is more likely that his notes, if they still exist, are in the possession
of the Privy Council Office . The Commissioners would like to have those
notes also made available to them .
I look forward to receiving your advice on the above matters .
The reply from the Clerk of the Privy Council, dated April 22, 1981, is as
follows :
You wrote to me on April 9, 1981, enquiring about documents in the
possession of the Privy Council Office, or elsewhere, which record in any
way the discussions which took place at four meetings of Ministers and
Senior Officials held during November and December, 1970 . You asked on
behalf of the Commissioners for my advice as to the existence of any and all
such documents of which I am aware .
Following receipt of your letter, I instructed the Assistant Secretary,
Security and Intelligence, to provide me with the information you requested . He and his staff, with the assistance of Privy Council Office Central
Registry staff, have now completed a search of files touching upon the
meetings in question, as well as some subject-matter files which it was felt
might possibly have a bearing on the issues .
The search of Privy Council Office material has not established the
existence of any material not previously identified for, and seen by, the
Commissioners, or the Chairman acting on their behalf . In particular, we
have found no handwritten notes of the recording secretary, or other notes
relating to the discussions, which took place at the meeting of the Cabinet
Committee on Security and Intelligence on December 21, 1970 . No handwritten record of the discussion in the Security Panel at its meeting on
November 27, 1970, other than that apparently recorded by Mr . Beavis,
has been located . In this connection, I note that you have already written to
Mr . Wall .
In reviewing the meetings referred to in your letter, I note that the
Commissioners, but in one case the Chairman only, have seen or taken
delivery of the following documents and written material relating to the
agenda items of interest to the Commission :
1 . November 24, 1970 - Meeting of the Cabinet Committee on Priorities
and Planning .
- Minutes of the meeting .
- Draft minutes of the meeting .
- Handwritten notes of the recording secretary .
2 . November 27, 1970 - Meeting of the Special Committee of the
Security Panel .
- Minutes of the meeting .
- Handwritten notes of the recording secretary (apparently Mr . Beavis) .
24
�3 . December l, 1970 - Meeting of the Cabinet Committee on Priorities
and Planning .
- Minutes of the meeting .
- Draft minutes of the meeting .
- Handwritten notes of the recording secretary (Mr . Trudel) .
- Handwritten notes of the secretary (Mr . Butler) .
4 . December 21, 1970 - Meeting of the Cabinet Committee on Security
and Intelligence .
- Minutes of the meeting .
As far as I, and my staff, are aware, this list represents the entirety of
the material in the custody of the Privy Council Office which records the
discussions which took place with respect to the matters referred to in your
letter .
One further issue must be addressed in response to your letter . You
have asked me to advise the Commissioners of the existence of documents
of the kind to which you have referred, and of which I am aware, not only
in the Privy Council Office, but elsewhere . You may wish to note that the
existence of any record of the discussions at Cabinet and Cabinet Committee meetings taken or held by other than the Cabinet Secretariat would be a
clear breach of the rules under which we have operated for many years . No
one other than Secretariat officials, whose duty it is to record the sense of
the discussion and to prepare the official minutes and decisions of the
meeting, is authorized to make a record of it . Although the rule apparently
has been breached from time to time by officials of other departments and
agencies, I have no possible way of knowing if and when this occurs .
However, you should be aware that, with the exception of documents
discussed in previous correspondence with the Commission and the memorandum by Mr . Starnes, referred to in your letter, none have been drawn to
my attention .
21 . In response to our letter to him, referréd to in the above exchange of
correspondence, Mr . Wall advised us verbally that he had no notes in his
possession and that he had destroyed all his notes while he was still employed
in the Privy Council Office .
The nature of the evidence
22. A variety of witnesses, including Prime Minister Trudeau, several former
or current Ministers of the Crown, Deputy Ministers and senior government
officials as well as some former Commissioners and the current Commissioner
of the R .C .M .P . and the former and the current Directors General of the
Security Service, gave evidence with respect to the knowledge, or lack thereof,
of responsible Ministers of the Crown and senior officials of government as to
the particular activities of the R .C .M .P . which we have examined because they
give rise to legal concerns . Several of them also gave evidence with respect to a
body of documents presented before us and known collectively as the `Law and
Order Documents' .
23 . Certain of these witnesses also gave evidence as to whether Senator
George Mcllraith was made aware, at a time when he was Solicitor General
25
�and therefore responsible for the conduct of the Security Service, that the
Security Service engaged in illegal activities in carrying out its responsibility to
protect the security of Canada . Our summary of the evidence in this regard,
and our conclusions, are found in a section at the end of this chapter .
24. The Law and Order Documents comprise two streams of documentation .
The first stream began with the Record of Decision of the Cabinet Committee
on Priorities and Planning of May 5, 1970 (Ex . M-86, Tab 2) . That Committee
directed that an interdepartmental committee comprised of senior officials of
government prepare a "Law and Order" paper for consideration by the
Cabinet Committee on Priorities and Planning (C .C .P .P .) . The interdepartmental committee, formed as a result of this direction, was known as the
Interdepartmental Committee on Law and Order (I .C .L .O .) and was chaired
by the then Deputy Minister of Justice, Mr . Donald S . Maxwell . The final
product of the Committee was a memorandum to the C .C .P.P . dated November 20, 1970, and expressed to be from the I .C .L.O . (Ex . M-36, Tab 7 ; MC-6,
Tab 3) . That memorandum, known before us as the Maxwell Memorandum,
was ultimately dealt with by the C .C .P .P . at its meetings of November 24,
1970, and December 1, 1970 .
25 . The second stream of documentation comprising the Law and Order
Documents finds its origins in the Cabinet Committee on Security and
Intelligence (C .C .S .I .) . At a meeting of the C .C .S .I . on November 6, 1970, the
Committee requested that the R .C .M .P. prepare a Report setting out the
Force's strategy to deal with the F .L .Q . and other similar movements (Record
of Decision of the C .C .S .I . dated November 6, 1970, Ex . M-86, Tab 7) . The
final Report authorized by the R .C .M .P . pursuant to this request, entitled
"R.C .M .P . Strategy for Dealing with the F .L .Q . and Similar Movements",
(Ex . M-36, Tab 21 ; M-22) and being Cabinet Document S & I 14, came
before the C .C .S .I . at its meeting of December 21, 1970 .
A. THE INTER-RELATIONSHIP OF THE LAW AND
ORDER DOCUMENT S
AND THE ISSUE OF GOVERNMENT KNOWLEDGE
OF SECURITY SERVICE ACTIVITIE S
26 . Given the existence of the Law and Order Documents and the contents of
certain of these documents, the question arises whether Ministers or senior
officials responsible for the conduct of the Security Se rv ice, were advised in
1970 by representatives of the R .C .M .P . that the Security Service, in carrying
out its responsibilities, had, on occasion, engaged in activities which were "not
authorized or provided for by law" .
(a) The evidence of former Commissioner Higgit t
27. Former Commissioner Higgitt testified before us that he "did indeed"
discuss with Ministers the concept that there are times when the Security
Service of the R .C .M .P . needs to break the law, or may need to do so, if it is to
do its job (Vol . 87, p. 14315) . Mr . Higgitt stated that he did not have a precis e
26
�memory with respect to such a discussion or discussions but that he had had
from time to time discussions at which he told Ministers of various things of
this nature (Vol . 87, p . 14316) . He testified that there were at least one or two
documents to support his statement . In later testimony Mr . Higgitt stated that
in these discussions what was being discussed was not the Security Service
transgressing the law but rather "situations where this kind of thing [transgressing the law] was a possibility" (Vol . 87, p . 14358) .
28 . Mr . Higgitt was requested to indicate to us the documents upon which he
relied to support his statement . He marked the following passages of the Law
and Order Documents, which at the time were marked as exhibits before the
Commission for identification only and thus not then . disclosed publicly :
Ex . M-22 : Memorandum for the Cabinet Committee on Security and
Intelligence dated December 17, 1970, from D .F . Wall, Secretary, with attached copy of memorandum prepared by RCMP
entitled "RCMP Strategy for Dealing with the F .L .Q. and
Similar Movements" attached :
At pp . 2-3 of the RCMP paper :
If such continuing revolutionary activities are to be effectively countered, an increased effort to penetrate movements like the FLQ by human
and technical sources will have to be undertaken . We have had only limited
success in being able to penetrate the FLQ and similar movements with
human sources . Changes in existing legislation will be required if effective
penetration by technical means is to be achieved . The greatest bar to
effective penetration by human sources is the problem raised by having
members of the RCMP, or paid agents, commit serious crimes in order to
establish their bona fides with the members of the organization they are
seeking to infiltrate. Among other things, this involves the difficult question
of providing some kind of immunity from arrest and punishment for human
sources (usually paid agents) who have . . . to break the law in order
successfully to infiltrate movements like the FLQ . What should be the
responsibility of the government towards a member of the Security Service
or an agent paid by it who is arrested for committing a crime in the line of
duty as it were? What measures can be suggested by the law officers of the
Crown to ensure that such persons escape a jail sentence and a criminal
record without prejudice to their safety? Perhaps those clauses of the
Letters Patent of the Governor General having to do with pardon might be
resorted to in such cases, but it is difficult to see how this could be done
without revealing the true role of the person concerned .
It will be obvious from a reading of the account of the discovery by the
RCMP of Mr . Cross and his abductors that this probably could not have
been successfully accomplished without the interception of telephone conversations and that electronic eavesdropping was of assistance to the
investigation . Yet it should be realized that the application of telephone
interception techniques in coping with the FLQ, and, indeed, with similar
revolutionary activity across Canada, has only been possible by a most
liberal interpretation of the provisions of the Official Secrets Act . The
Report of the Royal Commission on Security makes a number of useful
comments about the interception of telephone conversations and electronic
eavesdropping, and, in particular, about the importance of ensuring that
any legislation contemplated to deal with such matters should contain a
27
�clause or clauses exempting interception operations for security purposes
from the provisions of the statute.
At p . 5 :
10 . In addition to these broad strategic plans, we propose to intensify our
efforts in" such obvious ways as the infiltration of the FLQ, selected
surveillance, recruitment of members of revolutionary groups and the
development of improved techniques to collect, collate and assess raw
intelligence, e.g ., computers and information systems analysis .
Ex . M-23 : Letter dated July 27, 1971, from the Honourable Jean-Pierre
Goyer to the Honourable Herb Gray - re access for RCMP
Security Service to records of Department of National Revenue, Income Tax Branch :
. . .'To do this successfully it would be necessary to have access to your
Income Tax Branch Records .
I understand Section 133 of the Income Tax Act creates difficulties in
this regard but if you agree, I would like to determine by means of
discussions between your officials and representatives of my department
whether the requirement of the Security Service could in fact be met within
the framework of existing laws and regulations and in a manner which
would attract no attention or criticism .
Ex . M-26 : Minutes of meeting of the Cabinet Committee on Security and
Intelligence held December 21, 1970, at p . 9 :
II .
RCMP Strategy for Dealing with the FLQ and Similar Movement s
The Committee agreed to defer consideration of document S & I-14
dated December 16, 1970, on this topic until a future meeting .
Ex . M-27 : Memorandum dated December 23, 1970, from Mr . Starnes re :
meeting of Cabinet Committee on Security and Intelligence
December 21, 1970, at p . 2 :
5 . The Prime Minister said that he assumed I would like to have some
discussion of the RCMP paper dealing with strategy, and, as a consequence,
suggested that it be put aside to a later date . I assume that in practice this
means that it will now not be taken until the Prime Minister returns from
his Far Eastern tour late in January . Perhaps this is not too important
except insofar as the paper we put up deals with the vexing problem of
telephone interception . I do not think that we should sit idle waiting until
the end of January on this score . I suggest, therefore, that Mr . Bennett, or
some other competent person, get in touch with the Justice Department and
find out precisely what is now being done on :
(a) Wiretapping legislation .
(b) Amendments to the Official Secrets Act .
Ex . M-29 : Minutes of a meeting of the Special Committee of the Security
Panel dated November 10, 1970, at p . 4 :
In relation to the Interdepartmental Committee on Law and Order, the
Deputy Minister of Justice said that, once an evaluation of the FLQ and
similar organizations elsewhere was available through Mr . Côté, his department would be attempting to produce a new document for the end o f
* Here the letter refers to the purpose for which the information would be sought .
28
�November . He envisaged that the new paper would raise questions for
ministerial decision (i) as to alternatives to make the . security service more effective by
removing previously imposed restrictions on 'infiltration activity : on
whether the administration of justice could continue to be based on
the acceptance of substantial police forces not responsible to the
federal government and which, by this lack of direct control, could
either through insistence on jurisdiction or inefficiency work
against the national interest .
Ex . HC-2 : Security Service, 'in-Camera', Ministerial correspondence :
(a) Letter from Mr. Starnes to the Honourable Jean-Pierre Goyer dated
June 3, 1971, at p. 2 :
. ..*To do this successfully, it is necessary to have access to the records of
the Department of National Revenue, Income Tax Branch which is difficult
to do in the face of Section 133 of the Income Tax Act .
Part of the difficulty, of course, arises from legislation such as the
Income Tax Act and certain government regulations which prohibit the
dissemination of this kind of information and in some cases provide stiff
penalties for so doing . I recognize that there would be political and other
difficulties in the way of seeking to amend legislation merely to meet the
needs of the Security Service, but, in many cases, and we believe that with
Ministerial agreement, arrangements could be worked out with the different departments and agencies concerned to meet our requirements within
the framework of existing laws and in a manner which would attract no
attention or criticism .
(b) Letter from the Honourable Jean-Pierre Goyer to the Honourable
Bryce Mackasey, Minister of Labour, dated July 27, 1971 re access to
Master Index of the Unemployment Insurance Commission for RCMP
Security Service :
If you agree in principle to my request, I would like to determine by
means of discussions between officials of the Unemployment Insurance
Commission and representatives of my Department whether the requirement of the Security Service could be met within the'framework of existing
laws and regulations in a manner which would attract . no attention 'or
criticism .
(c) Letter from Inspector R .W . Shorey for the Deputy Director General'to
the Commanding officer of "A" Division, Ottawa, to the attention of
the Officer in Charge of the Security Service, re : Co-operation Government Departments, at pp . 1-2 :
In the Minister of Labour's reply he mentions the provisions of the new
Unemployment Insurance Act affecting the release of information, and in
that connection we attach pertinent extracts from that Act . In your further
discussion with Mr . Urquhart, please bear in mind that we want to convince
the U .I .C . that we feel that the Security Service of the R .C.M .P. can be
categorized as "such other persons as the Commission deems advisable"
(Section 98) . In this connection he can be assured that U .I .C . will not be
compelled by the Security Service to produce records or documents or to
give evidence in any proceedings .
* Here the letter refers to the purpose for which the information would be sought .
29
�The type of information we seek from U .I .C . is as set out in paragraph
3 of the attached copy of Sgt . Claxton's memorandum . You must make a
point of assuring U .I .C . that the information they give us in this connection
will be handled with the greatest secrecy and used only as investigative
leads in security investigations .
29 . At the time that Mr . Higgitt marked the foregoing passages from the
Law and Order Documents, the documents had not been declassified and could
not, therefore, be made public . In the result it was, therefore, not then possible
to discuss in public whether the passages relied upon by Mr . Higgitt in fact
support his evidence as to discussions he alleged took place with his Ministers.
30 . With reference to the passages so marked by him Mr . Higgitt testified
that those documents " . . . are only examples, and there are other examples"
(Vol . 87, p. 14327) . He testified further that those marked passages support hi s
evidence . .
.that whether or not the acts were `illegal' or `not legal' is a
matter for perhaps others to decide but that, in fact, they were not done
without the general knowledge, at least, and again I return to the words
`political masters' .
(Vol . 87, p . 14325 . )
31 . This statement by Mr . Higgitt suggests that the documentary passages
marked by him support the proposition that his Ministers knew of past and
existing operational practices of the R .C .M .P . Later in his testimony, however,
when asked what he meant by the word "acts" in the testimony just quoted,
(Vol . 87, p . 14325) Mr . Higgitt stated :
It is probably
fair to say investigative procedures which involved the
possibility of these situations arising .
(Vol. 87, p . 14326 . )
(b) The evidence of Mr . John Starnes
32. Mr. Starnes testified that having, in the first few months of his tenure as
Director General, become aware of "the scope of the problem", he decided that
it should be raised with senior officials and Ministers . He testified before the
Commission that documents establish that he did so (Vol . 90, p . 14947) .
Further, he gave evidence as follows :
It is quite clear that in the Law and Order context, the question of the
commission of crime in the national interest was clearly discussed by
Ministers . There is no doubt about that. It is a matter of record . The same
problem was raised in another forum, namely, the Cabinet Committee on
Security and Intelligence, and, therefore, one should not forget that there
has been or there was this dual avenue of discussion of the same problem .
(Vol . 106, pp . 16620-1 . )
(c) The first stream of Law and Order Document s
33 . Following the request by the C .C .P .P. in its decision of May 5, 1970 for
the preparation by an inter-departmental committee of a Law and Order
paper, the R .C .M .P . prepared such a paper and submitted it to the I .C .L .O . at
its meeting of July 8, 1970 (Ex . M-36, Tab 5 ; Ex . MC-6, Tab 1) . In discussing
30
�the placing of undercover sources in subversive organizations, the following
statement was made by the authors of the paper ( para . 6) :
A serious problem arises in the placement and development of sources in
the more violence-prone groups, e .g . . . . in order for a source to penetrate
any of these groups to a point where he can provide useful information, he
must be prepared to participate, (the authorities must be prepared to
support his participation) in the activities of the group . That would require
that he become involved in criminal acts . At the present time this is not
permitted . . . .
On the face of it this paper makes it clear that the then policy of the R .C .M .P .
was not to permit sources to become involved in the commission of criminal
acts to establish their bona fides in penetrating such organizations . The paper,
however, does underline the risks inherent in the penetration of such
organizations .
34. The Minutes of the Meeting of the Special Committee of the Security
Panel dated November 10, 1970 ( Ex . M-29) recorded in part as follows :
In relation to the Inter-departmental Committee on Law and Order, the
Deputy Minister of Justice said that . . his Department would be attempt.
ing to produce a new document for the end of November . He envisaged that
the new paper would raise questions fôr Ministerial decision :
(i) as to alternatives to make the Security Service more effective by
removing previously imposed restrictions on infiltration activity . .:
It is reasonably clear on the evidence that the "previously imposed restrictions
on infiltration activity" referred to the policy that agents of the Security
Service were not to engage in criminal activities in infiltrating violence-prone
organizations . Mr . Maxwell, who at the time of these Minutes was the Deputy
Minister of Justice, testified that certain kinds of infiltration "were frowned
upon . .. those kinds that required participation in criminal activity" (Vol .
C66, p . 9158) . This, he said, involved penetration of "radical groups . .. that as
a price of admission required people to do criminal things" . In his testimony he
agreed that the groups with which the authorities were concerned at that time
" . .. were, by and large, all radical groups . .." and further that if effective
penetration was to take place "the risk that the penetrator will have to engage
. .
in illegal activities is axiomatic . . the price of penetration may well be that
(Vol . C66, p . 9162) .
sort of thing"
35 . The next relevant document prepared by the R .C .M .P . was entitled "Law
and Order - suggestions for Improving R .C .M .P . Capabilities" ( Ex . M-36,
Tab 6 ; MC-6, Tab 2) . This paper is undated, but counsel for the R .C .M .P.
advised that it was prepared on or about November 15, 1970 ( Vol . 101, p .
16053) . Mr . Starnes, in his evidence, stated that, while he was not certain, he
speculated that copies of this paper were disseminated to the members of the
I .C .L .O . Mr . Ernest Côté, then Deputy Solicitor General, testified that he
assumed it had been so disseminated (Vol . C77, p . 10606) .
36 . The paper, inter alia, enunciated several problems faced by the R .C .M .P .
"in its efforts to fulfill its internal Security role", one of which was that "it . . .
31
�is faced with an apparent insoluble dilemma in regard to penetration of
terrorist organizations . . " .
.
37 . In discussing that problem, the paper stated :
Examination of the Rules of Evidence
Although there doesn't seem to be any way that the Rules of Evidence
(statute and common law) can be altered to sanction the use of agent
provocateurs in obtaining convictions, it is to be recognized that penetration
of terrorist cells by police agents will inevitably involve commission of
crimes on their part to establish their bonafides . A similar difficulty would
exist in connection with terrorist cell members not under police control who
can be induced to operate in place . Surveillance, (human and technical) and
inducements made to terrorists to `defect' are useful aids to investigation
but they are not anywhere near as effective as an agent in place . . .
The question that must be asked is whether we as a police force can go
outside the rule of law to detect criminal activities . If affirmative, this could
be done through penetration by informer-members or non-members . Particularly in the case of non-members, we must be prepared to pay them well
and protect them under all circumstances .
Although it is evident that legal changes are required and not police
policy changes, it appears that that may be politically impossible in a
democracy like Canada except by way of Federal legislation by Order-inCouncil (secret, not published) . Possibly we require something similar to
the European system, where the police can work outside the rule of law to
detect crimes and penetrate illegal organizations . In this system the court
acts as an inquisitionist, as opposed to merely an umpire, in our system where the court diligently sees that both sides of the controversy stay and
play within the strict rules of evidence .
This paper indicated that the Security Service was then making attempts to
infiltrate violence-prone organizations and that the entrance fee could involve
the commission of a criminal act or acts . The paper did not indicate that such
acts were at that time being committed by agents of the R .C .M .P . but rather
asked the question whether such agents should be permitted to go outside the
law to effect their purpose successfully .
38. The next key document is the Maxwell Memorandum, dated November
20, 1970, to which we have previously referred (Ex . M-36, Tab 7 ; MC-6, Tab
3) . A draft of this document, which was substantially the same as its final
form, was dealt with by the I .C .L .O . at its meeting of November 23, 1970 . Mr .
Starnes returned to his duties on that day, following a lengthy illness . He has
no actual memory of the discussion that took place at this meeting . In a
memorandum for file, Assistant Commissioner E .W . Willes of the R .C .M .P.
summarized the discussion that took place at that meeting (Ex . M-36, Tab 10 ;
MC-6, Tab 4) . That memorandum states in part as follows :
The Memorandum to Cabinet was not received by the Committee
members until the afternoon of November 22 . Consequently, several of
those present pointed out that they had not had an opportunity to study it in
detail . . . .
32
�The Deputy Solicitor General . . also mentioned item (b) of Police
.
Operations (Inherent Contradiction) and touched upon the difficulty that
the Security Service has in infiltrating Terrorist groups such as the FL Q
Deputy Commr . Carrière then offered criticism of the two items on the
Administration of Justice (Police Organization) and Police Operations
(Inherent Contradiction) . . .
Deputy Commr . Carrière then went into more details in describing the
difficulties that the Force faces in penetrating the FLQ Cells and organizations and pointed out the difficulty that we face when an Agent or even a
regular member is manoeuvered into a position when he has to participate
in a serious criminal offence . Some discussion then followed as to the
position of the Federal Government should an Agent of the police become
involved in a serious crime during the course of his duties and the thought
was expressed that the Government would undoubtedly not support him in
the light of present policy . ..
39. The Maxwell Memorandum was distributed to the members of the
C .C .P .P . for discussion at its meeting of November 24, 1970 . The addendum to
the agenda for that meeting of the Cabinet Committee (Ex . M-36, Tab 12)
discloses that CAB . DOC . 1323-70 was circulated . The evidence discloses that
the Cabinet Document consisted of the Maxwell Memorandum and a two-page
document entitled : "Various Questions Raised by Law and Order Paper" . This
document contained a list of questions for consideration, the seventh of which
was : "What should be done to eliminate inherent contradiction in existing
Security Service which turns around the question of crime in the national
interest? "
40 . The portion of the Maxwell Memorandum that is relevant to the issues
considered here is entitled : "Police Operations (Inherent Contradiction)" . The
discussion of this item included a quote from Paragraph 57 of the Royal
Commission on Security Report, and then stated :
When the Report of the Royal Commission was being discussed by the
Cabinet Committee on Security and in Cabinet, the view was expressed
that an inherent contradiction existed between the role of the R .C .M . Police
as a law enforcement agency at the municipal, provincial and federal levels
and its role in the field of security and intelligence . In its first capacity, the
R .C .M . Police should and does strive towards ensuring that the conduct of
its members is at all times lawful and above reproach . On the other hand,
as the Royal Commission recognizes, security and intelligence work may
require those engaged in it to undertake activities that are contrary to law
and which would prove to be unacceptable and embarrassing to a properly
administered police force whose duty it is to uphold and enforce the law .
While the recommendations of the Royal Commission respecting a
separately organized civilian security service have not been accepted, it
seems reasonably clear that this inherent contradiction has not been
resolved and that an early solution must be found to it if our security and
intelligence service is to be expected to provide not simply an interesting
historical chronology of events but to inform Government in an effective
way in advance of them .
33
�41 . Several witnesses who appeared before us were present at the meeting of
the C .C .P .P . that was held on November 24, 1970, including Mr . Mcllraith,
Mr . Maxwell, Mr . Côté, and Mr . Starnes . Any questions put to those witnesses
before this Commission as to what was said at that meeting on this subject
were objected to by counsel for the government and certain of their clients on
the ground that such discussions ought not to be revealed, even in camera,
because of the importance of protecting the confidentiality of discussions in
Cabinet or Cabinet Committee . When these objections were taken, we reserved
our decision as to whether it was well-founded in the circumstances . Eventually, pursuant to the provisions of Order-in-Council P .C . 1979-887, dated March
22, 1979, we read the Minutes of that meeting, a draft of the Minutes, and
handwritten notes of the meeting that were taken by a Cabinet secretary . We
have not considered it necessary to decide upon the objection, for there was
nothing in the documents which we read that indicated that those in attendance were informed of illegal activities by the R .C.M .P ., and no one has
suggested that at that meeting any such information was imparted . We did not
consider that the issue raised by the objection was one which in the circumstance justified our giving consideration to a ruling that might result in Privy
Councillors and others insisting, by resort to remedies that might be available
to them, that the tradition of Cabinet confidentiality should be respected .
However, we are satisfied, on the basis of our examination of relevant
documents, that the two-page list of questions did accompany the Maxwell
Memorandum at the meeting of November . 24, 1970, and that it was drawn to
the attention of those present as a helpful summary of the Maxwell
Memorandum.
42 . There is, accordingly, no evidence before us as to the substance of the
discussions on this subject before the C .C .P .P . on that date . The Maxwell
Memorandum was, however, considered as well at a meeting of the C .C .P.P .
held on December 1, 1970, and evidence, which is discussed below, has been
adduced before this Commission with respect to deliberations before the
C .C .P .P . on that date .
(d) The December 1, 1970 meeting of the C .C.P .P .
43 . As noted above, the Maxwell Memorandum was again before the
C .C .P .P . at its meeting of December 1, 1970 . Those present at this meeting
included Prime Minister Trudeau, Mr . John Turner, then Minister of Justice,
Mr . R . Gordon Robertson, then Clerk of the Privy Council, Mr . Donald
Maxwell, then Deputy Attorney General and Deputy Minister of Justice, Mr .
John Starnes, then Director General of the Security Service, Mr . D .H .
Christie, then Assistant Deputy Attorney General and Assistant Commissioner
R . Carrière . The Honourable George Mcllraith, the then Solicitor General,
was absent from this meeting by reason of impending eye surgery which took
place on the next day .
44 . Our inquiry into the December lst meeting of the C .C .P .P . began when
access was obtained by us to the minutes of the meeting and subsequently, in
response to our request and upon the decision of Prime Minister Trudeau, we
were given a copy of an extract of those minutes . We were also given a copy o f
34
�certain notes that had been made at the meeting by Mr . . L .L . Trudel and Mr .
M .E . Butler, then Assistant Secretaries to the Cabinet ( these documents
together form Exhibit VC-1) . Mr . Trudel's notes are entitled "Police Operations page 5" . The fourth page of those notes recorded the following discussion :
Starnes: misunderstanding of contradiction
- has been doing S & I illegal
things for 20 years but never
caugh t
- no way of escaping these things
Turner: If you are caught . . .
then what of police image
Should you not be disassociated
Starnes : Can be done within RCMP - Ha s
been . What do we do in these
circumstances, guidelines.
(Vol . C98, pp . 12964-65 . )
45. The extract from the final typed minutes of that same meeting reads as
follows :
On the question of the inherent contradiction in police operations, the
PM said that certain activities in the Security and Intelligence Service
might not result in prosecution for security reasons . The Cabinet Committee on security and intelligence was the more appropriate place to look at
the whole question of the integration of information and intelligence, Dr .
Isbister's Report on it, and the other questions on security and intelligence
raised in the document . He added that : overview of the current FLQ
situation and the status of security and intelligence could be examined, and
a decision made on a briefing in Cabinet . He noted that the image of the
RCM Police could be misrepresented if the security and intelligence forces
were caught breaking the law in order to obtain information . This situation
had existed for some time in the RCM Police and he asked that the whole
question be referred to the Cabinet Committee on security and intelligence
for consideration .
(i) The evidence of Mr . L .L . Trude l
46 . Mr . Trudel testified (Vol . C96, pp . 12878-9) that the notes related to
page five of the Maxwell Memorandum entitled "Police Operations - Inherent Contradiction" (Vol . C96, pp . 12879-80) .
47 . Mr . Trudel has no present recollection of the meeting, apart from his
notes . However he testified that he recorded as best he could what in fact was
said and did not paraphrase the statements made by the participants to the
discussion (Vol . C96, pp. 12887-8) .
(ii) The evidence of Prime Minister Trudea u
48 . Prime Minister Trudeau also testified in respect to the meeting of
December 1, 1970 and in particular with respect to the discussion recorded in
the notes of Mr . Trudel . He testified that he did not have "a precise
recollection of that being said, but I am perfectly happy to recognize tha t
35
�words to that effect were said if it was written down here and I see in the
minutes . . ." . He was then asked whether, by reason of his memory or any
document, he had reason to dispute or challenge the accuracy of Mr . Trudel's
handwritten notes of the meeting of this subject and he answered :
Well, quite honestly, his notes don't mean anything to me . So, I
wouldn't challenge, infirm or affirm the accuracy of them . But in the
minutes, what you have just quoted as S & I doing illegal things for twenty
years, I suppose he said that, and I honestly can't remember him saying
that . You know, he was sitting there and he said that, but I don't want to
make an issue of not remembering this kind of thing .
(Vol . C98, p . 12942 . )
49 . Mr . Trudeau testified he had no recollection of anyone at the meeting
inquiring of Mr. Starnes as to the kind of illegal things that S & I had been
doing for 20 years (Vol . C98, pp . 12942-4) . Nor does he recall any discussion
with Mr . Starnes, after the meeting, as to what he was talking about (Vol .
C98, p . 12944) .
50 . The Prime Minister stated, however, that if Mr . Starnes had said "these
guys have been breaking the law and committing crimes for twenty years, I
think there would have been a hell of a lot of questions asked : `What do you
mean?' And you know, `how do they get away with it?' and so on" (Vol . C98,
p . 12944) .
51 . In his evidence, Mr . Trudeau did not deny that Mr . Starnes said at the
meeting that S & I had been doing illegal things for 20 years and were never
caught (Vol . C98, p . 12950) . However, reasoning ex post facto, Mr. Trudeau
expressed the thought that "maybe he didn't even use the word illegalities, and
maybe it is shorthand by Mr . Trudel for what Mackenzie calls against the
spirit if not the letter of the law" (Vol . C98, p . 12946) .
52. However, Mr . Trudel, as noted above, testified that he did not paraphrase
the statements made by the participants to the meeting but, rather, he recorded
as best he could what in fact was said (Vol . C96, p . 12894) .
53 . Mr . Trudeau further stated that whatever Mr . Starnes did say at the
meeting it :
. . certainly didn't convey to me at the time or in my memory of it today
.
the assertion that the police were out committing crimes .
(Vol . C98, p . 12951 . )
54 . The Prime Minister further testified that if Mr . Starnes had referred at
the meeting to "stretching the spirit of the law because we are putting in
listening devices" that statement would have had a different meaning than if
someone at the meeting had said "Well, we just have to blow up a bridge so as
to get one of our guys accredited to one of the F .L .Q . cells" and Mr . Starnes
had said "Yes, and we have been doing that kind of thing for twenty years"
(Vol . C98, p . 12951) . Mr. Trudeau stated that if the word "illegality" was
used, in the atmosphere of the discussion, that word did not strike him as being
"the commission of crimes" . Otherwise, he believes, there would have been a
different reaction and different minutes of the discussion (Vol . C98, p . 12952) .
36
�55. Moreover, Mr . Trudeau reasoned, if Mr . Starnes had meant to convey the
commission of crimes as compared with things in the nature of those that he
referred to in his testimony, he would not have "blurted it out in front of
seventeen people" . The things Mr . Starnes had referred to, as summarized in a
question to Mr. Trudeau, were ,
documents to establish false identities ; someone being put at risk - on an
operation of being put at risk to engage in something unlawful ; entering
without consent to install surveillance devices ; entering to examine the trade
of illegal agents documents . .. that sort of thing ; false registration in a
hotel ; false documentation for watcher service vehicles .
(Vol . C98, p . 12947 . )
56 . Mr . Trudeau stated "without any hesitation" that the minutes "never
came into my possession" because he had issued an order that Ministers should
not get copies of Cabinet minutes unless they requested them . He testified
"without any hesitation that barring the first few months of my . . job as
.
Minister of Justice, I don't think I ever read these minutes . .. " (Vol . C98, pp .
12953-4) . To Mr . Trudeau, "the relevant part of the minutes was the record of
that decision, and that record of decision was circulated", and Ministers
frequently would make representations that they disagreed with the record of
decision (Vol . C98, p . 12955) .
57. Mr . Trudeau questioned in his evidence the accuracy of the minutes on
this subject . He stated that when he compared the minutes with the notes (Mr .
Trudel's notes), in his view it is clear from the notes that it was not the Prime
Minister but someone else who uttered the words which in the Minutes are
attributed to the Prime Minister :
On the question of inherent contradiction in police operations, the
Prime Minister said that certain activities of the Security Service might not
result in prosecution for security reasons .
58 . Mr . Trudeau however, earlier in his testimony had stated that he would
not challenge, "infirm" or affirm the accuracy of Mr . Trudel's handwritten
notes (Vol . C98, p . 12942) . Further, he recognized that the minutes of the
above-quoted passage are capable of being read as indicating that he was
aware at the meeting that there were illegal activities being engaged in by the
Security Service but that there would not be prosecutions because, for example,
a prosecution would "spill the beans, as it were" (Vol . C98, p . 12958) . In other
words, according to Mr . Trudeau ,
if that one reading were held, I might find it a bit embarrassing, as
meaning : you know, we shouldn't prosecute the police when they break the
law because we might want to keep a veil of secrecy on it .
(Vol . C98, p . 12959 .)
However, Mr . Trudeau asserted that Mr . Trudel's longhand notes justify a
completely different interpretation of what was said . Those notes read, in this
connectiôn :
Maxwell : legal pt . of view is not assessing intelligenc e
PM : Why legal, if for security reasons we decide not to prosecute .
37
�From these notes, Mr . Trudeau concluded that what was being discussed at
that point was not illegal activities by the police, or the "non-prosecution of S
& I people who might have skirted the law" (Vol . C98, p . 12961) but "quite
clearly" (Vol . C98, p . 12961) illegal activities by a suspect (e .g. a suspected
terrorist), and a decision not to prosecute the suspect because to do so would
reveal Security matters, such as the identity of sources . Mr . Trudeau's own
words in this regard are as follows :
. . they might find that a suspect has broken the law, but we are not going
.
to put him to the courts because in order to prove that he broke the law, or
committed espionage or whatever it is, we will have to unveil all our
security batteries and reveal our sources and everything else . And therefore,
Maxwell says : we look at the policeman's point of view . It is not the same
point of view of S & I people who are gathering intelligence, assessing
intelligence . And I sort of say the same thing : if there is a suspected spy . . .
Q . Is that somewhere in Trudel's notes . .
.
THE CHAIRMAN :
Just a minute, Mr . Kelly?
THE WITNESS :
A . Yes . If there is a suspected spy, why invoke the force of the law against
him if it is essential to your security operations that you don't want to
put him in jail, you want to use him to catch other spies . And I think
that's what both Maxwell and I are saying .
MR . W .A . KELLY :
Q . Did you say : Maxwell? or Trudel?
A . Maxwell and I .
Q. In Trudel's notes ?
A . In Trudel's notes . And therefore, the minutes, the final minutes, "might
not result in prosecution for security reasons" can mean something
different than what we presumably are both saying .
Q . So, what you are saying is that the reference to activities and not
prosécution is the reference to activities of terrorists and not the
activities of members of the Security Service ?
A . Exactly .
(Vol . C98, pp . 12959-60 . )
And later, on the same point, Mr . Trudeau said :
Maxwell is really saying : look, there is the policeman's point of view,
and then there is the intelligence gathering assessment point of view .
One is the legal point of view, and the other is the Security and
Intelligence point of view . And I am saying that it may well happen that
the legal point of view which could lead you to put a target before the
courts as having broken the law of espionage might be rejected for
security reasons when you decide not to put him before the courts
because you might have caught a lesser spy, you might go for the bigger
fish .
Q. Is that your recollection of what was said? Or are you interpreting Mr .
Trudel's notes at page 3 ?
A . Yes, mainly the latter. I don't recollect that discussion at all .
(Vol . C98, p . 12962 . )
38
�59 . It is clear, on the basis of Mr . Trudeau's evidence, that these comments
were the result of a construction placed by him on Mr . Trudel's notes without
the benefit of any express recollection of what in fact was discussed at the
meeting .
60 . Mr . Trudeau's examination of the minutes turned then to the last two
sentences, which read as follows :
He noted that the image of the RCM. Police could be misrepresented if the
security and intelligence forces were caught breaking the law in order to
obtain information . This situation had existed for some time in the RCM
Police and he asked that the whole question be referred to the Cabinet
Committee on Security and Intelligence for consideration .
He noted that an examination of Mr . Trudel's notes would support the
inference that in drafting those two sentences and attributing what was said to
Mr. Trudeau, Mr . Trudel appears to have run several passages together and
attributed to Mr . Trudeau observations which were, in fact, made by other
persons (Vol . C98, p . 12967) . The portion of Mr . Trudel's notes to which Mr .
Trudeau referred reads as follows :
Starnes : misunderstanding of contradiction
- has been doing S & I illegal
things for 20 years but never
caugh t
- no way of escaping these things
Turner : If you are caught . . .
then what of police image
Should you not be dissociate d
Starnes : Can be done with RCMP - Has
been . What do we do in these
circumstances, guidelines .
(Vol . C98, pp . 12964-65 . )
61 . Mr . Trudeau dealt further with the following sentence in the minutes :
"He noted that the image of the RCM Police could be misrepresented if the
security and intelligence forces were caught breaking the law in order to obtain
information" . Mr . Trudeau suggested in evidence that the key to the meaning
of whatever was in fact said lies in the words "in order to obtain information" .
These words, he suggests, make it clear that what was being discussed was not
"breaking the law in order to penetrate a cell or to be recognized" (which
would imply commission of a crime) but "breaking the law in order to obtain
information, whether it be by bugs, or by petty trespass or by writing a false
name in a hotel register" (Vol . C98, p . 12968) .
62 . However, we note that, whether the law is broken to penetrate a terrorist
or violence-prone group or to install eavesdropping devices, or to gain entry to a
hotel under a false name or otherwise, the purpose in each case for the
breaking of the law is to gather information or intelligence considered by the
Security Service to be of value . In each case there is a breach of some legal rule
(including perhaps a criminal offence) to further the activities of the Security
Service:
39
�63 . In addition to his evidence regarding specifically Mr . Trudel's handwritten notes of the December 1, 1970 C .C .P .P. meeting, Mr . Trudeau gave
evidence with respect to the consideration given by the C .C .P.P . to the
Maxwell Memorandum at its December 1st meeting . In this regard, Mr .
Trudeau testified that he could not actually recall reading the Maxwell
Memorandum (Vol . C98, p . 12922) . Similarly he stated that he had no present
recollection of having seen the two-page document entitled "Various Questions
for Decision Raised by Law and Order Paper", including the seventh question
contained therein and which, as referred to above, dealt with the elimination of
this "inherent contradiction" (Vol . C98, p . 12930) .
64 . Mr . Trudeau stated that normally his staff briefed him on such documents and would draw his attention to particular parts of it . In this case Mr .
Trudeau stated that a briefing note was prepared for the C .C .P .P . meetings of
November 24 and December 1, 1970 respectively (Vol . C98, p. 12924) . The
briefing note did not, however, refer to "illegal activities" (Vol . C98, pp .
12927-9) .
65 . Mr . Trudeau's attention was drawn to that part of the Maxwell Memorandum in which paragraph 42 of the Report of the Royal Commission on
Security was referred to . That paragraph, as quoted by Mr . Maxwell in a
section of his paper entitled "Police Operations (Inherent Contradiction)" (Ex .
M-36), read as follows :
Finally, although we have been unable to reach any firm conclusion about
the effectiveness of many of the operations currently being undertaken by
the RCMP, we are left with a clear impression that there has been some
reluctance on their part to take the initiative or even to cooperâte in certain
forms of more aggressive penetration operations ; government policy has
been especially inhibiting in this area, but we are not sure that the RCMP
has made a sufficient - or a sufficiently sophisticated - effort to acquaint
the government with the dangers of inaction .
The Report of the Commission went on to say :
Furthermore, there is a clear distinction between the operational work of a
security service and that of a police force. A security service will inevitably
be involved in actions that may contravene the spirit if not the letter of the
law, and with clandestine and other activities which may sometimes seem to
infringe on individuals' rights ; these are not appropriate police functions .
Neither is it appropriate for a police force to be concerned with events or
actions that are not crimes or suspected crimes, while a security service is
often involved with such matters . Generally, in a period in which police
forces are subject to some hostility, it would appear unwise either to add to
the police burden by an association with security duties, or to make security
duties more difficult by an association with the police function .
Mr. Maxwell's Memorandum then referred to a discussion in Cabinet that had
occurred when the Report was considered, and said that the view had bee n
expressed that an inherent contradiction existed between the role of the
R .C.M . Police as a law enforcement agency at the municipal, provincial
and federal levels and its role in the field of security and intelligence . In its
first capacity, the R .C .M . Police should and does strive towards ensurin g
40
�that the conduct of its members is at all times lawful and above reproach .
On the other hand, as the Royal Commission recognized, security and
intelligence work may require those engaged in it to undertake activities
that are contrary to law and which would prove to be unacceptable and
embarrassing to a properly administered police force whose duty it is to
uphold and enforce the law .
While the recommendations of the Royal Commission respecting a
separately organized civilian security service had not been accepted, it
seems reasonably clear that this inherent contradiction has not been
resolved and that an early solution must be found to it if our security and
intelligence service is to be expected to provide not simply an interesting
historical chronology of events but to inform government in an effective
way in advance of them .
Mr . Trudeau stated that he understood the "inherent contradiction" to be that
. . when you have a police force like the R .C .M .P. which is entrusted
.
with the enforcement of the law and is highly respected as a law
enforcement . . .
Q . On the CIB side ?
A . On the CIB side, and you have, on the S & 1, Security and Intelligence
side, the same force doing things which, in Mackenzie's words, are
against the spirit if not the letter of the law, then you have this inherent
contradiction of a police force that you must respect because it is
enforcing the law ; and on the other hand, the same people skirting the
law - not necessarily breaking it, but stretching, shall we say, its spirit .
And that is the contradiction, if my recollection is correct, that Mackenzie pointed out, and which Maxwell refers to here .
(Vol . C98, p . 12934 . )
66. When this passage from the Maxwell Memorandum was discussed, Mr .
Trudeau was present at the meeting (Vol . C98, p . 12938) . He stated, when
questioned as to the specific date that the C .C .P .P . considered the "inherent
contradiction" faced by the Security Service, that he remembers this subject
having been discussed around "that time" [December ]st, 1970] . Generally,
however, he would not
. .. honestly say in my memory I am able to draw out . . either the
.
substance or the particular fact that the discussion took place on that date .
(Vol . C98, p . 12939 . )
67 . In addition to the evidence of Mr . Trudel and Mr. Trudeau with respect
to the December 1, 1970 meeting of the C .C .P .P . and Mr . Trudel's handwritten notes thereon, we heard oral evidence on this issue from several other
persons who attended the meeting .
(iii) The evidence of Mr . John Starne s
68 . As with Mr . Trudeau, Mr . Starnes testified that he cannot remember
"what precisely was said" at the December 1st meeting, with the result that his
evidence as well on this issue is a reconstruction based on Mr . Trudel's
handwritten notes (Vol . C96, pp . 12840, 12844 and 12856) .
69. He interprets the words "no way of escaping these things", which are
attributed to him in the notes, as an attempt to capture what he was trying to
say, which
41
�is the thought that in my view a number of these things were being done by
the Security Service, which might be illegal, could not be avoided, if they
were to do their job properly and to do the things the Government wanted
them to do .
(Vol . C96, p . 12841 . )
70 . He told us that he does not recall having mentioned at the meeting any
specific occasion on which an illegal "thing" was done .
71 . Mr. Starnes was asked what he would have told the Cabinet if someone at
the meeting had asked what illegal activities he was referring to . In reply (at
Vol . C96, p . 12848) he referred to a list of problems he had mentioned in
earlier testimony (Vol . C30, p . 3622) . The problems, as they had been
identified in his earlier testimony, were as follows :
- the creation of false identity documents, to provide cover for an
undercover agent;
- the fact that an undercover agent might be put in the position of having
to break some law in order to establish his bona fides with an
organization ;
- the fact that, in installing electronic devices, members of the Security
Service would have to enter private premises without the consent of the
owner or tenant in order to look about and install the devices ;
- the conducting of intelligence probes, namely, entries into private
premises without the consent of the ownér and without a warrant, to
examine documentation or physical things, and photograph or copy
them ;
- registration in a hotel under a false name ;
- defectors might bring documents with them, belonging to another
person ;
- false documentation for the purpose of establishing a legend ;
- disguising the ownership of safe houses ; and
- false documentation for vehicles .
However, Mr . Starnes testified that after almost ten years
It is straining my memory now to suggest, you know, to you precisely what
those things might have been .
(Vol . C96, p . 12848 . )
He also said that the items listed wer e
things which I might have known about but which I do not remember as
having known as of the lst of December or November or whenever it was,
1970 .
(Vol . C96, p . 12849 . )
72 . Mr. Starnes stated further that he does not know whether at that time he
knew of intelligence probes, namely, entries without consent or warrant for the
purpose of removing things or documents from premises or to examine the
premises or things on the premises . He repeated his earlier testimony that he
was not aware of the opening of mail . As we note in Part III, Chapter 5, Mr .
42
�Starnes said that he has no recollection that there were arrangements whereby
members of the Security Service could obtain information from the Department of National Revenue records . He subsequently modified that pôsition by
saying that his knowledge depended on the point in time being referred to . Still
later he told us that he "must have been" aware of such access, although he
could not recall his earlier testimony on the subject (Vol . 149, pp . 22826,
22835, 22871 ; Vol . C96, p. 12849) .
'
73. Mr . Starnes testified that his "impression" was (in December 19 7 0) that
"they already knew" that S & I had been doing illegal things for 20 years (Vol .
C96, p . 12863) ; In this regard the following exchange took place during his
testimony :
Q . But, you say apart from this reinforcement [the notes of the meeting by
M . Trudel] you did in fact, you are swearing today, on December 1st,
1970, you had the impression at that meeting that they, that is to say,
Mr . Turner and Mr . Trudeau, already knew that S & I had been doing
illegal things for twenty years ?
A . Well, maybe I'm wrong . . . I don't know . You know, I simply cannot
recall precisely and exactly what took place .
(Vol . C96, p . 12868 . )
And further :
Q . Again I ask you whether, when you say that your impression is
reinforced, does that mean that you are saying today that you now can
remember that on December lst, 1970, you had formed a certain
impression ?
A . No, I cannot say that truthfully .
(Vol . C96, p . 12869 . )
74 . Mr . Starnes relied on testimony he had given earlier, which he said was
"the way I can best describe it" (Vol . C96, p. 12866) :
I find it very difficult to accept the thesis that Ministers were not aware in
general terms of the problems of the Security Service in carrying out their
activities of this kind . . .
(Vol . 106, p . 16583 . )
Mr. Starnes testified that after November 27 and December 1, 1970, he was
never told by anyone in government that any illegal activities should be halted .
Asked whether he was speaking from memory, he answered :
I certainly would remember that, because that would be an order and I
would have acted on it .
He also testified that after those two dates he did not ever receive any inquiry
from any government official or Minister as to what he had meant by reporting
that the R .C .M .P . had been "committing criminal acts" or "doing illegal
things" . Asked whether he was speaking from memory, he answered :
I would have remembered . That is surely, would have been something . You
know, Mr . Chairman, I suspect that after the meeting of - I have
forgotten the date now - December the 19th, I guess it was, 1970, when
we were supposed to discuss these matters, and the Prime Minister put if
off and we never did . . .l can remember no discussion thereafter of th e
43
�subject, and I think it probably led to the disillusionment which, eventually,
caused me to take my early retirement and I can say now, had I been
fi fty-five then, I probably would have retired earlier .
(Vol . C 129A, pp . 17281-2 . )
75 . Mr . Starnes testified that after November 27 and December 1, 1970, he
does not remember having gone to any government official or Minister to
volunteer the details of what he had meant by the words "committing criminal
acts" or "doing illegal things" and to ask for guidance in regard to such
activities . He says that he is "quite sure" that "there were other occasions"
when he raised the matter - i .e . "when the problems associated with this kind
of thing and the need for guidance would have been raised with Ministers" but he "cannot remember them" and "cannot be specific" (Vol . C129A, pp .
17282-5) . Again, he says that "Ministers were aware or had been made aware,
that we had been breaking the law" (Vol . C129A, p . 17274) . He added :
The closest one I might have come to it, was by the time I had decided to
leave, and engineered a meeting with the Prime Minister, to try to make my
successor's lot a little easier . . . You see, interlinked with all this, intertwined with all this, is the equally frustrating and difficult problems
associated with not being able to do what it was the Government wanted
done, in terms of making a Security Service more civilian and all the rest of
it . . The difficulties between the RCMP, as such, and the Security Service,
.
and the whole future and more than that, all the problems that lay on the
plate of the Security Service at that time, and, you know, particularly in the
field of espionage, I just did not think it was wise to rock the boat and have
a big row again over nothing . . . Well, not over nothing, but I guess I had
run out of steam by that time .
(Vol . C 129A, pp . 17286-7 . )
(iv) The evidence of Mr . R .G . Robertso n
76. Mr . R. Gordon Robertson was Clerk of the Privy Council and Secretary
to the Cabinet in 1970 . He normally attended meetings of the C .C .P .P . He has
no specific recollection of the meeting of that Committee held on December 1,
1970, or of the discussion of the question of "Police Operations (Inherent
Contradiction)" (Vol . C108, pp . 13892, 13903) . His review of the minutes of
the meeting and Mr . Trudel's handwritten notes did not assist him in this
regard (Vol . C108, p . 13894) .
77 . Mr . Robertson stated that he has no specific recollection of having seen
the documents that related to the December 1st meeting, but believes that he
would have seen them . It was his practice to read such documents in advance of
the scheduled meeting (Vol . C108, p . 13896) .
78. While he does not specifically remember the discussion, he does remember that at about that time he thought that the Maxwell Memorandum
reflected a misunderstanding by the author of the observations of the Royal
Commission (Vol . C108, p . 13908) . In Mr . Robertson's view the important
distinction drawn by the Royal Commission was between a police force that is
not appropriately concerned with non-criminal activity, and a Security Service
which "is often involved" in such matters . He felt that the other distinction ,
44
�concerning "the spirit if not the letter of the law", was not very important,
"pretty nearly a non-issue", because, so far as he knew at the time, the
Security Service did nothing in its operational methods that the C .I .B . did not
do (Vol . C108, pp . 13909-10) . The only problem that the Security Service had
in its operations, which was drawn to his attention and which was different
from the problems on the C .I .B . side, was the problem of penetration of the
F .L .Q. namely, that when the F .L .Q . realized that members of the R .C .M .P.
were not authorized to commit crimes, penetration could effectively be prevented by requiring people joining a cell to commit a crime as a requirement of
admission . (The problems associated with such penetration efforts were raised
in a paper prepared by the R .C .M .P . in the second stream of Law and Order
Documents discussed below . )
79 . 'Although Mr . Robertson does not recall any part of what was discussed
at the meeting of December 1, 1970, he testified that he could, with the aid of
documents he read in preparation for testifying, "reconstruct to a degree the
kind of discussion" which took place, having the result that he thought he
remembered "some of the comments" (Vol . C108, p . 13915) . Mr . Robertson
stated that he remembers that at one of the meetings of the C .C .S .I . he
discussed the Committee structure as it then existed ; the notes by Mr . Trudel
enabled him, as a matter of . reconstruction, to say that "it looks as though I
said something about this on December 1st" (Vol . C108, p . 13917) . However,
apart from his remembering that the Prime Minister talked about the Deuxième Bureau in France - which the notes indicate - Mr . Robertson stated
that he does not recall and cannot reconstruct from the notes any of the
specific comments made by persons other than himself (Vol . C108, p . 13918) .
80. Mr . Robertson testified that he does not doubt that Mr . Starnes must
have said something like "the S & I has been doing illegal things for twenty
years but never caught", or such words would not, in his view, appear in the
notes . Mr. Robertson infers, from the fact that the notes do not record that
anyone at the meeting asked Mr . Starnes what he meant by that statement,
that what everyone around the table must have thought Mr . Starnes was
talking about wa s
the kind of thing that I think all of us who were connected with police work
or security work thought had to be done by police forces, not just the
R .C .M .P ., but by police forces in general, and not just the Security Service,
but the police forces, which involved minor misdemeanours where things
like traffic violations, false registrations in hotels, completing ownership
certificates for cars falsely, surreptitious entry, other things of that kind
took place ; and this was thought to be a perfectly normal and necessary
part of police work .
(Vol . C108, pp. 13920-1 . )
81 . Mr . Robertson stated that at the time of the December 1st meeting, he
assumed that all police forces committed traffic violations ; he knew that police
registered in hotels under assumed names in order to eavesdrop electronically
on the adjoining room, and he thinks he probably knew that there was a statute
requiring registration in the guest's own name ; he knew that all police forces
completed false applications for vehicle registration certificates ; and he kne w
45
�that evidence had been introduced in courts that had been obtained as a result
of a surreptitious entry (Vol . C108, pp . 13992-6) .
82 . Mr. Robertson testified that the two-page list of questions before the
C .C .P .P . meeting of December 1, 1970 and referred to above, was prepared in
the Department of Justice (Vol . C108, p. 13897) . He stated that the seventh
question therein ; namely "the question of the commission of crime in the
national interest" was not, as such, raised at the December lst meeting " . . .
because nobody thought there was any crime being committed by the Security
Service" and further, " . . . there is nothing in the Mackenzie Report that refers
to crime" (Vol . C108, p . 13927) .
83. In Mr . Robertson's view, the reference in the Report of the Royal
Commission on Security to "actions that may contravene the spirit if not the
letter of the law" referred to "minor peccadilloes" (Vol . C108, p . 13931) . The
Commissioners did not say in their Report that crimes were being committed,
and, Mr . Robertson testified, they did not say it to him, or to his knowledge, to
the Prime Minister (Vol . C108, p . 13932) . Mr . Robertson pointed out that no
reader of the Report, in Parliament or in the press, had ever asked whether
those words meant that the R .C .M .P . were committing crimes (Vol . C108, p .
13934) . He thought that, if the Commissioners had meant to say that the S &
I Branch was doing something unlawful, they would have communicated the
details to the government (Vol . C 108, p . 13991) .
84 . Mr . Robertson confirmed what Mr . Trudel had stated in evidence that at
a meeting of the Cabinet Committee it was the "normal practice" of Prime
Minister Trudeau, before reaching a conclusion, to summarize the discussion
and to try to bring out what he thought had been points of agreement and what
had been particularly difficult issues raised (Vol . C108, pp . 13943-9) .
85 . Mr . Robertson, like Mr . Trudeau, considers that the words found in Mr .
Trudel's notes, that certain activities of the Security and Intelligence Service
might not result in prosecution for security reasons, did not refer to non-prosecution of members of the R .C .M .P . but rather to non-prosecution of persons
under investigation (Vol . C108, pp . 13953-4) .
86 . Finally, Mr . Robertson testified as to the procedure by which minutes of
such meetings were prepared, and stated that it was "most unlikely" that a
draft of the minutes was submitted to him (Vol . C108, p . 13981) .
(v) The evidence of Mr . P .M . Pitfiel d
87 . Mr . P . Michael Pitfield was Deputy Secretary, Plans, in the Cabinet
Office in December 1970 . In this capacity he attended meetings of the
C .C .P .P. and was present at the December lst meeting of that Committee
(Vol . C117A, pp . 15290-91) . Mr . Pitfield testified that his function at this
meeting was to serve as a "general sort of ringmaster within the meeting",
arranging for the admission of people to the meeting and for subsequent or
previous items on the agenda, taking telephone calls, etc. He was not, however,
directly concerned with items that were under discussion at the meeting nor
was he present consistently throughout the meeting (Vol . C117A, pp .
15291-92) .
46
�88 . Mr . Pitfield testified that he had no recollection of the December 1, 1970
meeting and that a reading of the minutes of the meeting or of Mr . Trudel's
handwritten notes did not help him to remember (Vol . C117A, pp . 15293 and
15299) . Mr . Pitfield stated that Mr . Trudel reported, i n December 1970, to the
Assistant Secretary of the Cabinet who was responsible for the C .C.P .P . (Mr.
Butler) who in turn reported to Mr . Pitfield . Mr . Pitfield himself was not
involved in the preparation of minutes of meetings of the C .C .P .P . but was
involved in preparing the record of decision of such meetings, that is, the
circulation of the last paragraph of the minutes (Vol . C117A, pp. 15295-96) .
89 . Mr . Pitfield testified that the words attributed by Mr . Trudel, in his
handwritten notes ; to Mr . Starnes, did not assist him in recalling any discussion
which he may have heard at the December I st meeting . In addition, Mr .
Pitfield stated :
The minutes do not stimulate any memory that I may have or should have
of this ; and indeed, I quite frankly do not understand the minute very well
either .
(Vol . C I 17A, pp . 15300-01 . )
and further :
. . .I think it is, from my point of view, this is a very embarrassing and
unprofessional minutes [sic] and it is difficult to trace the association
between the notes and the minute . The minute is a hodge-podge of what a
number of people said, attributed to one person, and that is, when you play
the notes and the minute one against the other, that is what appears to be
the case . The notes themselves are a sort of collection of snapshots . One has
the impression that the note taker is trying to keep up with a discussion as it
goes along and he is just taking enough of the words that are said, that he
will be able, when he gets back to the office, to jog his memory, so that he
can put it all together, in some sort of replay. I suspect that when he got
back and tried to put it all together, he found it didn't fit, so he had to push
it a little bit, in order to get the reconstruction he has come up with here .
(Vol . C117A, pp . 15301-02 . )
90. In Mr . Pitfield's view the notetaker, Mr . Trudel, was "trying to summarize" and "not only is he trying to summarize but he is trying to summarize a
series of snapshots and he has to bend a little in order to do it, . . . it is a lousy
set of minutes and it is not one we would be very proud or' (Vol . C117A, p .
15307) .
91 . With respect to the Maxwell Memorandum, and the two-page list of
questions which accompanied it, Mr . Pitfield stated that the list of questions
"came in very late, and it would not have been circulated in time for Ministers
to have had an adequate opportunity to read and digest it" (Vol . C117A, pp .
15294-95) . (In fact, as we have stated, we are satisfied that the two-page list of
questions was attached to the Maxwell Memorandum a week earlier, at the
meeting of November 24 .) Neither the list nor the Memorandum assisted Mr .
Pitfield, however, in recalling the discussions at the December lst meeting
(Vol . C 117A, p . 15295) .
47
�(vi) The evidence of the Honourable J .N . Turne r
92. The Honourable John Turner was Minister of Justice and Attorney
General of Canada from July 6, 1968 to January 1972 . Mr . Turner was a
member of the C .C .P .P . during 1970 and attended the meeting of that
Committee on December 1, 1970 (Vol . C118, pp . 15326 and 15328) . He
confirmed that the minutes of the meeting indicated that he presented the
Maxwell Memorandum to the meeting (Vol . C118, p . 15328) . Although he has
no present recollection of the document, Mr . Turner did confirm that the
two-page list of questions ( Ex . M-36, Tab 7 ; MC-6, Tab 3) in fact accompanied the Maxwell Memorandum when it was introduced by him at the
meeting (Vol . C118, pp . 15331-32) .
93 . Mr . Turner stated that he was unable to reconstruct the discussion that
occurred at the meeting and accordingly could not recall whether the questions
contained in that list and, in particular, question number seven were discussed
(Vol . C118, p . 15333) . He testified that the minutes of the meeting did not
refresh his memory, nor did the handwritten notes of Mr . Trudel (Vol . C118,
pp . 15337 and 15338) . Asked "do you have any indication or any recollection
. .. that the notes would be incorrect?" Mr . Turner replied "No, I couldn't say
one way or the other" (Vol . C118, pp . 15338 and 15339, 15340-41) .
94 . When asked what he would have done had he been told that the Security
and Intelligence Branch of the R .C .M .P . had been doing illegal things for some
20 years he replied "I would have considered it my duty to investigate" (Vol .
C118, p . 15342) .
(vii) The evidence of former Commissioner W .L . Higgit t
95. Former Commissioner Higgitt attended meetings of the C .C .P .P . and
other Cabinet Committees frequently during his tenure as Commissioner of the
R .C .M .P . (Vol . Cl 17A, p . 15248) . With respect to the Maxwell Memorandum, Mr . Higgitt testified, when asked whether he recalled a discussion at
Cabinet level of the problems expressed in that memorandum, tha t
. ..1 am aware that these things were discussed, these topics were discussed . I
have a memory of - I can't put a date to it - I have a memory of Mr .
Maxwell himself being at a meeting of Cabinet Ministers, at which I was
present . The date, I cannot identify - at which matters of this nature were
discussed .
I think, without violating the truth at all, I could say that this
document was discussed, but again, it is ten years ago .
(Vol . C I 17A, p . 15251) .
and further :
. ..I really can't, in honesty, say what the actual discussions were, but
certainly these kinds of things were laid before the Ministers that were
present .
(Vol . C I 17A, p. 15252 . )
96. With respect to question number seven of the two-page list, Mr . Higgitt
testified :
The inherent contradiction question certainly was one of the questions that
was discussed and had been discussed on one or two or more occasions i n
48
�different forums . There is no question in my mind about that . I remember
that .
and further :
. . . it was the kind of question - it was one of the questions that certainly
was discussed. I would be pushing my memory too far to say precisely
where, but certainly with Cabinet Ministers .
(Vol . C I 17A, pp . 15254-55 . )
Mr . Higgitt stated in evidence that he was not surprised to see in Mr . Trudel's
notes the statements attributed to Mr . Starnes and Mr . Turner "because they
are indeed, the things that were discussed" (Vol . C117A, pp . 15271 and
15273) . Mr . Higgitt did not, however, recall the actual discussions at the
December 1, 1970 C .C .P .P . meeting . His direct evidence in this regard was as
follows :
Q . Did you ever hear Mr . Starnes express the view that `has been doing, S
& I illegal things for twenty years but never caught' . Do you recall Mr .
Starnes ever expressing that to you or in front of you ?
A . Yes . Mr . Starnes and I have discussed that on a number of occasions .
Q . That Security & Intelligence were doing illegal things or had been
doing illegal things for twenty years ?
A . Yes . Those were the kind of discussions that we had on a number of
occasions .
THE CHAIRMAN :
Q . Through the year 1970?
A . Yes .
Q . During the first year of his term as Director General?
A . Yes . I am quite sure that is true, sir .
MR . GOODWIN :
Q . Did you ever hear him express them to Cabinet Ministers?
A . Here I have to say I really can't remember that .
Q . Did you ever express that to Cabinet Ministers ?
A . Yes . I don't know that I would have used those precise words, but yes,
that thought was expressed by me .
Q . That illegal things had been going on for twenty years ?
A . Whether I put twenty years on it or not is another question, but
certainly there was no secret about that, or illegal type of things,
so-called . I must underline those so-called illegal things were being
done .
Q . Would you explain to us what you mean by this expression so-called?
A . Well, for example, I would use an example as a surreptitious entry into
a premises, and perhaps it is a matter of opinion where the legality or
illegality comes in . . . but that type of thing .
(Vol . Cl 17A, pp . 15275-77 . )
97 . According to Mr . Higgitt, the minutes of the December 1, 1970 meeting
supported "the certain knowledge [he had], that this sort of thing occurred i n
49
�these meetings" (Vol . C117A, p . 15279) . He could not, however, "put a date"
to the discussions by Ministers which he stated to have occurred on this matter
(Vol . C 117A, pp . 15280-81) .
(viii) The evidence of former Deputy Commissioner R . Carrière
98 . Mr . Carrière testified before the Commission that in his entire career
with the R .C .M .P . he had attended only one meeting of the C .C .P.P . and that
meeting was chaired by Prime Minister Trudeau (Vol . CI 17A, pp . 15225-26) .
Mr . Carrière stated that, while he had no clear recollection as to who was
present at this meeting, Commissioner Higgitt, Mr . Starnes and Cabinet
Ministers "must have been there" . The meeting recalled by Mr . Carrière
"wasn't too long before Mr . Cross was found . It could be days, it could be a
week or two weeks, but not much more than that" (Vol . C117A, p . 15229) .
99 . Mr . Carrière recalled this meeting not only because it was chaired by Mr .
Trudeau but, as well, because there was a non-Cabinet Minister present at the
meeting who was critical of the intelligence results being obtained by the police
with respect to the Cross kidnapping case . This criticism prompted Mr .
Carrière to seek permission from Mr . Trudeau to respond to it, which he then
in fact did (Vol . C117A, pp . 15229-30 ; 15232-33) . Mr . Carrière did not,
however, have any recollection of the discussion recorded by Mr . Trudel in his
notes as having taken place at the C .C .P .P . meeting he attended . Neither the
minutes Of the meeting nor the Maxwell Memorandum assisted him in This
regard .
(ix) The evidence of Mr . D .H . Christi e
100. Mr . Christie was the Assistant,Deputy Attorney General in 1970 and in
that capacity was in charge of all matters relating to criminal law and to
legislative matters (Vol . C118, p . 15371) . Mr . Christie testified that he was the
author of the first draft of the Maxwell Memorandum and that after he
discussed it with Mr . Maxwell certain changes and corrections were made in
the document (Vol . .C118, p . 15373) . He has no recollection of discussing the
document with Mr . Turner prior to the meeting of the C .C .P .P . on December
1, 1970 (Vol . C118, pp . 15373-74) .
101 . He attended that meeting although, he testifed, it was unusual for him
to attend such a meeting (Vol . C118, p . 15376) . Mr. Christie has no recollection of having seen the two-page list of questions prior to his preparation for .his
testimony (Vol . C118, pp . 15379-80) . He stated that he had recently had an
opportunity to review the documents that make up Exhibit VC-1, that is the
handwritten notes of Messrs . L .L . Trudel and M .E . Butler and the extract
from the minutes of the meeting, that these documents did not refresh his
recollection, and that he had no independent recollection of the meeting (Vol .
C118, pp . 15380-82) . When asked whether he questioned the content of Mr .
Trudel's notes he replied : "No, I can neither affirm or deny the validity of
these notes" (Vol . C118, p . 15390) .
50
�102 . He was asked whether he had the impression in 1970 that the operations
carried out by the Security Service were not in accordance with the highest
standards of conduct and he replied :
There was an impression abroad that the second quotation from the
Mackenzie Report, which appears in the documents, reflected .what was, I
think, understood to be pretty common knowledge among those who were
involved at all in this area .
(Vol . C118, p . 15378 .)
Later in his evidence he was asked whether he had any discussions with Mr .
Maxwell concerning the commission of crimes by members of the Security
Service and he responded :
No, not specific crimes . Nothing beyond, sort of, general belief, as reflected
in the Mackenzie-Coldwell Report . But we never discussed particular types
of crimes that they may or may not have been committing .
(Vol . Cl 18, p . 15387 . )
In this regard he was referring to that portion of the Mackenzie Report which
stated tha t
A security service will inevitably be involved in actions that may contravene
the spirit if not the letter of the law and with clandestine and other
activities which may sometimes seem to infringe on individuals' rights .
These are not appropriate police functions.
He further testified he had not addressed his mind to whether this statement
included conduct on the part of the Security and Intelligence Branch that was
illegal . He agreed that the actions referred to in the Mackenzie Report, that
gave rise to the impression he had described, would "not necessarily" involve
illegality (Vol . C118, pp . 15394 to 15396) .
(x) The evidence of Mr . M .E . Butler
103. In late 1970 Mr . Michael Butler had been an Assistant Secretary in the
Privy Council Office for a year and a half. He was specifically responsible for
the work of the Cabinet Committee on Priorities and Planning . His functions
included "being the active practical secretary at meetings" . He says that he
was at the December 1 meeting as its "working secretary", which means that
he was the "active secretary, facilitating the meeting" but that at the same
time he "was taking notes" so that if Mr . Trudel, whose "job was to take and
prepare minutes", could not do so, he could prepare minutes himself (Vol .
C119, pp . 15403-4) . He told us that, even before he was, in February 1981,
shown documents relating to the December 1 meeting he "had some memory of
what took place at the meeting" (Vol . C119, p . 15401) . What he has
independent recollection of is tha t
at one stage in the meeting, Mr . Robertson and the Prime Minister together
decided to refer a lot of the material that was being discussed to another
committee, a Security Committee . . .
(Vol . Cl 19, p . 15402 . )
And later he testified :
I recall that the meeting had largely ground to a halt while the Prime
Minister and Mr . Robertson were sorting out where to take it from here .
51
�And I remember watching them very carefully, because it was a critical
turning point in the meeting . And I recall all of this without having the
documents - without having seen the documents to refresh my memory which resulted in a lot of material being referred to the Cabinet Committee
on Security ; and the decision subsequently being taken to get on with some
of the basic homework on that Law and Order .
(Vol . C I 19, pp. 15425-6 . )
Mr. Butler says that he "kept notes in a ring-binder and on the document that
was being discussed at the time . "
104 . Mr . Butler says that if Mr . Starnes had uttered the words attributed to
him by Mr . Trudel ,
I think the alleged statement is of such consequence that I would have
recorded it if I had heard it .
(Vol . C119, p. 15482 . )
His notes do not contain those words or anything similar . He confirmed,
however, that "Mr . Trudel is a very careful and precise man" (Vol . C119, p .
15484) . He does not recollect anything that was said at the meeting except
that, as the Minutes say, the Prime Minister asked that the whole question be
referred to the Cabinet Committee on Security and Intelligence for consideration (Vol . C119, p. 15473) . We must point out, howéver, that Mr . Butler's
handwritten notes of the discussion of this subject are extremely sparse
compared to those of Mr . Trudel, whose notes appear to have formed a running
record of the meeting .
(xi) Summar y
105 . The evidence of Mr . Trudel is that his handwritten notes reflect what
was said on this subject at the December Ist meeting and further that he
recorded, to the best of his ability, what was in fact said and that,his notes did
not amount to a paraphrase of the statements made at the meeting . Prime
Minister Trudeau testified " . . . I am perfectly happy to recognize that words
to that effect were said if it was written down here . . . "; Mr . Robertson
testified that he did not doubt that Mr . Starnes said something like "the S & I
has been doing illegal things for twenty years but never caught" or such
language would not appear in Mr . Trudel's notes .
106 . In the extract from the typed minutes of the meeting of December 1,
1970 the following statement is attributed to Prime Minister Trudeau :
He noted that the image of the RCM Police could be misrepresented if the
security and intelligence forces were caught breaking the law in order to
obtain information . This situation had existed for some time in the RCM
Police and he asked that the whole question be referred to the Cabinet
Committee on Security and Intelligence for consideration .
Prime Minister Trudeau testified that he had no recollection of making that
statement and, comparing Mr . Trudel's notes with the typed minutes, pointed
out that the handwritten notes indicated that these thoughts were, instead,
expressed by Mr. Starnes and Mr . Turner . Mr . Pitfield was critical of th e
52
�typed minute for the same reason, that it contained incorrect attributions of
statements to Prime Minister Trudeau .
107. We are satisfied that the Trudel notes record words used by Mr . Starnes
at the meeting of December 1, 1970 . Accordingly, we find that the extract
from the typed minutes of the meeting is incorrect to the extent that it
attributes the statements just quoted as if they had been made by Prime
Minister Trudeau . However, we also find that those statements were made at
the meeting of December 1, 1970, even if not by Prime Minister Trudeau, and
that they may have been repeated by Prime Minister Trudeau in the summary
of the whole matter which he gave at the conclusion of the discussion .
108 . In our view the significance of that meeting is not so much in the
identity of the person to whom the statements are attributed, as it is in what
was said, provided that the statements were made by a person who would
reasonably be expected to be knowledgeable on the subject under discussion . In
our opinion, the Director General of the Security Service was such a person .
109. As stated above, no witness before us denied that the statements
recorded by Mr . Trudel in his notes were in fact made . Mr . Trudeau and Mr .
Robertson, however, offered an interpretation of the stateménts which, in
effect, denies that those present at the meeting had brought home to them the
fact that the Security Service had been engaged in the commission of crimes .
The evidence of both these witnesses in essence suggests that whatever meaning
wâs intended by Mr . Starnes when he used the word s
misunderstanding of contradiction
- has been doing S & I illegal
things for 20 years but never
caugh t
- no way of escaping these thing s
those present at the meeting did not understand those words to mean that
crimes had been committed by the Security Service . . Mr . Starnes was handicapped in his evidence before us inasmuch as he also lacked a direct recollection of the meeting and was basing his evidence on a reconstruction of the
matters discussed . It is, however, fair to infer from his evidence that the kind of
"illegal things" to which he was referring at the meeting were thbse of which
he was aware at that time .
110 . Notwithstanding the evidence as to what was apparently meant by Mr . .
Starnes at the December 1 meeting and as to what meaning in fact was taken
by those present, the fundamental question is what meaning a reasonable
person present at the meeting would have taken from Mr . Starnes' statements .
In essence the issues arise whether or not those present :
- understood from the discussion that activities of the specific nature
described by Mr . Starnes in his verbal evidence before the Commission
and as referred to by Mr . Trudeau were then being engaged in by the
R .C . M . P . ;
- can properly be said to have been told by Mr . Starnes that illegal
activities of some nature or kind were then being engaged in by th e
53
�Security Service, so as to require further inquiry and action by those
present at the meeting; an d
by not undertaking such further inquiry and action, can be taken or
were taken, to have tacitly assented to the continuation of those "illegal
activities" of the Security Service of which Mr . John Starnes was then
aware ; o r
- by not undertaking such further inquiry and action, can be taken to
have tacitly assented to the continuation generally of "illegal activities"
by the Security Service in the performance of its functions .
111 . The minutes of the December 1, 1970 meeting indicate that the "whole
question" was referred to the C .C .S .I . for consideration . However, at no
subsequent meeting of the C .C .S .I . was there an item on the agenda which by
its title called for a discussion of the "whole question" . Nevertheless, at the
C .C .S .I . meeting of December 21, 1970, the agenda included an item entitled
"R .C .M .P . Strategy for Dealing with the F .L .Q . and Similar Movements" . No
doubt because that paper raised the difficulty of members of the R .C .M .P . or
paid agents committing serious crimes in order to penetrate violence-prone
groups, the witnesses before us have clearly assumed that the "whole question"
raised by the discussion of the Law and Order paper at the C .C .P .P . on
December 1, 1970, by implication merged, for discussion purposes, under the
R .C .M .P . "Strategy" agenda item on December 21, 1970 . In the next section
we trace the historical development of the "R .C .M .P . Strategy Paper" . At the
conclusion of that section we shall see that at the C .C .S .I . meeting of
December 21, 1970, the Committee agreed to "defer consideration" of "this
topic until a future meeting" .
(e) The second stream of Law and Order Document s
112 . The issues raised in the second stream of Law and Order Documents
centres on a more specific problem, namely, the risks attendant on the
infiltration by human sources of violence-prone organizations .
113. The documents concerning this issue originated at a meeting of the
C .C .S .I . held on November 6, 1970 . At this meeting the C .C .S .I . determined
that the R .C .M .P . should prepare a report for the next meeting of the
Committee, setting out :
(a) proposed strategy to deal with the F .L .Q . and similar movements ;
(b) a preliminary analysis of documentation available from seizures made
so far ;
(c) statistical data having to do with the numbers of persons arrested,
detained, released and charged, to clarify the points raised by the
Prime Minister and other members of the Committee.
(Ex . M-86, Tab 7 . )
114. This direction from the C .C .S .I . resulted in the preparation by the
R .C.M .P. of a number of draft reports, of which our Commission has three,
(Ex . M-36, Tab 14 (M22(c)(b) ; M-36, Tab 8 (M22(c)(a) ; MC-85) and a final
report (Ex . M-36, Tab 21 (M22)) .
54
�115 . The first draft, prepared in mid-November 1970, was a six-page memorandum entitled "Police Strategy In Relation to the FLQ" and dealt with the
subjects enumerated in the November 6th decision of the C .C .S .I . (Ex . M-36,
Tab 14 (M22(c)b)) . At page 6 of the memorandum it was stated :
New techniques must be adopted by enforcement authorities if this threat is
to be effectively countered . Increased emphasis must be placed on the
infiltration of individual cells by human sources . In conjunction with this,
the risk of allowing these sources to participate in lesser criminal activities
must be accepted . Such participation is mandatory if they, are to prove
themselves and gain admission to cells . Without official sanction of such
activities all penetration attempts are destined to failure .
This memorandum spelled out :
(i) the method necessary to deal with the F .L .Q ., i .e . infiltration by
human sources ; an d
(ii) the risk involved in employing this method, i .e . that the sources
would, in the course of infiltration, of necessity become a party to
"lesser criminal activities" .
116. The second draft, similarly entitled, was dated November 20, 1970 and
consisted of 12 pages (Ex . M-36, Tab 8 (MC22(c)a)) . In the first paragraph
on page 9 of that draft it was stated :
More aggressive techniques will have to be adopted by enforcement
authorities if this threat is to be effectively countered . Increased emphasis
must be placed on the infiltration of individual cells by human sources . In
conjuction with this however, the risk of allowing these sources to participate in lesser criminal activities will have to be accepted . Such participation
by sources may oftenbe necessary if they are to prove themselves and gain
admittance . The risks of such operations will have to be faced at an official
level which may have to include immunity from criminal prosecution .
117 . Significant changes in language were effected in the second draft of the
.
R .C .M .P . report. The phrase "New techniques . ." became "More aggressive
techniques . . ." ; "participation" in "lesser criminal activities . .. may often be
necessary" as compared with the earlier statement that such participation was
"mandatory" ; and one kind of official approval is suggested for the first time :
"immunity from criminal prosecution" .
118. Unlike the first draft, the second draft, at pages 10 and 11, sets out the
intended strategy of the R .C .M .P . "for the purpose of keeping the government
informed of current situations and for countering the F .L.Q . and similar
groups" . The intended strategy was to include :
I . The continuation of present efforts to penetrate these groups by every
means possible, including, in particular:
(a) infiltration ;
(b) recruitment of members from within ;
(c) technical penetrations .
On the face of this document it seems reasonably clear that the intended
R .C .M .P . strategy included infiltration and the attendant risk that the infiltrator may become a party to "lesser criminal activities" .
55
�119 . This second version of the report was delivered to Mr . Mcllraith and to
Mr. R .G . Robertson, the then Secretary to the Cabinet, by letters from former
Commissioner Higgitt dated November 20, 1970 (Ex . M-36, Tab 9 ; Ex . M-20
and M-21) . The transmittal letter to Senator Mcllraith stated : "This is the
report we discussed in draft form a few days ago" (Ex . M-20) .
120. This second draft was also before the Special Committee of the Security
Panel at its meeting of November 27, 1970 (Ex . M-36, Tab 13 ; Ex . M-22, Tab
6) . That Committee was chaired by Mr . Robertson and was attended by 12
other senior officials of government including Mr . Côté, Mr . D .S . Maxwell,
then Deputy Minister of Justice, Commissioner Higgitt and Mr . Starnes .
121 . At that meeting the following discusion was recorded in the minutes of
the meeting :
Commissioner Higgitt and Mr . Starnes explained . . that the Security
.
Service had been breaking and entering in order to place technical aids for
years, that such activity against foreign agents would continue and there
should be the same approach to dealing with native Canadians seeking the
destruction of our society by similar methods, even if for allegedly different
reasons . The risk of eventual exposure was virtually inevitable, but worth
the result ; risks in infiltration applied not only to this area, but to paid
agents who, if jailed as accomplices to a criminal act in the process of
infiltration, could not be protected by any existing mechanism . The Chairman agreed with Commissioner Higgitt that Ministers must know what was
involved and the attendant risks, both at the present level of activity and of
any accepted increase in it . He considered that the RCMP must be totally
frank with Ministers, who in the past had been reluctant to face up to
problems of this sort . A detailed, thorough examination of the problem
would be essential at the Cabinet Committee on Security and Intelligence .
It would also be important for Ministers not to misinterpret the Commissioner's previous denials of criminal activity on the part of the Force : to
which Mr . Starnes replied that there was a world of difference in investigating dynamite thefts and the techniques used, as opposed to breaking and
entering to introduce technological devices in cases handled by the Security
Service .
(Ex . M-36, Tab 13 ; MC-22, Tab 6, pages 4, 5 . )
122 . This discussion brought to the attention of those present at the meeting
the following activities of the R .C .M .P . :
(a) breaking and entering to introduce technical devices and ,
(b) the fact that paid agents employed by the R .C .M .P . to infiltrate target
groups may become accomplices to a criminal act engaged in by
members of those groups whether or not such activity was approved by
Headquarters .
123. The minutes of the meeting record Mr . Robertson, as Chairman of the
Special Committee, as having indicated that a "detailed, thorough examination
of the problem would be essential at the C .C .S .I ." and further, that "the
R .C .M .P. must be totally frank with Ministers, who in the past had been
reluctant to face up to problems of this sort" .
56
�124. In his testimony before us Mr . Robertson stated, with reference to these
passages, that he recall s
. . . very clearly personally saying at the meeting that I thought there was
no prospect whatever that they would be given the authorization to permi t
personnel to commit crimes, in order to penetrate .
(Vol . CI 08, p. 14020 . )
125 . As we have indicated, we had a copy of the minutes of the Security
Panel meeting of November 27, 1970, when we examined witnesses concerning
the "R .C .M .P . Strategy Paper" in late 1979 and 1 9 80 . However, as we have
stated early in this chapter, in March 1981 we became aware of the existence
and content of notes made at that meeting by the late Mr . Beavis . In his notes,
two pages are devoted to notes of what was said during the discussion of the
"R .C .M .P . Strategy Paper" . It will be recalled that on page 9 of that paper it
was said : "The risk of allowing these sources to participate in lesser criminal
activities will have to be accepted" . Mr . Beavis, under the heading "P-9",
wrote:
St - crim acts - for 20 yrs . & will get caugh t
Ch - ensure good disc in CC -frank - & make clear what Hig meant
re crim e
The first of those lines we interpret as saying :
Starnes - criminal acts - for 20 years and will get caught .
Mr . Starnes was recalled to testify on April 2, 1981, only five days after we
had first received and read Mr . Beavis' longhand notes (Exs . MC-202, 203,
and 204) . He was asked whether these notes enabled him to recall what went
on at that meeting other than what he had previously testified to . He replied
"Not really" . He said he "can't honestly say, that" he remembers making the
statement "Crim acts - for twenty years - will get caught" (Vol . C129A, p .
17264) . Mr . Starnes was asked whether he has any memory of Mr . Robertson
having said that the R .C .M .P . had little hope of getting the authority of
government for the commission of illegal acts in the future, whether on the part
of R .C .M .P . or paid agents . Mr . Starnes answered : "No. That would have
depressed me even more, and I certainly would remember that" (Vol . C129A,
pp . 17288-9) .
126. Following the November 27th meeting, a third draft of the R .C .M .P .
report was prepared by the R .C .M .P . and was delivered by Commissioner
Higgitt to Mr . Côté, to Mr . Mcllraith's office and to Mr . D .F . Wall, then
Secretary of the Security Panel, by transmittal letters dated December 4, 1970,
respectively ( Ex. M-36, Tab 16 ; Ex . M-10 to M-13) . The letter to Mr . Wall
stated in part as follows :
The document has been amended to reflect the discussions at that meeting
and the subsequent discussions on `law and order' which took place on
December lst, 1970 in the Cabinet Committee on Priorities and Planning . I
assume that, in accordance with decisions reached on December lst, this
paper will be further discussed at the next meeting of the Cabinet Committee on Security and Intelligence .
57
�The words "that meeting" refer to the meeting of the Special Committee of the
Security Panel of November 27, 1970 .
127 . Some confusion is apparent on the evidence before us as to which draft
in fact was the draft forwarded to Mr . Mcllraith's office and to Messrs . Côté
and Wall on December 4, 1970 . Ex . MC-85, a seven-page memorandum again
entitled "Police Strategy in relation to the F .L .Q ." contains references to arrest
statistics as at December 2, 1970 . Accordingly, it seems probable that the draft
comprising Ex . MC-85 before this Commission is the third draft of the
R .C.M .P . report referred to in former Commissioner Higgitt's correspondence
of December 4, 1970 . Paragraph 19 of Ex . MC-85 stated, in part, as follows :
If such continuing revolutionary activities are to be effectively countered,
an increased effort to penetrate movements like the FLQ by human and
technical sources will have to be undertaken . This at once raises the
difficult question of providing some kind of immunity from arrest and
punishment for human sources (usually paid agents) who have to break the
law in order successfully to infiltrate movements like the FLQ. What should
be the responsibility of the government towards a member of the Security
Service or an agent paid by it who is arrested for committing a crime in the
line of duty as it were ?
Paragraph 21 stated in part :
21 . To keep the government informed of current developments and to
counter the continuing activities of the FLQ and similar groups throughout
Canada, the RCMP, propose, inter alia :
1 . Continuation of present efforts to penetrate such groups by every
means possible, including, in particular :
(a) Infiltration ;
(b) Recruitment of members of revolutionary movements ;
(c) Technical penetration .
128. Mr . Starnes then redrafted the report in its final form which was
entitled "RCMP Strategy for dealing with the FLQ and Similar Movements"
(Ex . M-36, Tab 21 (M-22) which we shall hereinafter call the ."R .C .M .P .
Strategy Paper" . This document was forwarded to Mr . Robertson by former
Commissioner Higgitt by letter dated December 14, 1970 (Ex . M-18) . That
letter concludes : "This document, which is intended to replace an earlier paper
on R .C.M .P. strategy, has been drafted to reflect recent discussions by
Ministers and senior officials" .
129 . Mr . Starnes forwarded a copy of the same report to Mr . Côté by letter
dated December 15, 1970 (Ex . M-36, Tab 17, M-19) . In this letter he stated
that the paper had been " . . . revised in the light of recent discussions which
have taken place between Ministers and senior officials" . He concluded : "I
hope it more adequately reflects the requirements of the Prime Minister and
his colleagues, and that it deals lucidly and frankly with some of the more
delicate problems which we face in attempting to carry out our
responsibilities" .
130. It would seem reasonable to infer that the "recent discussions" referred
to by Commissioner Higgitt and Mr . Starnes in their transmittal letters wer e
58
�those that had occurred at the meeting of the Special Committee of the
Security Panel on November 27, 1970, and at the meeting of the C .C .P .P. on
December 1, 1970 (See Ex . M-13 and Vol . C29, p. 3597 : Evidence of Mr .
Starnes) .
131 . Paragraphs 5, 9 and 10 of the final version of the report read as follows :
5 . If such continuing revolutionary activities are to be effectively countered, an increased effort to penetrate movements like the FLQ by huma n
and technical sources will have to be undertaken . We have had only limited
success in being able to penetrate the FLQ and similar movements with
human sources . Changes in existing legislation will be required if effective
penetration by technical means is to be achieved . The greatest bar to
effective penetration by human sources is the problem raised by having
members of the RCMP, or paid agents, commit serious crimes in order to
establish their bona fides with the members of the organization they are
seeking to infiltrate . Among other things, this involves the difficult question
of providing some kind of immunity from arrest and punishment for human
sources (usually paid agents) who have to break the law in order successfully to infiltrate movements like the FLQ . What should be the responsibility
of the Government towards a member of the Security Service or an agent
paid by it who is arrested for committing a crime in the line of duty as it
were? What measures can be suggested by the law officers of the Crown to
ensure that such persons escape a jail sentence and a criminal record,
without prejudicing their safety? Perhaps those clauses of the Letters
Patent of the Governor-General having to do with pardon might be resorted
to in such cases, but it is difficult to see how this could be done without
revealing the true role of the person concerned . . .
9 . It will be obvious from a reading of the account of the discovery by the
RCMP of Mr . Cross and his abductors that this probably could not have
been successfully accomplished without the interception of telephone conversations and that electronic eavesdropping was of assistance to the
investigation . Yet it should be realized that the application of telephone
interception techniques in coping with the FLQ and indeed, with similar
revolutionary activity across Canada, has only been possible by a most
liberal interpretation of the provisions of the Official Secrets Act . The
report on the Royal Commission on Security makes a number of useful
comments about the interception of telephone conversations and electric
eavesdropping, and in particular, about the importance of ensuring that any
legislation contemplated to deal with such matters should contain a clause
or clauses exempting interception operations for security purposes from the
provisions of that statute.
10. In addition to these broad strategy plans, we propose to intensify our
efforts in such obvious ways as the infiltration of the FLQ, selected
surveillance, recruitment of members of revolutionary groups and the
development of improved techniques to collect, collate and assess raw
intelligence, e.g . computers and information systems analysis .
132 . This final version of the report was then distributed to the members of
the C .C .S .I . and was before that Committee at its meeting of December 21,
1970 . The Minutes of the meeting of the C .C .S .I . of December 21, 1970, as
they relate to these pages, record that the Committee agreed to defer consider59
�ation of this topic to a further meeting (Ex . M-36, Tab 23) . In a memorandum
dated December 23, 1970 to his immediate subordinate, Mr . Starnes recorded
of the December 21 st meeting of the C .C .S .I . tha t
the Prime Minister said that he assumed I would like to have some
discussion of the R .C .M .P. paper dealing with strategy, and, as a consequence, suggested that it be put aside to a later date .
(Ex . M-36, Tab 24 . )
133 . The matter does not appear to have again been discussed by the C .C .S .I .
or the C .C .P .P . at any subsequent meetings . Mr . Starnes testified that he, to
the best of his present recollection, did not again discuss the matter with the
Prime Minister or with the Ministers . He stated further in evidence that he has
no recollection of pressing for the matter to be raised again for discussion ;
according to his recollection, the thrust of the discussions in the Cabinet
Committee meetings following December 21, 1970 shifted to other legislative
proposals (Vol . 103, pp . 16220-1, 16267, 16269 and 16773) .
134. In the light of the contents of the final version of the R .C .M .P . report,
viewed in the context of the language contained in its predecessor drafts, the
issue arises whether the legal problems raised as risks inherent in infiltration
efforts by the Security Service referred to past problems, existing problems or
prospective concerns faced by the Security Service .
135. In this regard Mr . Starnes testified that the infiltration problems
described in paragraph 5 of the final version of the R .C .M .P . report, that is, for
example, the problem raised by having members of the R .C .M .P . or paid
agents commit "serious crimes" in order to establish their bona fides with the
members of the target organization, and the problem of providing some kind of
immunity from arrest and punishment for sources who "have to break the law"
in order to successfully infiltrate, were "current or prospective problems" and
not problems that had been experienced by the Security Service in the past
(Vol . 102, pp . 16201-3 ) . Mr . Starnes stated in evidence that he did not have
any knowledge of "serious crimes" having in fact been committed by undercover members or agents in order to achieve infiltration (Vol . 102, 0 . 16198) .
136 . Former Commissioner Higgitt in his evidence agreed that these portions
of the final report referred to prospective problems and did not support his
previous testimony which had been to the effect that he discussed with
Ministers the concept that there were occasions on which the Security Service
had broken the law in carrying out its responsibilities . However he testified
that paragraph 10 of the final report set out an intended course of action by the
Security Service that would involve the risks described in paragraph 5 (Vol .
111, pp. 17100-1) . He stated further :
I don't think at that time that I knew that our paid agents were engaging in
criminal activities .
(Vol . I 1 l, p. 17140 .)
And further :
From memory I don't think we ever faced a case where we had to do one of
those things . . . I don't of memory, have a case, by luck or by good
management, where we were in the end absolutely faced with this sort of
thing.
(Vol . I I I, pp . 17101-2 . )
60
�(f) Disposition of the two streams of documents after December 21, 1 .970
137. There is no direct evidence before us as to how or why this'particular
item failed to reappear on the agenda of the C .C .S .I . Mr . Robertson was
questioned extensively about this, and about the system . Because of the
importance of the matter we set forth his evidence At some length (Vol . C108,
pp . 14011-7) :
Every Secretary kept a list of the items that were before whatever
Committee it might be . The Secretary would periodically review - he
would record the disposition of the item, and if it was disposed of, he
would strike it off. If it was still on his list it meant that it had not
been disposed of or it had not been dropped . So that he would have a
record of these items and he would review that periodically . But, as I
say, the situation might emerge in which circumstances had changed
or a Minister had said I'm not going to pursue that or something . That
might have happened . In which case it would be struck off . But it
would not be a matter - if I get the point of your question . .. it would
not be a matter of just forgetting about something and losing sight of
it .
Q . So that it would be your view, and I am aware that you do not have
documentation on this point in front of you, but it would be your view, I
take it, that the eventual removal of this particular item from any
agenda of this Committee, would be the result of a conscious decision
on the part of somebody ?
A . That's correct .
Q . In otherwords ; it would not have gotten lost in the shuffle ?
A . It would not have got lost . I think this system was good enough that
things did not get lost . There was a reason - mind you, things often
did get delayed, and delayed for a variety of reasons . To .that extent
events might alter them or overtake them . But certainly, the items
simply would not be forgotten or lost .
Q . So that it might be a decision based upon a turn of events that would
make it unrealistic to put the item back on discussion, when all the
problems associated with Item X might have receded into past history ?
A . That's right . In this particular case I can only speculate that it could be
that Ministers were not back together . . I don't remember how long the
adjournment was . It might have been until the end of January . That
would be not unusual . They might not have been back until February .
Discussion, if my memory is right, was still involved on the question of
special measures and legislation of that kind . I don't remember when
that was completed . That sort of discussion could have been considered
by the new Solicitor General as something that ought to be considered
before this matter came back . By the time that was disposed of, it
might have been the end of April or something . .. By which time,
penetration of the FLQ might be considered not nearly as important an
issue . So it might have been dropped for that kind of reason .
Q. And the planning of an agenda for a meeting of the Cabinet Committee
on Security and Intelligence would be the responsibility of the
Secretariat of that Committee ?
A . That's correct .
61
�Q . Do I gather from what you said earlier this morning, that because the
Prime Minister has so many other duties, his Chairmanship of this
particular Committee is unlikely to result in his being as involved in
such matters as the preparation of agendas and the review of minutes
and so forth, as might be the case with some other Committee ?
A . Oh, definitely . The Prime Minister would not be consulted as to the
agenda or the sequence . This would be the Secretaries' responsibility
and in the briefing note to the Prime Minister it was not infrequent, and
is not now infrequent, to say something such as I suggest you take the
items in the following sequence, and that might not be the sequence in
the agenda . Then there would be reasons why such and such a sequence
might be desirable : Mr. X has to go to a speaking engagement in
Montreal and leave at such and such a time or something of that kind .
Q . Was it usual for a committee such as the Cabinet Committee on
Security and Intelligence, to alert members and other people who were
expected to be present, some time in advance, so that if they had items
they wanted to add to the agenda, they could before the agenda was
finalized ?
A . Yes . There were rules - the details of which I now forget - which
prescribed periods in advance of the meeting by which notice had to be
given of items for a meeting . They also prescribed when Ministers had
to receive agendas and documents, to give them adequate time to
prepare for them .
Q . It would, I take it, be your view that no argument could be advanced by
a person who was present at this Committee, that the mere fact that an
item on the agenda had not been reached, was in any way to be
interpreted as the matter having been rejected or turned down or turned
back or not to be brought up again on a future agenda ?
A . No .
Q.
If we look at the list of people who were in attendance at this particular
meeting, I would assume it is a fair understanding to assume that at
least the Solicitor General - soon to be replaced by his successor . . .
the Deputy Solicitor General, the Commissioner, the Director Genera l
of the Security Service and possibly, the people from the Department of
Justice, would all in the normal course of events be expected to have
this particular item in mind, if they wanted to bring it up at a future .
meeting? It related even more specifically to their duties, than to the
duties of Mr . Cross from the Department of Manpower and Immigration and certain others who were present ?
A. That is correct. It, of course, would be of particular concern to the
Commissioner and Mr. Starnes . Because it was in a document that
came from the RCMP and was relating to the security work .
Q . Again recognizing that you do not have documentation on this point
before you, you would be quite sure in your own mind that if a further
meeting of the Committee had been scheduled for the end of February,
and notice was given, it would still be open to them to file in writing or
via a phone call, a special request that this particular item be on that
agenda, if it were not already shown to be on the draft agenda ?
A . Yes .
62
�138 . Mr. Robertson's knowledge of the system that existed at that time was
undoubtedly extensive . As is indicated in the foregoing passage, his view is that
the removal of this item from any agenda of the Committee would be the result
of a conscious decision on the part of somebody . We have no evidence as to
who made such a decision, if there were one made . We note Mr . Robertson's
testimony that the secretariat of the C .C .S .I . would not consult the Prime
Minister as to the agenda . As for the reason such a'decision might have been
made, we note Mr . Robertson's speculation that by the spring of 1971 the issue
raised in the R .C .M .P . Strategy Paper might have been dropped because
penetration of the F.L .Q . had become an issue of lesser importance with the
passage of time .
139 . Finally, we think that it is important not to lose sight of the fact that it
would have been open to several persons, at any time after the deferment of the
matter at the C .C .S .I . meeting of December 21, 1970, to write or telephone the
secretariat of the committee, to ask that this item be placed on the agenda for a
subsequent meeting, if it were not already on such an agenda .
(g) Overview and conclusion s
(i) Did documents which disclosed the possible future commission of
offences by members or agents in the course of penetrating violenceprone groups also disclose that the R .C .M .P . had engaged in activities
"not authorized or provided for by law "
140 . As noted above, the second stream of Law and Order Documents relates
to a particular problem facing the Security Service, viz : the infiltration of
violence-prone organizations and the risks attendant thereon . These documents
describe an existing problem that inhibited effective infiltration by R .C .M .P .
members or paid agents into violence-prone organizations such as the F .L .Q .
These documents do not, however, on their face, indicate that R .C .M .P .
sources (whether members or paid agents) as at December of 1970 had
engaged in criminal activities or activities contrary to law in order to achieve
effective penetration, whether with or without the authority or, acquiescence of
the Security Service . (More specifically, the testimony of former Commissioner
Higgitt and Mr . Starnes before us is that the commentary set forth in these
documents with respect to such infiltration risks was entirely prospective in
nature - in other words, that crimes might have to be committed in the future
in order to penetrate groups .) We conclude unhesitatingly that this stream of
documents did not disclose to government officials or Ministers that members
or agents .of the R .C .M .P . had committed unlawful acts .
(ii) Did documents which discussed the "inherent contradiction" of the
Security Service, or discussion of those documents, result in senior
officials and Ministers being advised that the Security Service had been
carrying out illegal activities ?
141 . The first stream of documents and the discussions relating to them raise
a much broader issue. The nature of the broader issue, as set forth in Mr .
Starnes' document of November 26, 1970 (Ex . M-36, Tab 11), is whether
senior officials and Ministers were advised that the Security Service had bee n
63
�carrying out illegal activities for some twenty years in the carrying out of its
responsibilities .
142 . No witness has any memory of what Mr . Starnes said . The evidence is
that of Mr . Trudel's notes . It has been submitted to us by counsel for the
government that his notes would not be admitted into evidence in a court of
law, and are not reliable . In our Appendix to this Part we shall deal with each
of these points in turn, and then deal with a third issue raised by counsel for
the government . Our conclusions are that his notes would be admissible in a
court of law, are admissible before this Commission of Inquiry, and are
reliable . On the third issue, we give our reasons for reporting the facts even
though the words were spoken at a meeting of a cabinet committee .
143 . We find that on December 1, 1970, Mr . Trudeau, Mr . Turner and other
persons present were told that the Security Service had been doing illegal
things for twenty years . We are satisfied that Mr . Trudel's handwritten notes
record words used by Mr . Starnes at the meeting of December 1, 1970, namely
that the Security Service had been doing illegal things for 20 years and had not
been caught . We further find that those notes support the conclusion that the
Honourable John Turner heard what Mr . Starnes said since he replied "If you
are caught . . . then what of police image . . should you not be dissociated" . As
.
for Prime Minister Trudeau, although it is only fair, in our opinion, not to
attribute to him all the statements in the typed minutes which appear to us to
have been really the minute-drafter's summary of what was said by others at
the meeting, we do consider that the notes disclose that he heard and reacted to
the statement made by Mr . Starnes .
144 . We also find that there is no evidence to support a conclusion that either
Mr . Trudeau or Mr . Turner was made aware of any specific kinds of activity of
an illegal nature, in which the Security Service was engaged . Nor is there any
evidence before us as to what those who heard Mr . Starnes' words understood
them to refer to .
145 . At the conclusion of Part I of this Report we made reference to our
views concerning expression of opinion or passing of judgment as to the
conduct of Ministers and senior public servants . The information presented to
the meeting of December 1, 1970 that "illegal things" had been engaged in for
twenty years past by the Security Service, resulted in, to employ the words we
used in Part I, steps being taken to "deal with it in some other way" . These
steps consisted of a decision on the part of the Prime Minister, and recorded in
both the handwritten notes of . the meeting and the final Minutes of the
Meeting "that the whole question be referred to the Cabinet Committee on
Security and Intelligence for consideration" . We accept that the Committee
which was meeting on December 1, i .e . the C .C .P.P ., was not the Cabinet
Committee in which this subject matter raised by the Maxwell memorandum
should appropriately be discussed . The subject matter was referred to the
Cabinet Committee on Security and Intelligence whose responsibility was to
deal with matters of this nature .
146 . The evidence of Mr . Trudeau, Mr . Turner and Mr . Starnes establishes
that, neither at the meeting itself nor afterward was any inquiry made by or a t
64
�the instruction of Mr . Trudeau or Mr . Turner. We have already noted Mr .
Starnes' testimony that after December 1 he did not receive any inquiry from
any government official or Minister as to what he had meant . Mr . Trudeau
testified as follows :
Q . Do you recall any discussion after the meeting, with Starnes, concerning what he was talking about ?
A . No, I don't .
(Vol . C98, p . 12944 . )
Mr . Turner testified as follows :
Q. Do you recall this topic - I'm sorry, do you recall ever participating in
later assemblies where this topic would have been discussed ?
A . I don't .
(Vol . C1 1 8, p . 15344 . )
147. Thus it would be open to infer that Mr . Starnes could reasonably
conclude, after the meeting of December 1, and after there were no inquiries
made of him about these illegal "things" during the weeks and months that
followed, that the government by implication assented to the continuation of
those activities . That inference may have been unjustified in that the government may have had no intention to give any such assent, and no one has any
memory of how the matter was dealt with . It is therefore impossible to reach
any conclusion as to whether there was any such assent intended . However, the
matter seems to us to be of academic importance, for Mr . Starnes at no time
has said that he permitted any of the institutionalized practices of which he
was aware (such as surreptitious entries and speeding by drivers of Watcher
Service vehicles) to continue because he considered that the government had
assented to such activities . Indeed, Mr . Starnes was asked whether he remembered having, as the months went by after November 27 and December 1,
1970, addressed his mind to this and having concluded in his own mind that, in
the absence of being told to stop any activities he considered to be illegal, he
had, in effect, authority from the government to allow such activities to carry
on . He replied :
I don't think I would have rationalized it quite the way you have put it .
My mind doesn't work quite like that . Probably the net effect would be
the same, but I don't think I sat down and looked at myself, as it were .
I am not that kind of a person . But probably the net effect would have
been just that .
He was then asked how his mind would "work so that the net effect would be
the same" . His reply, and a further question and answer, were as follows :
A . I think my concerns would have been more how to get an extremely
difficult job done in the circumstances you have described, with a
minimum amount of risk and damage to the people who were working
for me, because they were on the front line, not me.
Q . I interpret that answer as meaning : I wouldn't have addressed my mind
to any implication of authority arising from not being told to stop, but I
would have taken the lack of help that I received off my back and
looked forward and decided to address my mind to what practical ways
there might be of enabling people in the field to get the job done with
the minimum possible legal and other risks .
65
�Q . Is that right?
A . That is correct .
(Vol . C 129A, pp . 17289-91 . )
148. Nor has he ever claimed that he communicated to any other member of
the R .C .M .P ., as a fact or understanding or in any way at all, that the
government had given its implied assent to the R .C .M .P . Security Service's
doing illegal things . Nor did he claim that any subordinate to whom he may
have said that he had informed the government that the R .C .M .P . had been
doing illegal things interpreted the lack of a request for details as implied
authority to carry on with illegal practices . Indeed, Mr . Starnes was asked
whether, after November 27 and December 1, 1970, he ever told any subordinate in the Security Service, that he had told the government that the
R .C .M .P., in its security and intelligence work, had been doing illegal things
but had never been caught, and that he had not received any request for
details . His reply, and further questions and answers, were as follows :
A . I'm quite sure that I would have come back on occasion just steaming,
to my people who were working for me, like Draper and Sexsmith and
so on, and said - you know, I won't use the language which I might
have used, but I would have come back probably extremely irritated
and frustrated on these very points : Now, we are getting nowhere ; we
are getting no advice ; no help .
Q . But you have no memory of this ?
A . No, I haven't, but I am darned sure that I must have, knowing myself.
Q . Do you have any memory that any subordinate, on any such occasion
when you said anything of that sort to them, replied anything to the
effect : Well, I guess that gives us the green light we need, the back-up
we need, the authority we need to carry on with any particular
practice ?
A . No, I can't say that.
(Vol . C I 29A, p . 17293 . )
The same is true of Mr . Higgitt ; he has never told us that he allowed any
institutionalized practices of which he was aware to continue because he
considered that his "political masters" (as he calls them) had given their
implied assent to them . At most they have invited us to note that the
government knew certain things ; but they have not asserted that they regarded
such knowledge as a defence for their allowing institutionalized practices to
continue .
149. Even more clearly, knowledge by the government in December 1970 that
the R .C .M .P . in its Security and Intelligence work had been doing illegal
things, without further inquiry or remonstrance, cannot reasonably be taken as
implied assent to any subsequent illegal acts in which Mr . Starnes was involved
or of which he knew, which went beyond the bounds or practices which had
been institutionalized by December 1970 and were then known to him . To treat
the matter otherwise would be to regard the government's silence as carte
blanche, and we think that it is unreasonable to infer that a failure to inquire
or to direct cessation of "illegal things" can be taken as carte blanche . In any
event, the only two incidents of which we are aware and that we think may
66
�have involved illégal conduct on the part of Mr . Starnes after 1970 were
Operation Ham (described in Part VI, Chapter 10) and the destruction of an
article (described in Part IV, Chapter 9) . In neither of these cases has Mr .
Starnes claimed before us that his conduct was motivated by reliance upon
tacit or implied consent by the government to "illegal things" . Indeed, Mr .
Starnes was asked whether, after speaking in government circles of the
commission of criminal acts and the doing of illegal things on November 27
and December 1, 1970, and after not being asked for details or being told to
stop, he ever authorized any particular practice or particular act or particular
operation, and in doing so, relied, in his own mind, on the fact that he had told
this to government and not been told to stop illegal activities . He replied :
A . Oh, 1 get the purport of your question, but I wish I could answer it in
another way . I simply cannot say that, you know, I remember any
specific occasion that that sort of reasoning would have occurred to me.
(Vol . C I 29A, p . 17294 . )
150 . As far as officers subordinate to Mr . Starnes and Commissioner Higgitt
are concerned, or the "foot-soldiers" of various ranks who carried out operations whether of an institutionalized or of a special nature, we do not consider
that they can point to the government's knowledge of December 1970 as
justification for what they did, if it was otherwise illegal . The kind of argument
based on "apparent authority" which has developed in the United States, and
was discussed by us in our Second Report, Part IV, Chapter 1, cannot succeed
on that ground unless those who advance it can assert that they believed that
what they were doing was done with the authority of the government or some
official in government who they thought could cloak them with authority . No
evidence has been presented to us by any member of the R .C .M .P ., or found by
us in any dbcuments, that would support an inference that any member of the
R .C .M .P . performed any act because he thought that it was covered by a
blanket of authority consisting of what he understood had been tacit or implied
assent by the government to the performance of otherwise illegal acts in order
to protect the security of Canada .
151 . Thus, our view is that the knowledge of the government, and its
subsequent failure to inquire or to direct the cessation of "illegal things",
whatever may be said of those facts in political terms (as to which, for the
reasons we have given, we make no comment), has no relevance to the legal
quality of any acts by members of the R .C .M .P . committed thereafter .
Nevertheless, because a prosecuting authority or a judge may be of a different
view, we think that the facts of such knowledge and subsequent lack of inquiry
or direction to desist should be made known to those who are directly affected
by this Report .
152 . In this section of this Part we have discussed the history of the Law and
Order documents in great detail . We have found that the matters placed before
Ministers and senior officials by the R .C .M .P . were never fully discussed and
resolved within government . Although we have concluded that the submissions
made to Ministers and senior officials cannot relieve members of the R .C .M .P .
from responsibility for subsequent illegal acts, there is no doubt in our minds
that an attempt was made by senior members of the R .C .M .P . to have aspect s
67
�of the question of illegal acts discussed at the highest level of government, both
as to what had happened in the past and as to what might take place in the
future . This confirms the testimony of senior officers of the R .C .M .P . that the
problem of illegal acts was, to a certain extent, raised with Ministers and senior
officials over the years .
B. R.C.M.P. ATTITUDE TOWARDS MEMBERS OR
SOURCE S
ENGAGED IN "SENSITIVE OR SECRET OPERATIONS"
153 . Here we discuss another body of evidence, which related to a "policy" or
"procedure" that had been developed within the R .C .M .P . to apply if
R .C .M .P . members or paid agents became exposed to court process by virtue of
their involvement in "sensitive or secret operations" .
154. Documentation in R .C .M .P . files indicated that in the summer of 1970
an issue arose within the R .C .M .P . as to what would happen to members of the
Force who "became subject to criminal and civil process" as a result of their
participation in "sensitive or secret operations" . As a result of our discovery of
this documentation, and in the light of the existence of the Law and Order
Documents, we heard evidence from several witnesses as to whether in fact
such a "policy" or "procedure" as referred to above existed within the
R .C .M .P . and as to whether or not Ministers or senior officials were informed
by the R .C .M .P ., or otherwise became aware, of the existence of such a
"policy" or "procedure" .
155 . The manner in which the question arose, and how it was dealt with
within the R .C .M .P ., were described by us as follows in Part IV, Chapter 2 of
our Second Report :
7. .
. .In June 1970, some members of the Security Service, in a training
class, questioned their position if criminal or civil action were to be brought
against them . Their concern referred to carrying out what were described,
in a memorandum (Ex . M-l, Tab 2) summarizing the discussion, as
"certain tasks performed by S .I .B . [Security and Intelligence Directorate]
or C .I .B . personnel" that required "that the law be transgressed, whether it
be Federal, Provincial or Municipal law, in order that the purpose of the
undertaking may be fulfilled" . The memorandum observed that "The
particular task will have been sanctioned in many cases by a number of
officers who will at least be aware of the means required to achieve the end
product, and who will have given their tacit or express approval" .
8 . The members of the class wanted to know to what extent the Force
would back its members in these circumstances, whether their families
would be cared for in the event of imprisonment and where members stood
in terms of future employment . . .
10 . A three-page policy memorandum was then prepared for Commissioner
Higgitt's approval . This memorandum, in addition to incorporating the
points noted above, contained the following paragraph which is ambiguous
and may even contradict itself:
68
�It must also be borne in mind, of course, that where a member is directed
to perform a duty which may require him to contravene the law for any
purpose or where the means required to achieve a specific end can
reasonably be foreseen as illegal, a member is within his rights to refuse to
do any unlawful act . Such a refusal may be given with impunity. Though
no disciplinary action would be taken, a transfer Tay be indicated in such
a situation (Ex . M- 1, Tab 7) .
(The emphasis is ours .)
11 . Commissioner Higgitt refused to sign this policy memorandum . Instead
he decided, and noted on the memorandum tha t
Under no circumstances should anything of this nature be circulated in
written or memo form . The reasons ought to be obvious . I do not believe
this is the problem it is being made out to be . Members know or ought to
that whatever misadventure happens to them the Force will stand by them
so long as there is some justification for doing so .
(Ex . M- l,Tab 7 .)
In view of this decision, the Deputy Commissioner (Administration)
instructed .the Director of Organization and Personnel to put the communications concerning this matter away "in secret envelope on policy file", and
that the contents were "to be relayed to S . & 1 . and C .I .B . classes orally
when convene [sic] at H .Q . Ottawa" . The draft policy memorandum was
conveyed to an officer for the information of lecturers and to Mr . Starnes .
12 . In his testimony concerning this policy matter, Mr . Higgitt made
several noteworthy points . First, he confirmed the validity of the problem
which gave rise to efforts within the R.C .M .P. to develop the policy
memorandum referred to above :
.
The problem at the moment was members of the Force . . getting themselves into difficult situations as a result of quite straight forward, honest
carrying out of their duties, getting themselves into difficulties, it could be
with transgressions of a law or it could be with a number of other things ;
it was a problem that was inherent in not only the Security Service, in the
law enforcement generally, that occasionally placed members in difficult
circumstances .
(Vol . 88, p . 14452 ; see also Vol . 85, pp . 13965-6 and
Vol . 87, pp . 14330-1 . )
13 . Second, it is not clear from his testimony what Mr . Higgitt believed the
R .C .M .P. policy to be for dealing with this problem . At several points, Mr .
Higgitt stated that the draft policy memorandum was, in effect, Force
policy :
Q . So, the text of the draft letter did remain the policy as it is explaine d
there, as it is expressed there ?
A . Right, in essence it was the policy .
(Vol . 85, p . 13948 ; see also
Vol . 84, p . 13751 . )
Nonetheless, at other points, he testified that the draft memorandum did
not represent Force policy . Rather, he said that his handwritten note quoted
above was the extent of Force policy (Vol . 87, pp . 14282, 14289, 14303) .
Notwithstanding this lack of clarity about what precisely was Force policy,
Mr . Higgitt testified that this policy had been in effect for over 30 year s
69
�and that his handwritten note was not intended to change the policy in any
way . Rather, it was "restating the obvious" (Vol . 85, p . 13992 and Vol . 86,
p . 14190) . Furthermore, he gave three reasons why the policy on this matter
should not have been written down and circulatéd among R .C .M .P.
members :
(a) the policy was well known to members (Vol . 84, p . 13751 and Vol . 86,
pp. 14190-1) ;
(b) the problem addressed by the policy was not as significant as it was
being made out to be and publication of the policy might have the effect of
.
.giving some degree of freedom which, certainly, I did not wish to giv e
in that way to members at large to engage in this sort of thing" (Vol . 84,
pp . 13751-2) ; an d
(c) Mr . Higgitt believed that there was " . . . really no answer that one can
put in written form to the problem involved here . . . you could not begin to
describe the various things that could happen . You can't describe, except in
a very general way, what the Commissioner's response would be to those
things" (Vol . 87, pp . 14282-3) . Notwithstanding these reasons for not
writing down the policy, Mr . Higgitt believed that the policy should have
been communicated orally to those members of the Force likely to be
affected (Vol . 85, p . 13940) .
14 . Third, contrary to the draft policy memorandum, Mr . Higgitt testified
that the Force would not necessarily stand behind the member who obeyed
an unlawful order given by a superior :
Q . Would I be correct then that in a situation, say, where a senior N .C .O .
instructed a constable to do something that involved a transgression of
the law, that under your policy, that the constable would be protected
by the policy, but the N .C .O . would not be ?
A . That is a question that could only be answered given the circumstances .
Protection wasn't necessarily always involved .
(Vol . 85, pp . 13992-3 .)
On the other hand, Mr . Higgitt stated that if a member disobeyed an
unlawful order, he might well be transferred, although in Mr . Higgitt's
view, such a transfer would not be "a disciplinary matter" (Vol . 85, pp .
13959-64) .
156 . We concluded in our Second Report that "it would be surprising if [a
member of the R .C .M .P .] did not find Force policy on this matter vague,
confusing and at times contradictory" . In other words, there was a "policy" or
"practice" but just what it was is not susceptible of definition . As to whether
the "policy" or "practice" (whatever it was) was intended to provide protection
to members of the Security Service or paid agents who would become involved
in criminal activities in order to infiltrate groups, we have found no evidence
that it was .
157 . Mr . Higgitt was asked in evidence whether or not he had discussed this
policy or procedure with those persons to whom he was responsible . He
testified in this regard :
I discussed it with Ministers, from time to time, in oral as well as in written
form . The problem was placed on Ministers' desks .
70
�Q. And did you, at any time receive any instructions from the Ministers
with whom you discussed it, that such a policy was inappropriate ?
A . No, I never did .
(Vol . 84, p. 13756 .)
158 . Asked whether he discussed it with Mr . Mcllraith, Commissioner
Higgitt answered "Yes", and stated that he did not recall Mr . Mcllraith's
having given any indication that he was not in accord with such a policy (Vol .
84, pp . 13756-7) . He was then asked whether he discussed this matter with Mr .
Goyer, namely, the policy referred to in the three-page policy memorandum .
Mr . Higgitt stated :
. . .I must frame my answer to this specific memorandum as such . It was not
necessarily discussed, but the principle involved and the fact . that our
members were required . . . to put themselves at risk in the carrying out of
their obligations and their duties. This was discussed . . . with all ministers
that I served under .
(Vol . 84, p . 13757 . )
.
159. When asked about "the intention . . that the Force would stand behind
the members if they were acting in accordance with the orders and policy of
their senior officers", Mr . Higgitt answered that i t
was discussed in the context that very often we are trying to get some
legislative support for it .
(Vol . 84, p . 13758 . )
160 . Mr . Higgitt was then asked whether he discussed "the same problem
and the resolution so far as the members are concerned" with Mr . Allmand .
He replied : "Yes, there is no doubt in my mind of that" (Vol . 84, p . 13758) .
161 . Mr . Higgitt's evidence on this issue is not however, 'entirely consistent .
Notwithstanding his prior testimony, when cross-examined further on this
subject Mr . Higgitt stated at one point that he did not think that he passed on
to "the Ministers" the information as to the "procedures" to apply (Vol . 110,
p . 16970) . Still later in his evidence he stated expressly :
There was no question but that very senior people in government and
including Ministers knew that this problem existed .
(Vol . 1 10, p . 16986 . )
162 . Mr . Higgitt in this regard was referring to the procedure whereby "the
Force would protect its members" depending on the facts of the particular
activity concerned (Vol . 110, p . 16987) . When asked to which Ministers he had
.
described this "procedure", he replied that " . . it wasn't something that even
had to be discussed" (Vol . 110, p . 16989) because it was such an obvious and
simple procedure . His evidence was marked by further inconsistencies as he
then stated that he was not sure that he had discussed it with "the Minister"
but that " . . in the course of general discussions this kind of thing would have
.
been probably mentioned" and that he was "sure" that it was part of their
general discussions (Vol . 110, p . 16990) .
163. According to Mr . Higgitt, he "must have" discussed the matter with the
Solicitor General to whom he was responsible (Vol . 110, p . 16992) . "Logic "
71
�dictated that he "undoubtedly" did but he had no "absolute recollection of it"
(Vol . 110, p. 16994) .
164 . In the light of this testimony Mr . Higgitt was asked specifically to
identify the Solicitors General with whom he had discussed this policy or
procedure . In reply to this questioning he stated on the one hand, that he
couldn't "really answer that question" but nevertheless "I certainly think it
would have been with Mr . Mcllraith" (Vol . 110, pp . 16994-5) .
165 . In support of this assertion, and despite his admission that he had no
precise recollection of such a discussion with Mr . Mcllraith, Mr . Higgitt stated
that it was during Mr . Mcllraith's tenure as Solicitor General that the general
question of the extent to which members of the Force would be required to
transgress the law in order to carry out their functions was being considered by
various responsible government committees . Based on this fact, Mr . Higgitt
told us that he thought that the protection or support policy of the Force was
discussed with Mr . Mcllraith, but he was not sure (Vol . 110, pp . 16995-6) .
166. In view of the inconsistencies in Mr . Higgitt's evidence with respect to
this matter, we are of the view that it cannot reasonably be concluded that, as
originally asserted by him, he did in fact discuss this issue with Mr . Goyer and
Mr . Allmand . However, as alluded to by Mr . Higgitt, it is correct that the Law
and Order Documents were generated during the tenure of Mr . McIlraith and
were before various governmental committees in the fall of 1970 (most notably,
the C .C .P .P . at its meetings of November 24, 1970 and December 1, 1970
respectively, and the Special Committee of the Security Panel at its meeting of
November 27, 1970) .
167 . At most, then, it could only be suggested that he discussed the matters
with Mr . Mcllraith . It is submitted, however, that it is unreasonable to draw
this inference inasmuch as Mr . Higgitt's overall evidence on this particular
issue is inconsistent and contradictory . At the same time, however, the minutes
of the C .C .P .P. meeting of December 1, 1970 and the R .C .M . Police Strategy
Report as before the Special Committee of the Security Panel on November
27, 1970 do support the view that infiltration problems had been brought to the
attention of government officials and that "guidelines" were being sought . In
this regard it should be remembered that although Mr . Mcllraith was not
present at the C .C .P .P . meeting Of December 1, 1970 nor at the Security Panel
meeting of November 27, 1970, he had been forwarded a copy of both the
Maxwell Memorandum and the "R .C .M .P . Strategy Paper" . In addition, his
immediate subordinate, Mr . Ernest Côté, was present at the November 27
meeting as were other senior officials of government .
168. Assuming, however, that the specific inference is drawn by us that the
"policy" or "procedure" was discussed with Mr . Mcllraith, the question arises
as to what matters, specifically, were discussed with Mr . Mcllraith and what
"sensitive or secret operations" were referred to in such discussions . In this
regard Mr . Higgitt testified that the matter which he logically felt had been
discussed was the "procedure" followed when members of the R .C .M .P . put
themselves "at risk" in the course of their duties . Mr. Higgitt did not testify
72
�that "activities not authorized or provided for by law" or indeed, unlawful or
illegal activities, were so discussed .
169 . It is our opinion, therefore, that a discussion of the problem faced by
members of the R .C .M .P . when they place themselves at risk, cannot in itself
properly be regarded as support for the inference that a Minister or Ministers
were informed that a Force policy or procedure existed whereby activities not
authorized or provided for by law, or activities giving rise to legal concerns,
were sanctioned or approved by the Force whether through an existing
protection or support policy or otherwise .
C . WHAT, IF ANYTHING, DID MR. STARNES TELL
MR. McILRAITH ON NOVEMBER 24, 1970 ?
170. A further meeting, however, allegedly arising on November 24, 1970, or
thereafter and prior to the C .C .P .P . meeting on December 1, 1970, must be
considered . Introduced in evidence before us was a document, dated November
26, 1970, by Mr . John Starnes (Ex . M-36, Tab 11) . That document records a
discussion allegedly held between Mr . Starnes and his Minister at the time,
Mr . Mcllraith, on November 24, 1970 . The document, apparently a personal
note recorded by Mr . Starnes, reads as follows :
On November 24, 1970, George Mcllwraith [sic], the Solicitor General,
raised with me the question of what should be done to eliminate inherent
contradiction in the existing Security Service which centres around the
question of the commission of crime in the national interest .
I had pointed out that this had been the subject of discussion for some time ;
especially the question of the protection, if any, which can be provided
members of the Security Service or agents of the Security Service who may
on occasion have to break the law . As the Minister was aware, the theory
being advanced in some quarters was that breaking the law might somehow
be easier for a civilian service than for the R .C .M .P . I mentioned to the
Minister that the R .C .M .P. had in fact been carrying out illegal activities
for two decades and that this point had been made in various discussions .
The Minister had remarked that in his view, in the public mind, it would
probably be more acceptable for the R .C .M .P . to commit crime in the
national interest than for this to be done by some civilian body .
171 . Mr . Starnes in his evidence affirmed that this discussion with Mr .
Mcllraith had taken place . He stated further that, although he had no actual
memory of the words used during the discussion, he believed that the memorandum preparedby him in substance set out the discussion which had taken
place . With respect to the reference in the memorandum to "illegal activities",
Mr . Starnes testified that he did not recollect Mr . Mcllraith inquiring what
activities Mr . Starnes was referring to, nor did he himself provide to Mr .
Mcllraith a list of such activities .
172 . Mr . Mcllraith, in turn, denied in his evidence before this Commission
that this discussion took place on November 24, 1970 or indeed that such a
discussion took place between Mr . Starnes and himself at any time (Vol . 118,
pp . 18429-40) .
73
�173 . When questioned before the Commission with respect to Mr . Starnes'
document of November 26, 1970 and its contents, Mr . Mcllraith expressly
stated that "There was no such meeting with Mr . Starnes" (Vol . 118, pp .
18431 and 18438) . When asked whether Mr . Starnes had raised with him the
question " . . . what should be done to eliminate inherent contradiction in the
existing Security Service which turns around the question of the commission of
crime in the national interest?", Mr . Mcllraith replied :
No sir . If he raised . . . well, I do not believe that you can . . . you cannot
have commission of crime in the national interest . There just is no such
thing . Our whole system is to run a system of the operation of a democratic
government under the law .
(Vol . 118, p . 18431 . )
174 . He was asked whether Mr . Starnes had said " . . . that the R .C .M .P ., in
fact had been carrying out illegal activities for two decades and that this point
had been made in various discussions", and he replied "He did not . . ." (Vol .
118, pp . 18433-34) .
175 . In concluding this portion of the examination, Commission Counsel
enquired whether the contents of Mr . Starnes' document were false and the
witness responded :
No I don't say that at all . I say the contents of the document, if they ever
took place, do not relate to me . There is a big difference . Mr . Starnes is not
a man who is going to do a false document . That just isn't good enough .
That is not right at all . . I. am saying it does not record any meeting with
George Mcllraith, the Solicitor General .
(Vol . 118, pp . 18438-39 . )
176 . Mr . Mcllraith testified that the phrase "commission of crime in the
national interest", if used by Starnes in such a discussion, would have caused
" . . a flare up right away" (Vol . 119, p . 18638) . He testified that he has no
.
recollection of this two-page document entitled "Various Questions Raised by
Law and Order Paper" . He further testified that he has a good recollection of
the C .C .P .P. meeting of November 24, 1970, but cannot recall whether the
two-page list of questions was annexed to the Maxwell Memorandum for the
purpose of discussion at the meeting (Vol . 120, p . 18691) . If it was, he testified,
."then I still think it was not discussed or referred to at all" (Vol . 118, pp .
18416-17 and 18442) . He told us that, if he had read the two-page series of
questions, and question seven in particular - which contained language
identical to that found in Mr . Starnes' memorandum, namely "the commission
of crime in the national interest" - he would have been "very sensitive on that
suggestion" and would have had the same reason to have "a flare-up" (Vol .
120, p . 18692) .
177 . In light of the conflicting evidence of Mr . Starnes and Mr . Mcllraith
regarding the subject of this discussion, it is relevant to note some of the
evidence of Mr . Ernest Côté, Deputy Solicitor General during the period of
Mr . Mcllraith's and Mr . Goyer's respective tenures as Solicitor General .
178 . Following the creation of the I .C .L .O . consequent upon the meeting of
the C .C .P .P. held on May 5, 1970, Mr . Côté became the representative of th e
74
�Department of the Solicitor General on the I .C .L .O. (Vol . 309, p . 300876) .
Mr . Côté testified that on one occasion Mr . Starnes, as Director General of the
Security Service, was in Mr . Côté's office and :
. . . he was bothered about certain acts, were close to the line, and there may
have been trespassing, which is a civil affair, in eavesdropping, or other
matters, close to the line, which he was concerned about .
(Vol . 307, p . 300770 . )
179 . By "close to the line" Mr . Côté stated that he meant activities bordering
on the limits of legality . Mr . Côté further stated that although he did not recall
when this discussion with Mr . Starnes took place, he did recall vividly that Mr .
Starnes had been in his office waiting to see the Minister, and that Mr . Côté
had told Mr . Starnes, with respect to the concern he expressed, that Mr .
Starnes should talk to the Minister about it " . . . that it was a matter between
the Minister and Mr . Starnes" (Vol . 307, pp. 300770-2) .
180. Mr . Starnes, during this discussion with Mr . Côté was :
. . . bothered about the position of members of the Force on the security side
who may have to act very close to the line of the law and what is to be done
with these people, how to protect them .
(Vol . 307, p . 300772 . )
181 . Mr . Côté stated that he did not have any other conversation with Mr .
Starnes of a like nature, nor was the matter again raised with him by Mr .
Starnes or by Mr . Mcllraith (Vol . 307, p . 300773) .
182 . Mr . Côté testified that he did not have any recollection as to whether
Mr . Starnes raised with him at this time any specific activities with which he
was concerned (Vol . 307, pp. 300770-2) .
183 . Still later in his evidence, however, Mr. Côté stated, with reference to
electronic eavesdropping, that he recalled this matter being raised with him by
Mr . Starnes during this discussion (Vol . 308, pp . 300809-10) . Further, he
testified that the question of intelligence probes being made by the Security
Service in the course of their operations "may also" have been a matter
discussed between him and Mr . Starnes on the occasion of this discussion (Vol .
308, pp. 300840-2) . Similarly, mail opening by the Security Service "may
have" been a matter raised by Mr . Starnes at this time, although Mr . Côté did
not recall one way or another (Vol . 308, p. 300853) . Perhaps more significantly, the problems experienced by human sources in penetrating "violence-prone
groups" may also have been a matter raised by Mr . Starnes with Mr . Côté
during this discussion . Mr . Côté did not however know whether or not Mr .
Starnes had raised this issue with Mr . Mcllraith (Vol . 309, p . 300886) .
184 . Mr . Côté, when questioned as to when this discussion took place with
Mr . Starnes, was unable to recall a specific date or indeed, whether it had
occurred during the tenure of Mr . Mcllraith or Mr . Goyer (Vol . 307, p .
300771 ; Vol . 309, p . 300888) . From time to time during his evidence in this
regard, however, Mr . Côté specifically referred to Mr . Mcllraith as the
Minister concerned (Vol . 307, p . 300773 ; Vol . 307, pp . 300886-8) .
75
�Conclusions
185 . Obviously we are facing here a direct contradiction in the evidence as to
what took place between the only two participants, Mr . Mcllraith and Mr .
Starnes . Were there no corroborative evidence, the issue would have to be
resolved on a straight credibility basis .
186 . Fortunately, there are some facts of corroborative value which, coupled
with the oral testimony of Mr . Starnes, lead us to accept his version of the
facts . They are :
(a) The striking similarity in the phraseology used by Mr . Starnes in his
November 26 memo concerning his November 24 meeting with Mr .
Mcllraith, at the November 27 meeting of the Security Panel and
again on December I at the Cabinet Committee on Priorities and
Planning .
(b) The similarity of phraseology in Question No . 7 attached to the
Maxwell memorandum and the language attributed to Mr . Mcllraith
by Mr. Starnes in his November 26 memorandum, concerning the
November 24 conversation .
(c) The fact that the issue was actually on the agenda for the meeting of
the Cabinet Committee on Priorities and Planning on November 24, as
Question No . 7, attached to the Maxwell memorandum, which had
been circulated for the meeting of that day .
(d) The Côté-Starnes conversation at Mr . Côté's office.
187 . We now discuss briefly how we perceive these facts to be of corroborative value .
(a) The striking similarity in the phraseology used by Mr . Starnes on
November 24, November 27 and again on December 1
188 . There is little need to do more here than quote how the message was
expressed on those three dates .
189. In his memorandum of November 26, 1970, covering his meeting of
November 24 with Mr . Mcllraith, Mr . Starnes wrote :
. ..I mentioned to the Minister that the RCMP had in fact been carrying out
illegal activities for two decades and that this point had been made in
various discussions .
. .
190. At the meeting of the Security Panel held on November 27, 1970, and
the meeting of the Cabinet Committee on Priorities and Planning held on
December 1, 1970, the identical message to the one Mr . Starnes contends he
had conveyed to Mr . Mcllraith on November 24, 1970, i .e . 3 and 6 days
earlier, respectively, was voiced by Mr . Starnes . The handwritten notes of the
recording secretaries at each of those meetings, Mr . Beavis and Mr. Trudel,
respectively, not only relate to the same issue but also record much the same
wording . The notes of Mr . Trudel read :
misunderstanding of contradiction
- has been doing S & I illegal
things for 20 years but never
caugh t
- no way of escaping these things .
76
�The notes of Mr . Beavis read :
St - crim acts - for 20 yrs. & will get caugh t
Ch - ensure good disc in CC -frank - & make clear what Hig meant
re crime .
We believe that the striking similarity between Mr . . Starnes' language in his
memorandum of November 26 and Mr . Trudel's and Mr. Beavis' notes
covering Mr . Starnes' statements on November 27 and December 1, are
corroborative of the likelihood that Mr . Starnes spoke to Mr . Mcllraith on
November 24 in the language similar to what he recorded in his memorandum
very shortly after the event .
(b) The similarity between Question No . 7 attached to the Maxwell memorandum and the language used in the November 26 Starnes
memorandu m
191 . It will be recalled that the Maxwell memorandum was placed on the
agenda of the meeting of the Cabinet Committee on Priorities and Planning of
November 24, 1970, that being the same day that Mr . Starnes is supposed to
have spoken to Mr . Mcllraith . Question No . 7 reads as follows :
What should be done to eliminate inherent contradiction in existing security
service which turns around the question of crime in the national interest ?
.
.
1
,
192 . In his memorandum Mr . Starnes writes that Mr . Mcllraith had, in
conversation, posed the following question to him :
The Solicitor General raised with me the question of what should be done to
eliminate inherent contradiction in the existing security service which
centres around the question of the commission of crime in the national
interest .
193. Obviously, the language attributed to Mr . Mcllraith borrows the
phraseology of Question No . 7 . The similarity between the two texts is such
that one could well conclude that both Mr . Starnes and Mr . Mcllraith had
read from the same pages .
(c) Cabinet Committee on Priorities and Planning - November 24 and the
Maxwell memorandu m
194 . Further corroboration of the likelihood that this conversation between
Mr . Mcllraith and Mr . Starnes took place on November 24, 1970, as Mr .
Starnes contends, stems from the fact that, as already noted, it was on that
same day that this problem was scheduled for discussion . That would have
been a likely time for Mr . Mcllraith to speak to Mr . Starnes about the subject,
in preparation for the meeting .
195. November 24, 1970 was the day when this problem was to be raised at
the meeting of the Cabinet Committee on Priorities and Planning . The
Maxwell memorandum had been issued in advance and distributed for the
briefing of those attending this meeting . Amongst those persons was Mr .
Mcllraith .
77
�(d) The Côté-Starnes conversation at Mr . Côté's offic e
196. The facts relating to this event are set forth in paragraphs 177 to 184
inclusive . On the strength of those facts, we conclude that there was an
encounter between Mr . Côté and Mr. Starnes at a time when Mr . Mcllraith
was the Minister . The problem raised by Mr . Starnes on the occasion of the
meeting with his minister was the one that Mr . Starnes' note says he raised
with Mr . Mcllraith on November 24 . We believe that Mr . Côté did advise Mr.
Starnes to discuss this matter with the Minister .
Conclusion
197 . We therefore conclude that all these factors, put together, give credence
to the contents of Mr . Starnes' memorandum . We believe that a conversation
between Mr . Mcllraith and Mr . Starnes did in fact take place as set out in that
memorandum . Mr . Mcllraith's firm denial of such an encounter that day on
that subject is a resu :t, we believe, of an inability to remember a brief event
that took place a decade ago .
A minority report by the Chairman as to what Mr . Starnes told Mr . Mcllraith
on November 24, 197 0
198 . I am not prepared to conclude that Mr . Starnes told Mr . Mctlraith on
November 24 what is recorded in the memorandum in Mr . Starnes' writing
bearing a November 26 date . We have Mr . Mcllraith's denial that Mr . Starnes
told him that the R .C .M .P . had been carrying out illegal activities for two
decades and that this point had been made in various discussions. As against
this denial under oath what is there ?
199. There is, first, Mr . Starnes' memorandum, but Mr . Starnes has no
memory of what words he used . While Mr . Starnes may have sincerely
attempted on November 26 to record a conversation he had had with Mr .
Mcllraith, it does not follow that he did so accurately . This is not like Mr .
Beavis' notes of the meeting of November 27 or Mr . Trudel's notes of the
meeting of December 1 . In those instances the reliability of the notes is
enhanced by the fact that they were made by a disinterested third party who
owed a duty to his employer to take notes contemporaneously as to what was
said . In this case Mr . Starnes was not disinterested, he owed no duty to anyone
to record what was said, and he did not make his notes contemporaneously or
even the same day . 200 . Apart from Mr . Starnes' note, there is only circumstantial evidence,
namely the four items enumerated in the report of the majority . The existence
of "Question No . 7", attached to the Maxwell memorandum at the meeting of
November 24, and the presence of that subject-matter on the agenda of the
November 24 meeting, are evidence that a conversation took place, and that
the conversation dealt with the issue that was raised in Question No . 7 that was
attached to the Maxwell memorandum - the question of the commission of
crime in the national interest . However, it is not evidence that during the
discussion Mr . Starnes spoke of past illegal activities . The issue that was raised
in the Maxwell memorandum related to prospective matters, not past acts . It
concerned the difficulties faced (as Mr. Maxwell saw it) by a Security Service
in doing its job if it was required not to commit crimes . It did not report tha t
78
�the Security Service had been committing crimes in the national interest . It did
not even report that the Security Service had been carrying out illegal activities
in the national interest . Therefore Question No . 7 and the presence of this item
on the agenda of the November 24 meeting are not evidence that on November
26 Mr . Starnes told Mr . McIlrâith something very different - viz ., that the
R .C .M .P . had been carrying out illegal activities for two decades .
201 . Nor, in my opinion, does the evidence of Mr . Côté tend to prove that
Mr . Starnes spoke those words to Mr . Mcllraith . There is nothing significant
in Mr . Côté's testimony on this matter, other than that Mr . Starnes told him at
some time that he was bothered about certain acts which "were close to the
line", by which he meant "bordering on the limits of legality" . That is not the
same as being bothered about "illegal activities" . It is further to be noted that
Mr . Côté was not able to say when Mr . Starnes had spoken to him . Without
there being a date or even a rough time attached to Mr . Côté's evidence, it
lacks probative value as to whether the same sort of subject matter was
discussed by Mr . Starnes with Mr . Mcllraith on November 24 . Mr . Côté
recalls electronic eavesdropping being referred to by Mr . Starnés ; there was
nothing illegal about electronic eavesdropping per se at the time . As for
intelligence probes, Mr . Côté can say no more than that they "may" have been
discussed . Mr . Côté put them on the same plane as mail opening, which he says
"may have" been raised by Mr . Starnes ; but it is unlikely that Mr . Starnes ever
raised the. opening of maii with Mr . Côté, in the light of our conclusion, in Part
111, Chapter 3, that while he was Director General Mr . Starnes did not know
that mail was being opened or that an operational policy envisaged the opening
of mail . Finally, the penetration problems experienced by human sources in
penetrating violence-prone groups, according to Mr . Côté, "could well have
been" raised by Mr . Starnes ; but we have seen that, even if this matter was
raised, the work Mr . Starnes had been doing on this problem by November 24
had been entirely in regard to possible future offences by sources attempting to
penetrate such groups, and he did not have in mind any offences that had been
committed . My conclusion, therefore, is that Mr . Côté's evidence is not in the
least corroborative of Mr . Starnes having said to Mr . Mcllraith on November
24 that the R .C .M .P . had in fact been carrying out illegal activities for two
decades .
202 . The final argument of the majority, which is the first in their enumeration of what they consider to be corroborative facts, is what they describe as
"the striking similarity in the phraseology used by Mr . Starnes in his November 26 memo concerning his November 24 meeting with Mr . Mcllraith, at the
November 27 meeting of the Security Panel and again on December 1 at the
Cabinet Committee on Priorities .and Planning" . However, I consider that the
similarity does not afford adequate corroboration of the accuracy of Mr .
Starnes' memo as far as the vital sentence is concerned . At most, I think; it is
evidence that on November 26 these thoughts were in Mr . Starnes' mind . He
may well have been preparing himself mentally to make his disclosure to the
Security Panel the next day . In preparing the November 26 memo he may have
imagined that the words he planned to use the next day had been used by him
two days earlier . We do not know, and cannot know, for Mr . Starnes has n o
79
�memory of what he said to Mr . Mcllraith, or of what the circumstances of the
conversation with him were, or of what Mr . Mcllraith's reaction was, and we
are faced with the inscrutable face of the memo, which cannot be cross-examined as to its accuracy or reliability or even as to when it came into existence or
why .
203. For all these reasons, I am not prepared to conclude, and I do not find,
that Mr . Starnes, on or about November 24, 1970, told Mr . Mcllraith that the
R .C .M .P . had in fact been carrying out illegal activities for two decades .
80
�APPENDIX TO PART I I
204 . Would the notes made by Mr . Trudel at the meeting of the Cabinet
Committee on Priorities and Planning on December 1, 1970, be admissible in a
court of law? In a sense this question is not directly relevant to our proceedings, for we are a Commission of Inquiry, not a court of law, and a Commission
of Inquiry is not bound by the rules of evidence that would be applied by a
court in a trial . On the other hand, if it were the case that the notes would not
be admissible in a court of law, we would want to examine the reasons for
inadmissibility and decide whether those reasons, or the rationale constituting
the root of inadmissibility, ought nevertheless to be applied by us even though
we are not a court of law . It is for that reason that we shall examine this
question .
205 . As the author of the notes does not have his memory refreshed by them
and cannot testify on the basis of his recollection, the notes would be
approached by a court just as if the author were not a witness . They would be
hearsay evidence of what was said at the meeting . Nevertheless, counsel for
Mr . Starnes has submitted to us that the notes would be admissible in a court
of law, and are equally admissible before a commission of inquiry, on two
grounds . The first is that they are admissible by virtue of the provisions of
section 30 of the Canada Evidence Act .6 That section applies to any "legal
proceeding", which it defines as meanin g
any civil or criminal proceeding or inquiry in which evidence is given, and
includes an arbitration .
We think a commission of inquiry comes within that meaning . Subsection (1)
of the section states :
Where oral evidence in respect of a matter would be admissible in a legal
proceeding, a record made in the usual and ordinary course of business that
contains information in respect of that matter is admissible in evidence
under this section in the legal proceeding upon production of the record .
The word "business~' is defined as includin g
any activity or operation carried on or performed in Canada or elsewhere
by any government, by any department, branch, board, commission or
agency of any government . . or by any other body or authority performing
.
a function of government .
We think that the Governor in Council falls within the definition of "government", that one of its meetings is an "activity" carried on by it, and that Mr .
Trudel's notes are a record made in its usual and ordinary course of business .
Would "oral evidence in respect of" the matter covered by Mr . Trudel's note s
6 R .S .C . 1970, ch . E-10 .
81
�"be admissible in a legal proceeding"? Those words must be read in conjunction with the provisions in subsection (10) tha t
Nothing in this section renders admissible in evidence in any legal
proceedin g
(a) such part of any record as is proved to be
(iii) a record in respect of the production of which any privilege exists
and is claimed . . .
(b) any record the production of which would be contrary to public
policy : . . .
There is no doubt that, in a sense, a privilege has been claimed, but it is not a
privilege from production of the notes to us, but an assertion that the contents
of the notes ought not to be reported on to the Governor in Council . Therefore
we do not think that it can truly be said that a "privilege" from the admission
of the evidence before us "is claimed" . Would the production of the record be
contrary to public policy? Again, the production of the document before us at a
hearing at which evidence was given was not objected to, and it was in fact
produced . Consequently, we think that it cannot now be argued that they are
not admissible before us . Indeed, we note that that has not been argued ; the
submission is that the notes would not be admitted into evidencé in a court of
law . That, of course, would depend on such matters as whether there had been
compliance with the requirements of section 30(7), which requires at least
seven days' notice of the intention to produce the document "unless the court
orders otherwise" . Another consideration would be whether, in the context of
the nature of the proceeding in court, an objection based on privilege or public
policy would succeed . As that cannot, in the abstract, be the subject of
anything but speculation, we cannot say whether the notes would be admissible
in a court of law or not .
208 . Counsel for Mr . Starnes also argued that the notes are admissible under
the principle of Arès v . Venner .' There, speaking of facts relating to the
condition of a hospital patient, as recorded in notes made by a nurse, Mr .
Justice Hall, delivering the judgment of the Supreme Court of Canada, said :
Hospital records, including nurses' notes, made contemporaneously by
someone having a personal knowledge of the matters then being recorded
and under a duty to make the entry or record should be received in evidence
as prima facie proof of the facts stated therein . This should, in no way,
preclude a party wishing to.challenge the accuracy of the records or entries
from doing so . . 8.
The rationale of the decision is not limited to hospital records, as is made clear
by the variety of facts of the cases cited with approval by the court . In one o f
1 [1970] S .C .R . 608 ; 14 D .L .R . (3d) 4 ; 12 C .R .N .S . 349 ; 73 W .W .R . 347 . The effect
of Arès v . Venner is thoroughly canvassed by J .D . Ewart, "Documentary Evidence :
The Admissibility at Common Law of Records Made Pursuant to a Business Duty",
(1981) 59 Can . Bar Rev. 52 .
8[I970] S .C .R . 608 at p . 626 .
82
�those cases, Omand v . Alberta Milling Company,9 Mr . Justice Stuart, of the
Appellate Division of the Supreme Court of Alberta, was considering the
admissibility of written reports made by inspectors, as to the quantity and
quality of flour purchased . He held that the records were admissible "as proof
of the facts stated therein" . One of the grounds on which he so held was stated
as follows :
Then there is the circumstantial guarantee of trustworthiness arising
from ( 1) complete disinterestedness, (2) duty to test, ( 3) duty to record the
test at the time, this duty being to superior authorities who would be liable
to punish or reprimand for failure to perform it .1 0
Applying the principles stated by Mr . Justice Hall and Mr . Justice Stuart to
Mr . Trudel's notes, we conclude that Mr . Trudel, a completely disinterested
person, had a personal knowledge of the matters then being recorded ( i .e . he
heard the words spoken)," and he had a duty to make the record (i .e . his notes
of what was said at the meeting) .12 Therefore, applying that principle, the notes
(apart from any objection based on privilege or public interest) would be
admissible in a court of law as prima facie evidence that the words written in
the notes were spoken by the person named in the notes .
207 . It has been contended by counsel for the government that section 30 of
the Canada Evidence Act and the decision in Arès v . Venner "deal with records
in which factual data are recorded", and that such records are "readily
distinguishable from the recording of a discussion where the completeness is
essential in order to give context and accuracy" . The submission continued :
In the case of VC-l, it has been demonstrated that the notes did not
purport to be a verbatim recording of the conversation and, in fact, are not
complete . It is also, in our submission, incorrect to equate the nurses' duty
to record with that of the persons who took notes at the December lst, 1970
meeting . A Court reporter or official stenographer would be the person who
might be considered to be in a position comparable to that of the nurse in
the Ares case . The notetakers neither had the qualifications nor carried out
the functions of a Court reporter or official stenographer . In our submission, a Court of law would not accept, as evidence, a Court reporter's or
official stenographer's incomplete transcript of a discussion .
9[1922] 3 W .W .R . 412, 69 D .L .R . 6 .
10 [1922] 3 W .W .R . 412 at p. 413 .
The duty was to listen and record . There is no logical difference between such a case
and that found in Arès v . Venner, where there was a duty to look and record . In Arès
v . Venner, the notes were admitted as evidence of the state of the body looked at . In
the present case the notes are admitted as evidence of what words were spoken . Even
if the notes in the present case could not be admissible as evidence of the truth of the
words spoken, they are admissible as evidence that the words were spoken . See Setak
Computers v . Burroughs (1977) 15 OR . (2d) 750 at p . 755 (per Mr . Justice
Griffiths, Ont . High Court) .
1z Unlike the notes made in Regina v . Laverty (1979) 9 C .R . (3d) 288 (Ont . C .A .) . See
the discussion in Ewart's article, supra, at p . 66, as to the importance of the notes
being made in the fulfillment of a duty, or as a necessary step in that fulfillment .
83
�We do not agree with that submission . The nurses' notes in Arès v . Venner did
not purport to set forth all the circumstances of the observations made of the
patient's condition . While the notes stated the colour and the degree of warmth
of the patient's toes, which were a vital issue in the lawsuit, the notes did not
indicate the lighting conditions, or whether there had been any discussion of
the condition of the patient at the time the notes were made, or whether the
observations were made in haste or with care, and so on . A limitation on
admissibility, of the nature suggested by counsel for the government, is not
found in the common law exception to the hearsay rule which admits evidence
of declarations made by a person, since deceased, who owed a duty to do an act
and to record it - the exception which was applied and extended (to
circumstances in which the person making the record is not dead) by Arès v .
Venner . While the absence of completeness may be a reason for scrutinizing
the evidence of incomplete notes of what is said at a meeting - notes made by
a person doing a duty to listen to what was said and to make a record of what
was said - with some care, that, in our opinion, would be regarded by a court
of law as going to the weight to be attached to the evidence, rather than to its
admissibility .
208 . The first argument raised by counsel for the government has been
approached by us so far on the basis of what would be admissible in a court of
law . However, we are not a court of law . We are a Commission of Inquiry, and
we are not bound by the rules of evidence as they would be applied in a court of
law . Indeed, counsel for the government, in his written submission, said : "This
.
being a Royal Commission, we, at no time . . suggested that VC-1 should not
be considered by reason of the hearsay rule" . Nevertheless, it remains a fact
that we would not permit evidence to influence our conclusions if it lacked
probative value or reliability . We consider that Mr . Trudel's notes, being made
contemporaneously by a disinterested person with a duty to record what he
heard, were more likely than not to be reliable and accurate, and that they
consequently possess substantial probative value as to whether the words in
question were spoken by Mr . Starnes . In arriving at this conclusion we derive
support from the evidence of Mr . Butler, who worked with Mr . Trudel in
circumstances that would have enabled him to judge Mr . Trudel's aptitude for
accuracy, that "Mr . Trudel is a very careful and precise man" . Mr . Trudel
.
himself told us : " . .I took down as best I could the discussion that took place" .
He also testified that he would try to record, as best he could, what people said,
not by way of paraphrase .
209 . The reliability of Mr. Trudel's notes is enhanced by the fact that a
different disinterested person, Mr . Beavis, who owed an identical duty, had
made contemporaneous notes of another meeting three days earlier, on November 27, in which he recorded Mr . Starnes as saying almost exactly the same
thing . Accepting the possibility of inaccuracy by both men on the two occasions
depends on a willingness to accept the probability of coincidence, to which, in
the circumstances, we find ourselves unable to subscribe .
210 . The second point made by counsel for the government is that Mr .
Trudel's notes are not reliable . For the reasons just given, we think, quite to the
contrary, that the evidence justifies the inference that they are reliable .
84
�211 . There is an additional legal issue to be considered . Even if the notes are
reliable and would be evidence of what was said in normal circumstances,
counsel for the government has made written representations that the evidence
should not, in the present circumstances, be relied upon by us unless i t
is sufficiently clear and is of adequate weight to seek a departure from the
application of the constitutional privileg e
but that, if there is such a "departure", the "information gleaned" should be
"used with the least encroachment upon the principle of confidentiality" . The
"constitutional privilege" is described by counsel for the government as follows :
Any consideration of this matter must take account of the traditional
secrecy attaching to the proceedings of the cabinet and its committees, and
the privilege from disclosure that minutes of proceedings and discussions at
these meetings enjoy . The confidentiality of discussions in the cabinet is a
matter of great importance . The principle is one of the cornerstones of our
system of government . The uninhibited, candid, and spontaneous exchanges
that form the strength of the cabinet system and are essential to it depend
upon the confidentiality of the cabinet's proceedings . The roving nature of
discussion in the cabinet, the freedom to think out-loud, to speculate
conceptually, to consider the extremities of problems and solutions as a
means of identifying acceptable compromises, are the essence of collective
decision-making among responsible ministers . To do so effectively ministers
must feel unfettered in the privacy of their open expression of thought, and
they must be confident that officials will not be inhibited from advising
them as fully and as straight-forwardly as 'possible . 'Any action that
undermines such privacy and confidence can only damage the delicately
balanced mechanism that makes possible the collective character that is the
genius of our system of responsible democratic government .
212 . When we delivered "Reasons for Decision" on October 13, 1978 which are reproduced as Appendix "F" to our Second Report - we quoted
extensively from judicial decisions which have recognized the public interest
that may result in the protection from disclosure or publication of the
proceedings of the cabinet and its committees . For example, we quoted the
following passage from the judgment of Lord Widgery, C .J ., in Attorney
General v . Jonathan Cape Ltd. : "
It has always been assumed by lawyers and, I suspect, by politicians, and
the Civil Service, that Cabinet proceedings and Cabinet papers are secret,
and cannot be publicly disclosed until they have passed into history . It is
quite clear that no court will compel the production of Cabinet papers in
the course of discovery in an action, and the Attorney General contends
that not only will the court refuse to compel the production of such matters,
but it will go further and positively forbid the disclosure of such papers and
proceedings if publication will be contrary to the public interest .
The basis of this contention is the confidential character of these papers and
proceedings, derived from the convention of joint Cabinet responsibility
whereby any policy decision reached by the, Cabinet has to be supported
thereafter by all members of the Cabinet whether they approve of it or not ,
" [1975] I Q .B . 752 .
85
�unless they feel compelled to resign . It is contended that Cabinet decisions
and papers are confidential for a period to the extent at least that they must
not be referred to outside the Cabinet in such a way as to disclose the
attitude of individual Ministers in the argument which preceded the decision . Thus, there may be no objection to a Minister disclosing (or leaking,
as it was called) the fact that a Cabinet meeting has taken place, or, indeed,
the decision taken, so long as the individual views of Ministers are not
identified .
However, it is important to note that Lord Widgery did not regard the
protection from publication which the court would extend as unlimited . Thus,
he said :
. . it must be for the court in every case to be satisfied that the public
.
interest is involved, and that, after balancing all the factors which tell for or
against publication, to decide whether suppression is necessary .
Again, he said :
. . . The Cabinet is at the very centre of national affairs, and must be in
possession at all times of information which is secret or confidential . Secrets
relating to national security may require to be preserved indefinitely .
Secrets relating to new taxation proposals may be of the highest importance
until Budget day, but public knowledge thereafter. To leak â Cabinet
decision a day or so before it is officially announced is an accepted exercise
in public relations, but to identify the ministers who voted one way or
another is objectionable because it undermines the doctrine of joint
responsibility.
It is evident that there cannot be a single rule governing the publication of
such a variety of matters . In these actions we are concerned with the
publication of diaries at a time when I 1 years have expired since the first
recorded events . The Attorney General must show (a) that such publication
would be a breach of confidence ; (b) that the public interest requires that
the publication be restrained, and (c) that there are no other facts of the
public interest contradictory of and more compelling than that relied upon .
Moreover, the court, when asked to restrain such a publication, must closely
examine the extent to which relief is necessary to ensure that restrictions
are not imposed beyond the strict requirements of public need .
Applying those principles to the present case, what do we find? In my
judgment, the Attorney General has made out his claim that the expression
of individual opinions by Cabinet Ministers in the course of Cabinet
discussions are matters of confidence, the publication of which can be
restrained by the court when this is clearly necessary in the public interest .
The maintenance of the doctrine of joint responsibility within the Cabinet is
in the public interest, and the application of that doctrine might be
prejudiced by premature disclosure of the views of individual Ministers .
There must, however, be a limit in time after which the confidential
character of the information, and the duty of the court to restrain publication, will lapse .
213 . In other "Reasons for Decision" which we delivered on February 23,
1979, and are reproduced as Appendix "Z" to our Second Report, we referre d
86
�to a number of considerations that might be pertinent to a decision as to the
publication of documents received in camera . One of them was as follows :
(e) The interest of persons who have already been witnesses before the
Commission, in knowing of documents containing evidence of the conduct
of senior officials of the R .C .M .P . and of persons in high levels of
government, which may have a bearing on whether the conduct of those
witnesses was authorized expressly or by implication, or at least tolerated or
condoned .
In those reasons we made the following additional observations which are
relevant to the issue now being considered :
. .. the evidence given in public by Mr . Higgitt included statements reflecting on the conduct of senior officials and Cabinet Ministers, and an
indication that certain specified documents supported adverse inferences
against such persons . A pertinent consideration in respect to some of the
documents under consideration is that those persons would have no way to
meet that evidence in public without their counsel being able to refer to the
actual content of such documents in public . Not to allow them to do so
would expose the Commission to the risk of being an instrument of injustice
and unfairness, a consideration far more important in the generally acceptéd scale of values than such possibility as there may be that disclosure in
these instances would adversely affect the efficiency of the governmental
process .
Of considerable importance is the evidence of Mr . Starnes generally as
to the extent to which senior officials and cabinet ministers knew that
members or agents of the R .C .M .P . had committed offences . It is true that
all of Mr . Starnes' evidence in this regard has been given in camera . Not to
disclose publicly the documents to which Mr . Starnes refers in his in
camera evidence would have the result that in effect none of his testimony
on this vital issue could be made public - whether his testimony upon
being examined by counsel for the Commission or that upon being crossexamined . In other words, his testimony on this issue would remain behind
closed doors . Yet it is obvious to all that, as Director General of the
Security Service, he had access in writing and in person to senior officials
and to Cabinet Ministers . To keep his testimony, and the documentary
passages which form such an important part of his . testimony, from the
public eye would not engender "confidence that everything possible has
been done for the purpose of arriving at the truth" .
Another pertinent consideration is that the documents to be considered
are now at least eight years old . In Sankey v . Whitlam, Mason J . said :
[here we quoted the passage which we have already quoted earlier in this
Part ]
214. Counsel for the government has questioned whether Mr . Beavis' notes of
the meeting of the Security Panel on November 27, 1970, would be admissible
in a court of law . The short answers to this depends not on section 30 of the
Canada Evidence Act or the case of Arès v . Venner, but on the earlier common
law "regular entries" exception to the hearsay rule . As has recently been said
in an article on the subject :
. .. the common law evolved seven strict requirements for admissibility
under this exception . To be admissible, the record must have been (i) a n
87
�original entry, (ii) made contemporaneously with the event recorded, ( iii) in
the routine, (iv) of business, (v) by a person since deceased, (vi) who was
under a duty to do the very thing and record it, (vii) and who had no motive
to misrepresent .1 4
In regard to requirement (iv), we believe that Mr . Beavis' notes satisfy this
requirement, for the word "business" has been applied broadly . Thus, in
Conley v . Conley,15 the Ontario Court of Appeal approved of a definition of
"business" for the purpose of this rule, as "a course of transactions performed
in one's habitual relations with others and as a natural part of one's mode of
obtaining a livelihood" . In regard to requirement (v), Mr . Beavis is dead . The
other requirements are also satisfied .
16 J .D . Ewart, "Documentary Evidence : The Admissibility at Common Law of Records
Made Pursuant to a Business Duty", ( 1981) 59 Can . Bar Rev . 52 at pp . 54-5 .
15 [1968] 2 OR . 677, 70 D .L .R . (2d) 352 (Ont . C .A .) .
88
�PART II I
KNOWLEDGE OF SENIOR MEMBERS OF THE
R .C .M .P ., SENIOR GOVERNMENT OFFICIALS AND
MINISTERS OF CERTAIN R .C .M .P . INVESTIGATIV E
PRACTICES THAT WERE NOT AUTHORIZED
OR PROVIDED FOR BY LA W
INTRODUCTION
1 . In Part III of our Second Report we set out the details of a number of
practices of the R .C .M .P . which raised questions of unlawful or improper
activity . We described the development of the policies, identified the legal
issues when appropriate and catalogued the extent and prevalence of the
activities. We thus examined the degree to which the practices had become
institutionalized within the Force . Later in the Second Report, in Parts V . and
X, we made recommendations as to legislative and administrative changes
which we considered ought to be made to permit some of those practices to be
carried on within the confines of the law and government policy .
2 . In our Second Report we considered that an analysis and explanation of
past practices was necessary for a proper understanding of the recommendations we were making in that report with respect to the future . We did not
attempt, however, to identify the extent of knowledge about the practices
which could be attributed to Ministers, senior government officials and senior
members of the R .C .M .P . Our reason for not doing so was that any such
attribution would have required that notices pursuant to Section 13 of the
Inquiries Act be provided to the persons so identified, and those persons would
have been entitled to make representations to us prior to submission of our
Report . We therefore determined that we had no alternative but to refrain
from referring to knowledge by individuals .
3 . In Part III of this Report, we now consider the degree of knowledge of the
various practices which was held by Ministers, senior government officials and
senior R .C .M .P . members . For a full understanding of what is being referred to
in each chapter, it is necessary to refer to the related chapter in our Second
Report . At the beginning of each chapter in this part we have referred to the
appropriate chapter in our Second Report .
4 . Before proceeding with consideration of the individual practices, we wish
to note the receipt of certain information, with respect to them, from Prime
Minister Trudeau . The Prime Minister has an ultimate responsibility for the
security of Canada and he is chairman of the Cabinet Committee on Securit y
89
�and Intelligence . Furthermore the Commissioner of the R .C .M .P . and the
Director General of the Security Service have had an extraordinary right of
access to the . Prime Minister . For those reasons we considered that we should
question Mr . Trudeau about five matters inparticular . We must say that in
regard to each of them, the Commission had no evidence that pointed to Mr .
Trudeau having had knowledge of any of the practices that were or might have
been illegal .
5 . From the outset of our inquiry we adopted the principle, which we stated
on several occasions, that the testimony we heard would be given in public
unless reasons relating to national security, the privacy of individuals or some
other ground of public interest justified the receipt of the testimony in camera .
We did not consider that the five areas of concern that we wished to ask Mr .
Trudeau about fell into any of these categories . Consequently, we had
expressed to Mr . Trudeau's counsel our desire that the Prime Minister testify
on these five matters in public . However, at an in camera hearing on July 22,
1980, when Mr. Trudeau was testifying concerning an issue arising from a
meeting of a Cabinet Committee, he volunteered then and there to answer the
questions we might have on those five areas of concern . It was at that hearing
that we were advised by his counsel unequivocally for the first time that Mr .
Trudeau would not appear on a separate occasion to answer questions in
public . Nevertheless, in view of our established principles of procedure, we
declined to have the five basic questions posed to the Prime Minister at that in
camera hearing, on the basis that we, rather than the witness, should determine
the forum, as we did with all other witnesses .
6 . Very shortly thereafter, on August 1, 1980, counsel for Mr . Trudeau wrote
us a letter, with which he enclosed a letter written by Prime Minister Trudeau,
which we shall quote now in its entirety (it will be observed that questions 1
and 5 deal not with practices but specific matters which, it seemed to us,
should also be raised with Mr . Trudeau) :
Dear Mr. Nuss :
In light of the McDonald Commission's refusal to hear my testimony
on the five questions set out in the Chairman's letter of July 17, 1980, at the
in camera hearing on July 22, 1980, 1 have given consideration as to
whether or not my answers should be submitted to the Commission in
writing . I have concluded that I should respond to the questions in writing .
My answers to the questions follow :
Question
I . Whether Prime Minister Trudeau was, before the testimony of
former Constable Samson at his trial in March 1976, aware of
the A .P .L .Q . incident .
Answer
I was totally unaware of any involvement on the part of the
RCMP in the APLQ incident prior to former Constable
Samson's testimony in March 1976 .
Question 2 . With regard to mail check operations, whether Prime Minister
Trudeau was aware that the R .C .M .P ., whether in criminal
investigations or the work of the Security Service, opened first
class mail ; whether he was aware of the report of the Royal
Commission on Security concerning this matter ; and whethe r
90
�he received a letter from Mr . Ralph Nader on this subject and,
if so, how it was dealt with .
Answer
As to the first part of the question, no . The first knowledge I
had of R .C .M .P . mail opening was when it was drawn to my
attention in November 1977 . With respect to my knowledge of
the Report of the Royal Commission on Security (Mackenzie)
concerning this matter, I must either= have read their comments on the "interception of mail for security purposes" or
had them drawn to my attention . I have no recollection of
having had detailed discussions on the point .
I did not personally receive or reply to Mr . Nader's letters nor
was I briefed about the answers which I understand were sent .
Question 3 . With regard to surreptitious entries, whether Prime Minister
Trudeau was aware that the R .C .M .P ., in criminal investigations or in the work of the Security Service, entered premises
without a warrant and without the consent of the owner or
occupier, to install electronic listening devices, or to search and
photograph or copy physical or documentary evidence .
Answer
I neither knew nor was I informed of any specific instance
where a surreptitious entry was effected . However, it was not
inconceivable to me that on occasion the Security Service or a
Police Force would use investigative or intelligence gathering
techniques which would have involved clandestine activities,
including surreptitious entries .
Question 4 . With regard to the provision of income tax information by the
Department of National Revenue to the R .C .M .P. Security
Service or C .1 .B ., whether Prime Minister Trudeau was aware
that such information was provided for purposes unrelated to
enforcement of the Income Tax Act or Regulations .
Answer
No .
Question 5 . Whether Prime Minister Trudeau ever changed the policy he
announced in June 1969, concerning greater autonomy and
civilianization of the Security Service .
Answer
No.
I would like you to transmit the answers to the Commission on my
behalf. As I have already indicated to you I am prepared to have the
answers made public .
Yours sincerely,
"P.E . Trudeau "
7 . Following receipt of this letter, we considered whether we should attempt
to have Mr. Trudeau appear at a public hearing to answer the five questions
and supplementary questions relating to those matters . We considered that we
could do so if in law we would be successful, if necessary, in compelling the
Prime Minister's attendance . We asked our chief counsel to advise us in this
regard . His opinion was as follows :
Mr . Johnson has informed me that the Commissioners would like an
opinion as to whether or not the Prime Minister is compellable as a witnes s
91
�before the Commission and also that the opinion should be provided
promptly so that a decision can be made as to how to proceed . .. .
It may be as well to summarize my views before setting out the
reasoning which leads me to the conclusions I express :
1 . The Prime Minister is compellable as a witness .
2 . In the circumstances, however, it is my opinion that the Prime Minister
could have the subpoena of the Commission set aside in the courts if he
chose to do so.
3 . In view of the conclusion which I have reached, I have not examined the
procedure for compelling attendance should the Prime Minister decide
to ignore a subpoena .
4 . Accordingly (although I have not been asked for a recommendation) I
recommend as strongly as I can that answers to the five outstanding
questions be obtained in writing and added to the transcript of 22 July
1980, and then released by agreement as suggested at Volume C98, pp .
13013, 13016 and 13019 .
In my view the legal position with respect to the matter may be
summarized as follows :
The Prime Minister is in the same position as any other citizen with respect
to the subpoena powers of courts or other tribunals, but the Court will
protect the Prime Minister, as it will protect any other citizen, by setting
aside a subpoena where it appears that :
(i) the evidence sought is irrelevant ;
(ii) the use of a subpoena is an abuse of process ;
(iii) the subpoena is oppressive ;
(iv) the evidence sought is recognized by law as privileged from production ; an d
(v) the Court may exercise a residual discretion to set aside in appropriate cases where none of the first four grounds above are
present . . . .
Having read the transcript of 22 July 1980 there are clearly substantial
arguments which can be advanced on behalf of the Prime Minister under
each one of the foregoing grounds . In my view this is particularly so when
there has been voluntary attendance, answers tendered but questioning
refused, partial answers or references to four of the five remaining questions
in answers already given, the text of answers provided to counsel, and the
person concerned will be, at least, the principal recipient of the Commission's report . Frankly, I would be astonished if a Court did not in these
circumstances set aside a subpoena .
As a result of the foregoing opinion, we decided that we should not seek to
compel the attendance of Prime Minister Trudeau before us at apublic
hearing . In consequence, we have not been able to examine Mr . Trudeau in
detail as to these matters.
92
�CHAPTER 1
SURREPTITIOUS ENTR Y
1 . In our Second Report, Part III, Chapter 2, we described surreptitious
entry, a practice of the R .C .M .P ., whereby premises were secretly entered in
the course of an investigation, without the consent of a person entitled to give
such consent . The Second Report also described the techniques involved, the
reasons advanced for their use, the extent and prevalence of such use, the
Forcé's operational policies with respect to the techniques, and the legal issues
arising from this practice .
2 . We now attempt to examine the extent to which this practice was known
and reviewed at the level of Ministers, senior government officials and senior
members of the R .C .M .P . The knowledge of the latter individuals will be
reviewed in general terms with respect to the two main operational techniques
during which this practice is deployed by the Force, namely : in the installation
of electronic listening devices, and in conducting intelligence probes . Finally,
we examine the extent to which the practices were known to specific Ministers,
senior government officials and senior R .C .M .P . members .
A . SURREPTITIOUS ENTRY FOR THE PURPOSE OF INSTALLING A LISTENING DEVICE : KNOWLEDGE OF THE PRACTICE IN GENERAL TERMS AS DISTINGUISHED FROM
KNOWLEDGE OF SPECIFIC CASE S
3. In a letter in 1965, Commissioner McClellan drew to the attention of the
Depiity Minister of Justice the absence of any statutory authority for a police
officer to enter premises surreptitiously to install an electronic eavesdropping
device such as a concealed microphone . Commissioner McClellan expressed his
belief
that if a peace officer was to enter a premise under certain conditions to
install an eavesdropping device, the peace officer would be contravening
certain sections of the Criminal Code, making himself not only liable for
criminal prosecution, but also liable in a civil action .
However .` he did not indicate what sections of the Criminal Code he had in
mind . His letter, which was a lengthy proposal for legislation to authorize the
various means of electronic eavesdropping, recommended that "legislation be
enacted to authorize the issuance of a search warrant for the purpose of
entering premises to effect the installation of eavesdropping equipment" (Ex .
E-1, Tab 2H) .
4 . On July 5, 1968, according to a memorandum by Commissioner Lindsay,
there was a meeting in the office of the Solicitor General, then the Honourable
J.N . Turner, attended by Mr . Lindsay, the Director of Criminal Investigation s
93
�(Assistant Commissioner Cooper), the Director of Security and Intelligence
(Assistant Commissioner Higgitt) and the Deputy Solicitor General (Mr . T .D .
MacDonald) . The purpose was to brief Mr . Turner generally on the use of
electronic intrusion in the investigation of crime, because of an impending
specific operation . The memorandum records that Mr . Turne r
questioned us about the legal implications and we advised there was no
legal bar, except a case against us for civil trespass, to which Mr . T.D .
MacDonald agreed .
(Ex . E-1, Tab 2C . )
A longhand note on the same document, by Commissioner Lindsay, records
that on July 11, 1968, he discussed the same matter "in very general terms"
with the new Solicitor General, Mr . Mcllraith .
5 . While the Protection of Privacy Act was being considered, the R .C .M .P.,
on April 10, 1972, explained to the Associate Deputy Attorney General, Mr .
D .H . Christie, the desirability of legislation explicitly providing for surreptitious entries to enable devices to be installed . On May 24, 1972, the Solicitor
General, Mr . Goyer, wrote the Minister of Justice, the Honourable O .E. Lang,
expressing hope that active consideration be given to amending the proposed
legislation to provide expressly that a peace officer be able to enter premises in
order to install devices .
6 . Thus, while the issue was well-known at the level of Ministers and senior
officials, as well as within the R .C .M .P ., it is doubtful that it was present in the
minds of any of the members of the Standing, Committee on Justice and Legal
Affairs who were considering the Protection of Privacy Bill in 1973 . We have
read the proceedings of the House of Commons and of the Standing Committee on Justice and Legal Affairs . It is true that members were undoubtedly
aware that surreptitious "methods" were often utilized - an apt reference to
telephone tapping of telephone company facilities, the tapping of wires and the
use of induction devices . However, the fact that, in order to install eavesdropping devices, trespass would often be necessary was not brought to the
attention of members of Parliament . There was no clause in the bill expressly
dealing with the issue, which would have focussed their attention .
B . SURREPTITIOUS ENTRY FOR THE PURPOSE OF `INTELLIGENCE PROBES' : KNOWLEDGE OF THE PRACTICE IN GENERAL TERMS AS DISTINGUISHED FROM KNOWLEDGE OF
SPECIFIC CASES
7 . There is little direct evidence before us as to the extent to which senior
personnel in the R .C .M .P. knew that on occasion members of the Force
investigating crime would enter premises without a search warrant and without
the permission of the owner or occupier . However, we have already commented
on the circumstantial evidence that points to a tolerance of the practice - a
tolerance that must have existed at high levels .
8. There is no evidence whatever before us that senior public servants or
Ministers were ever made aware that this technique was used on occasion in
the investigation of crime .
94
�9 . Many of the cases in which, since July 1, 1974, judges have given
authorizations as a result of applications by agents of the Solicitor General of
Canada under section 178 .13 of the Criminal Code have been in respect to
interception by microphones . Leaving aside the first half-year of the operation
of the Protection of Privacy Act (of which section 178 was a part), from 1975
to 1979 the average annual number of interceptions by microphone under
authorization was 193 .' Taking 1979, for example, the number of interceptions
by microphone in that year in all of Canada was 142, compared with 1,494
cases in which there was interception of telecommunications . (It must be
remembered that these figures do not include interceptions authorized as a
result of applications made by agents of provincial attorneys general .) Many of
these interceptions required trespassory entry to be made, unless the authorizations given by the judges expressly or by implications of law can be said to have
lawfully authorized the entries and thus negated trespass . As far as we can tell,
most judicial authorizations of interception by microphone installations in what
ordinarily would be trespassory situations have not expressly authorized entry .
Consequently, the authority for lawful entry, if it existed, must have rested
upon the operation of section 26 of the Interpretation Act or section 25 of the
Criminal Code . This issue is discussed at length in Part III, Chapter 3, of our
Second Report .
C . SUMMARY AND FINDINGS AS TO THE KNOWLEDGE OF
CERTAIN SENIOR MEMBERS OF THE R .C .M .P ., AND MINISTERS, OF THE PRACTICE OF SURREPTITIOUS ENTR Y
(a) Commissioner W .L . Higgitt
Summary of evidenc e
10 . Mr . Higgitt agreed that if a long-term microphone was to be installed and
operative, either the cooperation of someone who had a right to be in the
premises would have to be obtained or a surreptitious entry would have to be
effected (Vol . 84, p. 13833) . The installation of microphones was more likely to
involve surreptitious entry than would telephone interceptions (Vol . 88, p .
14508) . Mr . Higgitt said he recalls being advised that the Criminal Investigation Branch had legal opinions that surreptitious entries for the installation of
microphones "might not necessarily be criminal violations because of the intent
involved" . He added that : "There was no assurance given that there would
never be" . He said that this opinion was provided by the Department of Justice
to the R .C .M .P . and the Solicitor General's Department (Vol . 88, p . 14510) .
We have already noted that Commissioner Higgitt was present at a meeting
with the Solicitor General, Mr . Turner, on July 5, 1968, when that advice was
passed on to Mr . Turner .
11 . Commissioner Higgitt testified that after he became Commissioner, he
continued to advise Solicitors General that there was no legal bar in suc h
The annual statistic for the years 1975 to 1978 that has been used in calculating the
average is found in "updated" form in appendices to the Annual Report of the
Solicitor General of Canada for 1979 as required by section 178 .22 of the Criminal
Code .
95
�situations, certainly insofar as the entry itself was concerned, except possibly a
case for civil trespass (Vol . 88, p . 14513) . He said he was never advised by the
legal advisers to the government that there was a crime involved (Vol . 88, p .
14514) . A person installing an electronic device might be caught by surprise by
the owner of the building or house, or by patrolling police . The risk of being
caught in the premises troubled Mr . Higgitt and others placed highly in the
Force, and according to Mr . Higgitt, was one of the factors taken into account
when these operations were being considered (Vol . 89, pp . 14581-2) .
12. In his meeting of March 1972, with the Minister of Justice, Mr . Lang,
the Solicitor General, Mr . Goyer, and officials of the two Departments,
Commissioner Higgitt indicated that the R .C .M .P . might have to engage in
some kind of illegal or quasi-illegal activity to accomplish the installation of
electronic listening devices, but he did not define before us what the illegal
activity he mentioned was . He denied that when he spoke at that meeting of
illegal methods of operation he was speaking only of trespass . Thus he
disagrees with the implications of Supt . Cain's notes of the meeting (Ex . M-44)
which state that Commissioner Higgitt indicated "unorthodox (perhaps illegal)
methods (trespassing) might have to be committed" (Vol . 112, pp. 17287-8) .
13 . Mr . Starnes prepared a memorandum dated July 26, 1971, which he
intended to show to Mr . Goyer . It concluded as follows :
Unlike the Certificates of Review for telephonic and telegraphic interceptions, which are made under the authority of the relevant sections of the
Official Secrets Act, we are not suggesting that you authorize the continuance of such operations, thereby avoiding some of the political and other
difficulties which could arise from having a Minister of the Crown directly
involved in operations which are or may be outside the law .
(Ex . M-36, Tab 26 ; Vol .
I1 1 ,
p. 17153 . )
The document was never shown or given to Mr . Goyer . Mr . Higgitt stated that
he asked Mr . Starnes not to give it to Mr . Goyer (Vol . 111, p . 17156) . Mr .
Starnes had no idea why Mr . Higgitt made this decision (Vol . 103, p . 16333) ;
Mr . Higgitt stated that it was conceivable that he decided not to use the
memorandum because the sentence quoted above would give rise to problems .
"You don't go out of your way to put Ministers at risk, if indeed, that was
putting them at risk . I don't know whether it was or not" (Vol, 111, p . 17159) .
Mr. Higgitt maintained, however, that he had advised Mr . Goyer concerning
the problems involved with respect to entering premises for the purposes of
installing technical devices (Vol . 111, pp . 17166-7) .
14 . We turn now to Commissioner Higgitt's knowledge of the use of surreptitious entry for other purposes . In 1966, when Mr . Higgitt was the Officer in
charge of the Counter-espionage Branch, the Director of Security and Intelligence declared a moratorium on the use of surreptitious entry for the purpose
of obtaining documents and physical intelligence (Vol . 84, pp. 13842-3) . The
moratorium was lifted by the D .S .I . in 1969 (Vol . 84, p. 13844) . Commissioner
Higgitt told us that there was a requirement to use this method to get certain
documentation very urgently required by the government (Vol . 84, p . 13844) .
In 1971, while he was Commissioner, there was a detailed revision of Security
Service policy which gave to officers in charge in the field the right to moun t
96
�an operation to enter premises to obtain documentary or physical intelligence,
prior to obtaining the consent of Headquarters, if the time factor precluded
obtaining prior consent . Commissioner Higgitt told us that he had discussed
with Ministers entries for the purpose of obtaining, physical and documentary
intelligence . He also told us that documents existed which would support his
assertion that he had discussed with them the legal problems involved in such
operations (Vol . 110, pp . 16953-60) . We have not found any such documents,
nor have any Ministers who have testified acknowledged any such conversations . Nor did his counsel, who have access to R .C .M .P . files, produce such
documents .
Conclusion
15 . Clearly Commissioner Higgitt, who had had extensive experience on the
Security and Intelligence side of the R .C .M .P ., knew everything there was to
know about the various circumstances and reasons giving rise to entering
private premises without a warrant and without the permission of any person
entitled to give such permission . He knew that such entries were common for
the purpose of installing listening devices, that the entry itself might constitute
trespass, and that things done in the course of the entry might constitute
criminal offences (e .g . when damage occurred) . He knew that such entries
were common for the purpose of obtaining documents and physical intelligence .
Having statutory management of the Force, his failure to determine the legal
quality of these acts and to ensure that the entries were in all respects lawful
was unacceptable .
(b) Mr . Starnes
Summary of evidenc e
16. Mr . Starnes knew that, prior to the enactment . of the Protection of
Privacy Act in 1974, the R .C .M .P ., both for security and intelligence purposes
and C .I .B . purposes, were conducting electronic surveillance (Vol . 107, p .
16687) . Mr . Starnes was aware that members of the Security Service might
have to enter the premises to install microphones, although telephonic interception was usually made without entering premises (Vol . C30, pp . 3736-7) . He
stated that microphone operations and surreptitious entries could sometimes
not be carried out without being in breach of the law (Vol . C30, p . 3704) . Mr .
Starnes' understanding of the law, based upon the legal opinion that the Force
had obtained from the Department of Justice, was that no legal bar existed,
except for a case for civil trespass against a member of the Force who might be
caught (Vol . 91, pp . 14849-50) . He acknowledged on another occasion before
us that technical surveillance involves various risks, and indicated that a person
involved in a delicate counter-espionage surveillance operation might have to
accept being charged with an offence in order to ensure the safety of the
operation (Vol . 90, p . 14696) .
17 . Mr . Starnes was aware that members of the Security Service entered
premises to inspect written or physical intelligence (Vol . C30, pp . 3734-35) . He
stated that on some occasions he was asked to approve such operations (Vol .
97
�104, pp . 16371-2), but that he did not think that he had been asked to approve
more than two or three (Vol . C27, p . 31'43) . No ministerial authority was
sought for the acquisition of documentary and physical intelligence through
clandestine entry and departure (Vol . 90, pp . 14720-21) . Since 1959, entry for
the purpose of obtaining documentary or physical intelligence had required the
approval of the Director of Security and Intelligence, as Commissioner Higgitt
had told us . Mr . Starnes said that this procedure continued through his own
term of office (Vol . 90, p . 14721) . Mr . Starnes told us that he "certainly"
could not recall specific discussions with Mr . Goyer or Mr . Allmand, although
he possibly had discussions with Deputy Ministers, as to entering premises
surreptitiously to obtain written or physical intelligence (Vol . 103, p . 16355 ;
Vol . 109, p . 16933 ; Vol . C38, p . 5172) .
Conclusion
18. Mr . Starnes knew that entry into private premises without a warrant and
without the permission of any person entitled to give permission was a common
technique used by members of the Security Service to enable them to install
listening devices, and for the purpose of obtaining documents and physical
intelligence . As exemplified by Operations Bricole and Ham, he knew that on
occasion documents and other things were removed from such premises . His
failure to ensure that any entries were in all respects lawful was unacceptable .
(c) Mr . Dare
Summary of evidence
19 . Mr . Dare told us that he was not aware that Mr . Starnes and Mr . Higgitt
had expressed concern (i .e . at the meeting of March 1972, before Mr . Dare
became Director General) that entering for the installation of devices could be
illegal, and that specific provisions should be made in the statute under
consideration in 1974 to provide for entry as well as installation (Vol . 125, p .
19556) . Mr . Dare became aware only recently - that is, during the period of
our Commission of Inquiry - that this might be a problem (Vol . 125, p .
19556) .
20 . Before June 30, 1974, electronic eavesdropping devices, other than for the
interception of telephone conversations, were installed without warrant but
with the authorization of the Director General of the Security Service .
Naturally, therefore, Mr. Dare was aware of this procedure and in fact
authorized it (Vol . 125, pp . 19557-8) . At that time, Mr . Dare felt that neither
the installation nor the entry into premises to install was illegal . He stated that
this view was not based upon a Department of Justice or a legal opinion but
rather was an "internal operating opinion" (Vol . 125, p . 19559) .
21 . Mr . Dare was aware, both before and after June 30, 1974, that the
Security Service entered premises for the purpose of locating documents or
other physical evidence (Vol . 125, p . 19583) . Mr . Dare was aware that those
operations were conducted without any type of warrant until July 1, 1974 (Vol .
125, p . 19584) . During the fourteen months he was Director General before
June 30, 1974, he felt that this operation "was not legal", although at tha t
98
�time, he had no legal opinion from Justice or the R .C .M .P . Legal Branch (Vol .
125, pp. 19584-5) . Subsequent to the amendment of June 30, Mr . Dare felt,
basing his view on internal discussions within the Force, that such entries
without warrants and without consent were in fact legal (Vol . 125, p . 19585) .
He said that it was the policy of the Security Service not to approve any such
operation after July 1, 1974, unless a warrant to intercept oral communications
was in effect with respect to the premises .
22 . Mr . Dare maintained that at no time did he seek a warrant with the
intent of misleading the Minister by saying that the warrant was for an oral
intercept, while not himself believing that the Security Service was installing
the electronic device (Vol . 125, p . 19615) . According to Mr . Dare, he did not
know of any instance in which an application for a warrant to install a
microphone was made and a warrant obtained where the sole purpose was in
fact to conduct a physical intelligence operation (Vol . C88, pp . 12107-8) .
Conclusion
23 . Mr . Dare knew that members of the Security Service entered private
premises without a warrant and without the permission of a person entitled to
give such permission, before and after July 1, 1974, for the purpose of
installing listening devices. We believe that both before and after that date he
considered that to do so was lawful . He has also known, throughout his tenure
as Director General, that such entries were carried out for the purpose of
examining and photographing documents and things, and he candidly admits
that before July 1, 1974, he thought that doing so was illegal . Since July 1,
1974, as will be seen when we discuss Mr . Allmand's role, Mr . Dare has
considered that the practice is legal if carried out in conjunction with the
installation of a listening device when that installation has been authorized by
a warrant under section 16 . We believe that Mr . Dare has not been a knowing
party to the two occasions of which we are aware, when applications for such
warrants have been made and the sole real purpose has been to have a warrant
to "cover" a search for documents . In other words, he was not a party to the
deception of the Minister .
(d) Commissioner Nadon
Summary of evidenc e
24 . Commissioner Nadon was questioned about the "Damage Report", prepared in the summer of 1974 as to what "damage" former Constable Samson
could do if he revealed publicly practices or occurrences of which he knew
(M-88, Tab 4) . Commissioner Nadon stated that at the time of the Report he
did not know what a PUMA operation was, and that, while he knew there were
such operational codewords as PUMA, COBRA and VAMPIRE, he could not
tell the difference between one and the other unless it was explained to him
(Vol . 128, p . 19998) . Mr . Nadon's whole career in the R .C .M .P . had been
spent on the C .I .B . side of the Force . Commissioner Nadon stated that he
"gathered" that a PUMA operation was an intelligence operation in which
individuals, while on particular premises, would observe documents, mak e
99
�notes, or photocopy the documents . He told us that such an operation, in his
mind, did not include taking away documents or photocopying them in other
premises (Vol . 128, p . 19999) . On the criminal operations side, Mr . Nadon said
he had heard of "intelligence probes" . These he said involved the examination
of and obtaining information from documents "on the spot" in any place . Mr .
Nadon said he was not aware of entry into premises "illegally" on the criminal
side for the purpose of an intelligence probe (Vol . 128, pp . 20000-1) . (This
reference to "illegally" appears to relate to going onto premises without a
warrant and without the consent of the owner or occupant . )
Conclusio n
25. We have no reason to doubt Commissioner Nadon's testimony on this
point, and we therefore conclude that he did not know about surreptitious
entries on the Security Service side, and that on the Criminal Investigation
Branch side he did not know about "intelligence probes" in the sense of
warrantless trespassory entries . In regard to each side of the Force he appears
to have understood the members of the Force to take the opportunity, while
lawfully on premises, to examine and copy documents found there, but he does
not appear to have been aware of non-consensual entries without a warrant .
(e) The Honourable John N . Turner
Conclusion
26. On the sole basis of Commissioner Lindsay's memorandum of July 5,
1968, and in the absence of testimony from either Mr . Lindsay or Mr . Turner
on the subject, we are not prepared to draw any inference as to exactly what
Mr . Lindsay said to Mr . Turner that day about whether electronic intrusion
would involve the commission of civil trespass .
(f) The Honourable George J . Mcllraith
Summary of evidence
27 . Commissioner Lindsay, who was not called to testify on the subject,
recorded on July 11, 1968, a note that the memorandum which he had
prepared concerning his meeting with Mr . Turner "was discussed with Honourable George Mcllraith, today in very general terms, but it was not read by
him . He indicated that he understands the situation" . It is not at all clear from
this note whether the "legal implications" mentioned in para . 4 of the
memorandum were discussed with Mr . Mcllraith.
28 . Senator Mcllraith, when asked about Commissioner Lindsay's note, did
not think there was any discussion with him by Mr . Lindsay or anyone else at
any time about the legality of entering premises as compared with installing
such devices (Vol . 118, p . 18347) . On the other hand, to the extent that
(telephone) wiretaps might involve entering premises, Senator Mcllraith told
us that he was told, he suspects by the Commissioner, that it was legal
according to the Department of Justice (Vol . 118, p. 18359) . He says that he
was not aware of entries made for the purpose of searching for documents or
things, photographing or copying them, or removing them to be photographe d
100
�and copied and then returned . He says that these subjects were not discussed
with him (Vol . 118, p . 18365 ; Vol . 120, p . 18798) . Nor did he know that, once
inside premises to install a wiretap, those doing so would search and copy
material of interest (Vol . 118, p . 18365) .
29 . Mr . Starnes said he was unable to recall whether he discussed with Mr .
Mcllraith the question of surreptitious entries for the purpose of obtaining
physical and written intelligence (Vol . C30, p . 3782 ; Vol . 103, p . 16355 ; Vol .
C38, p . 5172) . Mr . Starnes told us that he understood that Mr . Mcllraith had
accepted the recommendations of the Royal Commission on Security (although
Mr . Starnes could not recall specifically reviewing the recommendation and
determining Mr . Mcllraith's position) that the head of the Security Service,
not the Minister, should be responsible for approving audio surveillance
("bugs") . Therefore, Mr . Mcllraith was not being asked to approve audio
surveillance, and he had not asked to approve it (Vol . 106, pp . 16627,
16631-4) . There was no question in Mr . Starnes' mind, however, that Mr .
Mcllraith was well aware that the Security Service was using audio surveillance methods (Vol . 106, p . 16632) . Mr . Mcllraith was asked to approve
telephone interceptions under the Official Secrets Act (Vol . 106, p . 16633) .
When a new request for telephone interception was being made, Mr . Starnes
stated that Mr . Mcllraith would have been provided with a brief . If that brief
was not sufficient for his purposes, it would have been expanded . Installations
which had been in existence for some time would be listed . The Minister would
review those if he wished, and there would be a further list of telephonic
interceptions which were being revoked (Vol . 106, pp . 16628-9) .
Conclusio n
30. By his own admission, Senator Mcllraith knew that what was then known
as the Security and Intelligence Branch of the R .C .M .P . entered premises,
without the consent of the owner or occupier, to install at least one kind of
listening device - telephone wiretaps . He understood that legal advice had
been obtained that such entries were legal . We are not prepared to conclude,
solely on the basis of Commissioner Higgitt's testimony unsupported by
documentation, that Mr . Mcllraith was informed that entries were made for
any other purpose .
(g) The Honourable Jean-Pierre Goye r
Summary of evidence
31 . In a written statement which he placed before us, Mr . Starnes stated :
In the case of Jean-Pierre Goyer and his successor, I can personally attest
to their having been informed about various clandestine activities since I
participated in those briefings . They were not, of course, informed about all
the different techniques used by the Security Service to obtain certain kinds
of information . However, both Ministers were shown the sophisticated
installations . . .. where material derived from microphone and telephone
interception operations is received, taped and processed . It would be
impossible for anyone receiving such briefings not to be aware, for example ,
101
�that some of the microphones in question have been installed by other than
normal methods .
Mr . Starnes also recalled the meeting held in March 1972 with the Minister of
Justice (Mr . Lang), Mr . Goyer, and Commissioner Higgitt, which discussed
draft legislation on electronic surveillance . At that meeting, Mr . Starnes recalls
pointing out that he could hardly imagine any judge issuing a warrant for the
installation of electronic eavesdropping devices when he knew that the devices
probably would have to be installed by methods which might be slightly outside
the law . Mr . Starnes told us that he pointed out that microphones did not get
installed by ringing the front doorbell .
32 . Mr . Goyer testified that he assumed that the installation of electronic
eavesdropping devices was legal, and says that he was told that it was legal and
that the Minister of Justice had confirmed its legality (Vol . 121, p . 18991 .)
(No such advice is known to the Commision, although the Varcoe opinion of
1954 advised that telephonic interception could be undertaken by virtue of a
warrant issued by a justice of the peace under section 11 of the Official Secrets
Act . We know that the R .C .M .P . came to regard this opinion as somehow
authorizing interception of non-telephonic conversations, although in practice
the Force did not require microphone interceptions to comply with the section
11 procedure .) He also knew that the Department of Justice had said that
there was a "grey area" of "civil trespass" which was a concept unknown to
him as a civil law lawyer from Quebec . He says that it was explained to him
that in certain provinces the penetration of private premises could give rise to a
civil action for damages (Vol . 121, pp . 18976-7) . He is also of the impression
that the Department of Justice had advised that, if the law authorized
electronic eavesdropping, the law authorized the doing of a thing which is
essential to accomplish it . He says that the R .C .M .P. explained to him that
there was no need to provide in the law for entries for the purpose of installing
devices, as there was no liability for "civil trespassing" (Vol . 121, p . 18978 ;
Vol . 122, p . 19022) .
33 . Mr . Goyer told us that at the meeting in Mr . Lang's office in 1972, the
principal preoccupation of the R .C .M .P . was the problem of "civil trespassing"
in relation to electronic eavesdropping . He said that no one at the meeting
indicated that criminal acts would occur at the time of installation . He said
that the prevailing opinion in the Department of Justice was that, if there was a
right to install an electronic listening device, there was a right to take measures
to do so (Vol . 122, pp . 19023-5) . Mr . Goyer told us that it is only in some of
the provinces, other than Quebec, that there is such a thing as "civil trespass" .
From his testimony it appears to be his impression that the existence of such a
law depends upon the existence of a statute (Vol . 122, p . 19018) . In this
impression we believe he is mistaken .
34. Mr. Goyer was asked about the monthly reports on microphone installations which he initiated in 1971 . He stated that he did not authorize the
installations, but merely took notice of them . Mr . Goyer said that he wanted to
know where the R .C .M .P. concentrated its efforts, and to assure himself that
there were no witchhunts (Vol . 121, p . 18974) . Mr . Starnes told us, however ,
102
�that when Mr . Goyer decided to ask for monthly reports on microphone
installations, it was his (Mr . Starnes') understanding that the Minister, having
involved himself in this process, was implicitly at least looking at an area of
Security Service operations and ex post facto saying "I think those are
appropriate" (Vol . 103, p . 16344 ; Vol . 108, p . 167, 19) . Mr . Starnes accepted
Mr. Goyer's decision that Mr . Goyer would receive and sign a report monthly
as to installations that had been made . Mr . Starnes had prepared a memorandum to be submitted to Mr . Goyer with the first such report, but said that he
accepted Mr . Higgitt's suggestion that the memorandum not be given to Mr .
Goyer . The memorandum (Ex . MC-1, Tab 5) stated that the Security Service
was :
not suggesting that you authorize the continuance of such operations,
thereby avoiding some of the political and other difficulties which could
arise from having a Minister of the Crown directly involved in operations
which are or may be outside the law .
By these words Mr . Starnes told us (Vol . C30, pp. 3742-3) that he was
referring to the caution that had been given by the Deputy Solicitor General,
Mr . T .D . MacDonald, (recorded in Commissioner Lindsay's memorandum of
July 5, 1968, concerning the meeting held that day with Mr . Turner) . Mr .
MacDonald had warned that entries for such purpose might occasionally
involve petty trespass (Ex . E-1, Tab 2C) . Although Mr . Starnes did not show
Mr . Goyer the memorandum, he told us that he thinks that he discussed the
substance of the memorandum with Mr . Goyer on July 26, 1971 (Vol . C30, p .
3749) .
35. Mr . Starnes testified that Mr . Goyer was not willing to accept the
recommendations of the Royal Commisson on Security that the head of the
Security Service, rather than the Minister, authorize microphone installations .
Mr . Starnes said that he and Mr . Higgitt had suggested to Mr . Goyer, when he
first raised the question, that since microphone operations sometimes involved
"extraordinary" measures for their installation, Mr . Goyer might prefer not to
be aware of such operations as a Minister of the Crown (Vol . 103, pp .
16334-5) . Mr . Higgitt stated that, when Mr . Goyer asked in July 1971 for the
monthly report on microphone installations, he did not inform Mr . Goyer in
detail as to how these devices were installed . Later Mr . Higgitt stated that he
had advised Mr . Goyer of problems involved with entering premises in order to
install technical devices (Vol . 111, pp . 17152, 17166-7) . Mr . Higgitt later told
us that Mr . Goyer did not want to know how the various devices were being
installed, but certainly knew in a general way how this was done (Vol . 11 2, pp .
17309-10) . Mr . Starnes told us as well that Security Service officials tried to
inform Mr . Goyer, that in order to install microphones, it was sometimes
necessary to do so by surreptitious means (Vol . 107, pp . 16689-90) . Mr .
Starnes told us that he could not recall orally telling Mr . Goyer how each of
these installations was made, although he said that if Mr . Goyer had asked the
question, he would have told him . Mr . Starnes told us that he had no
recollection of a discussion of that kind, but that one may have taken place
(Vol . C32, pp . 4009-10) .
103
�36 . Mr . Starnes cannot recall having specifically discussed with Mr . Goyer
the question of surreptitious entries for the purpose of obtaining physical and
written intelligence (PUMA operations) (Vol . C30, p . 3782) . A briefing
document used in conjunction with a tour of the R .C .M .P . electronic surveillance installation dealt with telephone intercepts and permanent audio installations, but did not refer to PUMA (entries to install devices) at all . Mr . Starnes
did not think that this was unusual, since, when Ministers were taken into the
electronic surveillance installation, PUMA would not enter into the discussion,
because it was not a technical audio surveillance operation (Vol . C30, p. 3782) .
Conclusion
37. Unquestionably Mr . Goyer knew that entries were made onto premises
without the consent of the owner or occupier to install listening devices and, by
his own admission, he knew that in certain provinces the penetration of private
premises could give rise to an action for damages . On the other hand, he was
under the impression that the installation of the devices was legal, and it is
regrettable that the memorandum that Mr . Starnes prepared in July 1971, was
not shown to him, for it would have alerted him to the possibility of illegality .
As for the meeting in Mr . Lang's office, we note that even Mr . Higgitt and Mr .
Starnes did not go so far as to testify that they had told those present of any
specific acts that might be offences . We do not consider it possible to go
beyond the notes of Supt . Cain, made by him shortly after the meeting and
therefore more likely to be reliable then memory a number of years later . We
think that only trespass was referred to at that meeting .
38 . We are not prepared to conclude, solely on the basis of Commissioner
Higgitt's testimony unsupported by documentation, that Mr . Goyer was ever
told about surreptitious entries for purposes other than the installation of
listening devices .
(h) The Honourable Warren W . Allmand
Summary of evidenc e
39. In the period prior to the Protection of Privacy Act coming into effect on
July 1, 1974, applications were made to Mr . Allmand for warrants for
telephone intercepts both in cases of espionage and in cases of internal
subversion or terrorism . Mr . Allmand was aware that applications for telephone interception were being made for non-espionage matters, that is, matters
of internal terrorism or subversion (Vol . 114, p. 17686) . Mr . Allmand did not
seek an official legal opinion on this matter, but it appeared to him that
requests for warrants involving espionage and subversion, including domestic
terrorism, were within section 11 of the Official Secrets Act (Vol . 114, pp .
17687-9) . His reading of the section, although he never discussed it in detail
with the R .C .M .P ., led him to believe that section 11 could also be used for
warrants for the installation of bugging devices (Vol . 114, p . 17582) . (However, the R .C .M .P . did not in fact obtain warrants from a justice of the peace
under section 11 when they intended to install listening devices in premises .)
40. The R .C .M .P . sought Mr . Allmand's authorization only for telephone
interceptions and not for bugging, but they reported to him each month o n
104
�microphone installations ("bugs") they had carried out both on the criminal
investigation side and on the Security Service side (Vol . 114, p . 17602) . Mr .
Allmand stated that neither Mr . Higgitt nor Mr . Starnes had told him about
being concerned about the question of trespassing in the course of installing
bugs and wiretaps (Vol . 114, pp . 17652, 17654, 16756-60) . Mr . Allmand was
told at his initial briefing sessions in December 1972 that there was a legal
basis for wiretapping and bugging (Vol . 114, pp . 17581, 17608-9) . There was
no intimation that any of the matters he was briefed on were illegal (Vol . 114,
p . 17609) . Mr . Dare confirmed this last point . He testified that before the
Protection of Privacy Act came into effect on July 1, 1974 he never discussed
with Mr . Allmand the legality of microphone installations listed in his monthly
report he presented to the Minister (Vol . 125, p. 19566) .
41 . Mr . Allmand referred to his testimony before the House of Commons
Justice and Legal Affairs Committee in June 1973, where he indicated that the
R .C .M .P . and the Security Service engaged in bugging (Vol . 114, p. 17610) .
At that time no one suggested that the bugging carried out according to the
authorization system was illegal (Vol . 114, pp . 17653, 17611) . On another
occasion he asked his Deputy Minister, Mr . Tassé, to check on its legality . Mr.
Tassé later reported that he had checked with the Department of Justice .and
that entry for bugging was legal (Vol . 114, p . 17586 ; Vol . 115, p . 17703,
17719 ; Vol . 116, p . 18059) . Mr . Allmand told us that this opinion confirmed
what he had believed up to the time the concern arose (Vol . 116, p . 18059 ; Vol .
114, pp . 17582-3) . On another occasion, Mr . Allmand stated that throughout
his term of office - which included a period of about nine months before the
Protection of Privacy Act came into effect - he was "convinced" that, just as
entries to observe were legal, so too entries to place "bugs" were legal (Vol .
115, p . 17709) .
42 . Turning to surreptitious entries for purposes other than electronic surveillances, Mr . Allmand told us that he did not know of specific instances when
members of the R .C .M .P. had entered premises surreptitiously and taken
documents or evidence away with them . Nor did he know of any specific
incidents of entries to observe or to photograph, although he was "convinced"
that entries for those purposes were legal and he was aware that they did occur
(Vol . 115, p . 17701, 17717-9 ; Vol . 114, pp . 17663-4) . He said that he did not
seek an opinion on the legality of such entries by the Security Service because
he did not recall it ever becoming an issue (Vol . 114, pp . 17665-6) . He said
that he did not have an indication from anyone that the practice was illegal . He
could not recall who told him that such entries were legal, but felt it was part
of his general briefing over a period of time . Furthermore, he . said that he had
been told that the general work the Security Service was carrying on was
within the law and that various investigative techniques were within the law
(Vol . 114, pp . 17666-7) .
43 . In October 1974, an article appeared in the Montreal newspaper, Le
Devoir, which discussed a book by Professor Guy Tardif, a former member of
the R .C .M .P. The article mentioned Operation 300, which was said to be
surreptitious entry into homes when the owner was away, to obtain evidence by
taking photographs, and then leaving without a trace . Mr . Allmand said he wa s
105
�not aware of Operation 300 before this time (Vol . 114, pp . 17675-6) . Mr .
Allmand's assistant, Mr . Vincent, asked for guidance from the R .C .M .P . The
R .C .M .P . suggested a reply, in case a question was asked in the House of
Commons, and the memo was placed on a card in a briefing book for Mr .
Allmand's use in the House of Commons . The suggested reply was "1 am
aware of the article and am examining it" . Mr . Vincent's memo stated that he
had been told "that this touches on a very sensitive aspect of the operations of
the R .C .M .P . The R .C .M .P . officials at a senior level are investigating and will
provide you with a report on the matter" . Mr . Allmand does not recall seeing
the memorandum, although he did see the card . No report was ever received
from the R .C .M .P ., no question was asked in the House of Commons and the
card was probably taken out of the book and the matter dropped out of sight
- perhaps because Mr . Vincent did not ordinarily deal with R .C .M .P . matters
(Vol . 114, pp . 17672-85 ; Vol . 115, pp . 17722-26 ; Vol . 116, pp . 18059-60) . Mr .
Allmand did not make any inquiries as to the legal basis for such operations
despite the Tardif incident (Vol . 114, p . 17678), but, as we have already noted,
he was "convinced" that entries for such a purpose were legal . Mr . Dare told
us that during the period of his tenure from May 1, 1973 to June 30, 1974, he
did not specifically make Mr . Allmand aware of the fact of this kind of
operation (Vol . 125, p . 19586) . Mr . Dare also testified that he did not discuss
the legality of those operations during that period, and that Mr . Allmand never
raised the question of their legality with him (Vol . 125, pp . 19586-7) .
44. While Mr . Allmand was asked about his knowledge of surreptitious
entries for the purpose of observing and photographing documents, he was not
specifically asked whether he knew that sometimes members of the Security
Service, when they entered premises to install a listening device pursuant to a
warrant issued by him under section 16, "rummaged" around and examined
and photographed documents and things . However, Mr . Dare testified on this
subject . He said that after June 30, 1974, the "oral communications warrant"
obtained from the Solicitor General under section 16 of the Official'Secrets
Act was used by the Security Service as a basis on which to examine
documents on premises, and photograph them where necessary (Vol . 125, p .
19588-9) . Mr . Dare stated that this technique was clearly discussed with Mr .
Allmand, and Mr . Dare believes that Mr . Allmand had been assured by his
then Deputy Minister, Mr . Tassé, that this procedure was entirely legal (Vol .
125, p . 19589 ; Vol . C88, pp . 12106-7) . Mr. Dare said that, although Mr .
Allmand would not be advised on every occasion that a physical intelligence
operation would be conducted at the same time a microphone was installed
pursuant to a warrant, nevertheless Mr . Allmand was, from time to time,
informed of the practice (Vol . 125, pp . 19589-90) . Yet, in the majority of cases
when oral communications warrants were sought from Mr . Allmand, Mr. Dare
did not indicate to him that he was also contemplating a physical intelligence
operation (Vol . 125, pp . 19598-99) .
Conclusion
45 . Whether, since July 1, 1974, the law permits surreptitious entry for the
purpose of installing a listening device when the electronic surveillance has
been authorized under section 178 of the Criminal Code or section 16 of th e
106
�Official Secrets Act, is a matter of uncertainty even today . Of course Mr .
Allmand knew of such a practice, and regarded it as legal, as unquestionably
has the Department of Justice more recently . As for his nine months as
Solicitor General preceding the present legislation, Mr . Allmand by his own
admission knew of the practice then, too, and we accept his evidence that he
thought it was legal .
46 . As for entries for the purpose of looking around and photographing things
on site, Mr . Allmand candidly admitted that when he was Solicitor General he
presumed that they occurred, but he said that he thought that they were legal .
He and Mr. Tassé both said that the issue never came up for discussion, so that
Mr . Allmand did not actually inquire about the legality of such operations, and
his inference that they were legal was based on the general assurances that the
R .C .M .P. gave him, that their work was within the law .
(i) The Honourable Francis Fox
Summary ojevidence
47 . Mr . Fox testified that after Commissioner Nadon's statement in 1973
before the Standing Committee on Justice and Legal Affairs, he thought it was
clear that all members of the House of Commons were aware that the
R .C .M .P . was engaging in electronic surveillance both in the form of telephonic interceptions and in the form of what is commonly known as bugging . He
thought it would be impossible for them to know that electronic surveillance
was taking place without thinking that the individuals involved had to enter a
building to install a listening device (Vol . 163, pp . 24966-7) . During Mr . Fox's
term as Solicitor General, it was his impression that the problem had been
solved completely with the passage of the 1974 law authorizing electronic
surveillance . Nonetheless, the question was raised again . Mr . Fox relied upon a
legal opinion prepared by Mr . Landry of the Department of Justice either
during his or Mr . Allmand's respective tenures as Solicitor General . Mr . Fox
thought that the opinion provided, in effect, that if Parliament had authorized
the use of electronic surveillance, the individuals involved, under certain
conditions, could employ reasonable means to carry out their tasks (Vol . 163,
p. 24968) .
48. Mr . Fox testified that in January or February 1977, the question was first
raised about a police officer examining a place and documents he might find in
the place while in the course of installing an electronic device when there was
lawful authorization to make the installation . Mr . Fox did not think that the
warrant authorizing the installation of devices authorized an individual to
examine files, documents, etc . found in the premises (Vol . 163, pp . 24969-70) .
He said that, as far as he was concerned, when he gave authority for someone
to undertake electronic surveillance, the authority was only for electronic
surveillance (Vol . 163, p . 24970) . He felt that the warrants he issued should
have been read and interpreted in a restrictive fashion (Vol . 163, p . 24970) .
Mr . Fox told us that, when the matter was raised with him early in 1977, he
asked Mr. Tassé to obtain a legal opinion from the Department of Justice to
see whether, on entering for the purpose of placing an electronic surveillanc e
107
�device, the R .C .M .P . could undertake other types of interceptions of documents, such as reading the documents, copying them or photographing them
(Vol . 163, p . 24970) . Mr . Fox said he received an opinion to the effect that the
words "interception of communications" in the Official Secrets Act could
apply to the interception of not only oral communications, but also written
communications (Vol . 163, p. 24971) . Mr . Fox did not think, however, that
interception of written communications included removing documents in order
to photocopy them and then returning them . However, he said it was proper to
photocopy documents on the premises (Vol . 163, p . 24971) .
49. Mr . Dare confirmed that he discussed with Mr . Fox the use of entries for
the purpose of installing devices as an . opportunity for the examination and
photographing of documents (Vol . 125, p . 19600) . Mr . Tassé also confirmed
that there had been that discussion in early 1977 (Vol . 156, pp . 23803-4) . He
said that the issue was then considered and the conclusion was reached that if
the Security Service wanted to look at documents, the warrant should be
modified to say so (Vol . 156, p . 23820) . Mr . Tassé said also that it was not
indicated that intelligence probes were used, or that in executing a warrant
under section 16 of the Official Secrets Act the police could take possession of
documents and remove them to photograph or analyze them and then to return
them (Vol . 156, p . 23810) .
Conclusion
50 . Mr . Fox, before the establishment of our Commission of Inquiry, relied
on the opinion of the Department of Justice that a surreptitious entry was
lawful when it was for the purpose of installing a listening device and the
installation was authorized under the 1974 legislation . As we have seen, that
opinion has been re-asserted more recently, and whether it is valid is uncertain .
51 . As for "rummaging" while on premises to install an authorized listening
device, when he found out that this went on, he obtained an opinion from the
Department of Justice that written communications could be searched for,
examined and copied .
108
�CHAPTER 2
ELECTRONIC SURVEILLANC E
1 . In our Second Report, Part III, Chapter 3, we discussed institutionalized
wrongdoing in the field of electronic surveillance . Here we examine the
knowledge and response of Ministers and senior government and R .C .M .P .
officials in this area of operations . Because of the different legislation applicable to electronic surveillance in the two branches of the R .C .M .P ., we discuss
each branch separately .
A . SECURITY SERVIC E
2 . Over the years the Commissioners of the R .C .M .P . and Directors Géneral
of the Security Service have been aware of the use by the Security Service of
all forms of electronic surveillance . An opinion of the Department of Justice
was given in 1954 that telephonic interception could be undertaken by virtue of
a warrant issued under section I 1 of the Officials Secrets Act . From 1969 until
July 1974, when the present legislation came into effect, the Solicitors General
knew of telephone tapping, and indeed gave their approval to the issuance of
warrants under section 11 of the Official Secrets Act . The Ministers also
approved monthly certificates reviewing existing warrants . They were also
aware of the use of microphones, although Ministers did not have anything to
do with that technique of eavesdropping until Mr. Goyer instituted the practice
of being informed monthly about it . Since 1974, the use of both techniques has
been subject to section 16 of the Official Secrets Act, and Commissioners,
Directors General and Solicitors General have all participated in the perfectly
lawful process of issuing warrants . They have also been aware, in the case of
microphone installations, that in many instances, an installation can be made
only by entering private premises without the consent of any person who could
give permission to do so . We noted in our Second Report that such entries may
give rise to a legal issue, but that the R .C .M .P . and the Solicitors General have
acted under the advice of the Department of Justice, given when the legislation
was being drafted and since the early months of its operation, that such entries
are legal .
B . CRIMINAL INVESTIGATION BRANC H
3. In our Second Report, Part III, Chapter 3, we reported that in the criminal
investigation work of the R .C .M .P., the policy from 1959 onward forbade the
use of telephone tapping . This was so until the Protection of Privacy Act came
into effect on July 1, 1974 . Althoûgh the last written policy dealing wit h
109
�electronic surveillance issued on January 1, 1973 was silent as to telephone
tapping, the evidence is clear that the policy against wiretapping continued
until the Act came into force . We also reported that Commissioners advised
Solicitors General in 1966 and 1968 that R .C .M .P. policy forbade wiretapping
in criminal investigations .
4 . Throughout the greater part of the 1960s the policy against wiretapping
seems to have been rigorously enforced by Headquarters . An incident in
Montreal in 1964 illustrates this . Two senior officers were dismissed from the
Force for misapplication of public funds designated for the payment of
informers . It came out in the service investigation and trial of the senior
officers that the funds had not been used for the payment of informers but for
the acquisition of wiretapping components and equipment . The Commissioner
reported to the Minister of Justice that the use of this equipment was
completely contrary to the policy of the Force . The files show that the
equipment was impounded and subsequently destroyed .
5 . Prior to 1974 there was, except in Alberta and Manitoba, no legal
prohibition against wiretapping, and the reluctance of the R .C .M .P . to embark
on the use of this technique for criminal investigations stems from internal
policy considerations . An important factor was that the Security Service, which
used wiretapping, was anxious to protect its technical operations, many of
which were of a long-term nature . Assistant Commissioner Venner explained
that :
the Security Service and the people who had their responsibilities perhaps
uppermost in mind were concerned that the C .I .B . entry into this field with
the obvious ramifications of that - taking the evidence to court, in some
cases - would raise the profile of this technique to the detriment of the
Security Service .
(Vol . C123, p . 16223 . )
This reason can be found stated in a memorandum dated March 26, 1968,
from Sergeant D .A . Cooper to the Officer in Charge of the C .I .B . (Ex . E-5) .
He said : " . . .the Commissioner forbids telephone tapping for criminal investigations, the main reason being to protect the responsibilities of "I" Directorate" . Commissioner Higgitt told us that the protection of Security Service
operations was an important reason for the C .I .B . policy (Vol . 199, p . 29496) .
This concern of the Security Service diminished somewhat as time went on and
by June 12, 1973 the Solicitor General in testimony before the House of
Commons Standing Committee on Justice and Legal Affairs did not hesitate to
refer publicly to the use of wiretapping in security work.
6. It should also be noted that during the period when wiretapping legislation
was in preparation the R .C .M .P . was reluctant to authorize wiretapping in
criminal investigations since this might produce a public reaction adverse to the
R .C .M .P . In our Second Report we said :
Nevertheless, these senior R .C .M .P. officers wanted the use of this investigative aid to be kept out of the public eye as much as possible, particularly
as they had hopes of obtaining legislation that would permit the use of
wiretapping b y warrant, and they feared that Public exposure might
prejudice the enactment of the legislation .
110
�We based this conclusion on the testimony of Assistant Commissioner T .S .
Venner . He testified before us in April 1978 :
Q . Did you have any discussions with your superiors as to the reasons why
the policy remained that there shall be no telephone tapping, notwithstanding the opinions that in most circumstances no offence would be
created, even an offence under the Petty Trespass Act ; did you ever
have any discussions as to why they wanted it maintained ?
A . Yes, many such discussions, sir .
Q. What was your conclusion as to the reason for maintaining the policy,
in spite of the opinions that they had with respect to law ?
A . At that period of time, the legislation was impending, and I think it was
accepted, rightly or wrongly, within our Force that we would stand a
better chance of getting favourable legislation, or not jeopardizing the
passage of what we believed to be favourable legislation, if our policies
remained the same, if they remained prohibitive with respect to wiretapping . But I might say these decisions were taken by people from
whom our activities were withheld in the field .
(Vol . 33, pp . 5452-3 . )
The conduct of Assistant Commissioner Venne r
7 . In our Second Report, Part III, Chapter 3, we discussed the evidence of
Mr. Venner with respect to wiretapping in Toronto in 1973 :
19 . It is clear that the policy enunciated by Headquarters, and the assurances given so positively to government that telephonic interception was not
permitted, were somewhat meaningless . Assistant Commissioner T .S .
Venner testified that in "some areas" R .C .M .P . investigators "simply relied
on their local, municipal and provincial police counterparts to do this work
for them" . In other areas ,
.
.. our policy was held to be just a, guideline, and key personnel, when
operational circumstances warranted it, went ahead with the necessary
activity, either not reporting it at all, reporting it only up to certain levels
or reporting it in an incomplete, less than fully informative fashion .
(Vol . 33, p . 5404 .)
One such area was "O" Division (Southwestern Ontario), to which Mr .
Venner was transferred from Edmonton in the summer of 1973 . Put more
bluntly by him, the fact that telephone tapping was being carried on in the
field was "withheld" from senior officers of the Force who were responsible
for the policy and were assuring Parliamentary Committees that there was
no wiretapping for criminal investigation purposes (Vol . 33, p . 5453) .
Indeed, in those'areas where the policy was ignored in practice, the
R .C .M .P . now recognizes that the telephone tapping was "carried on in an
atmosphere of non-accountability, fear of discovery, even deception" .
(Vol . 33, p . 5407 .)
20 . Mr . Venner told us that when he moved from Alberta to Toronto in
1973 as Officer in Charge of the Criminal Intelligence Divisio n
It also became apparent that telephone tapping was going on, was being
conducted by our criminal investigators, and to a very high degree it also
became apparent that this was an underground activity, that it was no t
111
�being reported, that information as to the character and extent of our
technical activity was being withheld from superior officers, and the
people who were doing it were people who became immediately subordinate to me as soon as I arrived there .
(Vol . 33, p. 5440 .)
So, after examining the situation, he concluded that it was "impractical"
not to tap telephones, "policy notwithstanding" . Although it was "clear" to
Assistant Commissioner Venner that in 1973 "it was still a policy of the
Force not to wiretap" (Vol . 33, p . 5454), he considered the policy to b e
a guideline to be followed wherever possible, but when it was just not
practical to live within that policy, and where there was a greater public
interest, in my assessment, at stake, then telephone intrusion would form
part of our electronic surveillance program .
(Vol . 33, p . 5441 .)
He was aware not only that the practice was contrary to Force policy, but
that, in the small percentage of cases in which it was necessary to enter
premises in order to tap a telephone, there was ("at most") a violation of
the Ontario Petty Trespass Act and possibly civil trespass .
(Vol . 33, pp . 5441-44 .)
21 . This attitude was not restricted to Southwestern Ontario . In a letter to
the Solicitor General on October 6, 1977, Commissioner Simmonds wrot e
Efforts to have our policy changed met with no success for a variety of
reasons and it became evident that there was a wide range of interpretation being applied with respect to the prohibition against telephone
tapping . In some areas, our investigators simply relied on their local,
municipal and provincial police counterparts to do this work for them . In
other areas, our policy was held to be just a guideline, and, key personnel,
when operational circumstances warranted it, went ahead with the necessary activity either not reporting it at all, reporting it only up to certain
levels or reporting it in an incomplete, less than fully informative fashion .
In some other areas, the policy was rigidly adhered to, occasionally
because local enforcement programs were sufficient without this investigative aid, but more often because the policy and public pronouncements by
the Commissioners were held to be an absolute bar to telephone tapping in
the investigation of criminal matters . I think it is fair to say that where
this interpretation existed and was applied, telephone tapping simply
continued in an "underground" fashion and our previously high standards
of accountability became subject to violation . The damage this did has not
yet been fully repaired .
(Vol . 33, pp . 5404-5 ; Ex . E-5 . )
8 . It has been represented to us that it is unfair to comment on Mr . Venner's
conduct in Toronto in 1973 since the evidence was supplied by Mr . Venner
himself when he put himself forward in April 1978, as the present Director of
Criminal Investigations, to testify as to the history of the policy on this subject,
and in particular when he was asked by our counsel to tell what had happened
in Toronto . Our counsel's question (Vol . 33, pp . 5439-40) was a request that
Mr. Venner elaborate upon the statement that had been contained in Commissioner Simmonds' letter that there had been misleading reporting and that
information had been withheld from superiors .
112
�9 . We recognize that, in a sense, it is unfair that Assistant Commissioner
Venner should be commented upon if there were other officers who were doing
the same thing but are not named in this Report . Nevertheless, we cannot be
expected to refrain from commenting on conduct which is known to us merely
because others, unknown to us, may have done the same thing .
10 . We do not believe, however, that Assistant Commissioner Venner intended to mislead Headquarters or contribute to misleading the Solicitor General
or the Justice and Legal Affairs Committee . We accept his assurances, given
under oath, that he tried to get the wiretapping policy changed . He made
written submissions "pointing out our difficulties and asking for changes",
some of which "got to Headquarters" while, others did not get beyond the
sub-divisional or divisional level . He says that
in one way or another, and, in fact, in every way I could, I attempted to get
this policy changed and to bring to the attention of Headquarters the
difficulties that it was causing us in the field and the effect it was having on
our character and the fabric of the Force, really .
(Vol . C123, p . 16191 .)
Nonetheless, the evidence is that in 1973 he permitted wiretapping operations
in Toronto to continue and he did not report the true state of affairs to his
superior officers .
11 . Assistant Commissioner Venner says that by 1973 there was a decline in
leadership standards and that this was "primarily because of the atmosphere
created by this policy, that most criminal investigators couldn't live with" (Vol .
C123, p. 16190) . He described to us a very serious state of affairs :
There were many officers in this Force who simply did not want to know
the problem existed . They wanted to shut their eyes and tell them to go
away . They did not want people to tell them that this practice was going on
in criminal investigation . Because then they would be possessed of knowledge, which they would either have to do nothing about, and thereby accept
the responsibility, or do something about ; and many of them did not want to
do either. So, there was an atmosphere of not wanting to know what was
going on .
This reporting system contributed to that and to some extent facilitated
that . In both Alberta and Toronto there were officers, superior to me, in the
division, who I did not want to discuss this kind of activity with . I was more
prepared to discuss it with the D .C .I . in Headquarters, than I was with
officers within my division, because of their own perceptions and their own
personal approval to this kind of activity . It was a very unhealthy and very
unsatisfactory and very disturbing situation . But that's the way it was and
that is how it existed .
(Vol . CI 23, p . 16268-9 . )
He says that the junior members who were carrying out telephone tappin g
had developed disrespect for their senior officers, for any officers, most of
whom just were .-not about to get involved and to know what the practice
was, and didn't want to do anything about it .
(Vol . C123, p . 16188 . )
113
�Thus,
the fabric and the character of the Force . . . was being seriously eroded .
(Vol . C123, p . 16189 .)
12. Assistant Commissioner Venner considers that the proper way to interpret what he did in Toronto in 1973 is tha t
during a short period of time, when there was confusion and uncertainty
and a very unhealthy arrangement within the Force with respect to policy in
this area [he] took it upon himself to do some reasonable, thoughtful,
sensible things to bring an acceptable practice under control ; that [he] lived
with and worked within a reporting system which may not have been fully
informative - it may not have been deceitful, but it may not have been
fully informative or complete - that reporting system may have allowed
some people at Headquarters to be misled .
(Vol . C 123, pp . 16231-2. )
He explained that his motive was to bring a measure of accountability (to
himself) and control to what he found was going on in "an underground
fashion, uncontrolled" (Vol . C123, p . 16181) . He found that the fact that
telephone tapping was used at all was withheld from the officers of "O"
Division in Ontario and that "no officer was overseeing the programme, to see
this technique was only used when it was absolutely necessary" (Vol . C123, p.
16182) .. Misleading reporting practices were being used to camouflage telephone tapping operations (Vol . C123, p . 16188) and he found that members
who carried out telephone tapping "hid it from their superiors", resulting in "a
very, very dangerous climate of deceit, really, and lack of accountability"
which "was growing up in the C .I .B . side of the Force" (Vol . C123, p . 16181) .
He considers that had he "religiously tried to stamp it out", it "would have
continued in an underground fashion" (Vol . C123, p . 16185) . He recognizes
that the policy was regarded as a very significant one in that he was aware,
when he arrived in Toronto and before that, as were "all of our criminal
investigators", that "if a criminal investigator was caught in this procedure,
caught telephone tapping, he would lose his job" (Vol . C123, p. 16187) .
13. Indeed, he considers that, far from his conduct being unacceptable, it
would have been unacceptable "to have done nothing about the situation ; other
than to allow it to continue, or drive it further underground with repressive
action of my own" . He says that he did his duty my duty as I perceived it, to the Force, in many ways, and to the younger
members of the Force in particular .
(Vol . C123, p . 16189 . )
14 . Here it is disturbing to note than an officer perceives his "duty to the
Force" . as being distinct from his duty to obey the policy of the Force . We
reject the concept that there is some overriding duty to the Force that may be
invoked by members as a reason for disregarding a policy decided upon by
senior management or by the Solicitor General, no matter how unreasonable
members consider the policy to be or whatever adverse consequences they may
perceive the policy to have for the "fabric" or the "character" of the Force .
114
�15. We recognize that Mr . Venner was in a . most difficult position when he
arrived in Toronto and found that wiretapping was going on in an "underground fashion" . The evidence before us makes it clear that the official policy
of the Force was not to engage in wiretapping. It is therefore hardly surprising
that certain superior officers in Divisions, such as Mr . Venner's own superior in
Toronto, were insisting on strict compliance . However, it is equally clear that
senior officers on the C .I .B . side of .Headquarters were aware, at least by the
fall of 1972, that the policy was often not being observed in the field . Not only
were they aware of this, but they did nothing about it . The policy was not
changed ; neither were attempts made to bring practice into line with policy . In
this state of affairs it is understândable that Mr . Venner found it easier to
discuss the situation with Headquarters managers than with officers in the
field . It was a situation in which the management 'of the Force had broken
down as far as this question was concerned .
16 . Commissioner Simmonds testified on this matter and stated that in his
view Mr . Venner dealt with "a very difficult problem in a very responsible
way", and described his own experience as an officer in the field . We , have
given careful consideration to his representations .
17. We recognize that Mr . Venner volunteered the information about his own
experience to our counsel and to us, and for that we give him credit . Yet, when
all is said and done, one fact remains . It was Force policy that the technique of
wiretapping was not to be employed in criminal investigations . Those who did
not obey that policy may have done so for a noble motive, but their- conduct
cannot be excused, for that road can only lead to loss of control and breakdown
of authority within the Force .
.
The conduct of Deputy Commissioner Nado n
18. On -August 8, 1972, Mr . Nadon asked the C .I .B . to prepare a background
paper on the wiretapping policy which would assist in consideration , of changing the policy . By October, a paper was prepared entitled "Wiretapping
Policy" (Ex . E-5) . It was prepared by senior non-commissioned officers at
Headquarters who were in the,Drug Section, the National Crime Intelligence
Unit, the Commercial Fraud Section and the Legal Branch . This brief;
intended for internal use only, was circulated to the officers in charge of the
C .I .B . branches at Headquarters, who so far as Mr . Nadon knows, did not
dissent from its contents . It was then submitted to Mr. Nadon . The brief, traced
the history of wiretapping policy from the 1930s and recommended a change of
policy . The passages of particular importance to us are as follows :
Introduction [p . 1 ]
.
.
. •
Our official policy concerning wiretapping is pérfectly clear . For mâny'years we have consistently forbidden our members to use this method of
.
investigation, and consistently denied that we have ever done so . . . .
It is painfully clear that mere perusal of the materials on file wonld be
entirely misleading to anyone not familiar with reality in this area that
offi cial policy has never been followed despite assurances to the contrary .
115
.
.
�This brief is presented in a conscious effort to "tell it like it is" - to go
beyond the mere commission to extract and summarize (although this has
been accomplished to some extent) and permit conclusions and recommendations based on existing realities . . .
Enabling legislation [p . 7 ]
. ..With the dissolution of Parliament in July Bill C-6, the latest in a series
of Bills on wiretapping, died after coming closer to passage than any of its
predecessors . While we directed our usual representations to Justice, we
were conspicuous by our absence at the stage when briefs were presented to
the Justice and Legal Affairs Committee . Our present policy effectively
prevented us from visibly using our prestige in support of other police
agencies . We did not dare risk questioning which could reveal the abyss
between policy and practice .
Effects of present policy [p . 9 ]
It can be unequivocally stated that our members do in fact tap
telephones in the face of official policy to the contrary, directly, and
indirectly through the medium of other police agencies and telephone
companies. The basic reason for this is that the Force, quite properly,
expects its members to produce investigative results, and unofficial policy at
the working level condones or encourages wiretapping as a medium . A
second reason is that members often become so dedicated to their tasks that
they are willing to use any means available to accomplish them as long as
the means is not personally repugnant, even to the point of jeopardizing
their careers .
The justifications for the assertion that our members do tap telephones
are these :
(1) personal knowledge on the part of many members, even though they
are compelled to deny it officiall y
(2) common knowledge within the Forc e
(3) cases developed into the higher levels of serious and organized crime
where it is obvious traditional investigative methods could not be
responsibl e
(4) recurring questions from members attending courses concerning the
consequences if they are caught .
Why our policy should be changed [p . 12]
(2) to bring policy into line with practic e
(6) to permit representatives of the Force to appear before the Justice and
Legal Affairs Committee and attempt to influence prospective
legislation .
19 . It is clear that those who prepared the brief thought that, so long as the
policy was not changed, any senior officer of the Force, if he appeared before
the House of Commons Standing Committee on Justice and Legal Affairs,
would have to disclose that members of the Force violated policy broadly, an d
116
�that this might cause such consternation as to imperil the prospects of the
adoption of legislation which would, if adopted, clearly permit wiretapping by
the police .
20. On November 8, 1972, Mr . Nadon wrote to the Director of Criminal
Investigations that he had "perused this excellent study on wiretapping" and
suggested that some minor changes be made before it was put in final form for
discussion with the Commissioner .
21 . A different paper highlighting the basic objections of the R .C .M .P . to the
Protection of Privacy Act was prepared about this time for the information of
the Solicitor General . On December 18, 1972, that paper was sent by Mr .
Nadon to Mr . Bourne, the Head of the Security and Policy Analysis and
Research Group in the Department of the Solicitor General (Ex . E-7) . In this
document the following passages on the wiretapping policy appear :
The policy on telephone tapping is that it will not be used in the investigation of criminal matters except when one of the parties agrees to such
action and there is no prohibitive legislation. . . .
Since the policy of the RCMP forbids wiretapping in the investigation of
criminal matters, we cannot speak directly of our own cases when relating
positive results from investigations wherein wiretapping has been utilized .
We have, however, been involved in several joint forces operations with
other police departments who do wiretap with the sanction of their
superiors.
It will be noted that the paper sent to the Solicitor General's office did not
refer to requests having been made by members of the R .C .M .P . to telephone
companies for wiretaps, or to members installing wiretaps themselves, or to
members asking other police forces to carry out wiretaps for the R .C .M .P .
Moreover, Mr. Nadon cannot say that in discussions with the Solicitor
General, Mr . Allmand, concerning the Protection of Privacy legislation, the
existence of these possibilities was raised by the R .C .M .P . He has no memory
of having told Mr . Allmand that he suspected that in some cases members were
not abiding by the policy that prohibited wiretapping . (Vol . 199, pp .
29394-99) .
22 . Mr . Nadon told us that he sent the internal brief to the Commissioner on
December 22, 1972 . Mr. Nadon's internal memorandum to the Commissioner
dated December 22, 1972 states in par t
This is the brief on wiretapping recently discussed . It is very detailed
tracing history of C .I .B . involvement from the 1930s to date and a number
of problems encountered on the way . Having lived through most of these
problems while in the field I am most sympathetic to members concerned .
After careful study of this and additional ammunition from south of the
border I agree that it is time to have a good look at our present policy . . . .
Later, according to Mr . Nadon, on January 10, 1973, a discussion was held
with the Commissioner and the D .C .I . and the Commissioner decided that the .
R .C .M .P . policy on wiretapping-should not be changed, as to do so might
adversely affect the R .C .M .P . position on the wiretapping legislation .
117
�23 . In January 1973, the October 1972 internal brief was discussed at a
meeting of divisional Commanding Officers in Ottawa . On January 26 Mr.
Nadon sent the brief to the Commanding Officers of the Divisions in several of
the provinces where the R .C .M .P. is the contracted police force . Mr . Nadon
does not recall having received any comments from those Divisions that the
brief presented the facts inaccurately (Vol . 199, p . 29364 ; Ex . 'E-5) .
24 . Mr . Nadon told us that "as far as [he] knew, the policy was established,
was being generally observed throughout the Force . Now, there may have been
the odd exception, but not an abyss . ." as claimed in the internal brief of
.
October 1972 (Vol . 199, p . 29335) . He testified that, from the statements
made in the brief, he "suspected that some of our members . . . were going out
on their own and doing some wiretapping ; but noi on a general basis right
across the country. On the exceptional basis ." (Vol . 199, p . 29336-7) . According to Mr . Nadon, "it certainly was not common knowledge at Headquarters,
at the executive level", that members were tapping telephones (Vol . 199, p .
29337) . He says that he thinks that the statement made in the brief, that
"Present policy has never been followed in the larger crime centres", was
"generalized" and that disobedience was "not as widespread" as the brief
indicated, but was, he would say, by "very few members in each of the
divisions" (Vol . 199, p . 29344) . He told us that his views were formed from
being in a division and from what he had heard at Headquarters . His
experience in Toronto, Vancouver and in Montreal told him "that there was
very little [wiretapping] going on, if any" (Vol . 199, p . 29351) .
25 . Despite the October brief's "unequivocal" statement as to practice, which
to Mr . Nadon meant that the NCOs who prepared the brief "could-certainly
come up with certain incidents where it was done and it is unequivocal that it
did oçcur" (Vol . 199, p . 29348), Mr . Nadon did not inquire as to whether there
were grounds for the statement in the brief (Vol . 199, p . 29354, 29436) . He
told us that his efforts were directed toward getting the legislation passed, and
that anyway he thought that members of the Force who submit a brief "pad"
their version of the facts so as to impress the senior executive in favour of a
change in policy (Vol . 199, p . 29345) . By this he says he means that they use
exaggerated terminology to describe the facts (Vol . 199, pp . 29346-50) . He
says that he considered that widespread wiretapping could not be "commonly
known" to the NCOs who preparedthe brief because wiretapping would be
carried out on a need-to-know basis (Vol . 199, . p . 29348, 29420) . He testified
that he thinks "that the people that actually wrote these things probably did
not have the knowledge of the specific - so they are just writing on
hearsay. . ."(Vol . 199, p . 29421) . Yet, the "unequivocal" nature of what was
stated did make him "suspect" that members tapped telephones in contravention of official policy, and that their doing so might be "a little wider spread"
than he had originally suspected, although he says that he did not suspect that
it was "a wide disrespect for the policy" . He says he thought that it was just
the odd case that may have occurred over the years (Vol . 199, pp . 29438-9) .
Mr . Nadon clearly had no intention of investigating on the basis of such
suspicion -he would investigate only in the unlikely event that he received a
complaint of wiretapping from a court or the public (Vol . 199, pp. 29348-9) .
118
�Then he said, he would have to take some action . As it was, however, he did not
think it necessary to ask for particulars of the alleged wiretapping .
26 . It may be noted that a review of R .C .M .P . files shows that on May 4,
1971, a Chief Superintendent in the C .I .B . at "K" Division in Alberta had
written to the Director of Çriminal Investigations . The message (Ex . E-5) was
titled "wiretapping" . It said :
I âgain reiterate that members of this Force do not wiretap but over the
past few months if a need arose where wiretapping was mandatory, this
would be surreptitiously done by [name of a person in the employ of a
telephone company] .
The reference was to Calgary, where, as in all of Alberta except Edmonton,
there was a statutory prohibition of wiretapping . Hence, this message informed
Headquarters not only of violation of Force policy but of illegality . We note
this as an example of Headquarters being given very specific information about
wiretapping contrary to policy . Mr. Nadon had no recollection of this
correspondence .
27 . On June 12, 1973, the Solicitor General and Mr . Nadon appeared before
the House of Commons Justice and Legal Affairs Committee . A written brief
had been prepared by the R .C .M .P . for the Committee and was left with the
Committee on June 12, 1973 . The brief stated :
The Royal Canadian Mounted Police do not tap telephones in the investigation of criminal offences UNLESS : (a) the consent of one of the parties to
the conversation has been obtained ; and (b) wiretaps are not prohibited by
legislation in the jurisdiction in which the investigation is being
undertaken . . .
The members of the Committee at its hearing that day exhibited repeated
interest in the policy and practice of the Force as to wiretapping - i .e . tapping
of telephone conversations . The transcript records the following :
(p . 12 . )
Mr . Leggatt [M .P .] : O .K ., then with regard to actual taps, were any of your
taps done on lawyers' telephones ?
Mr . Allmand: On the criminal side you do not tap .
Deputy Commissioner Nadon : Well, bugs or whatever you want . to call
them . No, we do not do any wiretapping .
Mr . Allmand: The espionage side does and Mr . Draper is here to answer on
espionage .
Mr. Atkey [M .P .] : On a point of order, Mr . Chairman, I think the Minister
did say that with the consent of one of the parties they did do wiretaps in
criminal matters .
Mr . Allmand: It is very, very rare .
. Deputy Commissioner Nadon : Very rarely.
(p . 14 .) (Translation)
Mr . Olivier [M .P.] : If you do prevention, do you use wiretapping (telephonic interception)?
119
�Deputy Commissioner Nadon : Not wiretapping. (Pas du téléphone)
Mr . Olivier: You do not use it at all ?
Deputy Commissioner Nadon : Not for the criminal side .
(p. 15 . )
Mr. Allmand : M . Olivier, the R .C .M .P . would say this very strongly that,
although they have not used wiretapping in criminal matters, they recognize
that it would be very useful to them because they have seen the other police
forces use it, and so on .
Mr. Olivier [our translation] : I would very much doubt that one can say
that this has never been used for criminals . What is the R .C .M .P . for ?
Mr . Allmand: I am telling you that they tell me that they have not used this
wiretapping in criminal matters .
Mr . Prud'homme [M .P.] : And you take their word?
Mr. Allmand: What else could I do ?
(p . 34. )
Mr. Allmand: . . . The reason why wiretapping has not been used by the
criminal side of the R .C .M .P. is that there were, in our opinion, over the
years certain restrictions . . .
(p . 36 . )
Mr. Blais [M .P .] [translation] : However, in view of the fact that you never
used wiretapping in the course of your investigations in the criminal field,
when you will be allowed to do so, it will mean for you an additional
weapon .
Mr . Nadon : That is correct .
28 . Mr . Nadon considers that the answers he gave were correct, as far as he
was concerned . As to why he did not refer even to those exceptions that were
permitted by policy (other than consensual interceptions), he explained to us :
"I thought to answer the question as briefly as possible, without going into too
many details . .. I think we wanted to get the hearing over. . ." (Vol . 199, pp .
29433-34) .
29. When asked by our counsel why he did not tell the Committee that the
R .C .M .P. was not only receiving information from other police forces but was
requesting other police forces to conduct wiretaps, Mr . Nadon replied :
"Because it was not a common practice . . ." even though he recognized that such
was permissible within the policy of the Force (Vol . 199, p . 29417-18) .
30 . As to whether there were any exceptions to the statements he made to the
Committee, Mr . Nadon considers that the onus rested on the members of the
Committee to ask "Now, does it happen on occasion" - and if that question
were asked, the answer given would be "Yes, it could happen on occasion and
they would be disciplined" (Vol . 199, p . 29427) .
31 . We are satisfied that, when Mr . Nadon appeared before the Justice and
Legal Affairs Committee on June 12, 1973 he knew at the very least, that
according to a brief prepared by responsible members of the Force only a fe w
120
�months earlier, it could "be unequivocally stated that our members do in fact
tap telephones in the face of official policy to the contrary, directly, and
indirectly through the medium of other police agencies and telephone companies" . In view of the responsibilities of the drafters of that statement, and its
apparent acceptance as accurate by sections at Headquarters and divisional
commanding officers, and Mr . Nadon's own November 8, 1972, memorandum
commending it as an excellent study on wiretapping, we cannot accept Mr .
Nadon's contention that the brief gave rise only to suspicion on his part that
wiretapping was a "little wider spread" than he had thought and that he
"believed" that it happened only rarely . However, even if we were to accept as
fact that Mr. Nadon was led only to "suspect" that it was a "little wider
spread", he had a duty to find out from those who prepared the brief just how
accurate the statement was. He did not do so, and we regard the reason he gave
us for not doing so as both convincing and unconvincing . It was convincing to
the extent that we are sure that, as he told us, he had his eyes set on getting the
impending legislation adopted . As he told us, he did not want to "rock the
boat". We are satisfied that this meant that he did not want to disclose to the
Solicitor General or to the Justice and Legal Affairs Committee that there was
(or even that there might be) widespread wiretapping by members of the
Force . For to do so would clearly have upset Mr . Allmand and run contrary to
assurances that had been given to Mr . Allmand and his predecessors . The
reason he gave us was unconvincing because it was extremely unlikely that a
court or member of the public would complain about wiretapping ; it was illegal
in only two provinces, and members of the R .C .M .P . called as witnesses in
court were encouraged and briefed to avoid disclosure of all forms of electronic
eavesdropping to the court . This is vividly explained in correspondence from
Edmonton in 1973 mentioned by Mr . Venner in his testimony before us which
makes it clear that members would go to some lengths to avoid disclosing the
product of such eavesdropping, even to Crown counsel (Ex . E-8) .
32 . There is one situation which Mr . Nadon knew was permitted by Force
policy even in the absence of a joint forces operation - that members of the
R .C .M .P. could ask another force to do a wiretap for the R .C .M .P . He did not
disclose this to the Committee . The written R .C .M.P . presentation to the
Committee contained only the following somewhat ambiguous reference to
co-operation with other pôlice forces .
There are circumstances in which audio surveillance is undertaken in
partnership with other major Canadian police forces on what is termed
'joint forces operations' .
33 . Whether Mr . Nadon knew or only suspected that there was more than
occasionâl wiretapping beyond what was permitted by Force policy, he ought
to have qualified the assurances to the Justice and Legal Affairs Committee
given in the brief to the Committee and in his own answers to questions . His
failure to do so misled the members of that Committee, just as the brief sent to
the Department of the Solicitor General on December 18, 1972, misled that
Department . The misleading was intentional . This was unacceptable conduct .
Both the Solicitor General and members of Parliament are entitled to receive
accurate and candid information, and it is inconsistent with the needs o f
121
�responsible government and parliamentary democracy that the R .C .M .P.
would refrain from candour and completeness on the ground that if the right
question is asked (by people who may well not, on the spur of the moment,
think of the "right question") it will then be answered, but otherwise the
information need not be given .
The conduct of Commissioner Higgit t
34. Mr. Higgitt was Commissioner from October 1, 1969, to December 28,
1973 . Before that .his experience had been largely in security and intelligence
work . He testified that he was not aware that on occasion members of the
R .C .M .P. in the investigation of criminal offences tapped telephones directly or
obtained an installation through the co-operation of the telephone company .
On April 20, 1972, at a meeting of the Justice and Legal Affairs Committee
when the first Protection of Privacy Act was being considered (before it died
on the order paper), the transcript discloses the following question and answer :
Mr. McGrath [M .P .] : Does the R .C .M .P. conduct wiretapping? Do you tap
phones in the course of your responsibilities ?
Commissioner Higgitt : No. As a matter of fact, in so far as our lawenforcement operations are concerned, we do not . I want to be very clear in
this . We do not tap telephones .
35 . Mr . Higgitt told us that, as far as he was concerned, he did not - until
1981, in preparation for his testimony on this point - see the internal
R .C .M .P . brief dated October 1972 entitled "Wiretapping Policy" . Later he
told us that he has no memory of ever seeing the brief (Vol . 199, pp .
29499-500) . As for Mr : Nadon's longhand transit slip addressed to "the
Commissioner" dated December 22, 1972, which began "This is the brief on
wiretapping recently discussed . . ." and which clearly referred to the October
brief, Mr . Higgitt drew to our attention that on December 22, the last working
day before Christmas, "nothing of any great importance would probably have
come" to him, and the transit slip does not bear the kind of notation by him
which it was his custom to make on such a document when received or read by
him (Vol . 199, pp . 29500-501) .
36. As against Mr . Higgitt's lack of memory of ever having seen the October
1972 brief, we have the following documentation by Mr . Nadon : (i) His
longhand transit slips dated August 8, 1972 and November 8, 1972, to the
Director of Criminal Investigations which referred to the drafting of the
internal brief. Both of these refer to discussing the question with the Commissioner when the brief is ready . (ii) His longhand transit slip to "the Commissioner" dated December 22, 1972, already referred to . (iii) A longhand
memorandum for file dated January 10, 1973, which read, in part : "Discuss
with Commr . and D-C-I on 10/1/73 . Commr . fears a request to Minister to
change our policy at this time when legislation is being considered will trigger a
negative reaction from Minister, who is in favour of Bill presently before
House . . ." (The memorandum then referred to the dangers of the Bill and
concluded : "Our recommendation now is for C .O .s to approach AGs discreetl y
122
�on subject, attempt to get their support and if successful let us know so ,we can
- use as ammunition to make a presentation to Minister for a change of,policy.")
(iv) His letter to five divisional C .O .s dated January 26, 1973, which stated :
"The Commissioner is presently examining the material- that has : been
prepared . . ." .
37 . On May 24, 1973, Mr . Higgitt appeared before the Justice Committee in
regard to the Bill on Protection of Privacy . The following appears in the
transcript :
Commissioner Higgitt : . . There was a'question a moment ago . . .you said :
.
doés the force use wiretapping ?
Mr . O'Connor [M .P.] : Yes.
Commissioner Higgitt : My answer to, that question is no .
Mr . O'Connor : It does not .
Commissioner Higgitt : My answer is no .
'Mr . O'Connor : So that to get a categorical answer you are saying that the
force does not employ wiretapping methods in the course of investigation of
crime in Canada, other than the question of security, and we have agreed
that I will not delve into it .
Commissioner Higgitt: The answer to that is a direct no . '
It .will be noted that Mr. Higgitt's answers were in no way qualified,,even .to
the extent of mentioning that Force policy permitted it to receive .from other
police forces the product of .wiretaps made by those forces . Mr . Higgitt told us
that he supposed he did not mention that because "it wasn't the question -that
was asked me" and because "I suppose it did not occur to me" (vol . 199, .p .
.29553, 29556) . . In addition, of course, he did not qualify his answer by
referring to the areas in which, according to the October 1972 brief, policy was
being violated .
38 . We'are satisfied by Mr . Nadon's memoranda and letter already `mentioned, that Mr. Higgitt did receive the October 1972 brief and his memory in
that regard is inaccnrate . We believe that Mr . Higgitt's answers to thé Justice
Committee were misleading and lacking in candour, and that he deliberately
refrained from telling the members of that committee of the "use" by the
R .C.M .P. of the product of wiretaps by other police forces and of the "use" by
the R .C .M .P. of the methods described in the October brief.
.39. We are satisfied that Mr . Allmand was never told that members of the
R .C .M .P . in the field were using wiretapping .by making .taps themselves or by
asking, members of telephone companies to make them . We are also,satisfiéd
that Mr . Allmand -was not even told- of the policy that permitted members of
the R .C .M .P . to ask members of other police forces to tap telephone conversations. He testified to his not being told of any of those matters . Mr . Higgitt did
not suggest that he had told Mr . Allmand any of those things (indeed, Mr .
Higgitt could not have testified that he did, for Mr . Higgitt denied knowing of
the f irst two and could not remember the third) . Mr . .Nadon testified that -he
could remember no occasion when Mr . Allmand was told of these matters .
.123
�Consequently, our conclusion is that Mr . Allmand did not know of those
matters and had no reason to suspect them, the R .C .M .P . having given him the
same kind of assurances that were given later to the Justice and Legal Affairs
Committee .
Lobbying
40. Another issue arises from the steps taken by Mr . Nadon to discourage the
inclusion in the Protection of Privacy Act of provisions to which the Force was
opposed . When Mr . Nadon, on January 26, 1973, sent the October brief to the
Commanding Officers of Newfoundland, Saskatchewan, Nova Scotia, New
Brunswick and Prince Edward Island Divisions for their comments and suggestions, his letter referred both to the legislation then before Parliament and to
the possibility of changing Force policy even before the legislation was passed .
The letter continued :
The Commissioner now considers it would be timely to discreetly solicit the
views of the Attorneys General concerning telephone tapping by the Force
on criminal investigations within their jurisdictions . If it were possible to
obtain general endorsement from Attorneys General, or a majority of them,
it would certainly strengthen our proposal to the Government . Therefore,
would you now personally and discreetly approach your Attorney General
to solicit his views in this regard .
It then recommended that each Attorney General should be told of the limits
and controls that would be maintained on the use of technique. It continued :
One Attorney General has endorsed the use of audio surveillance by the
Force and extracts from his authorization are included in the attached
Appendix "A" . In preparation for discussion with your Attorney General,
you may wish to use this as a guide .
Insofar as Federal audio surveillance legislation major effort has been made
by the Force through CACP, [Canadian Association of Chiefs of Police],
Justice Department, Solicitor General's office and other avenues to influence the legislation in order that it could be practically employed by
Canadian Law Enforcement . As was mentioned at the COs Conference the
legislation which has been drafted is certainly not entirely to our liking but
we are still hopeful that it can be amended . . . .
I should also add that the Commissioner is sympathetic to the need for
this facility on certain CIB major investigations . He has, however, been
placed in a delicate position in view of past events that made it necessary to
adopt our existing policy . It is important, therefore, notwithstanding legislative proposals, to obtain an endorsement from the Attorneys General .
Assuming a favourable reaction is obtained, this additional influence, as
well as other information, will provide support to the Commissioner in
making an approach to the Minister for the purpose of obtaining authorization to utilize telephone tapping under certain conditions for criminal
investigations .
41 . This letter clearly indicates an intention not only to obtain the views of
the provincial attorneys general (to which no objection can be taken) but also
to try to obtain their support for the Force's views concerning the legislation ,
124
�with the intention of placing such "favourable reaction" as might be obtained
before the Solicitor General . Mr . Nadon testified that he "thinks" that Mr .
Allmand "probably appreciated the fact that we did approach the attorneys
general, because it also supported his position in a lot of these issues" (Vol .
199, p . 29376) . Mr . Allmand, however, denied that he had been informed that
the R .C .M .P . were approaching the attorneys general as indicated in Mr .
Nadon's letter (Vol . 200, p. 29585) .
42 . We agree with Mr. Allmand that it is "not appropriate" for the R .C .M .P.
to lobby provincial government officials, without the knowledge and consent of
the Solicitor General, to attempt to gain support for the positions taken by the
Force on matters of policy (Vol . 200, p . 29587) . It is not only inappropriate, it
is unacceptable . Similarly, we think that it is unacceptable for the Force,
without the permission of the Solicitor General, to solicit support for its views
on legislation before Parliament, from persons outside the federal government .
For it to do so is improper meddling in the Parliamentary process . In our
Second Report, Part V, Chapter 6, we reported that the Security Service had
used the press to damage the interests of "targets" of the Security Service and
we there stated that in our view such conduct is inappropriate for Canada's
security intelligence agency . Similarly, here we recommend that in future, the
Force, unless it has the prior consent of the Solicitor General, refrain from all
such attempts to gain outside support for its views on legislation that is before
Parliament, or for its views on policy matters that will be put before the
Solicitor General .
125
��CHAPTER 3
MAIL CHECK OPERATION S
1 . In our Second Report, Part III, Chapter 4, we discussed the nature of the
investigative practice known as mail check operations and the legal and policy
issues relating to it . Here we examine in detail the extent to which senior
members of the R .C .M .P ., senior government officials and Ministers were
aware of, approved of, and responded to knowledge of the use of this technique
and the legal and policy issues that arose from it .
A . GENERAL BACKGROUN D
2. The public revelation that the opening of mail had been common practice
in the R .C .M .P . came in a television broadcast on CBC-TV on November 8,
1977, during which it was stated that mail had been opened by members ôf .the
R .C .M .P . under the code name "Cathedral" . By that time we had received an
allegation - one of the allegations that resulted in the Commission of Inquiry
being established - that members of the Security Service used two systems to
obtain access to the mails . These were described as follows by the Assistant
Deputy Attorney General, Mr . Louis-Philippe Landry, in a memorandum to
the Deputy Solicitor General, Mr . Tassé, on June 24, 1977, after his meeting
the day before with two former members of the R .C .M .P ., Messrs . Donald
McCleery and Gilles Brunet :
(a) When a subject under surveillance did post a letter, a su rv eillance
officer would place in the mail box a large envelope which would be
wide enough to separate all letters posted thereafter in the same mail
box .
Later, through a master key held by an unidentified person, letters
found under the large envelope would be removed and examined and
the suspected letter copied . The letters would be replaced in the postal
system within a few hours .
(b) If the system above failed or could not be used the Security Services
would operate through contacts in the Post Office to obtain access to
letters in the mail .
(Ex . M .154 )
3 . On November 9, the Postmaster General, the Honourable Jean-Jacques
Blais, advised the House that :
There is no change and has not been any in the policy of the Post Office . I
refer to the policy that was made in this House by Bryce Mackasey two
years ago, and the one I adopted and have enforced, namely, that there is
not to be any intervention in respect of first class mail or, indeed, in respec t
127
�of any regular mail unless it is authorized by the Post Office Act . This
means there is no interference and no removal of the mail, save and except
in certain instances where co-operation is sought by the R .C .M .P. There is
co-operation provided by the Post Office relating to the covers and the
information contained on said covers . At no time is the mail taken from the
custody of the Post Office or diverted from ordinary mail channels .
Upon being asked by the Leader of the Opposition whether any guidelines
existed regarding the conditions under which security services of the Government of Canada, under whatever heading, had the right to look at the mail or
deal with the mail of a private citizen, the Postmaster General replied :
Mr . Speaker, there are no specific guidelines . What takes place is that the
R .C .M .P. makes a request of the Field Officers of Security and Investigation . That request is then channelled to my Head of Security and Investigation in Ottawa . He studies the particular request and authorizes co-operation between the R .C .M.P. and postal officials . That co-operation relates to
investigations being carried on by the R .C .M .P.
Again I suggest [to] the hon . gentlemen, the fact is that the investigation is
conducted at the Post Office premises and it is only with reference to the
cover information on the envelope .
4 . Later the same day, in the House of Commons, the Solicitor General, the
Honourable Francis Fox, volunteered that he had had the opportunity that
morning of checking into the matter with senior officers of the R .C .M .P. and
had asked questions concerning the code name "Cathedral" . He continued :
The code name "Cathedral" goes back to 1954 . In some instances, after my
examination of the files with senior officers of the Crown, it clearly
happened that the mail has actually been opened by the R .C.M .P. Security
Service. Because of that, I referred the whole matter to the Attorney
General of Canada and also to the McDonald Royal Commission of
Inquiry .
5. Shortly thereafter, Mr . Bill Jarvis, M .P ., asked the Solicitor General the
following question :
In all the briefings he has bragged about so eloquently, did he never know
that the R .C .M .P . may have infiltrated the Post Office? If that is not the
case, did he never ask the security officers briefing him, are you or are you
not contrary to the law intercepting and reading mail? Did it never occur to
him to ask that question ?
To this the Solicitor General replied :
Yes, Mr . Speaker, I repeatedly asked the R .C .M .P ., particularly during the
course of the preparation of my statement concerning the A .P .L .Q . breakin, whether there were any other illegal incidents that ought to be brought
to my attention and the answer was no.
Mr. Jarvis: Will the Minister please answer the question . Did he ever ask
specifically whether Security Officers were intercepting mail? That is not a
general question .
Mr. Fox : Mr . Speaker, during the course of my mandate, I gave specific
instructions to the R.C .M .P. when I came across the A .P .L .Q . file . As far
128
�as I am concerned, all operations of the Force were to be carried out within
the framework of the law .
Upon further questioning, Mr. Fox said :
I sat down with senior officials of the Force this morning, asked them to
produce their files, asked them a number of questions on procedural
operations and it became very clear to me during the course of that meeting
that there had been indeed a number of instances in which the Security
Service of the R .C .M .P ., in particular areas of counter-espionage, terrorism
and counter-subversion, opened a number of pieces of mail . I also told the
hon . member that as far as the R .C .M .P . files show, this type of procedure
goes back to 1954 .
Upon being asked .by Mr . Allan Lawrence, M .P ., whether he was assuring the
House that the opening of mail had been done only in cases of alleged
terrorism, alleged bombing or counter-espionage, Mr . Fox replied :
As the hon . member knows, this matter came to light only last night . I do
not think our examination of the whole matter is complete . The initial
response I have had from the Force, the initial breakdown of the cases
which have occurred, is to the effect that they all come under the classification of counter-espionage, counter-subversion and terrorism . As far as the
government is concerned, no matter what heading it comes under it is not
authorized either by the Official Secrets Act or the Post Office Act, and in
these circumstances, we feel that the matter has to be referred to the
Commission of Inquiry set up by the federal government in view of the fact
that mail has been opened, and we wish to apprise the Royal Commission of
the circumstances in which the mail was opened . Hopefully, the Royal
Commission will have some suggestions to make as a result of that very
serious presentation .
6. On November 10, Mr . T.C . Douglas, M .P ., pressed the Solicitor General
as to whether his officials had lied to him and, if so, what disciplinary action he
had taken . He also asked why the officials were not aware of the illegalities .
He continued :
If they were not aware they are incompetent, and if they were aware of
them and did not tell the Minister, they ought to be discharged .
The Solicitor General replied :
. . .I have already indicated quite clearly in response to other questions, and
in the course of my statements in June of this year, that I expect the
R .C .M .P . in all cases to bring to my attention any matters of possible
illegalities in a very clear and unequivocal manner . Since the establishment
of the Royal Commission, the R .C .M .P . has been in the process of
preparing briefs on each one of its investigative practices and procedures, in
order to bring them to my attention, first of all, and secondly to the Royal
Commission of Inquiry. I think that in that regard they are being very
candid . . . I expect the R .C .M .P . to be very candid with me and to make
sure I am aware of any potential illegal problems .
7. On November 14, Mr. Lawrence, M .P ., referred to the statement which
had been made by the Solicitor General on June 17, 1977, that, in the words of
Mr. Lawrence :
129
�he had beep assured by his security advisers there was no other illegal
activity carried on up to that time by the R .C .M .P.
Mr. Lawrence continued and received replies as follows :
Mr. Lawrence : Obviously, the Security Service knew about the mail interceptions in June 1976 . My question is whether the Deputy Director General
of the Security Service was present at that conference the Minister had
with his advisers .
Hon . Francis Fox : No,
Mr . Speaker, the Deputy Director General of
Operations was not present at that time . The question was put to the then
Commissioner and the present Deputy* Director General of the Security
Service . They had no knowledge . I have spoken with the Director General
of the Security Service. I have not had the opportunity with the former
Commissioner . It is quite clear the Director General of the Security Service
had no knowledge of mail interceptions which led to opening of the mail .
Mr . Lawrence : Are we to assume that in June 1976 the Deputy Director
General of Security Service knew of the mail interceptions but at that time
and since the Director General did not know? Are we then to assume that
there was a breakdown in communications at that level in the Security
Service or that people simply did not tell the truth at the time of the
conference with the Minister ?
Hon. Francis Fox : Mr . Speaker, I do not think there is any question of
people not telling the truth . The people of whom the question was asked,
namely the Commissioner and the Director General of the Security Service,
both replied that there were no other illegalities to their knowledge . I have
no doubt that that was the case . It seems quite clear that the Director
General of the Security Service was not advised of any illegal acts concerning the opening of the mail .
8 . The same day, Mr . Fox reminded the House that his predecessor, Mr .
Allmand, in the report which he had tabled pursuant to the Official Secrets
Act in 1976, stated that :
There had been a request submitted to the Department of Justice for a
legal opinion to ascertain whether an interception of the mail could be made
legally under s .16(5) and the opinion received from the Department of
Justice was that the opening of mail could not be legally carried out under
s .16(5) of the Official Secrets Act and that s .43 of the Post Office Act took
precedence over the Official Secrets Act .
Mr . Fox also advised the House that in June 1976, when mail interceptions
were terminated, the Director General of the Security Service, Mr . Dare, was
not aware of any case where the mails had been opened contrary to section 43
of the Post Office Act .
9 . Later the same day, Mr : Ray Hnatyshyn, M .P., delivered a speech in
which he stated that Mr . Allmand, in the annual reports which he gave on
three occasions pursuant to the Official Secrets Act, section 16(5), respecting
intercepts employed, "neglected to mention the use of postal intercepts which,
considering the frequency with which they were used, shows a complete failur e
*Note : Obviously from what follows Mr . Fox meant the Director General .
130
�to exercise his responsibility to determine what was taking place in his
department" . Mr . Hnatyshyn said "It stretches credibility to the breaking
point to believe that [Mr . Allmand] did not ask a question of his Security
Service advisers, Are you collecting mail intercepts at the present?" Mr .
Hnatyshyn continued :
. . .. it is very suspicious that although the Deputy Director General of the
Security Service [Assistant Commissioner Sexsmith] knew all about the
mail intercepts over a year ago, the Solicitor General can contend that his
officials did not mislead him nor that he misled the House as to the degree
of his ministerial knowledge or responsibility:
In June 1977, the Solicitor General told the House that he had met
with his officials who had told him that the A .P .L .Q. break-in was an
isolated incident . Now we are asked to believe that the officials he met to
discuss the question of illegalities did not include the Deputy Director of the
Security Service [Mr . Sexsmith] who knew of the mail intercepts . Not only
that, but we are asked to believe [Mr . Dare] did not know of the
interceptions even though his immediate subordinate did . How far does the
arm of coincidence stretch ?
10 . On November 17, the Postmaster General, Mr . Blais, was reported in the
press to have said in an interview :
(a) that district post office officials had passed on mail illegally to the
R .C.M .P. for more than 40 years ;
(b) that collaboration between postal officials and the R .C .M .P . did not
begin in 1954 . as earlier alleged, but in the 1930s, and continued until
1976 ;
(c) that it appeared that the Post Office "had lost control" because . no one
at the Ottawa Headquarters knew of the collaboration with the
R .C .M .P . ; ,
(d) that the co-operation had been arranged on an individual basis with
district postal officials, and that he had checked with his Deputy
Minister and predecessor and neither knew of the interception ;
(e) that "the district people acted beyond their limits" in passing on the
mail ;
(f) that he was "satisfied" that the interception "dealt only with matters of
national security" ;
(g) that certain of the Post Office's security officials who worked in
district offices had been respônsible, but that they were likely not the
only ones who helped the R .C .M .P . ;
(h) that several of these security officers are former employees of the
R .C .M .P . and the military ; and ,
(i) that it appeared that no unionized workers were involved . ,
11 . In the House of Commons on November 23, Mr . Blais said that :
The information we have to date would indicate that the methods varied
and that the information was provided at the request of the R .C .M .P . ,
' Edmonton Journal, November 18, 1977 (a Canadian Press dispatch) .
131
�primarily by people involved with security and intelligence in the Post
Office and primarily without the knowledge of the regional managers and
their immediate subordinates .
Mr . Blais was asked by Mr . T .C . Douglas, M .P., whether co-operation between
employees of the Post Office and the Security Branch of the R .C .M .P. in
violation of the Post Office Act had occurred for 40 years without either the
R .C .M .P . or the Solicitor General informing Mr . Blais of that fact . To this the
Postmaster General replied :
I would say there is some indication although there are no specific records,
that the practice could have gone back to the late '30s . However, from the
evidence I have been able to ascertain the practice was primarily during the
early part of the '70s and it was at the request of the R .C .M .P . There was
no knowledge in the upper echelons of the Post Office about that
co-operation .
B . KNOWLEDGE OF SPECIFIC SENIOR MEMBERS OF THE
R .C .M .P ., SENIOR GOVERNMENT OFFICIALS, AND MINISTER S
(a) Commissioner W .L. Higgitt
Summary of evidence
12. Mr . Higgitt was questioned about a memorandum, dated November 2,
1970, from then Assistant Commissioner Parent of the Directorate of Security
and Intelligence, addressed to several Commanding Officers and Officers in
Charge of Security and Intelligence Branches (Ex . B-16) . The memorandum
stated in part :
It must be clearly understood that any form of cooperation received from
any CATHEDRAL source is contrary to existing regulations.
(Vol . 84, pp . 13773-4 . )
Mr. Higgitt agreed that the inference from the memorandum as a whole was
that, as the Security Service was unlikely to get legislation in the near future,
they would have to go ahead and use the process selectively in circumstances in
which the judgment of senior officers was that it was justified . Under the terms
of the memorandum, Cathedral C operations needed the approval of the
Director of Security and Intelligence (Vol . 84, pp . 13774-5) . This situation
continued until June 22, 1973, when all Cathedral A, B and C operations were
suspended (Ex . B-17) .
13 . Mr. Higgitt stated that over the preceding 20 or 30 years the R .C .M .P .
had often made representations to various Ministers for legislation authorizing
or legalizing the use of Cathedral operations . The basis of the request was the
importance of access to mail, particularly in counter-espionage operations . Mr .
Higgitt could not recall personally making formal application for legislation in
this area, because at that time " . . . one had been made relatively recently and
the various legal obstacles were pointed out" (Vol . 84, pp. 13777-8) .
14. Mr . Higgitt testified that the recommendation of the Royal Commission
on Security that examination be permitted of the mail of persons suspected o f
132
�being engaged in activities dangerous to the state had been discussed in great
detail by him and his fellow officers with many Ministers, although he could
not recall specific dates of discussions and could not recall discussing the
particular paragraph containing the recommendation (Vol . 84, pp . 13779-80) .
His memory was that he had discussed the question of Cathedral with Mr.
Mcllraith, Mr. Goyer and Mr . Allmand . He said :
There was no secret of the fact that we were doing it [CATHEDRAL
operations] and that the secret was not held from the Ministers . They were
seeing the results in various forms .
Mr . Higgitt felt it fair to say that the expression "they were seeing the results"
meant that the Ministers were getting reports which, when read, indicated that
"unless you had X-ray eyes, somebody had been looking at the mail" (Vol . 84,
p. 13781) .
Conclusion
15 . Commissioner Higgitt's evidence clearly establishes that, from his experience in Security and Intelligence, he was aware of the opening of mail in such
work, and we believe that the effect of his testimony is that he knew it was
contrary to law . That being so, his failure to stop the practice and to advise
Ministers that such a practice existed was unacceptable .
(b) Mr . J . Starnes
Summary of evidenc e
16. Mr . Starnes told us that when he joined the Security Service it was clear
to him that his talents did not lie in the field of operations . "I wouldn't know
one end of a microphone from another" (Vol . 90, p . 14709) . He did not involve
himself in operational matters as such, since he felt he was totally incapable of
doing so (Vol . 90, p . 14710) .
17. Mr . Starnes testified that when he took office in 1970 he was made aware
of the fact that the exteriors of envelopes in the mail were examined and
copied, but he was not informed of the opening of mail (Vol . 90, pp. 14702-3,
14706-7, 14719 ; Vol . 104, p . 16374) . He did not consider that cover checks and
reproduction of covers were illegal, although it was made plain to him that
some Post Office officials who were helping might be in difficulty with their
superiors (Vol . 90, p . 14719) . To the best of his recollection, Mr . Starnes never
asked his immediate subordinates, Messrs . Parent, Draper or-Barrette, whether
the Security Service was opening or intercepting first class mail because the
subject "wouldn't have been a great matter in [his] life" (Vol . 104, p. 16376) .
In fact, Mr . Starnes told us that he never asked anyone in the Security Service
if they were opening mail (Vol . 90, pp. 14706-7) . He said that he had, he
thought, been made aware of what the R .C .M .P . Security Service was doing in
its relations with postal officials, and as far as he was concerned that was
where the matter ended (Vol . 104, p . 16376) .
18. Mr . Starnes was shown a memorandum dated November 2, 1970 (Ex .
B-16), setting out the centralization of Security Service mail check operations
under code names Cathedral A, B and C (Vol . 90, p . 14710) . That memorandum was issued during the six-week period when he was ill with pneumonia .
133
�He told us that, had he been at work, he would have expected anything which
his officals felt he should know about would have been brought to his attention .
Mr . Starnes said he never saw the document centralizing mail check operatiôns, and assumes this was an oversight on the part of his officials . He is
reasonably satisfied that his officials were not trying to conceal something from
him, although he states that there was no questiôn in his mind that he should
have known about it (Vol . 90, p . 14709 ; Vol . 105, p . 16503) . With hindsight,
Mr. Starnes views mail opening as a matter that really "just slipped below the
floorboards" - a purely accidental oversight (Vol . 105, p . 16503) . He said
that had he been aware of the actual use of Cathedral operations, he would
have been very upset and worried about the safety of his own people who were
doing "this kind of thing" (mail opening) and he would have taken the matter
to Ministers (Vol . 90, pp . 14711-12) . Mr . Starnes told us that he was surprised
when he heard (after this Commission of Inquiry had begun) that mail opening
had been taking place for a very long time (Vol . 90, pp . 14706-7) .
19 . Mr . Starnes testified that he had not seen the results of any mail opening
(Vol . 91, p . 14951) . Mr . Higgitt, however, told us that he would be surprised if
Mr . Starnes had not known of Cathedral C operations (Vol . 88, pp . 14482-3,
14485) . Mr. Higgitt stated that it would be a reasonable deduction that Mr .
Starnes had seen reports from members of the Security Service which, if he
had read them, would have given him some level of knowledge of the whole
Cathedral matter (Vol . 88, p . 14483) . Although he did not have any special
recollection of discussing Cathedral C operations with Mr . Starnes, he said it
was conceivable that he did (Vol . 88, p . 14505) . Later, Mr. Higgitt stated that
he did not believe that he personally had briefed Mr . Starnes in respect of
Cathedral, nor did he recollect directly mentioning to Mr . Starnes mail
opening operations as a Security Service tool . He said that he felt that•Mr .
Starnes had senior officers reporting immediately to him and had spent
considerable .time being briefed by those officers . Mr . Higgitt did not have time
to take part, personally, in those sorts of briefings (Vol . 112, p . 17260) .
20 . Mr . Starnes said 'that Messrs . Parent, Draper and Barrette, or one or
more of them, had described mail operations to him during his briefings, but
that they did not discuss the need for intercepting and opening first class mail
as discussed by the Royal Commission on Security . It was quite'clear, however,
that the Security Service was urging the government to address itself to a
number of the recommendations of that Commission, 'including that one
relating to mail (Vol . 104, pp . 16374-76) . Mr . Starnes could recall no
discussion with any Minister specifically on the subject of mail interception
and amendménts to permit it (Vol . 104, pp . 16377-8), although he recalled that
the Security Service repeatedly urgéd Ministers to deal with the recommendations of the Royal Commission on Security, which included a recommendation
that the Security Service be permitted to open first class mail (Vol . 91, p.
14881) .
Conclusion
21 . We believe that Mr . Starnes knew of the techniques of examining the
exterior of envelopes and photographing them and that he did not conside r
134
�these to be wrong . We further believe that Mr . Starnes did not know that mail
was being opened or that an operational policy envisaged the opening of mail .
Yet we cannot ignore one piece of evidence, a memorandum dated May 20,
1971 (Ex . MC-7, Tab 16) directed to Mr . Starnes, that indicates that Mr .
Starnes was indeed aware of some improprieties in the R .C .M .P .-Post Office
relationship . That memorandum states, in part :
Most depârtmental records are of course subject to the provisions of various
acts i .e . Income Tax Act or other Regulations, i .e . Post Office Regulations
and the consequent interpretation or application of these acts and regulations have largely been to our disadvantage . In those few areas where
regulations have been disregarded to a large degree, (the Post Office
Department is a good case in point) we recognize the unhappy fact that
those who cooperate with us are placing themselves in jeopardy, directly in
proportion to the measure of their cooperation . This is a problem which has
become increasingly frustrating in recent years .
Whatever the nature of the Post Office Regulations being disregarded (the
memôrandum did not elaborate), it is clear that Mr . Starnes was made aware
of improprieties in the R .C .M .P .-Post Office relationship . It appears, however,
that he chose not to inquire further into the nature of these improprieties, nor
did he attempt to put a stop to them, as he ought to have done . His conduct in
that regard was unacceptable .
(c) Commissioner M .J . Nadon
Summary of evidenc e
22 . Commissioner Nadon, whose background was entirely in criminal investigations, told us that even before becoming Deputy Commissioner he assumed
that mail was being opened in criminal investigations (Vol . 129, p. 20108) . He
knew that mail opening had occurred in drug cases, although he was not aware
of specific cases, and he knew there was a liaison with Post Office authorities
in connection with drug investigations (Vol . 129, pp . 20095, 20097-8,
20105-6) . Mr . Nadon stated that before he became Commissioner he had
heard that some members of the drug squad had arranged with postal
authorities to open certain types of mail, when it was certain that it contained
drugs and that the cases would be brought before the courts, but he told us that
he took it . for granted that the postal authorities had . authority to open such
parcels or mail (Vol . 129, pp . 20097, 20104-6) . (He would have been right if he
were thinking of customs officials if they were sure, or even had reasonable
grounds to believe, that an article of mail contained drugs .) Mr . Nadon felt
that this was the general understanding of members of the Force in the C .I .B .
field (Vol . 129, p . 20106) .
23 . Mr . Nadon's stated belief in the legality of mail openings in drug
investigations appears to have changed by the time of a 1975 letter he prepared
at the request of Mr . Allmand in response to a question about narcotic
smuggling raised by the Right Honourable John Diefenbaker (Ex . M-62) . Mr .
Nadon replied directly to Mr . Diefenbaker, and forwarded a copy of his reply
to Mr . Allmand . Mr. Nadon stated in that reply :
135
�Under the present regulations, first class mail cannot be opened except in
the presence of the addressee or with the written permission of the
addressee . At the present time, even if it is reasonably suspected that a first
class letter or package contains illicit drugs, the letter or package cannot be
tampered with or the contents substituted but must be followed in fact to its
final destination .
(Ex . M-62 . )
(Mr . Nadon was not asked about this letter when he testified . Nonetheless, it
seems reasonable to infer that he was indeed aware, at least by 1975, that mail
opening in drug investigations was illegal . )
24. Mr . Nadon was also aware that a liaison existed between the Security
Service and the Post Office, but he did not know the exact details of the liaison
(Vol . 129, p . 20095) . He stated that he was informed that the Security Service
was examining mail, but that he did not know they were actually opening it,
and never asked if in fact they were doing so (Vol . 129, pp. 20098-9, 20102) .
He said that it did not occur to him to ask if they were (Vol . 129, p . 20120) . "I
would never go into the detail of the liaison with the Post Office or with the
U .I.C . or with the Income Tax or any of the Departments . .. unless they
requested my assistance" . He regarded it as a matter of operational policy and
apparently not of concern to him (Vol . 129, p. 20098) . When asked whether he
had examined the practice of the Security Service, he told us that he had had
"too many other occupations to allow [him] to go into an audit of various
departments" (Vol . 129, p. 20101) . He told us that it did not occur to him that
the Security Service would have the same type of liaison with the Post Office
that existed in the drug field, because the Security Service faced different
problems (Vol . 129, p . 20100) .
25 . Mr . Nadon stated that before 1976 he had probably heard the word
Cathedral but it did not register with him as referring to a liaison with the Post
Office . He said he is satisfied that the word Cathedral would certainly have
been brought to his attention when a report was submitted to the Minister,
possibly in 1976, requesting amendments to the postal laws (Vol . 129, p .
20103) . However, he said that only recently, (that is, after the commencement
of this Commission of Inquiry) was he made . aware of the Cathedral A, B and
C categories of examining mail (Vol . 129, p . 20096) .
26. Mr . Nadon stated that he did not see the letter (Ex. M-59) that was
drafted for Mr . Allmand's signature in reply to Mr . Lawrence's query about
the correspondence of one of Mr . Lawrence's constituents, Mr. Keeler, and
that the matter did not come to his attention (Vol . 129, p . 20139) . At the time
- December 1973 - he was Deputy Commissioner for Criminal Operations .
However, by January 1974, he had become Commissioner. When Counsel for
the Commission showed him a letter (Ex . M-102) that he had signed and sent
to Mr . Lawrence on January 14, 1974, he still did not recall the matter having
been brought to his attention . He believes that he did not regard the matter as
"that important" because Mr. Keeler's complaint to Mr. Lawrence arose not
from the R .C .M .P . having gone to the Post Office but from another department having referred the card to the R.C .M .P. for investigation (Vol. 129, pp .
20143-5) . As for the letter that was drafted for Mr . Allmand's signature ,
136
�which he did not see (Vol . 129, p . 20149), (containing the assurance that it was
not the "practice" of the R .C .M .P . "to intercept the private mail of anyone")
Mr. Nadon said that he would not have written that assurance, as far as the
C .I .B . was concerned, because it could mislead the Minister (Vol . 129, p .
20138) . His statement is somewhat ironic in the light of the letter that he later
sent to Mr . Diefenbaker .
Conclusion
27. We believe that while Commissioner Nadon did not know of specific
instances when mail had been opened in the course of post, he became aware of
the practice in criminal investigations and, at least by 1975, he knew that it
could not be done under the law . Yet he did not forbid the use of the technique
and misled both Mr . Diefenbaker and Mr . Allmand by sending the 1975 letter
that could only be interpreted as meaning that first class mail was not opened
in the course of post . His conduct in this regard was unacceptable .
(d) Mr . M .R . Dare
Summary of evidence
28 . Mr . Dare told us that he first became aware of the technique of
Cathedral A, B and C in late 1973 or early 1974 during briefings with the
Deputy Director General (Operations), Mr . Howard Draper . At that time, Mr .
Draper did not indicate whether the Security Service was conducting A, B and
C operations, nor did Mr . Dare ask if such operations were being conducted
(Vol . 125, pp. 19470-1), 19474-5) . Mr . Dare told us that he was not then
aware that Cathedral C was in fact being used (Vol . C93, pp . 12661-2 ; Vol .
127, p. 19869 ; Vol . 128, pp . 19902-3) . He agreed that it seemed anomalous
that there was a Cathedral C category if nothing was being done under it (Vol .
127, p . 19868) .
29 . Mr . Dare stated that after his briefing in late 1973 or early 1974, he
learned of a June 22, 1973, communication suspending all Cathedral operations (Vol . 125, p . 19471) . Mr. Dare therefore felt that no Cathedral operations were being conducted (Vol . 125, p . 19475) . It did not cross his mind that
an investigation of this matter was an area of his responsibility (Vol . 127, p.
19868) . Mr . . Dare told us that he first became aware of the practice of
Cathedral C (as opposed to being aware of the nature of the technique) in
November 1977 (Vol . C93, pp . 12661-2) . In June 1977, when Mr . Fox was
preparing his statement for the House of Commons, Mr . Dare told us that he,
Dare, was aware only of the practice of Cathedral A and B (Vol . C93, p.
12664) .
30. We questioned Mr . Dare about a document entitled "A Damage Report
Concerning One Constable Samson" (Ex . M-88, Tab 4 ; Vol . 125, pp .
19486-7) . The report in part indicated that "Samson would be aware of our
Cathedral capability (mail intercepts)" (Vol . 125, p . 19490) . Mr . Dare read
that document in August 1974 and discussed it with Mr . Draper, but told us
that he did not ask him if, in fact, mail interceptions were occurring at that
time, because a policy had been set out that operations were to be conducte d
137
�within the law, and both Cathedral A and B were to him within the law . Mr .
Dare told us that at the time he had assumed that the reference to Cathedral in
the Damage Report meant Cathedral A and B instead of Cathedral C (Vol .
125, pp . 19490-2) . Elsewhere in his testimony Mr. Dare told us that when he
used the word "intercept" in relation to mail in December 1973, he meant
"open" (Vol . 125, p. 19480) .
31 . Mr . Dare was asked about a letter (Ex . M-88, Tab 7), datéd July 9, 1975,
from Mr . Ralph Nader to Prime Minister Trudeau (Vol . 125, p . 19504) . Mr .
Nader's letter raised the general question of interception of mail and asked
whether mail intercepts took place in Canada (Vol . 125, p. 19504) . A draft
reply was prepared for Mr . Trudeau's signature stating :
Cooperation has been extended to Canadian police authorities from
time to time when individual circumstances strongly indicated that it was in
the best interests of the public to do so but under no circumstances would
the Canada Post Office permit mail to be illegally opened or delayed .
(Ex . M-88, Tab 10. )
Mr . Dare told us he was not aware at that time that the Post Office
co-operated with the R .C .M .P . to permit the opening of first class mail (Vol .
125, p. 19506) . He told us that he did not inquire if mail openings were being
carried out, other than to ask the appropriate staff branch to prepare a reply
(Vol. 125, p . 19511) .
32 . Mr . Dare told us that in June 1977 he had read the Department of
Justice memorandum (Ex . M-107) outlining two methods which Messrs .
Brunet and McCleery stated were used by the Security Service to obtain access
to the mails (Vol . C88, p . 12124) . Mr . Dare testified that he considered their
statements to be allegations that mail was being opened, not statements of fact
(Vol. C88, pp . 12125-27) . Mr . Dare discussed the memorandum with Deputy
Director General (Operations) Sexsmith . Yet he did not inquire precisely
whether the allegatibns concerning mail opening described in the memorandum
were true (Vol . C88, pp . 12128, 12143) . Rather, he said that he raised "the
whole package" of allegations by Messrs. Brunet and McCleery (Vol . C88, p .
12129) .
33 . Mr . Fox testified that in January or February 1977 Mr . Dare had
indicated to him that the R .C .M .P . was not opening mail (Vol . 161, p. 24790) .
Mr . Fox recalled Mr . Dare telling him after the November 1977 meeting,
called to discuss the CBC allegations of mail opening, that he had not been
aware of the practice of mail opening before that meeting (Vol . 161, p . 24787) .
On November 29, 1977, Mr. Dare told the House of Commons Standing
Committee on Justice and Legal Affairs that he had not been aware of mail
opening prior to being advised of it by Mr . Sexsmith following the revelations
by the CBC on November 8, 1977 . After so advising the Committee, Mr . Dare
was reminded by Mr . Sexsmith that in July 1976, Mr . Sexsmith had told him
about a mail opening operation in the Ottawa area which had beeri discontinued . Mr . Dare said that, although he did not remember the July 1976
conversation with Mr. Sexsmith, he believed that it took place and accordingly
he wrote to the Chairman of the Standing Committee on December 5, 1977, to
correct his testimony .
138
�34. Mr. Dare testified that he felt Cathedral A and B to be legal (Vol : 125,
pp. 19475, 19490-1, 19518 ; Vol . C93, pp . 12664-5) . He specifically stated that
"at no time . . .would I condone, or have- I approved Cathedral C, which is
quite . illegal" (Vol : 125, p . 19475) .
Conclusio n
35. We accept Mr . Dare's evidence that until July 1976 he did not know that
the Security Serviçe opened mail . It is true, that before that he had been told
that there was a policy - Cathedral C - that provided for the opening of
mail, and after being so informed he was .told,of the suspension of that policy .
In addition, he had received the Samson Damage Report . However, he was .not
explicitly told that the mail had, until 1973, been opened . When he led Mr .
Allmand to believe that mail opening was not a technique in use or that had
been used, he .did not do so with intent to deceive Mr . Allmand . However, the
better course . would have been to tell Mr . Allmand that there had been a policy
in existence thât contemplated the opening of mail .
(e) . Commissioner R .H . Simmond s
Summary .of evidence
36 . Commissioner Simmonds' R .C .M .P. background, before he became Commissioner, was entirely in criminal investigation and administration .
37 . He was âware of the longstanding co-operation between the Post Office
and the R .C .M .P. on "matters of proper interest" . He testified that there could
be a great deal of access to mails by niembers of the Force as customs officérs
and as policemen (Vol . 168, pp . 25803, 25807, 25811-2) .
38. However, he stated that during• the approximately 30 years that he had
been a member of the Force, prior to 1977, he was not aware of a practice of
opening letters without the recipient's permission, other than in conditions
where opening was permitted under the Post Office Act (Vol . 168, pp.
25807-8) . Mr . Simmonds felt,, however, . that the Post Office Act was .very
imprecise, and the definition of what the law allows under the Act was not very
clear (Vol . 168, p. .25807, Vol . .165, p . 25425) . When asked if, on the criminal
investigation side, he knew of a practice or of any. instance in which letters
were opened to be read, Mr . Simmonds replied that he was not aware of any
such incidents and to this day doubts if any occurred (Vol . 168, p . 25812) . Mt .
Simmonds stated that he probably first becâme aware of the Security Service
programme named Cathedral in November 1977 (Vol . 168, pp .'25803-4) .
Conclusion
39 . , We accept that, neither, before he .became Commissioner (on September
1, 1977) nor during the ten weeks between that date and the public revelation,
did Commissioner Simmonds know that in the past there had been a . policy in
the Security Service that, permitted the -opening of mail in the course of post .
On the criminal investigation side, we are satisfied that he did not know. of any
cases when, letters : were, read or when envelopes were opened, except as
permitted under legislation .
139
�(f) The Honourable George Mcllraith
Summary of evidence
40 . Senator McIlraith told us that :
In any event, mail, I never thought they were opening it, because I did not
think anybody in the espionage business would be stupid enough to put
things in the mail and have it delivered anywhere, or lost, or picked up by
anybody other than the ones for whom it was intended .
Even more positively, he said that his "understanding was that the police were
not opening mail, period" (Vol . 118, p . 18336) . He said that he never had a
request from the R .C .M .P . or anyone else to do anything about the law relating
to the issue, it was never discussed, and he did not read the provisions of the
Post Office Act until shortly before testifying (Vol . 118, pp. 18340) . He has no
recollection of having been inspired by what the Royal Commission on Security
said as to the need to be able to open mail to ask the R .C .M .P . whether they
felt there was any such need (Vol . 118, p . 18341) .
41 . Mr . Higgitt told us that he discussed with Mr . Mcllraith the question of
Cathedral, pointing out its importance from his, Higgitt's, point of view (Vol .
84, pp . 13781-2 ; Vol . 113, pp . 17355-6), but could not recall specific occasions
on which he did so, nor could he recall actually using the term Cathedral in
those discussions (Vol . 113, pp . 17358-9) .
Conclusion
42. We have no reason to disbelieve Senator Mcllraith ; even former Commissioner Higgitt did not testify that he could recall having used the term
"Cathedral" in discussions with him . We believe that Commissioner Higgitt, at
most, discussed with Mr . Mcllraith the desirability of having the legislation
amended, and that, in doing so, he did not disclose the fact that Force policy
permitted the opening of mail .
(g) The Honourable Jean-Pierre Goyer
Summary of evidence
43 . Mr . Goyer testified that he had no recollection of the opening of mail for
the purposes of the Security Service or for those of criminal investigation
having been discussed with him whether in terms of such a technique being
presently used or in terms of the need for enabling legislation (Vol . 123, pp.
19192-5) . He told us that he did not know that the R .C .M .P . opened mail (Vol .
123, p . 19197) . He said that he never questioned members of the R .C .M .P . on
the subject, and never saw the need to do so, for he always presumed that
members of the R .C .M .P . respected the law (Vol . 123, p. 19198) . Nor, he told
us, did he ever hear the code name Cathedral during his term as Solicitor
General (Vol . 123, p . 19310) .
44 . However, Commissioner Higgitt testified that he discussed the question
of Cathedral with Mr . Goyer and pointed out its importance from his,
Higgitt's, point of view (Vol . 84, pp . 13781-2 ; Vol . 113, p . 17355) . He could
not remember specific times and dates of such discussions (Vol . 88, pp .
140
�14491-3, 14503) but mentioned situations that would lead him to discuss
questions related to the -mail with Mr . Goyer; namely, when Members of
Parliament occasionally raised questions about mail tamperings, and when
issues were raised in the press (Vol . 88, p. 14503) .
45 . Mr . Higgitt did not think he would have distinguished amongst Cathedral
A, B and C in his discussions with Mr . Goyer (Vol . 88, p . 14490), and he could
not state with precision whether he had indicated to Mr . Goyer that the
R .C .M .P . was intercepting and opening mail (Vol . 88, p . 14494) . Nor could he
recall Mr . Goyer ever asking him if the R .C .M .P. was involved in the
interception of anyone's mail (Vol . 88, p . 14494) .
46 . Mr . Starnes testified that he could recall no discussion with Mr . Goyer on
the subject of mail interception and amendments to permit it (Vol . C31, pp .
3807-8) . Moreover, as already stated, Mr . Starnes denies that he knew that
mail was being opened, and we believe him . Consequently, he could not have
told Mr . Goyer about it .
Conclusio n
47 . We conclude that Mr . Goyer was not informed of the practice of opening
mail or of any specific cases in which that was done . While Commissioner
Higgitt may have discussed with him the importance of having this technique
available, we think that the current use . of the practice itself was likely not
disclosed to him .
(h) The Honourable Warren Allmand
Summary of evidence
48 . Mr . Allmand did not recall hearing the code name Cathedral during his
term as Solicitor General (Vol . 117, p. 18071) . He first heard the expression
used before this Commission (Vol . 114, p . 17574) . Mr . Allmand told us,
however, that his memory was "very, very clear" that "during many of their
discussions I asked the R .C .M .P . whether they had opened mail or whether
they were opening the mail and I was repeatedly told that they were not" (Vol .
114, pp . 17552-4 ; Vol . 115, p . 17866 ; Vol . 117, p . 18071) . Mr . Allmand could
not remember which R .C .M .P . officials told him that they were not opening
mail (Vol . 117, p . 18070) . He testified that they told him :
If we are pursuing a case and it is a matter that a piece of mail may be
evidence or intelligence or whatever, we may go and follow it to its
destination and we may take pictures of the envelope, note the return
address, if any, the handwriting, et cetera, et cetera, the stamp, the postal . ..'
You know, they said they would observe the envelope and get whatever
information they could, but they categorically, to me, denied they opened
mail . And the question was put on several occasions during my mandate . As
a matter of fact, they would come to me saying, 'We must have - because
we can't open the mail, we want your support in an amendment to the law
which will allow us to opcn the mail .
(Vol . 114, pp . 17553-4 . )
49. Mr . Bourne's testimony confirms that of Mr . Allmand in regard to one
occasion when the subject of mail opening was discussed. He testified that th e
141
�R .C .M .P . did not tell him that théy opened mail, but he was present on one
occasion when senior officials of the R .C .M .P . discussed mail cover operations,
in which, they said, addresses and return addresses would be noted (Vol . 140,
p. 21528) . He confirmed that the topic came up in 1974 at a regular meeting
between the Solicitor General and the Commissioner and his deputies . He told
us that he had a clear memory of the discussion, which arose in connection
with Mr . Lawrence's letter, and that the Minister, in answer to his question,
was assured that letters were not being opened . He does not remember who it
was that gave the assurance (Vol . 140, pp . 21534-6) . Mr . Bourne testified that
he did not know of mail opening until it was discussed publicly in November
1977 (Vol . 140, p . 21553) .
50. Mr . Tassé's testimony also confirms that of Mr . Allmand . He told us that
he did know that the R .C .M .P . examined and photographed the exterior of
envelopes in the mail but he did not know that they opened mail or that it had
been opened (Vol . 156, pp . 23766-7) . He recalls that at the time of Mr.
Lawrence's query, the managing officials of the R .C .M .P . said that there had
not been opening of the mail, in,answer to an inquiry by Mr . Allmand . He
understood that their policy was that there was no mail opening (Vol . 156, pp.
23766-7, 23772, 23776-7) .
51 . In April 1976, Mr . Dare applied under the Official Secrets Act for a
warrant to open mail in the case of a suspected Japanese Red Army terrorist .
Mr . Allmand wrote to the Minister of Justice to say that the execution of such
warrants "is predicated on a supporting opinion from your Ministry that the
Official Secrets Act takes precedence over section 43 of the Post Office Act"
(Vol . 115, p . 17857) . The reply indicated that the Post Office Act overrode the
provisions of the Official Secrets Açt (Vol . 114, p . 17571) . The warrant was
therefore not executed . Mr . Dare testified that at that time there was no
discussion with Mr . Allmand as to .whether the Security Service had opened
first class mail . Nor did Mr . Allmand inquire whether the Security Service had
done so (Vol . 125, p : 19534) .
52 . Mr . Allmand testified that he had several discussions with the R .C .M .P .
about the opening of mail for drug investigations and security purposes (Vol .
114, p . 17569) . Mr . Allmand was convinced by R .C .M .P . arguments that in
order to do their job properly they required amendments to the Post Office Act
(Vol . 114, p . 17555) . In 1974 and 1975 the R .C .M .P . approached Mr .
Allmand to seek his support in having the Post Office Act amended to allow
the opening of mail (Vol . 115, p. 17852 ; Ex . M-54) . As a result he wrote to the
Postmaster General in 1975 and 1976, requesting an amendment to assist in
the investigation of drug offences . Later he wrote another letter dealing with
security matters (Vol . 114, p . 17550-9) . In July 1976, at the request of the
R .C .M .P ., he wrote to the Postmaster General for an amendment to the Act in
respect of the Security Service (Vol . 115, p . 17860) . He was also aware of a
question asked in the House of Commons by the Right Honourable John
Diefenbaker concerning amendments to the Post Office Act to deal with drugs,
to which he replied that such amendments were being considered ; and he saw a
reply to Mr . Diefenbaker written by Commissioner Nadon (Vol . 115, p .
142
�17865) . He says that, when he was asked for his support of amendments, he
asked the R .C .M .P . whether they were, in fact, opening the mail, and again, he
asked at the time of Mr . Lawrence's letter about Mr . Keeler (Vol . 114, pp .
17552-3) .
53. On the other hand, Commissioner Nadon testified that he does not recall
Mr. Allmand ever asking for information on mail opening in his presence nor
does he recall any discussion about mail opening in the presence of Mr .
Allmand (Vol . 129, pp . 20094, 20111, 20113, 20154-5) . He said that he
recalled that on one occasion, relating to drugs, and on another occasion,
relating to the Security Service, he had written' a letter to the Minister
requesting amendments to legislation, but that there was no discussion on the
matter with the Minister . Commissioner Nadon testified that the correspondence simply came to him, he signed it, and passed it on to the Minister (Vol .
129, p . 20111) .
54. Commissioner Higgitt testified that he had discussed the question of
Cathedral with Mr . Allmand . He could not recall specific occasions when these
discussions took place (Vol . 84, pp . 13780-1) . Mr . Higgitt did not elaborate as
to just what he "discussed" with Mr . Allmand . However, it is clear from his
testimony that he went no further than to discuss the need of mail opening as
an investigative technique . He does not say that he told Mr . Allmand that mail
had been opened . The most Mr. Higgitt could say was that Ministers were
seeing the results in various forms . Our own experience with R .C .M .P .
reporting phraseology satisfies us that "seeing the results" would not necessarily enable a Minister to discover that mail had been opened .
55. Mr . Dare said that he felt that Mr . Allmand had every right to assume
that the R .C .M .P . had confirmed that they were not opening mail (Vol . 125, p .
19535) . "Mr . Allmand at no time had any other perception or should not have
had any other perception than the fact that we were not opening mail" (Vol .
125, p . 19536) . Some time in 1976 Mr . Allmand had, in his presence, asked if
first class mail was being opened . Mr . Dare believes that Mr . Allmand put this
question to Mr . Nadon and that Mr . Nadon replied that neither the C .I .B . nor
the Security Service had opened first class mail (Vol . 125, pp . 19535-7) .
56 . Mr . K .J . MacDonald, Executive Assistant to Mr . Allmand from September 1975, to September 1976, attended the weekly meetings between Mr .
Allmand and senior officers of the R .C .M .P. He recalls mail opening having
been discussed on four or five occasions between March and September 1976
(Vol. 157, p . 23960) . He has a note that, after Mr . Allmand appeared on a
panel with Mr. Ralph Nader at the end of August 1976, at a convention of the
Canadian Bar Association, Mr . Allmand telephoned to say that Mr . Nader had
raised the question of mail opening again, as he had in an earlier letter to the
Prime Minister . Mr . Allmand asked Mr . MacDonald once again to check with
the R .C .M .P . "to see if this could be straightened out at last" . Mr. MacDonald
recalls having telephoned Mr . Dare, and his note of the conversation indicates
that he was told that all requests were on the criminal side, not the Security
Service side (Vol . 157, p . 23976) . We note, to avoid any confusion, that this
reference by Mr . MacDonald to "requests on the criminal side" was made i n
143
�the context of mail cover operations, which involved only following and tracing
(Vol . 157, pp . 23963-7) . Mr . MacDonald was not aware of mail opening in
practice.
Conclusion
57. We accept Mr . Allmand's evidence, confirmed as it is by that of Mr .
Tassé, Mr . Bourne, Mr . Dare and Mr . K .J . MacDonald . These four witnesses
all confirm occasions on which Mr . Allmand asked members of the R .C .M .P .
whether mail was being opened and received answers in the negative, both as to
the C .I .B . and the Security Service . It is true that Commissioner Nadon said
that he could not recall any discussion of mail opening in the presence of Mr .
Allmand, but Mr . Dare remembers one such occasion and we think that
Commissioner Nadon's memory must have failed him . It is also true that
Commissioner Higgitt told us that he had discussed Cathedral with Mr .
Allmand, but he could not recall any specific occasions . Again we feel that the
current use of the technique was likely not made known to Mr. Allmand .
(i) The Honourable Francis Fox
Summary ojevidence
58 . On February 11, 1977, Mr . Fox signed, pursuant to section 16 of the
Official Secrets Act, the first Annual Report on the interception of communications for submission to the House of Commons . The report indicated that
Mr . Allmand had signed a warrant authorizing the interception of mail, but
that the warrant had not been executed . Mr . Fox recalled asking for an
explanation about this warrant before he signed the report . Mr . Fox directed
questions concerning the opening of mail to Mr . Dare, and Mr . Dare communicated the response to him . Mr . Fox told us that he believed, although he
was not certain, that Mr . Nadon was present at the time (Vol . 161, pp .
24779-80) . This was the first time that he had discussed the opening of mail
with the R .C .M .P . It was explained to him that the Department of Justice had
offered an opinion that section 43 of the Post Office Act took precedence over
section 16 of the Official Secrets Act and that the Solicitor General did not
have the authority to issue such a warrant . Mr . Fox recalls at that time that he
was told that the R .C .M .P. was not opening the mail, and did not have the
right to do so, although the R .C .M .P. indicated to him that they would have
liked to have the power legally to open mail (Vol . 161, pp . 24775-9) .
59. Mr . Fox told us that he had been offended by an editorial that appeared
in the Toronto Globe and Mail around the end of August or the beginning of
September 1977, stating that the Security Service was opening mail . Mr . Fox
testified that he replied to the newspaper in a letter indicating that he found
the editorial rather irresponsible, that the R .C .M .P . was not opening mail, and
that no section of the Official Secrets Act gave them the right to open mail . He
testified that he asked his Department to verify the contents of his letter with
the R .C .M .P . before he sent it to the Globe and Mail (Vol . 161, p . 24783) .
Since Mr . Fox testified we have examined the editorial he referred to, which
appeared in the Globe and Mail on August 30, 1977 . The editorial concerned
144
�the law relating to wiretapping, but in passing stated that under section 16 of
the Official Secrets Act the Solicitor General was required to submit an annual
report to Parliament as to several matters including "a general description of
the methods of interception used (wiretapping, mail-opening and so on) . . ." . It
stated also that "The Solicitor General is not required to inform Parliament, or
anyone else, of exactly whose phones have been tapped or whose mail has been
opened" . We have also obtained a copy of the letter Mr . Fox wrote to the
Globe and Mail on September 13, 1977 . So far as we can tell, the letter was
not published . On the subject of the mail, it stated :
Your reference to authorized opening of mail is also factually incorrect . .
.
Rather than your portrayal of indiscriminate interception of the mails, the
facts are that no interceptions take place at all .
60 . Mr . Fox also testified about the CBC television programme broadcast on
November 8, 1977, which alleged that the R .C .M .P . had opened the mail of
someone suspected to be a member of the terrorist group, the Japanese Red
Army . The morning after, he requested an urgent meeting with the R .C .M .P.
because he was certain that there would be questions about these revelations in
the Commons that afternoon . Mr . Fox believes that Mr . Dare, Assistant
Commissioner Sexsmith, Commissioner Simmonds and some officials from the
Post Office came to his office (Vol . 161, pp . 24783-4) . At that time, Assistant
Commissioner Sexsmith told him that the R .C .M .P . had been opening mail for
a long time but that the practice had been terminated by him some time, as
Mr . Fox recalled, in 1975 or 1976 (Vol . 161, pp . 24782, 24784) . Assistant
Commissioner Sexsmith did not explain to him why he had terminated the
practice (Vol . 161, pp . 24788-9) . That was the first precise confirmation given
to Mr . Fox that the Security Service had been opening mail (Vol . 161, p .
24784) . Mr . Sexsmith testified that before the revelation by the CBC on
November 8, 1977, the R .C .M .P . had told Mr . Fox that it did not use the mail
opening technique at all (Vol . 161, p . 24786) .
61 . Mr . Dare told us that after the allegation by Messrs . Brunet and
McCleery, reported in Mr . Landry's memorandum dated June 24, 1977, he
could not recall Mr . Fox specifically asking if mail was being opened or had
been opened, but he noted that Mr . Fox did seek assurances from him and Mr .
Nadon that the R .C .M .P . was acting within the law (Vol . 128, pp . 19907-8) .
62. Commissioner Simmonds also recalled that Mr . Fox, in November 1977,
had asked whether in fact mail was being opened . Commissioner Simmonds
told us that this was the first time he could recollect any Minister having raised
that question (Vol . 168, pp . 25809-10) .
Conclusio n
63 . There is no reason to question Mr . Fox's evidence . Indeed, the one
occasion when the issue arose before late June 1977, was when, earlier that
year, he asked about the incident referred to in the Annual Report he was
being asked to sign, and he was told that the R .C .M .P . did not open mail .
145
�(j) Mr . Donald Beavis
Summary of evidence
64 . On June 5, 1978, Mr . Donald Beavis, a former employee in the Privy
Council Office, was reported in the Globe and Mail as having said that it was a
"fact of life" among certain government people that the R .C .M .P. was illegally
opening mail . The article was based on . an interview by telephone . The
interview occurred after the "uproar about mail opening" had started and was
"appearing in the paper", which he says he had "deliberately" not been
following (Vol . 313, p . 301148) . Mr. Beavis told us that what he said to the
interviewer was that "it would have astounded" him if the R .C .M .P . were not
opening mail . He says that this was a
deduction from whatever else we did, from my background in the Communications Branch and my background as a security officer .
(Vol . 313, p. 301152 . )
By this he means that he knew that in the Communications Branch written
communications were not sent by mail but by hand, in order to protect them
against interception by an enemy . He inferred tha t
If we did that, to look after our material, then surely, the opposite side of
the coin would be that our own Security Service must be either considering
or doing mail opening .
(Vol . 313, p . 301155 . )
He admits that it was an "inference" on his part (Vol . 313, p . 301158), and
"conjecture" (Vol . 313, p. 301171) . He also told us that when he had worked
for the Communications Branch of the National Research Council all documents of a nature that required cryptanalysis passed through his hands and
that at no time did the R .C .M .P. send a document for such an analysis that
appeared to him to have come into the hands of the R .C .M .P . as a result of
their having opened mail . He and the analysts, he believes, would have been
able to infer that the material submitted for analysis had come from the
opening of mail if that had been so (Vol . C84, pp . 11477-9) .
Conclusion
65 . We asked Mr. Beavis to testify because the newspaper article, if left
outstanding as it was, would have suggested that an official of the Privy
Council Office had known that the R .C .M .P . were opening mail . We are
satisfied that Mr . Beavis (who died in 1980, after he testified in camera but
before his testimony was made public) did not know of the practice but had
inferred that it existed as a result of work he had done in another department
of the government . There is no suggestion that Mr . Beavis passed on the results
of his conjecture to any other official .
(k) Mr . D .S . Maxwell
Summary of evidence
66 . Mr . D .S . Maxwell was Deputy Minister of Justice and Deputy Attorney
General from March 1968 to February 1973 . He was appointed Associat e
146
�Deputy Minister of Justice in 1960 and between that date and 1966, when the
R .C .M .P . ceased to report to the Minister of Justice, he has no memory of any
opinion having been sought from him with regard to the opening of mail . He
does not think that he was aware of the fact that the R .C .M .P . were engaged in
the opening of mail during the period from 1960 .to 1966 (Vol. C65, pp .
9101-2) . He feels quite certain that while he was Deputy Minister of Justice
and previously he was not aware that the K .C .M .P. had opened first class mail
as a practice or on any specific occasion or occasions (Vol. C66, p . 9251) .
Conclusion
67 . We accept the evidence of Mr . Maxwell that he was unaware of the
practice of mail opening .
C . . GENERAL CONCLUSION
`
68. We are satisfied that Solicitors General and those public servants whose
evidence we have discussed did not know that the mail had been opened by
members of the R .C .M .P ., or that any policy or practice existed or had existed
that permitted or tolerated the opening of mail, whether for the purposes of
criminal investigation or those of the Security Service .
147
��CHAPTER 4
ACCESS TO AND USE OF CONFIDENTIAL
INFORMATIO N
HELD BY THE FEDERAL GOVERNMENT
CRIMINAL INVESTIGATIONS
1 . In our Second Report, Part III, Chapter 5, we examined the manner in
which the Criminal Investigation side of the R .C .M .P. has sought access to the
records of five government departments to obtain information on individuals .
These included the records of the Department of National Revenue, Canada
Employment and Immigration Commission ( formerly known as the Unemployment Insurance Commission), the Department of National Health and Welfare, the Department of Industry, Trade and Commerce, and finally the
Foreign Investment Review Agency . In the case of the latter two the attempts
to obtain information were unsuccessful .
2 . In this Report we now attempt to determine the extent to which this
practice was known and reviewed at the level of senior members of the
R .C .M .P., senior government officials and Ministers .
3 . In this chapter, we also discuss the implementation of Force policy from
1973 to 1978 with regard to the liaison which had arisen between the C .I .B .
and the U .I .C ., as this matter was not dealt with in the Second Report .
A . KNOWLEDGE OF SENIOR OFFICIALS IN THE R .C .M .P .,
SENIOR PUBLIC SERVANTS AND MINISTERS OF THE LIAISON BETWEEN THE C .I .B . AND THE DEPARTMENT OF NATIONAL REVENU E
(a) Commissioner W .L . Higgitt
Summary of evidence
4 . Commissioner Higgitt testified that during his term as Commissioner he
knew that, prior to 1972, members of the Force were obtaining information
from the Department of National Revenue (D .N .R .) for the purposes of
investigating Criminal Code matters . However, he did not remember whether
he knew that the Force was receiving such information for the purpose of
investigating crime in general, rather than offences related only to tax matters .
He said that, had he been aware that information received from the D .N .R . by
the Force was being released to other police forces, he would have taken steps
to have the other police forces designated by the Minister pursuant to the
Memorandum of Understanding (Vol . 85, pp. 14009-13, 14032, 14048) . H e
149
�was not aware of any R .C .M.P . policy by which members of the Force could
seek biographical data from the D .N .R ., for any purpose, but he had a feeling
that the Act made a distinction between financial information and other
information (Vol . 85, pp . 14064-65) .
Conclusion
5. On the evidence before us, we cannot say that Commissioner Higgitt
realized at any time that the C .I .B . was obtaining information from D .N .R .
sources for purposes that meant the Income Tax Act was being violated .
(b) Commissioner Maurice Nadon
Summary of evidence
6 . Commissioner Nadon understood that information received from D .N .R .
was to be held in the Commercial Crime Branch and not disseminated from
that Branch . As of May 1976 he had not been informed of any breaches of
section 241 by which information received under the agreement was being
disseminated to other police forces . He told us that in 1976 he asked R .C .M .P .
officials specifically if the Memorandum of Understanding was being respected
and was told that there was a possibility of some breaches but no examples
were given to him and that he therefore reinforced the instructions to the Force
that information obtained from D .N .R . should not go to anyone outside of
those specifically assigned under the Memorandum of Understanding . Later in
his testimony, he said that he had always been informed that the Memorandum
of Understanding and the Act were being respected . In 1977 he heard that a
police department in the Ottawa area had summonsed an official of D .N .R . to
appear as a witness and he was told at the time that it was suspected that some
member of the R .C .M .P. had given some information to that police force . He
never receivM information of any specific incident of a breach of section 241
but heard rumours to the effect that it was being violated by members of the
C .I .B . (Vol . 128, pp . 20855, 20857, 20862, 20871, 20874) .
7 . According to his testimony, he believed that anything of a historic nature,
if released, would not constitute a violation of section 241 of the Income Tax
Act . He thought section 241 is limited to financial information (Vol . 136, pp .
20864-66) .
Conclusion
8. There is no evidence before us that Commissioner Nadon knew that
information was being obtained, used or disclosed for any purpose that would
result in a breach of the provisions of the Income Tax Act .
(c) The Honourable George J . Mcllraith
Summary of evidence
9. The only evidence as to Mr . Mcllraith's knowledge of any aspect of access
to information of this sort was his testimony that on one occasion the R .C.M .P.
asked him if, in examining a case where they were called in by D .N .R . to d o
150
�investigative work and obtain evidence of other criminal activities outside the
Income Tax Act, they could use that evidence to start an investigation into
other organized crime activities . He told them they should go to the Department of Justice and get an opinion (Vol . 119, p . 18515) .
Conclusion
10. There is no evidence before us that Mr . Mcllraith knew of access to this
typé of information .
(d) The Honourable Jean-Pierre Goyer
Summary of evidence
11 . Mr . Goyer testified that in regard to access to tax information under the
Memorandum of Understanding, the question of whether the law was being
obeyed was never discussed with him; it was taken for granted that it was being
respected (Vol . 123, p . 19214) .
Conclusion .
12 . There is no evidence before us that Mr . Goyer knew of any improper
access to or use of tax information .
(e) The Honourable Warren Allmand
Summary of evidence
13 . Mr. Allmand testified that the first time he was aware of any violation of
the Act was when he received a letter, dated June 9, 1976, from the Honourable Bud Cullen expressing concerns about "a technical violation of the Act" .
He referred the matter tothe R .C .M .P . for advice and its response . The matter
gave him some concern but did not convey to him a high priority urgency
because of the way it was worded . He did not know exactly what was meant by
the reference in Mr. Cullen's letter . He found the words "technical violation"
difficult to understand because there was no explanation or examples given
(Vol . 115, pp. 17828, 17823, 17840) . Commissioner Nadon testified that he
told Mr . Allmand that he, Nadon, had been assured by those concerned that
the Agreement was being respected (Vol . 136, p . 20871) .
Conclusion
14. There is no evidence before us that Mr . Allmand knew of any iinproper
access to or use of tax information prior to the June 9, 1976 letter from Mr .
Cullen . When Mr . Allmand was told by Mr . Cullen that there were "technical
violations", he took the necessary steps, prior to leaving the portfolio of
Solicitor General, to ensure that the matter was investigated and dealt with .
(f) The Honourable Bud Cullen
Summary of evidence
15 . The Honourable Bud Cullen was appointed Minister of National Revenue on September 26, 1975 . He first became aware of possible violations o f
151
�section 241 of the Income Tax Act when it was raised with him by his officials
on May 31, r1976 . He thought that the way that things were being done under
the Memorandum of Understanding was "at the very least" a technical
violation of the Act . There was some apprehension on the part of his Department that information might be being given to R .C .M .P. members to be used
other than for tax purposes or to be passed on to other people for other than tax
purposes, and that D .N .R . officials were straining the definition of "for tax
purposes" . He could not get any definite statement from his officials as to
whether information was being passed on improperly ; they simply said that it
could happen, human nature being what it is . There was one specific example
of a Nepean policeman who had apparently received information through the
R.C .M .P., and D .N .R . officers were subpoenaed to appear in court as a result .
At the meeting with his officials on June 14, 1976, the officials could not
assure him that D .N .R . was complying strictly with the secrecy provisions of
the Income Tax Act and he told them that he wanted all such activities stopped
and instructed them to phone the necessary officers in the Department
immediately with those instructions . Those phone calls were made and were
followed by a memorandum dated July 16, 1976 (Ex . M-64, Tab L, Vol . 117,
pp. 18183, 18187, 18200-5, 18221) . On the other hand, Mr . M .J . Bradshaw,
who sent out the memorandum, testified that there was no suspicion that
section 241 was not being complied with, that the phone calls and the letter
were the result of a Parliamentary Committee which had been set up with
respect to confidentiality of various Acts, that the Minister wanted an assurance that the Department was abiding by the confidentiality provisions of the
Act, and that there was no suspicion that anyone was deviating from the Act
(Vol . 62, p . 10066) .
Conclusion
16 . Mr . Cullen clearly had no knowledge of any conduct on the part of his
officials that violated the Act . Indeed, when he even had a suspicion that that
might be occurring, he inquired into the matter and issued firm instructions
that there was to be no activity in violation of the Act .
(g) Mr . Roger Tassé
Summary of evidenc e
17. When Roger Tassé, the Deputy Solicitor General, saw the letter of June
9, 1976 from Mr . Cullen to the Honourable W . Allmand (M-64, Tab G) and
the mention of "breaches" of "the present secrecy provisions of the Income Tax
Act", he phoned the Deputy Minister of National Revenue, Mr . Hodgson, who
told him that it was a question that was under study . Mr . Tassé said that Mr .
Hodgson seemed to have all the information and to have the matter in hand .
He told us that he expected that Mr . Hodgson would eventually bring it up
again and discuss it with Mr . Allmand . Mr . Tassé did not think it was up to
him to ensure that the Income Tax Act was enforced . That was the responsibility of the Minister of National Revenue and that is why he, Tassé, assured
himself that the Deputy Minister of National Revenue was aware of the matter
(Vol . 157, pp . 23856-9) .
152
�Conclusion
18. We accept Mr . Tassé's evidence that his knowledge was identical to that
of his Minister and that he did what his Minister asked him to do .
(h) The Honourable Francis Fox
Summary of evidence
19. Mr . Allmand testified that he does not recall briefing Mr . Fox, his
successor as Solicitor General, with respect to the "technical violation" raised
by Mr . Cullen in his letter of June 9, 1976 (Ex . M-53, Tab D) .
Conclusion
20 . We have no evidence before us that Mr . Fox was aware of any violation
of the Act, whether technical or otherwise .
B . KNOWLEDGE OF SENIOR OFFICIALS IN THE R .C .M .P.,
SENIOR PUBLIC SERVANTS AND MINISTERS OF THE LIAISON BETWEEN THE C .I .B . AND THE UNEMPLOYMENT INSURANCE COMMISSION
(a) Commissioner W .L . Higgitt
Summary of évidenc e
21 . Commissioner Higgitt told us that he thinks that he was aware that the
Unemployment Insurance Commission (U .I .C .) "was one of the places from
which we sought information" but he could not go further than that, and said
that he was not "directly involved in the use of that particular source" Vol . 85,
p . 14026) . He said that he does not recall having been made aware in 1971 that
access to these sources was either cut off or severely restricted (p . 14027) .
Conclusion
22 . There is no evidence before us that Mr . Higgitt was aware of any
illegalities involved in obtaining information from the Unemployment Insurance Commission .
(b) Commissioner Maurice Nadon
Summary of evidence
23 . Commissioner Nadon testified : "I never would go into the detail of the
liaison with the Post Office or with the U .I .C . or with the Income Tax or any
of the Departments" . He continued that this was "an operational policy that
was in the Department concerned" and implied that, even when asked for his
assistance by asking the Minister to get changes in legislation, he was not given
details of existing or past access to departmental information (Vol . 129, pp .
20098-9) .
Conclusion
24 . There is no evidence before us that Mr . Nadon was aware of any access
by the R .C .M .P . to Unemployment Insurance Commission data .
153
�(c) Messrs . Mcllraith, Goyer, Allmand and Fox
Summary of evidence
25 . Turning to the Solicitors General, those who occupied that office in
Commissioner Higgitt's time did not have any discussions with him, according
to his recollection, concerning the difficulties of gaining access to U .I .C . data .
Indeed, apart from his attempts to obtain access to Department of National
Revenue information, he could not specifically recall seeking to expand the
R .C .M .P .'s access to government information banks (Vol . 85, pp . 14027-31) .
Mr. Starnes told us that he could not recall any detailed discussions with Mr .
Goyer concerning the problem of gaining access to Health and Welfare and
U .I .C . records, which he had raised in a letter to Mr . Goyer on June 3, 1971
(MC-8, Tab 11), although he does remember talking to Mr . Bourne about
access to those and other information banks . It was Mr . Bourne who drafted
the letters that were subsequently sent over the signature of Mr . Goyer to
Ministers requesting their co-operation . However, Mr . Starnes said that he
could not recall the discussions (Vol . 149, pp . 22849-53) . Mr . Starnes told us
that he has no recollection of having discussed with the Solicitors General (Mr .
Goyer and Mr . Allmand) the arrangements that were made with the U .I .C . in
1972 (Vol . C31, pp . 3879-81) .
26 . Mr . Allmand testified that he was not aware of any relationship between
the R .C .M .P . and the U .I .C . (Vol . 115, p . .17850) . Indeed, a memorandum
dated June 1, 1973, from the Director of Personnel of the Security Service to
the Deputy Director General recorded that during a visit to the R .C .M .P . in
Montréal a member asked Mr . Allmand whether anything could be done to
improve access to departmental records . The memorandum recorded that,
according to the member :
The necessary information is not available from the Unemployment Insurance Commission, and, of course, Statistics Canada and Tax Information is
unavailable .
(Vol . 114, pp. 17622-8 . )
Conclusio n
27 . There is no evidence before us that Senator Mcllraith, Mr . Goyer, Mr .
Allmand or Mr. Fox were aware of R .C .M .P. access to Unemployment
Insurance Commission data .
(d) Mr . Roger Tassé
Summary of evidence
28. Mr . Tassé's evidence is that he was never told that the R .C .M .P . was
obtaining information from other departments and agencies in violation of the
law (Vol . 157, pp . 23863-5) .
Conclusion
29. We accept Mr . Tassé's evidence and note that it affords some support for
our conclusions concerning the state of knowledge of the Solicitors General .
154
�C . IMPLEMENTATION OF R .C .M .P . POLICY FROM 1973 TO 1978
WITH REGARD TO THE LIAISON BETWEEN THE C .I .B . AND
THE U .I .C .
30 . . In the Second Report, Part III, Chapter 5, although we examined at
length the manner in which the C .I .B . developed a working relationship with
the U .I .C . and the manner and extent to which confidential information flowed
from the U .I .C . to the C .I .B ., it was decided to leave the explanation of the
various details of the implementation of such R .C .M .P . policy with the U .I .C .
to this Report . We now examine this policy implementation on the part of the
R .C .M .P ., especially from the year 1973 to June 12, 1978, when the fl ow of
confidential information from the U .I .C . to the C .I .B . was terminated . This
perusal of policy implementation will centre chie fly upon the individuals who
were most responsible in developing the mechanism whereby such information
was channelled to the C .I .B .
31 . During the period 1973 to 1975 Assistant Commissioner (then Inspector)
Jensen was the Officer in Charge of the Commercial Crime Branch at
Headquarters . During this time he negotiated an arrangement with the U .I .C .
whereby it was agreed that the lines of communication between the two
organizations would be between the Commercial Crime Branch at Headquar.I .C .
ters of the R .C .M .P . and the Chief of the Benefit Control Section of the U
(Vol . 58, p . 9551, Ex . H-1, p . 59) .
,
. At this point, Inspector Jensen was responsible for appointi~g those
32
R .C .M .P . members who were to act as contacts with the U .I .C . (Ex . H-1, pp .
61-64; Vol . 58, p . 9551) . When examined as to the instructions given to these
personnel charged with the administration of the policy, Assistant Commissioner Jensen testified that they were "to utilize it of course in terms of seeking
information with respect to criminal offences and situations where it was in the
public interest to do so" . He also stated that these personnel had a discretion to
pass along a request for information to the U .I .C . and that "they could exercise
their discretion or not" (Vol . 58, pp . 9952-4) .
33. He was then asked what instructions were given by him to his subordinates concerning this discretion . He first testified that given their experience
with the R .C .M .P . " . . .I had confidence in their ability to exercise discretion,
otherwise they wouldn't have been in the position they were in or the rank that
they held . . ." . When asked whether this meant that no instructions were given
concerning the exercise of discretion he replied that they were instructed to
seek the information when it was sought in "the investigation of a criminal
offence, or it is in the public interest, the policy that is cited in the October 3rd
.
memorandum . ." and that in respect to the investigation of a .criminal offence
"There is no discretion on that part of it" . However, Mr . Jensen then testified
that requests with respect to criminal offences would not automatically be
passed on and stated "They could . They had that discretion, but . they had a
discretion of their own to exercise" . On the evidence it seems clear that no
instructions were given concerning the exercise of this discretion (Vol . 58, pp .
9555-62) .
155
�34 . From 1973 to 1978 the various R .C .M .P . field officers contacted C .C .B .,
Headquarters, via a direct access computer terminal to request the information
from U .I .C . The persons who operated the terminals were clerks or secretaries .
Since the policy of the Force concerning the occasions on which the U .I .C .
arrangement could be used had not been disseminated to the field, C .C .B .
Headquarters had no way of knowing whether anyone in authority in the field
had cleared the request before the clerk or secretary transmitted it via the
computer terminal to C .C .B . Headquarters . It was for this reason that it was
imperative that the purpose of the request for information from the field be
made known to C .C .B . Headquarters. Assistant Commissioner Jensen agreed
that this information was vital to the exercise of discretion by the C .C .B .
Headquarters personnel assigned to administer the 1973 arrangement . Mr .
Jensen further agreed that it would not be appropriate to seek information
from the U .I .C . if C .C .B . Headquarters personnel did not first ascertain the
nature and purpose of the request (Vol . 58, pp . 9556-60 ; 9578, 9589-90) .
35 . From 1975 to 1978 a public servant, employed in a clerical position by
the R .C .M .P ., was designated to receive requests for information from the
field . Assistant Commissioner Jensen testified that up to 1976 this public
servant was told to obtain specific instructions from Sergeant Cooper or
Sergeant Butt about each request for information . In 1976 this same public
servant was instructed to respond to a request for information, provided only
that the request referred to a crime . There was no limitation as to the type of
crime .
36. The unrestricted access to U .I .C . confidential information, provided that
it related to a crime, continued uninterrupted until late in the year 1976 . At
that time the R .C .M .P . officer responsible instructed the public servant to
respond only to requests for information relating to the list of crimes set out in
an arrangement made in 1972 between the C .I .B . and the U .I .C . and which is
described in Part III, Chapter 5, of the Second Report . Any requests relating
to any category of crime not mentioned on the list, were to be cleared
beforehand with the R .C .M .P . Officer in Charge .
37 . As Assistant Commissioner Jensen has been mentioned frequently, itshould be said that there is no evidence that, while he was involved in making
arrangements for access to U .I .C . data, he was aware that such access as
representatives of the U .I .C . were prepared to provide might give rise to a legal
problem . He told us that until June 12, 1978, when he was informed that the
Canada Employment and Immigration Commission was no longer going to
provide information from the Central Index because there was a problem of
statutory interpretation and we were about to hold hearings into this subject,
he was not aware that there was a legal problem and had always regarded any
problem as being one "primarily" of "administration" . He testified that h e
thought that we were the recipients of information from an information
source which, in its discretion, could lawfully pass it on to us . So, therefore,
it was not a legal problem for the R.C .M .P.
(Vol . 58, pp . 9638-48 . )
In these circumstances we find no fault with Assistant Commissioner Jensen's
conduct .
156
�38. With respect to the extent and prevalence of this access by the C .I .B . to
confidential information on the records of the U .I .C . reference should once
again be made to the abovementioned Part III, Chapter 5 of the Second
Report . Finally, it should be noted that all access to the U .I .C . confidential
information was terminated on June 12, 1978 .
D. KNOWLEDGE OF SENIOR MEMBERS OF THE R .C .M .P. AND
OF MINISTERS OF THE LIAISON BETWEEN THE C .I .B . AND
THE DEPARTMENT OF NATIONAL HEALTH AND WELFAR E
39. There is documentary evidence to justify the inference that in 1968
Superintendent (later Commissioner) Nadon knew, from the reports that were
received, that in some Divisions members of the Force were obtaining information from sources in the Department of National Health and Welfare in
circumstances prohibited by statute . There is no evidence that when he became
Commissioner he took steps to bring such access to a halt . Nor, however, is
there any documentary evidence that access was still being exercised after
1973 . Mr . Nadon became Commissioner in 1974 . No testimony was taken
from any witness concerning this matter .
40. There is no evidence before us to indicate that any Minister, whether
Solicitor General or otherwise, knew that such access was being obtained and
that some members of the R .C .M .P. may have been abetting the commission of
an offence .
I
157
��CHAPTER 5
ACCESS TO AND USE OF CONFIDENTIAL
INFORMATION HELD BY THE FEDERAL
GOVERNMENT SECURITY SERVIC E
1 . In our Second Report, Part III, Chapter 6, we examined the manner in
which the Security Se rv ice of the R .C .M .P . attempted to obtain access to
government information on individuals and its persistent effort to develop
sources of information within various government departments . Such departments included the Unemployment Insurance Commission, the Department of
National Revenue and the Department of National Health and Welfare. The
liaison which developed between the Security Service and these government
departments was examined, as were thé legal consequences . During the course
of examining the relationship which developed between source X in the
Department of National Revenue and the Security Se rv ice, an issue arose of
different magnitude, namely, whether the Department of National Revenue at
a deputy ministerial level, or even at a ministerial level, had agreed to supply
the Security Se rv ice with information in circumstances which would violate the
confidentiality provisions of the Income Tax Act . The pivotal evidence tending
to indicate that such an agreement had been reached was found in a memorandum for file, dated August 18, 1971, ( Ex . MC-8, Tab 14) by Assistant
Commissioner L .R . Parent, Deputy Director General of the Security Se rv ice,
which read as follows :
1 . Reference is made to letter addressed to the Honourable Herb Gray,
Minister of National Revenue, by the Solicitor General dated July 27,
1971 .
2 . On this date Deputy Minister S . Cloutier of the Department of National
Revenue (Taxation) contacted the undersigned in this connection . Deputy
Minister Cloutier advised that agreement had been reached, however, no
reply would be forthcoming from his office to our letter of July 27th for
obvious reasons . The Department agrees to provide information to S&I in
this area strictly on a confidential basis, providing that S&I undertakes not
to disseminate this information outside the Directorate . In other words,
information received by S&I should not be disseminated to CIB or other
agencies . All S&1 enquiries should be addressed t o
The conclusion of the second paragraph referred to X by name and position .
2. We shall therefore examine the events which occurred between the Security Service and Mr . Sylvain Cloutier, the Deputy Minister of Nationa l
159
�Revenue, in regard to affording the Security Service access to confidential
information .
3. We also examine the extent to which this general practice of the Security
Service of obtaining confidential information from various government departments was known and reviewed at the level of Ministers, senior government
officials, and senior members of the R .C .M .P .
A . COMMUNICATIONS BETWEEN THE SECURITY SERVICE
AND MR . SYLVAIN CLOUTIE R
Summary of evidence
4. There is one development, which occurred in 1970, which we did not
mention in Part III, Chapter 6, of our Second Report, for it was not essential to
the description of the relationship between the Department of National Revenue and Source X which we set out in that chapter, and we considered it would
be more relevant to the matters here reported on . We refer to a memorandum
by the Director General, Mr . Starnes, dated April 15, 1970, (Ex . MC-8, Tab
8) which recorded that on that day he had had lunch with Mr . Cloutier . His
diary also indicates that he was to have lunch that day with Mr . Cloutier at the
Rideau Club. The memorandum must be quoted at length :
.
.. we discussed, among other things, the possibility of making some
arrangements for members of this Directorate to have access to income tax
information . Mr. Cloutier at once referred to discussions which have been
taking place between the RCMP and the Department of National Revenue
to enable income tax information to be used for criminal investigations . He
mentioned that joint proposals had been worked out and were now before
Ministers for their consideration . Mr . Cloutier said that he was very
sympathetic towards the RCMP's requirements and was inclined to take a
rather relaxed view of Section 133 of the Income Tax Act . In particular, he
believed that this section of the Act could be interpreted in such a way as to
make this kind of information available to the RCMP if it was likely to
result in recovery of lost monies. Mr . Cloutier wondered, therefore, whether
the particular requirements of the Security and Intelligence Directorate
could not be met within the framework of the proposals which are now
before the Ministers .
I explained to Mr . Cloutier, using various examples, the kind of
purposes for which we would like to have access to a limited number of
income tax records, . . .
Following a discussion of the problem, Mr . Cloutier said that he felt it
would be possible to interpret Section 133 in such a way as to provide us the
information we were seeking . . .on the grounds that this could lead to
recovery of money which was owing to the Crown although he recognized
that, in fact, there might be very few occasions when this would be possible
or even desirable . . .. In the circumstances he said his earlier suggestion that
we might bring our requirements within the framework of the request now
before Ministers might not be practicable . Instead, depending upon the
outcome of ministerial consideration of those proposals, he suggested we
might put a joint submission to the appropriate cabinet committee (presumably Cabinet Committee on Security and Intelligence) aimed at obtainin g
160
�ministerial approval for the use of income tax records for investigation into
cases affecting the national security . Mr. Cloutier said he would be very
willing to co-operate with us in the preparation and submission to our
respective Ministers of such a memorandum .
Mr . Starnes has no independent memory of the conversation with Mr . Cloutier
that day but says that he was in the habit of making accurate contemporaneous
memoranda of conversations and events . He has no recollection of being aware
at that time that there was already a relationship in existence between someone
in the Department of National Revenue and the Security Service, by which the
Department provided information .
5. However, Mr . Cloutier, in his testimony before us, denied that during the
period that he was Deputy Minister of National Revenue (Taxation) he was
aware of any arrangement under which officials of the Department were
providing the Security Service with tax information . His testimony was that he
had no recollection of meeting Mr . Starnes for lunch on April 15, 1970,
although his calendar recalls that he did have lunch with him at Mr . Starnes'
invitation on that date . He has no recollection of what .was discussed . He says
that any reference he may have made to his having regarded section 133 in a
relaxed manner must have referred to the work he had been doing with regard
to the proposal that members of the Criminal Investigations Branch of the
R .C .M .P . should be recognized as authorized officials under section 133 for
purposes of criminal investigations . In that regard, his feeling was that any tax
monies collected as a result of such investigations would be less than the cost of
D .N .R . resources devoted to the programme, that he therefore could not
determine the matter himself and the determination should be made by
government . Had it not been for the problem of allocation of resources, it was
his view that he could have determined, as Deputy Minister, that the members
of the C .I .B . generally could be designated as authorized officials . He had no
authority to enter into an agreement with the Security Service .
6. In the Second Report we examined the efforts by senior members of the
R .C .M .P ., and more particularly Director General Starnes and Commissioner
Higgitt, to enter into an agreement with the Department of National Revenue
whereby information on individuals would flow from that Department to the
Security Service . We looked at various communications from the Security
Service, including memoranda drafted by Mr . Starnes dated September 15 and
23, 1970, whereby he attempted to persuade Commissioner Higgitt to encourage the Solicitor General to strike an agreement with the Minister of National
Revenue .
7 . After these memoranda there is no record of any further development until
the months of May to September 1971 . During this period the negotiations by
the R .C .M .P. Criminal Investigation Branch with the Department of National
Revenue continued . In May, Mr . Parent, in a memorandum to Mr . Starnes,
suggested that the C .I .B . negotiations were not progressing and that the
Security Service should discuss its own problems with the Minister . Consequently, on June 3, 1971, Mr . Starnes wrote to Mr . Goyer concerning access to
the records of several departments, including the Department of Nationa l
161
�Revenue ; pointing out that it was "necessary to have access to the records of
the Department of National Revenue, Income Tax Branch, which is difficult to
do in the face of section 133 of the Income Tax Act" . The letter also said that
he recognized
. . . that there would be political and other difficulties in the way of seeking
to amend legislation merely to meet the needs of the Security Service, but,
in many cases, and we believe that with Ministerial agreement, arrangements could be worked out with the different departments and agencies
concerned to meet our requirements within the framework of existing laws
and in a manner which would attract no attention or criticism .
(Ex . MC-8, Tab 11 .)
Consequently, on July 27, 1971, Mr . Goyer wrote to the Honourable Herb
Gray, Minister of National Revenue, outlining the needs of the Security
Service and saying that in order to satisfy these needs it "would be necessary to
have access to your Income Tax Branch records" . He observed that "section
133 of the Income Tax Act creates difficulties in this regard", but proposed
discussions between officials of the two Departments as to "whether the
requirements of the Security Service could in fact be met within the framework
of existing laws and regulations and in a manner which would attract no
attention or criticism" . In answer, a letter dated August 4, 1971, (Ex . MC-8,
Tab 13) was prepared by Mr . Cloutier, and was signed by Mr . Gray and sent
to Mr . Goyer . It stated that the Deputy Minister of National Revenue was on
holidays, and that the subject matter required his consideration and should not
be dealt with in his absence . Mr . Cloutier testified that this letter was prepared
for Mr . Gray's signature in the hope that it would have the result that the
matter would "go away", be forgotten . However, Mr . Bourne did not forget,
for on October 18, 1971, he wrote to Mr . Starnes, sending copies of letters
which had been received by Mr . Goyer from some Ministers, but pointing out
that "a final reply from the Minister of National Revenue has not yet been
received" . Mr . Bourne suggested that Mr . Starnes follow the matter up at the
level of officials . On the letter a longhand note by Mr . Starnes records for file
purposes that he had discussed this matter with Inspector Shorey .
8. Meanwhile, on August 18, 1971, Assistant Commissioner Parent prepared
the memorandum for file (Ex . MC-8, Tab 14), quoted in full earlier in this
chapter, in which he referred to the letter which Mr . Goyer had sent to Mr.
Gray on . July 27 . (Mr . Parent did not testify on this or any other matter
because he has unfortunately been suffering from a degenerative illness which,
we are satisfied, made him unable to give evidence before us . It has, therefore,
been necessary for us to rely upon Mr. Parent's written records . )
9 . While he did not deny it, Mr . Cloutier testified that he has no recollection
of ever having met Mr . Parent, or of hearing that name in connection with the
R.C .M .P ., or of having a conversation with Mr . Parent to the effect referred to
in Mr. Parent's memorandum of August 18, 1971 . He surmises that he
probably called, or asked his secretary to call, either the Commissioner or Mr .
Starnes to tell him that the Department of National Revenue would not be
replying to the letter Mr . Goyer had written to Mr. Gray. However, he says
162
�that hé is baffled as to the suggestion that he had verbally made an agreement
over the telephone . He regards this as inconsistent with the lengthy and very
careful discussions which had been held with respect to the arrangement with
the Criminal Investigations Branch, where there was a likelihood of revenue .
Further, he regards it as unlikely that, as a responsible senior official, he would
have made a commitment on behalf of the Department of National Revenue
when six days before August 18 his appointment as Deputy Minister of the
Department of National Defence had been announced . Consequently, he says
he has a "moral certitude" that he did not enter into such an agreement, and
therefore that he did not designate an official to carry it out . He says that if he
did talk to Mr . Parent, he could possibly have referred to the C .I .B . agreement
which had just been completed to his satisfaction at that time . The Deputy
Solicitor General, Ernest Côté, and Mr . Cloutier, had both signed the memorandum of understanding, and "a couple of weeks" previously the two Ministers had signed a submission to Cabinet . (Actually, Mr. Gray had signed it on
June 11 .) Mr . Cloutier suggests that it is a possibility that, in talks with Mr .
Parent he might have explained how the agreement with the C .I .B . operated,
and Mr . Parentmay have misunderstood .
10 . Mr . Cloutier says that section 133 was sacrosanct, that he had written for
publication on the subject when he was Deputy Minister, and that he was not
likely to have played "very very footloose with a cornerstone of the administration of the Department" . He has no recollection of having discussed, with
either of the two Ministers of National Revenue under whom, he served, any
question of providing information to the Security and Intelligence Branch of
the R .C .M .P . He has no recollection of ever having discussed Mr . Goyer's
letter of July 27, 1971, with Mr . Gray . On the other hand, he says he probably
told Mr . Gray "we should have no truck to do with that and I will tell the
R .C .M .P." .
11 . Mr . Cloutier says that he was not, on his own authority, willing to give to
Mr . Starnes information on potential taxpayers other than for the purpose of
collecting taxes . In assessing Mr . Cloutier's testimony against the record made
by Assistant Commissioner Parent, it is necessary to refer again to the
discussion between Mr . Starnes and Mr . Cloutier at lunch on April 15, 1970,
as recorded by Mr . Starnes in a memorandum which we have already quoted at
length . It will be observed that, on the face of Mr . Parent's memorandum, Mr .
Cloutier was prepared to go beyond the bounds of section 133 .
12 . It is also worthy of note that a Security Service Source, who was
employed in the Department of National Revenue at Headquarters, and who
testified before us, denied knowing Mr . Parent, or being aware of any contact
that took place between Mr . Cloutier and Mr . Parent, or between Mr . Cloutier
and anyone else in the R .C .M .P. Security Service . We discussed the arrangement between the Security Service and X, in Part III, Chapter 6, of our Second
Report, and our conclusions about that relationship are contained in Part VI,
Chapter 3, of this Report .
163
�Conclusio n
13 . We think that it is a near certitude that Mr . Starnes and Mr . Cloutier did
have lunch on April 15, 1970, and that Mr . Starnes, who is quite meticulous,
made an accurate record of what was said . We note that Mr . Cloutier is
recorded as having suggested no more than that a joint submission be made to
a Cabinet Committee . There is nothing in the record made by Mr . Starnes
which would suggest in any way that Mr . Cloutier had in mind any clandestine
or illegal relationship . Consequently, Mr . Starnes' own record supports Mr .
Cloutier's adamant assertion to us that he would not likely have played
"footloose" with a cornerstone of the administration of the Department .
14 . We turn to our conclusion in regard to the memorandum written by Mr .
Parent on August 18, 1971 . It will be recalled that Mr . Parent has at no time
testified before us in regard to this matter or any other matter, because of his
state of health . Therefore we do not have the benefit of his testimony on this
point . We note that his memorandum was written one year and four months
after the luncheon between Mr . Starnes and Mr . Cloutier ; thus we have no
indication that during those sixteen months there had been further discussions
between the Security Service's senior management and Mr . Cloutier. We do
not know what Mr . Parent meant by his memorandum, for we are perfectly
satisfied that neither Mr . Cloutier nor his Minister (the Honourable Herb
Gray) had "agreed", whether formally or in some informal or under the table
manner, that the Department of National Revenue would supply information
to the Security Service, the disclosure of which would have violated the
confidentiality provisions of the Income Tax Act . For Mr . Cloutier to have
"agreed" to the provision of such information would have been contrary to the
position that he took with Mr . Starnes sixteen months earlier . In the interval,
Mr . Cloutier had been conducting negotiations with the R .C .M .P . with regard
to co-operation between his Department and the R .C .M .P .'s Criminal Investigations Branch, which bore fruit after his departure from the Department,
when a memorandum of understanding was entered into on April 27, 1972,
between the Department of National Revenue (Taxation) and the Department
of the Solicitor General . If there was a telephone conversation between Mr.
Parent and Mr . Cloutier, we are satisfied that any "agreement" which Mr .
Cloutier would have referred to was in regard to criminal investigations and
moreover was not an "agreement" to provide information the provision of
which was prohibited by the Act . We think that Mr . Parent must have
misunderstood what Mr . Cloutier was referring to, and this would not be
surprising, for there is every likelihood that Mr . Parent was not familiar with
the negotiations that were being conducted between the Criminal Investigations side of the Force, and the Department of National Revenue . The
compartmentalization of information, between the Criminal Investigation side
of the R .C .M .P. on the one hand, and the Security Service on the other, was
such that it would not be surprising that Mr . Parent would be ignorant of
developments on the C .I .B . side . As for the sentence in Mr . Parent's memorandum in which he states that Mr . Cloutier had advised that "no reply would be
forthcoming from his office to our letter of July 27 for obvious reasons", if Mr .
Cloutier did say that, those words are open to a reasonable construction whic h
164
�is consistent with an intention on Mr . Cloutier's part to behave legally . That
construction is that Mr . Cloutier would not have wanted to place on the record,
through correspondence, any reference to the provision of information to the
Security Service and how it was to be provided, for fear someone in the
Department of National Revenue might have access to a copy of such a letter
and might reveal the existence of such an arrangement to unauthorized
persons .
B . KNOWLEDGE BY SPECIFIC SENIOR MEMBERS OF THE
R .C .M .P ., SENIOR GOVERNMENT OFFICIALS AND MINISTERS OF THE LIAISON BETWEEN THE SECURITY SERVICE
AND THE DEPARTMENT OF NATIONAL REVENU E
(a) Commissioner W .L . Higgitt
Summary of evidenc e
15 . Mr . Higgitt, who was Commissioner from late 1969 until 1973, was
aware that the Security Service obtained the co-operation of the Department of
National Revenue (D .N .R .) (Vol . 111, p . 17126) . He was asked whether he
knew how it came about or how the co-operation functioned . He testified that
the co-operation was "generated" by the correspondence between Mr . Starnes
and Mr . Goyer in which Mr . Starnes requested Mr . Goyer's assistance in
obtaining information from government departments . But Mr. Higgitt, when
asked how he knew that that correspondence gave rise to the relationship, could
say no more than that he presumed that there was a response from Mr . Gray,
the Minister of National Revenue (Vol . 111, p . 17127) . (We have no evidence
of any such response . )
16 . Mr . Higgitt does not recall Mr . Goyer doing anything more than writing
to Mr . Gray and discussing the matter with Mr . Higgitt and Mr . Starnes, in
order to attempt to reach an agreement between the Security Service and the
D .N .R . He has no memory of whatever conversation there was between Mr .
Goyer and himself or Mr . Starnes (Vol . 111, p . 17121) .
17 . Mr . Higgitt was aware that the data provided to the Security Service and
the use to which it was put by the Security Service, in general, in no way
related to the Income Tax Act . He was also aware that there was a difficulty
created by section 133 of the Income Tax Act (Vol. 111, p . 17117) .
Conclusion
18. Commissioner Higgitt knew that the Security Service was obtaining
information from the Taxation Division of the Department of National Revenue, and that, at the very least, there was a legal issue involved . Yet he took no
steps to stop the practice, or obtain legal advice from the Department of
Justice.
(b) Mr . John Starnes
Summary of evidence
19 . Mr . Starnes stated that he had no recollection of the fact that there were
arrangements whereby members of the Security Service could obtain informa165
�tion from the records of the Department of National Revenue (Vol . 149, pp .
22826, 22835) . He then stated that his knowledge depended on the point in
time being referred to but said firmly that as of 1970 he did not know of such
arrangements (Vol . 149, p . 22871) . He subsequently said that he "must have
been" aware of the arrangements (Vol . C96, p : 12849) .
Conclusion
20. There is no evidence to suggest that Mr . Starnes knew of the arrangement
that existed with X, the Security Service source who was an employee of the
Department of National Revenue . Indeed, our knowledge of the sensitivity of
members of the Security Service with regard to the identity of human sources
would support the inference that, as there was no need for Mr . Starnes to know
that access to tax information existed, there was no reason to tell him .
Assistant Commissioner Parent, the Deputy Director General on August 20,
1971, in the memorandum to the Commanding Officer of "A" Division
(Ottawa), in which he stated that the Deputy Minister had agreed verbally to
provide information to the Security Service (an agreement and an assertion
which we have concluded did not exist), referred to X by the source code
number already in use . From this it is reasonable to infer that he knew of the
existing arrangements for access . However, because Mr . Parent could not
testify, we lack his evidence as to whether he told Mr . Starnes the whole story .
We do know that on May 20, 1971, Mr. Parent wrote a memo to Mr . Starnes
concerning the whole question of access to information in the possession of
government departments (Ex . MC-7, Tab 16) . He listed several departments,
one of which was the Department of National Revenue (Income Tax Division),
and said in respect of them that "we have had varying degrees of co-operation
[with them] in the past", but that they "have now applied controls to the extent
that we are virtually without access in all . . .[the departments] . . listed" . . . . He
.
also discussed the lack of progress being made by the C .I .B . in obtaining
Cabinet approval for the arrangement it was seeking, and suggested that the
Security Service should launch its own initiative, although nowhere in the
memorandum did he advise Mr . Starnes clearly that a firm arrangement was
already in existence with a source . In our opinion Mr. Parent's memorandum
connoted that for all practical purposes access to information in the hands of
the Income Tax Division of the Department of National Revenue was no
longer available to the Security Service . Consequently, we conclude from the
evidence that Mr . Starnes was not aware that such access continued . There is
no reference in Mr . Parent's memorandum to any question of illegality with
respect to such access .
(c) Mr . M .R . Dare
Summary of evidence
21 . Mr . Dare was aware of the arrangement for access from about 1974 . He
knew that it was solely for the purposes of the Security Service and in no way
intended for the purpose of the collection of income tax (Vol . 126, p. 19707) .
But he says that he did not consider that it was illegal and that at no time was
he aware of the existence of section 133 of the Income Tax Act (Vol . 126, p .
166
�19709) . Consequently, he did not address his mind to whether the arrangement
was contrary to the instructions he gave in his letter of May 22, 1975, that
investigations were to be "within the limits of the law" (Vol . 126, p . 19714) .
Conclusion
22 . Mr . Dare knew of this access but we believe that he did not know of the
legal problem or address his mind to it .
(d) Commissioner Maurice Nado n
Summary of evidence
23 . Commissioner Nadon testified that it was "standard practice" for the
Security Se rv ice to obtain information from the D .N .R . But, he told us, as far
as he was concerned it was legal because of the nature of the information that
was provided (Vol . C61, p . 8492) .
Conclusion
24 . Commissioner Nadon knew of this practice but thought it was legal .
(e) The Honourable George T . Mcllrait h
Summary of evidence
25. Commissioner Higgitt stated, in a longhand note to Mr . Starnes on
September 23, 1970, that he had raised the issue of access to income tax
records with Mr . Mcllraith "a number of times" and said he would "do so
again" . The note continued :
He has not as yet been able to get the Ministry of National Revenue to give
his department the necessary instructions to cooperate even though he
seems to be favourably inclined himself . . .
(Ex . MC-8, Tab 9 .)
Commissioner Higgitt was not asked whether he told Mr . Mcllraith, but it will
be recalled that he testified that neither he, nor, as far as he knows, anyone else
on behalf of the Force told Mr . Mcllraith (or Mr . Goyer) that the Department
of National Revenue was providing tax information to the C .I .B . (Vol . 85, p .
14023) . If he did not tell Mr . Mcllraith about the C .I .B .'s arrangements, it is
unlikely that he discussed with him the even more sensitive matter of the
Security Service .
26. There is no evidence that Mr . Starnes told Mr . Mcllraith of this access .
Indeed, we have found that he did not know of it . Therefore, he could not have
told Mr . Mcllraith .
Conclusion
27. We have no reason to believe that Mr . Mcllraith knew of this practice .
167
�(f) The Honourable Jean-Pierre Goyer
Summary of evidenc e
28. Mr . Goyer denies having had any knowledge that information obtained
by the D .N .R . under the Income Tax Act was provided to the Security Service
(Vol . C50, pp . 6845-6) . He says that, apart from having written to Mr . Gray
on July 27, 1971, and subsequently being told by Mr. Gray that his Department was studying the matter, he had no contact whatever with anyone in the
D .N .R . about his request that the D .N .R . provide income tax information to
the Security Service .
Conclusion
29 . There is no evidence to suggest that Commissioner Higgitt or Mr . Starnes
or anyone else from the R .C .M .P . told Mr. Goyer that the Security Service had
access to this kind of information . We believe that he had no knowledge of
access .
(g) The Honourable Warren Allmand
Summary of evidence
30 . . Mr . Allmand denies that he was aware of any relationship between the
Department of National Revenue and the Security Service whereby the
Department provided tax information to the Security Service (Vol . 114, p .
17637) . He also testified that he was never told by the Security Service they
needed access to such information in order to carry out their duties - in other
words, the issue was not raised with him, even in general terms . He does not
have a clear memory of co-operation between the Department and the C .I .B . in
connection with organized crime (Vol . 114, p . 17638-9) . Mr . Dare told us that
he does not recall any discussion with Mr . Allmand on this matter (Vol . 128,
pp . 19909-10) .
Conclusion
31 . There is no evidence to suggest that anyone told Mr . Allmand of this
practice . We believe that he had no knowledge of the access .
(h) The Honourable Francis Fo x
32. We have no evidence that Mr . Fox was informed of this practice .
(i) Mr. R . Tassé and Mr . R . Bourn e
Summary of evidenc e
33. Mr . Tassé testified that he did not know that members of the Security
Service, whether pursuant to an agreement or not, obtained information from
employees of the D .N .R . (Vol . 157, p . 23852) . Mr . Bourne said that he was not
aware of any agreement that was reached in connection with access by the
Security Service to information in the possession of the D .N .R . (Vol . C85, p.
11682) .
168
�Conclusio n
34. We accept the evidence of these public servants that they did not know of
this relationship . Their ignorance of it fortifies our conclusion that Mr . Goyer,
Mr . Allmand and Mr . Fox were unaware of its existence.
(j) The Honourable Bud Cullen
Summary of evidenc e
35 . Mr . Cullen, who was Minister of National Revenue from September 26,
1975, to September 14, 1976, testified that at no time did he know that any
member of the Department of National Revenue furnished to the Security
Service, for purposes unrelated to the Income Tax Act, information which had
been obtained from taxpayers under that Act (Vol . 117, pp . 18235-6) .
Conclusion
36. The evidence of Mr . Cloutier, the Deputy Minister, was that he was not
aware of the relationship with the Security Service . It supports Mr . Cullen's
evidence that he did not know either . Furthermore, everything in the evidence
of X (summarized in Part III, Chapter 6, of our Second Report) points to that
source having acted on his or her own initiative and without telling anyone else
in the Department . There is no evidence that suggests knowledge on Mr .
Cullen's part, and we believe that he did not have knowledge .
C . KNOWLEDGE BY SENIOR MEMBERS OF THE R .C .M .P ., AND
MINISTERS OF THE LIAISON BETWEEN THE SECURITY
SERVICE AND THE UNEMPLOYMENT INSURANCE COMMISSIO N
(a) Mr . John Starnes
Summary of evidence
37. Mr . Starnes testified that he has no recollection of being aware of any ad
hoc arrangements which may have existed in the field between members of the
Security Service and employees of the Unemployment Insurance Commission
(Vol . 149, pp . 22799, 22824-26) . A memorandum written by Assistant Commissioner Parent to Mr. Starnes on May 20, 1971, (Ex . MC-7, Tab 16)
informed him that the R .C .M .P . had had co-operation from the Unemployment Insurance Commission, but that access to their information was now
virtually non-existent .
Conclusio n
38 . We conclude that Mr . Starnes was aware that information had been
obtained by the Security Service from the Unemployment Insurance Commission and that Mr . Parent's memorandum informed him that such access to
information was no longer available . There is no reference in Mr . Parent's
memorandum to any question of illegality with respect to such access .
169
�(b) Other s
39. With respect to Messrs . Higgitt, Nadon and Tassé and former Solicitors
General Mcllraith, Goyer, Allmand and Fox, our perception of their knowledge of the liaison between the Force and the U .I .C. may be found in Chapter
4 of Part III of this Report .
D . KNOWLEDGE OF SENIOR MEMBERS OF THE R .C.M .P. OF
THE LIAISON BETWEEN THE SECURITY SERVICE AND
THE DEPARTMENT OF NATIONAL HEALTH AND WELFAR E
(a) Mr . John Starnes
Summary of evidence
40 . The memorandum written to Mr . Starnes on May 20, 1971, mentioned
previously, (Ex . MC-7, Tab 16) informed him that the R .C .M .P . had had
co-operation from the Department of National Health and Welfare, but that
access to their information was now virtually non-existent except for some field
level sources .
Conclusion
41 . We therefore conclude that Mr . Starnes was aware that information had
been obtained by the Security Service from the Department of National
Health and Welfare and that Mr . Parent's memorandum informed him that
such access to information was no longer available . There is no reference in
Mr . Parent's memorandum to any question of illegality with respect to such
access .
(b) Other s
42 . With respect to other senior members of the R .C .M .P. and Ministers, our
perception of their knowledge of any liaison between the Force and the
Department of National Health and Welfare may be found in Chapter 4 of
Part III of this Report .
170
�CHAPTER 6
COUNTERING
1 . In our Second Report, Part III, Chapter 7, we described the operational
technique known as "countering" . Because of the numerous possible interpretations of this term, we limit our definition of "countering" in this chapter, as we
did in our Second Report, to any positive steps that may be taken as a result of
the collection and analysis of information, other than the mere reporting of
intelligence to government . Here we deal with the extent to which senior
government officials, senior R .C .M .P . members and ministers were aware of
countering measures undertaken by the Force .
2 . In our Second Report we noted that many perfectly lawful forms of
countermeasures were well known in the Security Service and in the senior
ranks of the R .C .M .P . generally . Disruptive tactics which included an element
of illegality ( such as some of the Checkmate operations), were not as widely
known . Specific Checkmate operations, for example ; were usually known only
to those directly involved in their planning and execution . While senior
members of the Security Service were aware of some cases, there is no evidence
that any Minister or public servant outside the R .C .M .P . knew of such
occurrences, or were even made aware that unlawful methods might be used .
Nor is there any evidence that any Minister or senior official let it be known
that unlawful countermeasures would be tolerated .
3 . In our Second Report, also in Part III, Chapter 7, we Also described a
hybrid type of countermeasure - one that was lawful, yet inappropriate for a
security intelligence agency . Examples of such activities included inducing
employers to discharge subversive employees, leaking information to the media
about the subversive characteristics of individuals or undertaking "conspicuous
surveillance" of domestic groups . While our inquiry could not reach into the
Cabinet room, except as to allegations of implication of Ministers in conduct
not authorized or provided for by law, there is no evidence before us that senior
government officials or Ministers knew of such activities . There is evidence
that in the case of each of the last two activities mentioned, ( we cannot say
whether there were other instances), an operation was authorized by senior
members of the Security Service . There is evidence that, at high levels within
the Security Service and in the R .C .M .P . generally, and among Ministers and
senior officials of government, there was acceptance of two further lawful
activities : the `defusing' programme, in particular as a prelude to visits by
certain foreign dignitaries and international sporting events held in Canada,
and the Security Service's participation in publicizing security threats outside
the ranks of government, at least in the form of addresses by the Director
rPneral in oublic meetings and to private groups .
171
��CHAPTER 7
PHYSICAL SURVEILLANC E
1 . In our Second Report, Part III, Chapter 8, we discussed the legal and
policy issues involved in the investigative practice known as physical su rveillance . Here we examine in detail the extent to which Ministers, and senior
members of the R .C .M .P . were aware of, approved of and responded to the use
of this technique and the legal and policy issues that arose from it . There was
no evidence either through hearings or an examination of R .C .M .P . files that
this technique was discussed with senior government officials . It is reasonable
to assume, however, that some senior government officials who were closely
involved with the R .C .M .P . were aware that the R .C .M .P . might have committed violations of traffic laws and other provincial statutes in the course of
physical surveillance . ( See, for example, Mr . Robertson's comments quoted in
Part II of this Report . )
2 . The statutes which appear to have been violated in physical surveillance
operations frequently have not posed consequences as serious as those which
have been violated, for example, in undercover operations, which may have
involved the commission of more serious criminal offences . Accordingly,
awareness by senior R .C .M .P . members of illegalities arising from physical
surveillance operations may be thought to have a lesser significance here than
it does in other areas we have examined . Nonetheless, as we indicated in our
Second Report, all practices that violate the law - even "minor laws" should be a matter of concern to members of the R .C .M .P ., senior government
officials and to those charged with the responsibility of accounting to Parliament for the R .C .M .P .
(a) The Honourable G .J . Mcllraith
Summary of evidenc e
3 . At the time of his appearance before us, Senator McIlraith appeared not to
be aware of the meaning of the term "Watcher Service" . At one point he asked
Commission counsel to explain the term to him (Vol . 120, p . 18801) . Senator
Mcllraith told us that he had no knowledge of the registration by members of
the Security Service or the R .C .M .P . in a hotel under a false name, although
he admitted that this would be necessary if they were following someone . Even
at the time of his testimony, he stated that he was unsure whether such
registrations were illegal in all provinces (Vol . 120, pp. 18799-800) . Mr .
Mcllraith told us he never gave any thought to the possibility that members of
the Security Service violated traffic laws in the course of their duties (Vol . 120,
p . 18801) . He also testified that the subject of "dummy" registration of moto r
173
�vehicles was never discussed with him (Vol . 120, p . 18802) and he denied any
discussion taking place with Mr . Starnes or anyone else regarding the use of
false documents to establish a false identity for a member of the R .C .M .P . or a
human source (Vol . 120, pp . 18804-5) . Mr . Starnes told us, however, that
"certainly" Mr . Mcllraith would have been knowledgeable about the difficulties of the Watcher Service and "some of the things" that they might be
required to do (Vol . 106, p. 16641) .
Conclusion
4. Our experience in this inquiry leads us to infer that by and large practices
we have referred to here were not regarded by members of the R .C .M .P . as
being of much legal delicacy prior to our Inquiry . Therefore we do not think
there was even any thought devoted to whether the successive Ministers should
be made aware of the practices . Even in the case of a serious matter, such as
using R .C .M .P . facilities to fabricate identity documents apparently issued by
a province, we think it unlikely, based on the general evidence we have heard as
to the relationship between the R .C .M .P . and the Solicitor General, that the
question would have been raised with the Minister . In the absence of any
specific evidence that Mr . McIlraith knew of any illegal activities of the
R.C .M .P . in the course of physical surveillance, we conclude that it is unlikely
that the problems were discussed with him or that he ever turned his mind to
them .
(b) The Honourable Jean-Pierre Goyer
Summary of evidenc e
5 . Shortly after succeeding Mr . Mcllraith, Mr . Goyer visited a Security
Service garage containing surveillance vehicles and associated equipment (Vol .
C50, pp . 6838-40) . Mr . Goyer told us that it was possible that he had asked
officials at the garage if their operations were conducted in accordance with
the law, but he assumed that everything was done according to the law (Vol .
C50, p. 6840) . He said that he was told there that licence plates were changed
on the vehicles from time to time (Vol . C-50, p . 6852), but was not aware of
any legal problem arising from this practice (Vol . C-50, pp . 6854-55) . When
questioned if he knew about the use of false documentation by a member of the
R .C .M .P. or a source employed by the R .C .M .P . (in this case, in order to allow
the person to infiltrate a group more easily), Mr . Goyer replied that the matter
had been discussed, but it had not been presented as a problem, and in fact, he
had never thought of it as being a legal problem (Vol . C50, pp . 6853-4) . Mr .
Goyer told us that no one had presented to him as a problem the violation of
rules of the road (Vol . C50, p . 6856) . He testified that people know, for
instance, that Force members sometimes switch licence plates or use false
identification, and indicated that no responsible Solicitor General would forbid
these legal activities where state security was at stake (Vol . 121, pp . 18882-3) .
He said that he would have expected Mr . Starnes and Commissioner Higgitt to
inform him of legal problems of which they were aware (Vol . C50, pp . 6857) .
Mr . Starnes stated, however, that he was certain that he tried to explain to Mr.
Goyer the problems associated with the Watcher Service but he could not point
to a document in this respect (Vol . 108, p . 16746 ; Vol . 109, p . 16941) .
174
�Conclusio n
6. Mr . Starnes' evidence about the knowledge of Mr . Goyer, like his testimony with regard to that of Mr. Mcllraith, was not sufficiently specific to justify
an inference that the R .C .M .P . made Mr . Goyer aware of the illegality of the
practices we have described .
(c) The Honourable Warren W . Allmand
Summary of evidence
7 . Mr . Allmand testified that, due to time constraints imposed by his duties
as Solicitor General, he had to accept R .C .M .P. assertions that it did not
commit illegalities (Vol . 115, pp . 17703-4, 17712) . He stated that he had been
told that the general work that the R .C .M .P . was carrying on, including
surveillance, was within the law (Vol . 114, p. 17666) . Mr . Starnes told us that
at the beginning of Mr . Allmand's term, the Security Service would have
discussed problems such as the Watcher Service although Mr .Starnes did. not
specify to us the exact problems that would have been drawn to Mr . Allmand's
attention (Vol . 104, pp . 16363-4 ; Vol . 109, p . 16941) . Yet Mr . Tassé told us
that he did not recall any discussions within the period from 1972 to 1975
concerning the obligation of police forces to operate within provincial laws in
performing their duties (Vol . 154, pp . 23372-3) .
Conclusion
8. We accept the evidence of Mr . Allmand, which is supported by 'Mr .
Tassé's evidence, that none of these practices was raised with him .
(d) The Honourable Francis Fox
Summary of evidence
9. In January 1977 Mr. Fox, Mr . Allmand's successor, askéd the R .C .M .P . if
their activities were conducted within the law . Mr . Fox testified that Commissioner Nadon and Mr . Dare responded that, except for the A .P .L .Q . incident,
there were no incidents "à leur connaissance" (to their knowledge) where the
Security Service acted outside the boundaries of the law (Vol . 159, pp .
24396-99) .
Conclusio n
10. There is no evidence before us to suggest that the R .C .M .P. made Mr .
Fox aware of the practices we have described, or that he was aware of them .
(e) Commissioner M .J . Nadon
Summary of evidenc e
11 . Commissioner Nadon testified that he knew that provincial laws and
municipal by-laws were being infringed from time to time . He testified that he
knew that the Watcher Service may have speeded at times (Vol . C61, pp .
8500-1) . He further stated that he knew that undercover agents neede d
175
�fabricated documents and that this could violate provincial statutes (Vol . C61,
pp. 8501, 8517) . He stated that he never knew and was never advised that
documents were being fabricated at R .C .M .P. premises (Vol . C61, pp . 8504-5) .
He stated that he was not aware how identification documents were obtained
(Vol . C61, p . 8505) . He stated that he knew that fictitious registrations and
fictitious licence plates were issued for some cars, but he stated that he was not
aware how they were obtained . He assumed that in many cases false licence
plates were obtained with the co-operation of the Motor Vehicle Branches of
different provinces (Vol . C61, pp . 8506-7) . He stated that he was never made
aware that licence plates were manufactured at R .C .M .P . Headquarters (Vol .
C61, p . 8508) . He felt that the practice of obtaining plates with the co-operation of provincial officials may not have been a violation of provincial statutes,
although he also stated that the practice could be a "technical" violation (Vol .
C61, pp . 8509-11) . He stated that there was a good possibility that members
registered in hotels under false names, although he stated that he was not
aware of any specific place where this was done (Vol . C61, p . 8517) . He
testified that it was a possibility that members of the Force entered garages to
determine the presence of a vehicle, but was not aware of any circumstances
when this arose nor was he aware if entering would be a violation of provincial
petty trespass legislation (Vol . C61, p . 8521) .
Conclusion
12 . Commissioner Nadon was aware of the violation of provincial laws and
municipal by-laws as a result of physical surveillance activities, including
speeding, the use of fabricated identification documents and the use of false
licence plates . Yet Mr . Nadon took no steps to stop those practices, which he
knew to be illegal . He was also aware of the practices of registering in hotels
under false names and entering garages in order to determine the presence of
target vehicles, although he was uncertain as to the legality of those practices .
We accept that he had no knowledge that documents or licence plates were
being manufactured by the R .C .M .P. themselves . With respect to such practices he ought to have made the necessary inquiries to determine whether they
were legal . Mr. Nadon's failure to stop practices which he knew to be illegal
and his failure to determine the legality of those practices as to which he was
uncertain as to their legality were unacceptable .
(f) Mr . John Starnes
Summary of evidenc e
13. Mr . Starnes told us that as he worked his way into his job as Director
General of the Security Service, it became quite clear to him what some of the
problems of the Security Service were (Vol . 101, p . 16024) . He said that the
Watcher Service might have to use false documentation to protect the security
of an operation and that the cars which they used needed false or "dummy"
registrations (Vol . 101, pp . 16025-6, Vol . 103, pp . 16218-9, 16227-8) . Mr .
Starnes said that he supposed that some of these techniques would have been in
contravention of some provincial or federal law (Vol . 101, p . 16026) . He also
spoke of an obvious breach of law by the Watcher Service : "When you hav e
176
�an . . . agent going down a one-way street at 80 miles an hour, and you have to
follow him, obviously you are breaking the law" (Vol . 103, pp . 16226-7) . Mr .
Starnes told us that these were not just potential problems ; some of them were
problems which the Security Service faced from day to day (Vol . 103, p .
16219) . He said that he had hoped that a memorandum entitled "R .C .M .P .
Strategy for Dealing With the F .L .Q . and Similar Movements" (Ex . M-22)
which he had prepared for a December 1970 meeting of the Cabinet Committee on Security and Intelligence would result in some discussion of these
various problems . Mr . Starnes told us that these matters never were in fact
discussed specifically (Vol . 103, pp . 16219-20) . Mr . Starnes told us that he
could not recall whether or not he discussed with Ministers the registering of a
visitor in a hotel under a false name although he stated that he was aware of
the practice . He stated that the Security Service "probably" must have talked
to Ministers about traffic violations and certainly must have discussed dummy
registration of a Watcher Service motor vehicle (Vol . 109, pp . 16880, 16933-5,
16940) .
Conclusion
14. Mr . Starnes was aware of violations of federal and provincial laws
occurring as a result of physical surveillance operations . Specifically, he was
aware of traffic offences, the use of false documentation, false registration in
hotels and the use of false or "dummy" registrations for surveillance vehicles .
In the absence of corroborative evidence, we do not accept Mr . Starnes' broad
statement that the Security Service talked to Ministers about traffic violations
and dummy registrations . We do not feel that senior members of the R .C .M .P.
would have considered the legal problems resulting from surveillance operations were of sufficient concern to bring to the attention of Ministers . Mr .
Starnes took no steps to stop those practices which he considered to be illegal
and in that respect his conduct was unacceptable .
(g) Mr . M .R . Dare
Summary of evidence
15 . We asked Mr . Dare if he was made aware of any problems in the conduct
of the Watcher Service that would involve infractions of the law . He replied
that he would not be doing his job if he did not have some perception of those
problems . He stated that he was reluctant at our public hearing to go into
details about the Watcher Service, but referred to infractions such as speeding
and going the wrong way down a one-way street, indicating that he knew about
"those sorts of things" (Vol . 126, p . 19724) .
Conclusio n
16. Although we did not ask Mr . Dare in detail about his knowledge of
physical surveillance operations, his testimony indicates that he was indeed
aware of some of the legal problems resulting from this type of operation . At
the very least he knew that surveillance operations would result in violations of
provincial traffic laws . It appears that Mr . Dare took no steps to stop these
illegal practices and accordingly his conduct was unacceptable .
177
�17 . We did not address questions about the matters covered in this chapter to
government officials outside the R .C .M .P ., other than Mr . Tassé .
General conclusions
18 . Whereas the testimony of R .C .M .P . officials indicates almost complete
awareness on their part of the illegalities inherent in physical surveillance
operations, testimony of Ministers who held the Solicitor General's post shows
considerable lack of knowledge, both as to the actual covert techniques
involved and, moreover, the legal problems associated with the use of these
techniques . There has been no evidence of any weight before us that the
R .C .M .P . brought the legal problems arising from physical surveillance operations to the attention of Ministers .
19 . The lack of knowledge at the federal ministerial level concerning possible
illegal activities occurring during surveillance operations was likely paralleled
at the provincial level . Any question of the lack of knowledge by senior
provincial officials of these possible violations of the law was, however, largely
resolved under a programme carried out in 1978, during the tenure of the
Honourable Jean-Jacques Blais as Solicitor General . In our Second Report,
Part III, Chapter 8, we described in detail the nature of this programme : There
is no need to repeat that discussion here .
20 . There may be a temptation to regard the attitude of senior members of
the R .C .M .P . toward the types of violations of the law that have been discussed
in this chapter as being something that may be overlooked because they do not
involve criminal offences (apart from the possibility of conspiracy to violate a
provincial statute, which may be an offence) . It is fitting to reproduce here
comments made by us in our Second Report . In Part V, Chapter 4, we said :
As we reported in Part 111, Chapter 8, physical surveillance for both
security and regular police investigations is very likely to involve a number
of legal violations . At the conclusion of that chapter we took the position
that, even though the legal violations resulting from physical surveillance
operations may often be regarded as "minor infractions" or "technical
breaches" of "merely regulatory laws", the continuation of physical surveillance without any changes in the law endangers the rule of law, for it
implies that our security agency or police forces may in their institutional
practices pick and choose the laws which they will obey . We argued that to
permit a national police force or security intelligence agency to adopt a
policy which entails systematic violations of "minor" laws puts these
organizations at the top of a slippery slope . . .
In Part V, Chapter 1, we said :
Nor is the rule of law a principle that should be compromised for the sake
of national security . Government agencies, including a security service,
should not pick and choose which laws they will obey . We do not accept the
idea that there are some `minor', `regulatory', laws which security agencies
should be free to ignore when they stand in the way of security investigations . There may well be a need to change the laws so that exemptions are
provided for members of a security agency or police force, but it is not for
security agencies, or police forces, or even for the Ministers responsible for
these agencies, to decide which laws apply to them and which do not .
178
�PART I V
SPECIFIC CASES NOT REQUIRING
RECOMMENDATIONS
FOR FURTHER ACTIO N
INTRODUCTION
1 . One aspect of our inquiry which has occupied a great deal of our time and
attention is the extent to which the R .C .M .P . reported specific examples or
general patterns of activities "not authorized or provided for by law" to
responsible officials and Ministers .
2 . In Part I of our Second Report we described briefly how the disclosure of
Operation Bricole by former Constable Robert Samson, at his trial in 1976 on
a charge arising out of an unrelated incident, had set in chain a series of events
which culminated in the creation of our Commission of Inquiry . Operation
Bricole took place in October 1972, yet it did not become public knowledge
until March 1976 . Other unlawful' activities did not come to the attention of
the government until over a year after that date, and even then some of them
were not disclosed directly by the R .C .M .P. but by disaffected ex-members and
,
'
by the news media .
3 . We have examined, in Part II of this Third Report, the degree of general
knowledge of Ministers and senior government officials about the R .C .M .P .'s
involvement in illegal activities . In Part III we looked at the extent to which
senior R .C .M .P . members, senior government officials and Ministers, knew of
certain practices of the R .C.M .P . which were "not authorized or provided for
by law" . In Parts IV, V and VI we now examine certain specific incidents of
possible wrongdoing .
4. In Part IV we review a number of incidents with respect to which, for a
variety of reasons, we make no recommendations that they be further considered with a view to prosecution or disciplinary action . In some cases, such as
some of the allegations examined in Chapter 10, prosecutions have already
taken place . In one instance, described in Chapter 9, the destruction of an
article, the matter has already been referred to, and reviewed by, the appropriate provincial attorney general . In still others, although we have found no
illegal conduct, we have criticized the actions of the R .C .M .P . members
involved . In these latter cases we have not recommended references for
examination, for possible disciplinary proceedings, either because those members are no longer active members of the R .C .M .P . and therefore, in our
opinion, no longer subject to disciplinary proceedings, or because the conduct,
while deserving of our comment, does not, in our opinion, warrant discipline .
Finally, in several cases, a thorough review did not disclose any conduc t
requiring censure.
179
��CHAPTER 1
MR. HIGGITT'S MEMORANDUM RE
SURVEILLANCE ON CAMPUSE S
Summary offacts
1 . In Part III, Chapter 11, of our Second Report we described the policies
and practices relating to R .C .M .P. activities with respect to university campuses . We noted that in 1961, the Minister of Justice, the Honourable E .D .
Fulton, then the Minister responsible for the R .C .M .P ., directed the Force to
suspend investigations of subversive activities in universities and colleges . We
pointed out that in 1961 the only activities deemed "subversive" by the
R .C .M .P . were those of Communist organizations, and that as a consequence
the directive to the field by R .C .M .P . Headquarters was " . . .that all investigations connected with Communist penetration of universities and colleges . . ."
were " . . .to be suspended . . ." . The directive to the field also provided that
"long established and reliable agents and contacts in a position to provide
information pertaining to Communist activities . ..may continue to report upon
developments" .
2 . In November 1963, Prime Minister Pearson issued a public statement that
there was " . . . no general R .C .M .P. surveillance of university campuses" but
that for public service screening purposes or where there were "definite
indications that individuals may be involved in espionage or subversive activities" the R .C .M .P . .did go to the universities for information . The R .C .M .P.
had given "absolute assurance . .. that there was not at [that] time any general
security surveillance of university campuses by the R .C .M .P . nor of any
university organizations as such" .
3 . By directive dated November 29, 1967, Assistant Commissioner Higgitt,
who was at that time Director of Security and Intelligence, issued instructions,
which we quoted at length in our Second Report . Our conclusions in our
Second Report with respect to that directive were tha t
.
.. there is no question that the actions outlined and commented on in the
directive represent a comprehensive, long range programme of source
development on campus . The security screening process was being used as a
means of making contact with faculty heads and assistants, even though
they were not mentioned as referees on personal history forms, and persons
who were obviously well disposed were re-interviewed and cultivated in the
hope that a continuing relationship would be established . The method
employed was subtle and indirect but its object was clear : the development
of a number of faculty sources who would contribute to the counter-subversion programme .
181
�Conclusion
4. In our view the issuance of that directive by Mr . Higgitt was improper . He
was fully aware of the stated government policy and, rather than seeking to
have the government change the policy to meet the current needs of the Force,
as he perceived them, he distorted the existing policy to suit those needs .
182
�CHAPTER 2
R.C.M.P. DEALINGS WITH
ROYAL COMMISSION ON SECURIT Y
Introduction
1 . On December 16, 1966, a Royal Commissiôn was appointe d
. . . to make a full and confidential inquir.y into the operation of Canadian
security methods and procedures and, having regard to the necessity of
maintaining
(a) the security of Canada as a nation ; an d
(b) the rights and responsibilities of individual persons ,
to advise what security methods and procedures are most effective and how
they can best be implemented, . . .
Those Commissioners were directed "that the proceedings of the inquiry be
held in camera" .
2. The R .C .M .P . Director of Security and Intelligence, Asst . Commissioner
W .H . Kelly, was in charge of the R .C .M .P . participation in the work of the
Royal Commission on Security . Mr . Kelly, who had joined the R .C .M .P . in
1933, retired as a Deputy Commissioner in April 1970 . From 1964 to 1967 he
was the Director of Security and Intelligence, and in 1967 became Deputy
Commissioner for Operations which included both intelligence and crime .
During the course of the Commission's work, Mr . Kelly dealt with it on almost
a daily basis, and he attended all of the R .C .M .P. meetings with the Commission, with the exception of one or two .
3 . All of the testimony which we heard on this subject was from Mr . Kelly . It
was received in public on July 23 and 24, 1980, and is found in Volumes 195
and 196 of our transcripts. In addition, Mr . Kelly filed a written representation
with us .
Summary offacts
4 . The Royal Commission on Security did not hold formal hearings at which
evidence was taken under oath and recorded verbatim . Rather, their meetings
were of an informal nature at which the Secretary of the Commission kept
notes . Mr . Kelly told us that the R .C .M .P . acted as the researchers for the
Commission except for what he said was the research work done by the
Secretary and the very little research work that was contracted by the
Commission . He said that some briefs were presented to the Commission from
outside interests . Our examination of the records of that Royal Commissio n
183
�disclosed that the Commission had a Director of Research and conducted its
own research programme . No doubt extensive briefs were prepared by the
R .C .M .P . for that Commission, as they were for us . However, those briefs
served for them, as for us, as only one of the sources for the research
programme .
5 . Mr . Kelly testified that, when he was in Montreal in January 1967, he
chanced to meet Mr . E .A . Spearing, a member of the Canadian Association of
Chiefs of Police (C .A .C .P .), who told him that a special committee had been
set up to discuss the preparation of a brief by C .A .C .P . to the Royal
Commission . He said that Mr . Spearing asked him whether or not he, Kelly,
could help them in any way and that he explained to Mr . Spearing it was
useless for the C .A .C .P. to put in a brief dealing with crime because that was
not within the mandate of the Royal Commission . He said that Mr . Spearing
then asked him whether he, Kelly, could let them have something that might
help them in deciding what kind of brief to put in and he agreed to provide
something . Mr . Spearing was a member of the executive of the C .A .C .P . and
also a member of the Special Committee .
6. It appears that Mr . D .N . Cassidy, the Secretary Treasurer of the
C .A .C .P ., had spoken to the Commissioner of the R .C .M .P. about the same
matter sometime before the meeting between Mr . Kelly and Mr . Spearing .
7 . On February 1, 1967, Mr . Spearing wrote to Mr . Kelly. He stated :
This is also a reminder concerning our conversation about the security
matter. You will recall you thought you would prepare a short memo for me
which would assist in our thinking . If you have not already done so, would
you please do this as I am sure whatever you say would be most helpful .
8 . Mr . Kelly prepared a memorandum and forwarded it to Mr . Spearing
under cover of a letter dated February 14, 1967 . He also sent a copy of the
memorandum to Mr . Cassidy .
9. Mr . Kelly told us that he was giving the C .A .C .P . what he thought were
the facts of the situation upon which they could draw if they were so inclined .
He said he knew that the memorandum would reach the Special Committee of
the C .A .C .P ., which was made up of about 10 chiefs of police, "with minds of
their own" . He said he was preparing something to focus C .A.C .P .'s attention
on the security issue because they were insistent on dealing with questions
other than those that the Royal Commission wanted to hear .
10. In his memorandum Mr . Kelly pointed out that the Royal Commission
had "not been set up to discuss security in the context of criminal activity" . He
said that "should the C .A .C .P. wish to comment on the security aspects of
espionage, subversion and sabotage, it could be done, it is suggested, on the
following basis . . ." . The comments he suggested included the following :
.
.. it is felt that the R .C .M .P . is an ideal organization to handle the
problems [subversion] on a national basis and can look for the greatest
possible support in those regions represented by members of th C .A.C .P .
184
�The present arrangement works very satisfactorily and the forces represent. would like to see the present . . .arrangements
. .
ed by the C .A .C .P .
continued, and which they feel are very much in the interests of the
country, and having complete confidence in the abilities of the R .C .M .P . to
undertake this work .
In the field of espionage a great deal of cooperation takes place between the
R .C :M .P. and all of the major police forces in Canada . This cooperation is
given most willingly in an effort on the part of police forces to assist in
countering espionage, which it is considered is a danger to law, order and
good government in the country . This again is an area where it is not
possible to have it handled satisfactorily by other than a national organization . The C .A .C .P . would like to make it clear that it has every confidence
in the R .C .M .P . in this field and that it is the type of organization . . .in
which it can place its complete confidence .
Because of the very nature of counter-espionage investigation, much of it
relates to normal police investigation and the co-operation given by the
forces represented by C .A .C .P . is given on the understanding that the
information involved will be handled with complete police understanding
and the protection of sources without which co-operation would not be
possible . Also, without the confidence in which the R .C .M .P . is now held, it
would not be possible for co-operation of a high quality to exist .
The C .A .C .P . are fully aware of some of the criticism aimed at the Security
and Intelligence Directorate of the R .C .M .P . and, while they feel there may
be some basis for some of the criticism, they also feel that in the main the
critics are ill-inforined, have no appreciation of the difficulties involved, and
usually are criticizing for a purpose which does not lend itself to objectivity .
The police forces represented by C .A .C .P ., working as they do with the
Royal Canadian Mounted Police in all spheres of activity throughout the
length and breadth of Canada, would like it to be known that in the fields .
referred to in paragraph one [espionage, subversion and sabotage] it has the
utmost confidence in the R .C .M .P . and, in the interests of the security of
the country, the R .C .M .P . should retain its present responsibilities .
11 . Mr . Kelly said he was drawing all these matters to the attention of the
C .A .C .P . so that they could prepare a brief in that direction if they wished to
do so.
12. Mr . Kelly said that his memorandum was for the use of Mr . Spearing and
not for the use of the Special Committee, but he confirmed that he sent a copy
to Mr . Cassidy who he knew would be involved in the actual writing and who
would automatically be a member of the Special Committee .
13. The C .A .C .P . submitted a brief to the Royal Commission . In that brief
the C .A .C .P . stated, inter alia :
This will record the complete confidence of the Canadian Association of
Chiefs of Police in the Royal Canadian Mounted Police in the handling of
its responsibilities relating to the security of the country . We regard full
freedom of action as essential to this important national responsibility . It is
clear also that the co-operation of all other law enforcement agencies with
the Royal Canadian Mounted Police is essential to maximum efficiency . All
members of this association are prepared to continue their all-out support
and co-operation .
185
�The brief makes the point in its second paragraph that " . . . while members of
the Royal Canadian Mounted Police belong to this association, none were
appointed to the Special Committee or present at the meeting" .
14 . Mr. Kelly said he had no connection with the Committee or anyone
concerned with the brief and that he was not consulted about it nor was he
informed of its contents . He told us that in preparing the memorandum he was
perhaps a little more helpful than was intended . He said that what he did was
on his own initiative and that it did not occur to him that going as far as he did
could compromise the objectivity of the information which was transmitted to
the Royal Commission . He told us that he was so concerned about getting
every bit of information possible to the Commission that he saw nothing wrong
with what he was doing at the time . He said that he can now see how an honest
attempt to assist could be interpreted in some other way and that with an
analysis of the memorandum it could have been interpreted in a way that he
did not think of at the time .
15. By letter dated May 8, 1967, the Secretary of the Commission advised
Mr . Kelly that the Commissioners and Commission staff would be visiting
certain foreign countries, and he listed them . He said that in the cities in those
countries that they would be visiting they hoped "to be briefed by the domestic
security authorities, and to have discussions with the local Canadian security
officer", and that in certain of them they would like "to discuss the security
aspects of Canadian immigration operations with the local Canadian officials,
including the visa control officers" . The Secretary concluded the letter by
saying: "We should be very grateful if you would inform your local offices of
these plans, and invite them to co-operate with us" .
16 . Mr . Kelly had some correspondence with the officer in charge of the visa
control section in Cologne . In a letter of June 15, 1967, to that officer, Mr .
Kelly told him that he "should feel free to discuss fully with [the Secretary of
the Commission] the Visa Control operations" . In a letter dated August 3,
1967, to that same officer, in discussing a working paper which the officer
proposed to submit to the Commission, Mr . Kelly said, "Insofar as theworking
paper on Visa Control matters, we must see this paper before it is passed to the
Commission so that we can comment thereon and add anything that we think
the paper requires" . He added, "We will be pleased to get your draft paper as
soon as possible and we will return it in plenty of time for submission to the
Royal Commission" . Immediately following this latter sentence there are two
paragraphs which read as follows :
As a matter of interest, I should say that in my appearances before the
Royal Commission they have been somewhat concerned about the rigidity
of criteria and no doubt will ask you whether or not there is room for
flexibility in the criteria . We have taken the stand that to leave room for
flexibility would disturb the criteria and such a suggestion indicates that it
would be quite in order to have a different interpretation on criteria by
every Visa Control Officer . Hence the best and safest way is to keep the
criteria somewhat inflexible . I feel sure that this question will arise in any
discussion group .
186
�Also, the problem of handing security information to Immigration Officers
will arise, as one suggestion was that Immigration Officers should be given
the information and a decision could then be arrived at by the Immigration
Officer and the Visa Control Officer putting their heads together . It was
pointed out that the conditions laid down by our sources prevented us from
doing this and that the Immigration Officers were neither clear [sic] for
security, nor did they seem to be concerned with security in any way . This is
an indication of the kind of question you are likely to get and an indication
of the kind of answers that we have been giving at this end .
Mr . Kelly testified that the purpose of having Headquarters look over the
document would be to see that what was being said was correct and that it had
all the facts in it and that the purpose was not to take anything out, of the
document . He said he has no recollection of having told the Royal Commission
about the process that was followed, but that he would have had no objection to
telling them had the question come up .
17 . By letter dated September 1, 1967, the officer in charge of Visa Control
in Hong Kong wrote to the Director of Security and Intelligence at Headquarters advising that the Royal Commission personnel would be coming to Hong
Kong and he asked for "such comments and/or instructions as you may care to
give in the matter" . In response, by letter dated September 14, 1967, Mr . Kelly
advised that officer that he could participate in any discussions with the Royal
Commission and could arrange meetings with his own contacts if this was
desired and possible . He said also in that letter : "anything that our friends can
convey to the Royal Commission, indicating that Communism is still a
dangerous ideology, will be of value" . Mr . Kelly told us that in writing that he
was giving an indication that he wanted the point stressed .
18 . Prior to the Royal Commission's visit to Washington, Mr . Kelly went
there himself. He told us he did so to ask the F .B .I . to tell the Royal
Commission everything they wanted to know and not to hide anything from
them . He said he did that because he thought that if the Commissioners saw
that the F.B .I . had similar problems to those of the R .C .M .P . the Commissioners would be able to relate the difficulties that the R .C .M .P . had in the same
areas . He said that when he went to see the F .B .I . he thinks he must have told
the F.B .L. what the views of the R .C .M .P . were on the question of separation of
the Security Service from the R .C .M .P ., and that he must have told them "that
the view of non-separation was being put forth in a~very cohesive manner by
the Force" . He said that for years the F .B .I . had been telling him what a
wonderful organization they had in the R .C .M .P . and how they, the F .B .I .,
wished that they were established as a law enforcement agency in the same
manner as the R .C .M .P . He said he felt confident that the F .B .I . would give
the same views to the MacKenzie Commission .
Conclusions
19. We are concerned not so much by each of the individual items recited
above but with what they demonstratecollectively . They show a willingness on
the part of Mr . Kelly to attempt to exercise a degree of influence over the
nature of the information which was flowing to the Royal Commission o n
187
�Security . The purpose appears to have been in each case to attempt to have the
R .C .M .P ., and its role in security at the time, shown in the best possible light .
We are satisfied that what was done did not go to the lengths of manipulating
information being given to the Commission ; rather, it appears to have been an
attempt to influence the nature of the information being given . In these cases
that we have examined there certainly was no attempt to withhold information .
Rather, the attempt appears to have been to influence people, whom the
Commission no doubt would consider were presenting quite independent views,
to stress those points which the R .C .M .P . felt were favourable to itself.
Whether his actions were or were not successful is beside the point .
20 . In his written representations to us Mr . Kelly suggested that, had we
called as witnesses the various persons that he had contact with in the incidents
which we have described in this chapter, we would have found that there was
no effort on his part " . . . to influence them to restrict their information . . ." to
the Royal Commission . These representations demonstrate that Mr . Kelly
continues to have a frame of mind which does not accept that it is not
appropriate for an institution which is under examination to attempt to
influence others whose views are . being sought, as to what views they should
express to the investigating body, particularly without that fact being made
known to the investigating body . We have no evidence on the question of
whether those who Mr . Kelly dealt with were actually influenced in their
conclusions by what he said to them, nor did we seek any such evidence . We do
not need such evidence . What we had under review was Mr . Kelly's willingness
to participate in an attempt to influence those people, without the knowledge of
the Royal Commission, while he, at the same time, was responsible for
R .C .M .P. dealings with that Commission .
21 . We do not consider that Mr . Kelly's approach to the proceedings of the
Royal Commission was proper, and consequently find his conduct in this
regard unacceptable .
188
�CHAPTER 3
CERTAIN ASPECTS OF THE CRISIS OF
OCTOBER 1970 AND ITS AFTERMAT H
1 . This chapter is not a report on the October crisis of 1970 . It is not a report
on the background of the crisis, on the kidnappings that occurred, on the
investigation and detection of the offenders, or on the reasons for the federal
government adopting regulations under the War Measures Act . This chapter
is, rather, limited to certain specific issues which, for reasons we shall explain,
we considered to be not only within our terms of reference but dese rv ing of
investigation and report . Any comprehensive study of the involvement of the
R .C .M .P . in the October crisis and its aftermath would be an enormously
complex and time-consuming task . We did not consider that undertaking that
task was essential to enable us to carry out either part of our terms of
reference . In any event, to do it effectively would have required broader terms
of reference, so that we would have had an unlimited right of inquiry into the
R .C .M .P. as a whole . Indeed, the task could probably be carried out effectively
only by a commission of inquiry created by both the government of Canada
and that of the province of Quebec, because of the jurisdictional limitations
that are met otherwise .
2 . Our inquiry in this area began in 1979 with our focus on whether, during
the October crisis of 1970 and its aftermath years of 1971 and 1972, members
of the R .C .M .P. or its human sources in Quebec committed illegal acts other
than those which had already by then come to our attention . The immediate
impetus for focussing on this issue came from the revelations in public
testimony before the Commission of Inquiry into Police Operations on Quebec
Territory ( the Keable Commission) which in the fall of 1979, heard testimony
in particular from Madame Carole Devault, who had been a source of the
Montreal Police during the time in question . Her testimony caused us to ask
whether members of the R .C .M .P ., or human sources of the R .C .M .P ., had
been active in ways similar to those described by her .
3 . Inquiry in this area required extensive examination of documents in
R .C .M .P . files and interviews with members of the R .C .M .P., by our legal
counsel, whose work was most delicate and sensitive, because of the importance
rightly attached by the R .C .M .P . to the protection of the identity of human
sources . We did not hold formal hearings concerning the matters reported on in
this chapter, but our legal counsel examined some 200 files and interviewed 18
members and ex-members of the R .C .M .P . There are, however, several thousand files relating to the events in Quebec in 1970 and 1971, and it is possible
that, if all those files were examined, further facts might come to light whic h
189
�would be relevant to our mandate . On the other hand, some practical limits
had to be set to our inquiry, and we are satisfied that the work done enables us
to answer certain questions in a reasonably satisfactory manner .
4 . As a result of this research we have identified four specific issues that
appear to us to be worthy of comment . The first three issues are such that, if
certain conclusions were arrived at, it might be said that members of the
R .C .M .P . or its sources had engaged in activities "not authorized or provided
for by law", either in the sense that offences were committed or, in the case of
members, that their conduct was "unacceptable" . The fourth issue is one that
does not relate to activities "not authorized or provided for by law" but, rather,
to the other arm of our terms of reference, which we may briefly refer to as the
policies, procedures and laws "governing the activities of the R .C .M .P . in the
discharge of its responsibility to protect the security of Canada" .
5 . The specific issues that we report on, and the reasons they came to our
attention, are as follows :
(a) Did the .R .C .M .P. have a human source within the Chénier cell or the
Libération cell of the Front de Libération du Québec (F .L .Q .) during
the October crisis of 1970? This issue arose in the course of our
research into whether members of the R .C .M .P. committed acts "not
authorized or provided for by law" during the October crisis, or
instructed or permitted R .C .M .P. human sources to commit such acts
during the October crisis or its aftermath .
(b) Did the R .C .M .P. know of Operation Poupette and of the role played
by Madame Carole Devault, a human source of the Montreal Police?
If so, did the R .C .M .P . communicate its knowledge to the Solicitor
General when the Government of Canada was assessing the weight to
be attached to reports of events in 1971-72, in many of which she
participated as a planner? This issue arose during the fall of 1979 as a
result of the public hearings of the Keable Commission, at which
Madame Devault testified that, during the October crisis of 1970 and
the years 1971 and 1972, she had been a source or informant of the
Montreal Police, under the code-name "Poupette" .
(c) Did the R .C .M .P . in any sense- create or contribute to the climate
which gave rise to concern in the Government of Canada that in the
fall of 1971 there would be occurrences on a scale similar to that of
October 1970? Was the government informed accurately as to the facts
that gave rise to that concern? These issues arose as a result of
examination of R .C .M .P . documents and our realization that there
might be a possibility of such R .C .M .P . involvement through the use of
sources or the non-reporting of relevant information .
(d) To what extent, before and during the crisis of October 1970, were
there difficulties in regard to liaison and co-operation among the police
forces in the province of Quebec? This issue was disclosed by certain
information and opinions given to our counsel while he was interviewing members of the R .C .M .P . as to other matters, and it became
apparent in due course that we could shed some light on this limited
question, which has a bearing on para . (c) of our terms of reference .
190
�We now turn to an examination of these four issues .
(a) Did the R .C .M .P . have a human source within the Libération cell or
the Chénier cell of the F .L .Q . during the October Crisis of 1970 ?
6 . The Libération cell of the F .L .Q . was responsible for the kidnapping of the
British trade commissioner, James R . Cross, in Montreal on October 5, 1970 .
The Chénier cell kidnapped the Province of Quebec's Minister of Labour and
acting Premier, the Honourable Pierre Laporte, on October 10, 1970, and
members of that cell have been convicted of having murdered him on October
17 . In this section we consider whether there is any validity to the suspicion
that has on occasion been expressed in the media that the R .C .M .P . had a
human source within one or both of these cells .
7. Our counsel reviewed a number of files of the R .C .M .P . relating to the
participation of its members in the October events, and other files relating to
persons who were involved in the F .L .Q . or who, before the October crisis, were
recorded as having been friends or acquaintances of individuals who formed the
Libération or Chénier cells during the crisis . He advised us that, although the
R .C .M .P . had human sources who worked directly or indirectly in the F.L .Q .
milieu, none of them was implicated directly or indirectly in the Libération or
Chénier cells . As part of the research into this matter, we sent the R .C .M .P . a
list of the names of 258 persons who, according to a working brief prepared by
the R .C .M .P . in the summer of 1971 and a brief entitled "Current F .L .Q .
Groups" dated November 24, 1971, were involved closely or not so closely in
the events of October 1970 . We asked whether any of those persons had,
during those events, been a human source of the R .C .M .P . The R .C .M .P . then
provided several files to us relating to persons who had been human sources
during that period . We were able to satisfy ourselves that, so far as could be
determined from. those files, no human source of the R .C .M .P . had been
implicated in either one of the cells . Particular attention was paid to one person
who had been an important human source of the R .C .M .P . during the period .
That person's file was reviewed as well as other files which referred to that
person . The result of this review was a conclusion that that person, while
involved in the F .L .Q . milieu, had not worked directly or indirectly in the
Libération or Chénier cells .
8 . It is, moreover, relevant to the question under discussion to observe that
the R .C .M .P . could scarcely have had a source in these cells if it had no
information about the cells : .The R .C .M .P .'s evaluation of the Libération cell
during and after the October crisis was that it was very well organized, and
that its existence and membership had been unknown to the R .C .M .P . before
the kidnapping of Mr . Cross . The Chénier cell was, unlike the Libération cell,
organized spontaneously - after the Cross kidnapping - and was regarded as
having been comparatively poorly organized . Although members of that cell,
such as Paul Rose and Jacques Rose, were well-known to the R .C .M .P. before
the crisis, there was no indication that they were planning to organize a cell or
to kidnap anyone, and the evidence indicates that they did not in fact lay any
such plans and that their actions were inspired by the news of the Cross
kidnapping . This is the essence of an analysis found in an R .C .M .P . draft
191
�memorandum dated September 13, 1975, prepared in Ottawa and Montreal,
which said :
The police forces including the R .C .M .P. had no precise knowledge of the
existence of the Chénier and Liberation cells on or before October 5, 1970 .
By contrast the police forces knew several individuals but were not capable
of identifying them precisely as belonging to one cell rather than to another .
The Liberation cell was formed at the beginning of September 1970 . The
plan to kidnap a diplomat was conceived with a care and professionalism
which subsequently surprised the police forces . The members of the cell had
been chosen with care, their hiding places were well thought out, their
methods of communication worked well, there were few people who knew
the details of the kidnapping, and the principal actors were thus able to live
in clandestinity without difficulty during the fall of 1970 . The Chénier cell
was formed only during the first week of October 1970, and its formation
had all the appearances of improvisation . The hiding place was known to
certain members of the milieu . The hostage was chosen at the last minute .
The communications between its members were carried out in a nervous
manner, often without planning. The editing and issuing of communiqués
during the events of October 1970 was done in a hasty fashion and gave the
impression that there had been no planning or specific strategy .
Thus, individuals who turned out to be involved directly in the events of
October . 1970 may have been known to the R .C .M .P . before October as
members of the F .L .Q . - an amorphous body - but not as members of a
specific cell . Moreover, certain of the leading F .L .Q . members were previously
unknown to the R .C .M .P., particularly Jacques and Louise Cossette-Trudel .
Even when a person in the milieu was known to the R .C .M .P ., it did not follow
that his participation in the events of October was known or even suspected at
the time . Thus, for example, R .C .M .P . files indicate, that Nigel Hamer was
known to the R .C .M .P . from 1969, but not as a member of the F .L .Q . Rather,
he was known as being part of the movements of the extreme left in general .
The R .C .M .P . had learned, for example, that he had been invited, by the
Cuban Consulate in Montreal, to spend a certain period of time in Cuba during
the summer of 1970. However, the files of the R .C .M .P . indicate that it was
only in March 1971, as a result of information received from the Montreal
Police in that month, that Nigel Hamer was suspected by the R .C .M .P . of
having been involved with the Libération cell in October 1970 . It is true that in
December 1970 he had been the subject of surveillance by the R .C .M .P., at the
request of the Montreal Police, who told the R .C .M .P . that he was suspected of
having hidden several cases of dynamite and of being the initiator of the
formation of another F.L .Q . cell . It appears that as early as October 6, 1970,
the Montreal Police had learned from a source that there was a possibility that
Nigel Hamer had participated in the kidnapping of Mr . Cross . In addition, the
Montreal Police learned from their source Carole Devault early in November
1970, that an "anglais" who was a' graduate of McGill University had
participated in the kidnapping of Mr . Cross, and on December 8, 1970, she told
the Montreal Police that Hamer had participated in the kidnapping of Mr .
Cross .
192
�9 . Two suspicions as to possible involvement of members of the R .C .M .P . in
the October crisis kidnappings were investigated by our counsel . One arose
from a member of the Criminal Investigation Branch of the R .C .M .P . having
been seen on a few occasions before October 5, 1970, in the vicinity of Redpath
Avenue in Montreal - that being the location of Mr . Cross' house, from which
he was kidnapped . Our legal counsel interviewed the member, who is still in the
R .C .M .P. He explained that, at the time, he had just been transferred to
Montreal from Chicoutimi and that he was trying to find work for his girl
friend who planned to join him in Montreal . He stated that the kind of work
which he was trying to obtain for his friend was that of a housekeeper, and that
he was meeting people who had advertised for the services of a housekeeper .
There does not appear to be any reason to doubt his explanation or to suspect
him of having been involved in the Cross kidnapping .
10 . The second matter investigated arose from the fact that the name of a
member of the R .C .M .P. and his Montreal office telephone number were found
in the personal notebooks of Louise Verreault, when her apartment on St .Denis Street was searched on November 17 . She had not previously been
known to the R .C .M .P ., but quickly became of interest when it was realized
that she had paid the rent on an apartment on St .-André Street in Montreal for .
August 1970 in the name of the Cossette-Trudels and on their behalf . As a
result of the ensuing inquiries it was learned that she had played a vital support
role for the members of the Libération and Chénier cells, both financially and
by providing a hiding place for Paul Rose for a time . The R .C .M .P . member
whose name was in her books was interviewed by our counsel, who ascertained
that he had, for several years before September 1970, been in the counterespionage branch in Montreal, and from September 1970 to May 1972 was not
stationed in Montreal but at Headquarters in Ottawa . The member explained
that since boyhood he had been a friend of Louise Verreault's brother, Pierre,
and that he had met Louise Verreault on several occasions . His guess as to how
his name and telephone number came to be recorded by Louise Verreault was
that he had given her his business card, for he was in the habit of giving
everyone his card . He stated that he had never "gone out" with Louise
Verreault and did not know that she lived on St .-Denis Street . He gave the
same explanations to his superior in Ottawa in November 1970, when he was
asked the same sort of questions, and the next day, as he was asked to do, he
took Louise Verreault out to dinner, ascertained from her that she knew the
Cossette-Trudels, and obtained her agreement to meet Staff Sergeant Donald
McCleery . She did so, and was questioned on November 18 . We are satisfied
that the R .C .M .P . member was not connected in any way with the kidnapping
of Mr . Cross .
11 . The answer to question (a) is that we have been unable to find any
evidence that the R .C .M .P . had a human source within either the Libération
cell or the Chénier cell .
193
�(b) Did the R .C .M .P . know of Operation Poupette and of the role played
by Carole Devault, a human source of the Montreal Police? If so, did
the R.C .M .P . communicate its knowledge to the Solicitor General
when the Government of Canada was assessing the weight to be
attached to reports of events in 1971-72, in many of which she
-participated as a planner ?
12 . In late 1970, 1971 and 1972, the Montreal City Police had a human
source within some cells of the Front de Libération du Québec (F .L .Q .) . She
was Madame Carole Devault, and her code-name was "Poupette" . As the
activities of the Montreal City Police are beyond our terms of reference, we
shall report on her activities only so far as is necessary to enable us to report on
certain matters involving the R .C .M .P . She did not testify before us, and she
was not interviewed by our counsel . Many details of her activities may be
found in the Report of the Keable Commission .
13. In addition to utilizing the code-name "Poupette", the Montreal Police
ran an operation called "Operation Poupette" . While it is not easy to define the
precise limits of this "operation", a principal function was not just to obtain
information about the activities of members of the F .L .Q . through "Poupette"
but to use her to cause communiqués to be issued in the name of the F .L .Q .
While knowledge undoubtedly existed in the R .C .M .P . in due course as to the
existence of a Montreal Police source named Poupette, that is very different
from suggesting that there was the same level of knowledge that Poupette was
being used to produce communiqués .
14 . On November 6, 1970, Madame Devault told the Montreal Police that a
theft was planned at the Cal Oil Company and that the Viger information cell
was preparing to issue a communiqué . Thus, as of that date, the Montreal
Police were in contact with a cell which in turn was in contact with the Chénier
cell and even, apparently, with the Libération cell . Evidence of such contact is
found in the fact that one communiqué issued by the Viger cell in November
1970 referred to the failure of the Montreal City Police to discover Paul and
Jacques Rose and Francis Simard of the Chénier cell when they had raided an
apartment on Queen Mary Road in Montreal, and that the second communiqué issued by the Viger cell that month was accompanied by a photograph
of Mr . Cross, evidently taken by his captors in the Libération cell .
15 . It was only on or about November 18, 1970 that the other police forces,
the R .C .M .P. and the Quebec Police Force, learned that the Montreal Police
had an informer in an F .L .Q . cell . The information was given to them during a
tripartite meeting during the course of which a representative of the Montreal
Police informed representatives of the other two police forces of the contents of
an apparently complete record of two meetings which representatives of the
Montreal Police had had with Carole Devault . The R .C .M .P . in Montreal then
informed the R.C .M .P . in Ottawa of this new development, but there is no
indication that this information was given to such senior officers as the
Commissioner or the Director General of the Security Service, or passed on to
the Solicitor General or the Prime Minister . The Montreal Police subsequently
kept the other two police forces informed of information they received fro m
194
�Madame Devault . However, this does not necessarily mean that members of
the R .C .M .P . were made aware of all aspects of or developments in Operation
Poupette . About the third week of February 1971 a bomb was placed near the
Délorimier post office in Montreal . Madame Devault had already provided
information to the Montreal Police about .the plan to place this bomb, and that
information had been passed on to the other two police forces . Indeed, before
the bomb was placed, members of the three forces had met with the object of
dividing up among them the surveillance tasks required to ensure that ttîé event
and the individuals were adequately covered . There is no indication, however,
that those members of the R .C .M .P . who knew of these matters saw to it that
their senior management was aware that the Montreal Police had an informer
in the cell and were knowledgeable as to the extent of the ability of the cell to
threaten law and order .
16 . According to the Keable Commission's Report, Madame Devault prepared, or was in some way involved in the production or distribution of,
thirteen communiqués on behalf of F .L .Q . cells between November 14, 1970
and November 19, 1971 . In addition she was able to furnish information about
the production of 7 communiqués, of which either two or three were those in
which an R .C .M .P . source, had a hand . Members of the R .C .M .P . in Montreal
who were aware of her status as a source of the Montreal Police were also
aware of her participation in the preparation and issuing of F.L .Q . communiqués . The R .C .M .P . members learned this through their liaison man who
worked at the office of the anti-terrorist section of the Montreal Police . Two
members of the R .C .M .P . confirmed this fact to our counsel ; they had
conducted liaison for a period in the autumn of 1970 as well as in 1971 . One of
these members informed our counsel that his own consciousness of the use of
the source "Poupette" by her controller, Lieutenant Detective Giguère of the
Montreal Police, in regard to communiqués, arose during the course of the
autumn of 1971 . This member states that it was only in November 1971 that
he met Inspector Cobb in Montreal to discuss with him the suspicions which
the member had developed in this regard . (Mr . Cobb had been away studying
in Quebec City for a year until May 1971, and returned in the summer of 1971
to assume command of "G" section in Montreal .) The R .C .M .P . in Montreal
decided in December 1971 - so far as our counsel has been able to ascertain
- to review all aspects of "Operation Poupette", to check the accuracy of .the
information that was being received from her, and to check whether her
controller was using her in order to spread poor information or even false
information . This decision resulted in a formal operation with its own côde
name . The information obtained by our counsel through examination of files
and interviews with members is consistent with testimony by Mr . Cobb, who
spoke from memory as follows when questioned on this subject on March 12,
1981 :
I almost certainly knew, at that time, that an informant of another police
force could have been the author of communiqués issued in the name of one
or another cell . .. I think I should have been - I think I was .
(Vol . C 121 A, p . 15833 .)
I think that the difficulty that I may have had with that question is that, I
was aware that the Montreal Police had had a source ; I believe that I wa s
195
�aware that she was involved in the drafting of communiqués ; and I knew
that at a certain point I became suspicious of the motives and of the
reliability of xhat source and took a number of initiatives in an attempt t o
verify my suspicions .
(Vol . C121A, p. 15839 . )
However, merely because Mr. Cobb knew by some time during the winter of
1971-72 that Poupette was the author of some of the communiqués, it does not
necessarily follow that he addressed his mind to whether her . involvement
meant that they were "false" and thus potentially unnecessarily alarmist
communiqués . He told us :
If I was aware of it at that time, it was not an awareness that caused me to
think of it as scandalous in any way not that I can recall now .
(Vol . C121A, p . 15842 . )
He considered the communiqués issued by Poupette to be "genuine", not
"false" :
. ..I would have had reason to believe that some if not all of the communiqués were genuine in the sense that they claimed responsibility for
criminal acts that had actually occurred .
(Vol . C121A, p . 15834 .)
They become false only if the controlling agency deliberately introduces
into their contents things that are not wished by the leader of the cell .
(Vol . C121A, p. 15840 . )
In other words, a communiqué is not "false", as Mr . Cobb would have it, even
if it is written by an informant of a police force, if it contained no element
injected by the police force and merely stated what the cell wanted it to say . It
is because he did not consider her communiqués to be false that he had been
able to testify to us in public on July 18, 1978, that he di d
. . . not know of any false communiqué being produced by another police
force.
(Vol . 65, p . 10682 . )
17 . There is another matter to which we wish to refer, even though our
counsel's investigation proved inconclusive . It is a hypothesis that during the
search of the apartment on the Rue Des Récollets where Mr . Cross had been
kept by his kidnappers, after they left the premises on December 3, 1970 to go
to the airport under police escort, the Montreal Police found several blank
sheets of communiqué paper, and that subsequently these were passed on to the
source "Poupette" who in turn distributed them to certain individuals in the
F .L .Q . milieu such as Robert Comeau and Michel Frankland . This theory was
advanced in a study dated January 25, 1978, by a member of the R .C .M .P .
who was one of the R .C .M .P . liaison men with the Montreal Police during the
period . However, it has never been confirmed . We note that the copy of the
Montreal Police reports of the search, as found in an R .C .M .P . file, are
incomplete, in that some pages are missing . According to the Keable Commission Report, the same reports are incomplete in the files of the Montreal
Police.
18 . Did anyone at Headquarters in Ottawa communicate this information to
the Solicitor General or any Minister or public servant outside the R .C .M .P. ?
196
�The answer to this question is found in the results of our counsel's interviews of
Mr . Starnes, who was Director General at the time, and Mr . Goyer, who was
Solicitor General . Each of them advised our counsel that he was in no way
aware either of the name "Poupette" or of "Operation Poupette" in 1971 . It is
true that in 1971, as a result of a request received by the Deputy Solicitor
General of Canada from the Attorney General of Quebec, the federal9gôvernment agreed, through the medium of the R .C .M .P ., to contribute to compensation paid by the Montreal Police to three human sources who had been active
during the 1970 crisis . There is a written analysis by the R .C .M .P . of the work
of these sources, in which their names were given, including that of Carole
Devault . However, the analysis made no reference to "Poupette" or "Operation
Poupette", and we have no evidence that would show that those in the
government who considered and authorized a contribution to the payment
made knew anything about the code-name "Poupette" or the name or meaning
of "Operation Poupette" .
19 . The answer to question (b) is that, so far as we can tell, while during late
1970 and 1971 there were members of the R .C .M .P . who knew that the
Montreal City Police had a source-in the F .L .Q . milieu, and that the source
was Carole Devault, it was only in November and December 1971 that some of
the members began to suspect that her role was more than that of a source of
information - i .e . that there was more to "Operation Poupette" than obtaining information . There is no evidence that any of this knowledge was ever
communicated to the Solicitor General, apart from knowledge that Carole
Devault had been a source of information during the October crisis of 1970 .
(c) Did the R .C .M .P . in any sense create or contribute to the climate
which gave rise to concern in the government of Canada that in the fall
of 1971 there would be occurrences on a scale similar to that of
October 1970? Was the government informed accurately as to the facts
that gave rise to that concern ?
20. We have already referred to the knowledge which the R .C .M .P. had,
from November 18, 1970, of the presence of a source called Poupette who
reported to the Montreal Police and was in the F .L .Q. milieu .
21 . We have mentioned a number of communiqués in which she was involved
in one way or another . It is relevant here to state that our counsel's research
has disclosed that an R .C .M .P . human source, during the year 1971 wrote at
least three communiqués in the name of two different cells of the F .L .Q .
22. The first, dated October 17, 1971, was issued in the name of the F .L .Q.
"Frères-Chasseurs" cell . It read as follows (Ex. MC-197) [translation from
French] :
Front de Libération du Québec
Communiqué Number 1
October 17, 197 1
"Frères Chasseurs" Cel l
Dear Robert, I hope you will understand when I tell you that the Front de
Libération du Québec has not given up the struggle . Young Quebecers are
not running the risk of rotting in your prisons, after having been tortured b y
197
�your police, for the fun of it. You see, my dear Robert, we have no illusions :
there will undoubtedly be many more rigged trials and unwarranted
imprisonments before the first real trial of our history - your own! I assure
you that we cannot remain indifferent when the good woman next door
hangs out her rags between two sheds . On Thursday she was crying because
her husband had lost his job (one of your 100,000 layoffs) . But he didn't
have a .410 shotgun . When the Simards in Sorel have a cold, you can't
sleép. But as for us, we spend sleepless nights thinking about the fact that
Quebec is dying a bit each day because of you . We often think of you and
we will soon come to visit you to discuss all this . In the meantime, pleasant
dreams . Long live the Front de Libération du Québec . Long live Quebecers .
We shall triumph .
23 . The second, dated also October 17, 1971, was issued in the name of the
F .L .Q. "Pierre-Louis Bourret" cell . It read as follows (Ex Mc-197) [translation
from French] :
Front de Libération du Québec
Communiqué No 1
October 1971
"Pierre-Louis Bourret" Cel l
The "October Crisis" was created out of nothing by the refusal of the
authorities to free those Quebecers whose only wrongdoing had been to
attempt to replace them . October 71 : the authorities create another crisis .
Ottawa and the false Quebecers, in the pockets of foreign interests, raise
once again the spectre of "misguided revolutionaries who kill for the sake of
killing" . It was as if the authorities almost hoped that the FLQ would
spring into action in order to distract the people of Quebec from their
disastrous situation . As if FLQ action would serve to excuse the basic
indifference of the leaders . Yet the people do not fear the FLQ, because the
people have nothing to reproach themselves with . It is the guilty who are
afraid of receiving a "visit" . Take a look at how many Pinkerton's and
Phillips guards are at the homes of Drapeau, Choquette, Bourassa, Neapole, Steinberg and their acolytes . Yet there are no armed guards watching
over rue Maricourt or rue Sainte-Elisabeth . The state knows and protects
the guilty! The FLQ also knows . It will not be long before the army returns .
Mark well, Pierre-Louis Bourret killed no one, yet he died . . .the victim,
like so many of our compatriots, of brainwashing - a citizen struck him
down . Coroner Lapointe did not reveal his name for fear of vengeance .
However, we wouldn't even think of getting back at a man who was a
victim of conditioning . We know the name of Pierre-Louis's killer . He has
nothing to fear from the Front de Libération du Québec, but a great deal
more to fear from his conscience . We shall triumph !
24. The third communiqué, which was issued on October 23, 1971, in the
name of the "Pierre-Louis Bourret" cell, read as follows (Ex . MC-196)
[translation from French] :
Front de Libération du Québec
Communique Number (illegible)
October 23, 197 1
Pierre-Louis Bourret Cel l
To commemorate the sad anniversary of the death of democracy in
Quebec, those in power found nothing better to do than to initiate, in the
"Parthenais barracks", another political and legal farce .
198
�Attempts are no longer made to save face by giving a semblance of
justice to the grotesque charades that political trials have turned into . The
most obvious denial of justice occurred at the beginning of the week when
Paul Rose was illegally ushered out of the room when the most important
part of his trial - the selection of the jury - was getting under way .
The crown - at $300 a day - seized the opportunity to assemble
twelve valets of its choice, who are much more the peers of Trudeau,
Bourassa and company than of Paul Rose .
The Front de Libération du Québec wishes to inform the magistrates,
who have long been corrupted by a régime of usurpers, that they have
adopted a suicidal attitude . Several judges have already signed their own
death warrants in this way .
The Front de Libération du Québec has all the time it needs and
couldn't care less about being called "big talkers" by the fascist press .
This press is the instrument of authorities in the grip of panic . By
serving as their instrument it is putting the rope around its own neck .
We shall triumph !
25 . Members of the R .C .M .P . Security Service advised our counsel that the
Security Service in Montreal was not capable of controlling the source
adequately, and that the Security Service in Montreal did not learn of the
existence of the communiqués written by the source until after they had been
issued . This was the position taken when interviewed by our counsel, by a
member of the R .C .M .P . who had been the source's handler . He stated that he
had never asked the source to issue communiqués and that it was only after the
communiqués had been issued that he learned that the source had printed the
blank communiqué pages and issued communiqués in the name of the two cells .
However, there is some room for doubt about this, and for concern that the
handler or other members of the R .C .M .P ., knew in advance of the source's
plans to issue the communiqués . In a telex message from the handler to "G"
Branch at Headquarters dated November 15, 1971, he reported meetings he
had held on October 15 and 23 with a source of "unknown reliability", who,
according to the message, gave details as to how the communiqués had been
issued, ascribing their authorship to other persons who, the source was reported
to have said, had formed the "Frères-Chasseurs" and "Bourret" cells . The
November 15 message concluded by stating that it was a condensing of two
messages which had been sent on October 20 and November 5, 1971 . Those
two messages, according to a note on the Headquarters file, were destroyed at
Headquarters, and our counsel has been advised by the R .C .M .P . Task Force
that has acted as liaison with us, that the messages cannot be located in the
Montreal files . These circumstances invite an inference that the source's
R .C .M .P . handler, who was the author of the messages to Headquarters, was
aware of the direct participation of the . source in the issuing of the three
communiqués . The message of November 15 described step by step what was
done by the persons mentioned and referred to the source by one of his
ordinary names as a participant . Yet it is obvious that the source must have'
been present as these steps were taken, and our counsel is satisfied, on the basis
of his interviews, that of the three persons who were involved in the issuing of
the communiqués, it was the source who was the leader and instigator .
199
�26 . In any event, at least from some time in October 1971, some members of
the R .C .M .P . in Montreal knew that their own human source had issued these
communiqués, and yet the R .C .M .P . appears not to have informed the other
police forces and not to have informed senior management of the R .C .M .P . at
Ottawa as to the true source of these communiqués . Bearing in mind that
Operation Poupette was responsible for approximately thirteen communiqués,
the responsibility of the source for at least three other communiqués produces a
total of at least sixteen communiqués which were issued with the direct or
indireçt participation of persons who were sources of police forces .
27 . Whatever the intention of the police forces may have been, it is possible
to observe that the failure to advise senior management of the R .C .M .P . of the
true facts left it open to senior management to believe, and to communicate to
government, that the F .L .Q . threat in 1971 was on a level of intensity
somewhat higher than it actually was . It is not possible for us to give a
conclusive assessment of the effect which the non-reporting of the true origins
of those communiqués had upon senior management or government, for no
such assessment can be undertaken without knowing all the facts which were
placed before senior management or government, whether by the R .C .M .P . or
otherwise, concerning the situation in Quebec .
28 . In October 1971 there were two telex messages from the R .C .M .P. in
Montreal to Headquarters in Ottawa . Each referred expressly to one of the
communiqués which had been in fact issued by the source ; according to a note
made by Mr. Starnes, these telex messages were shown to the Solicitor
General, the Honourable Jean-Pierre Goyer, and Prime Minister Trudeau . In
addition, a letter was sent by Mr . Starnes on October 28, 1971, which referred
to two of those communiqués . However, there is nothing in these documents or
in the conversations which our counsel had with Mr . Starnes and Mr. Goyer,
which would lead one to believe that either the Solicitor General or the Prime
Minister was informed of the fact that these communiqués had been issued by
an R .C .M .P. source . Mr . Starnes told our counsel that he had not, prior to his
conversation with our counsel, known of the existence of the R .C.M .P .
informer in question .
29. In weighing the evidence as to whether the Government of Canada was
led to attach too much importance to some of the communiqués that were
being issued in the fall of 1971, it may be noted that on October 28, 1971, a
telex message was sent from the R .C .M .P . in Montreal to Headquarters in
Ottawa . This message indicated that several communiqués were the work of
groups infiltrated by the police . The sets of initials marked on the message by
persons at Headquarters, although difficult to read, do not appear to include
the initials of Mr . Starnes .
30 . When calculating the possible effect on senior management and government, of the communiqués which were issued either by those involved in
Operation Poupette or by the R .C .M .P . source, it is also important to remember the following facts: In December 1971, as a result of the actions of
Superintendent Cobb, a communiqué was issued falsely in the name of the
Minerve cell, and was publicized in the media, and senior management was no t
200
�advised of the true origins of that communiqué . (We report on this matter in
Part VI, Chapter 6 .) By letter dated December 29, 1971, the content of the
Communiqué was sent by Mr . Starnes to the Solicitor General, Mr . Goyer,
without any reference to its true origin .
31 . The answer to question (c) is that we have found no evidence that the
R .C .M .P. in any sense created or contributed to the climate that existed in
Quebec in the fall of 1971, except to the extent that a human source' of the
R .C .M .P. participated in issuing three F .L .Q . communiqués in October 1971
and the R .C .M .P . issued the Minerve Communiqué No . 3 in December 1971 .
These facts were not communicated to the government .
(d) To what extent, before and during the crisis of October 1970, were
there difficulties in regard to liaison and co-operation among the police
forces in the province of Quebec ?
32. In 1970 the R .C .M .P . and the other police forces were aware that
subversive movements in other countries used the technique of kidnapping in
order to bring pressure on governments . The police forces were also aware that
there was a great deal of activity in the F.L .Q . milieu during the year 1970 .
There were many bombings, attempted bombings and thefts of dynamite, rifles
and ammunition, and there were unexecuted plots to kidnap the Israeli and
United States consuls in Montreal . These events, preceding the fall of 1970,
had given rise to attempts by the three police forces to co-ordinate their efforts
in the event of a serious emergency . (It is to be borne in mind that our report
on these efforts, as on other matters in this chapter, is necessarily based only on
our access to R .C .M .P . files and interviews with members of the R .C .M .P . We
did not have similar access to the records of the other forces .) An R .C .M .P .
document, apparently prepared in Montreal, dated July 23, 1975, recorded as
follows :
It should be noted that following the attempted kidnapping of American
Consulate Harrison Burgess in June 1970 it seemed police forces met in
order to formulate a plan that would seal the city in the event that another
kidnapping did occur . This plan also involved other security measures and
correspondence on this subject was forwarded to headquarters . However, no
final decision was ever received to implement this plan .
Another joint operational plan which was developed was eventually used in
October 1970 . The 1975 analysis described it as follows :
We followed the contingency plan already prepared :
1 . Alert all detachments .
2 . Border patrols .
3 . Conduct records check of various individuals considered capable of such
actions .
4 . Institute surveillance of questionable subjects .
5 . M .C.P . had to interview neighbours and persons liable to know
information .
6 . M .C .P . and R .C .M .P . had to check for fingerprints at the residence .
7 . Investigations of
document] .
all
information received . [emphasis in original
201
�8 . M .C .P. had to draw profiles of individuals seen in the area .
9 . M .C.P. and R .C .M .P . as soon as communiqués arrived had to check for
fingerprints and typewriter prints, check phraseology and compare .
10 . Show pictures of possible suspects to individuals concerned .
One feature of the joint operational plan, at least in the manner in which it
appears to have been applied by the three police forces during the crisis, may
have hampered rather than accelerated an early resolution of the events . We
refer to item 7, which required investigation of all information received . A
reading of the R .C .M .P . log book in Montreal for the period reveals how much
"information received" consisted of quarrels between neighbours, questions
arising out of relationships between fellow-workers, and the like . Interviews
with R .C .M .P . members suggest that little discretion was exercised as to which
of such items was to be investigated . While we admit to having the benefit of
hindsight, we question whether it was wise to apply an arbitrary rule that all
information be investigated, rather than to exercise discretion as to what to
investigate. In addition to this joint plan, the three police forces established a
working group which was called the Combined Anti-Terrorist Squad (CATS) .
This had been formed in 1964 with the aim of forming a co-ordinated system
to combat terrorism in Quebec . In 1970, only the Montreal Police and the
R .C .M .P . in Montreal belonged to the group, but in September 1970 the
Quebec Police Force joined it . The objectives of this group were as follows : (1)
to exchange information, (2) to co-ordinate investigations of the terrorist
milieu, (3) to evaluate information obtained, (4) to determine priorities, (5) to
divide up tasks among the different police forces . In 1970 this group had no
powers of supervision or decision, for the three police forces continued to
operate in an autonomous fashion . CATS was considered by the police forces
as a secondary instrument of assistance and support if such support was
necessary. In any case, after the second kidnapping this working group ceased
to function effectively .
33 . An R .C .M .P . document prepared in the fall of 1970 records that as of
June 1970 a conservative estimate indicated that there were ten known or
suspected F .L .Q . hard core action cells operating in the Province of Quebec,
and that known Quebec terrorists were in training in the Middle'East .
34 . As we have already indicated, the R .C .M .P . Security Service was aware
of the activities generally of a number of the individuals who became active in
October 1970, but the R .C .M .P. were unaware of the potential for violent
action of certain persons who in fact were involved in the two kidnappings .
Obviously the R .C .M .P . was unaware of the plans of the Chénier cell, and
could not predict the reaction of the Rose brothers or the last minute plans
hatched by them and their confederates . However, that would not support a
conclusion that the R .C .M .P . was ill-prepared or unprepared for the events
which occurred . The lack of knowledge cannot be equated with failure . On the
other hand, we should note that R .C .M .P . members interviewed by our counsel
consider that the three police forces lacked the human sources from whom
information might be gathered, and the analytical expertise to enable them to
develop insight into the existing F .L .Q . cells.
202
�35 . During the October Crisis itself, R .C .M .P . docunwnts indicate that the
division of jurisdiction which is inherent in our federal system, and complicated
by the division of police jurisdiction - within a province between a provincial
police force and municipal forces, was considered by the R .C .M .P . to be a
source of considerable difficulty . It is important to realize that under our
system the provincial and municipal forces have the responsibility for initiating
investigations of crime, and that the R .C .M .P . could fundamentallÿ ;assume
only a supplementary role . This secondary position-in law notwithstanding, in
fact, the R .C .M .P. had a particular interest in the investigation of that crime
and was as heavily involved as the other two forces in the investigation of both
kidnappings . The degree of R .C .M .P . involvement is attributable to the facts
that the first subject of kidnapping was a foreign diplomat, and the federal
government has a certain international and legal responsibility for protecting
the safety of diplomats . Members of the R .C .M .P ., in discussion with our
counsel, described the difficulties encountered in liaison with the other police
forces at the time. According to these members of the R .C .M .P ., inquiries
being conducted by the different levels of police force were not co-ordinated,
the tasks were not divided amongst them, and there was great confusion .
According to them, attempts to establish a co-ordinating body foundered on
the desire of each force to protect its own autonomy .
36. An example of the sense at the time that there was a lack of co-operation
and mutual confidence among the different police forces is found in the
following memorandum dated November 16, 1970 :
It is relevant to note that investigation in the case of Mr . Laporte's murder
is in the hands of the Q .P .F . Homicide Squad and not even the Intelligence
Squad on the same force can obtain information of interest to themselves,
to City Police and to us. . . There is a definite lack of cooperation and trust
between units within the Sûreté itself and there is a gradual growing of
suspicion and mistrust between the Sûreté and the City Police . . .
37. The R .C .M .P . lacked confidence in at least one of the other police forces,
namely the Quebec Police Force, which it suspected, perhaps not . of being
infiltrated by one or more F .L .Q . informers, but at least of having in its midst a
member or members sympathetic to the F.L.Q . An'R.C .M .P. memorandum
dated November 10, 1970, by Corporal J .P .R .A . Noël, which was forwarded
by Superintendent Forest (the officer in charge of the Security and Intelligence
Branch in Montreal) to Ottawa ; recorded some very disturbing news :
Re : Kidnapping of Senior British Trade Commissioner James Richard Cross
- Montreal, Quebec, 5 October 1970 .
I . On November 4, 1970 1 was at the office of the Quebec Police Force in
Montreal discussing with . ["F"], . . , a member of the security squad of
.
the Quebec Police Force whom I previously knew only by sight . The
latter member was about [ . . .] years old . When the discussion turned to
Paul Rose, the member of the Security Squad mentioned that members
of the Quebec Police Force had made a technical installation in the
residence of Paul Rose ("tapped his line") . . . he continued by saying
.
that 18 minutes after the end of the operation [i .e. the installation] . . .,
Paul Rose received a call from someone who said to him : "Watch ou t
203
u
�your line is bugged ." The QPF member added that [the call had been
traced and it had been determined] that the person who called Rose did
so from the Headquarters building of the Quebec Police Force, Parthenais Street in Montreal . He added that if the person who called Rose
had kept the line open several seconds longer, it would have been
possible to determine in a precise way the exact location within the
building from which the call to Paul Rose had come .
2 . .["F"] did not seem to have heard about this incident and the Security
Squad member expressed his surprise that ["F"] was not aware of this
incident . He added that "everybody was talking about it" . This gave me
the impression that he was implying that most members of the Security
Squad of the Quebec Police Force were aware of this incident .
3 . 1 wish to add that this conversation is the only one which has been
brought to my attention about the incident in question, that is no other
person has spoken to me about it .
Our counsel interviewed Mr . Noël, who confirmed the accuracy of the memorandum . Our counsel has no way of verifying the accuracy of what was
recorded in this memorandum, since our counsel did not speak to any representative of the Quebec Police Force . We are aware that this information, if
accurate, is extremely disturbing . For, if the installation and warning occurred
before the death of Mr . Laporte, the implications of the events are obvious .
There is no evidence, in the special file created in 1970 to house this
information, that the memorandum or its contents were transmitted to the
Government of Canada until a copy of the document, with many other
documents on other topics, was forwarded to the Solicitor General's office in
1979 .
38 . Whether true or not, the conversation reported in the above memorandum
could not help but inspire in the R .C .M .P . a lack of confidence in the efforts of
the Quebec Police Force . The attitude of the R .C .M .P . was reflected further by
a memorandum dated November 16, 1970, which read as follows :
It
After six full weeks today of working with the Sûreté and the Montreal
City Police on the Cross-Laporte kidnapping it is necessary to report that
while we have at all times extended full cooperation, we find it increasingly
more difficult to keep abreast of developments as they happen. We have
daily maintained competent NCOs at the Sûreté headquarters where they
have played a leading role in the interrogations of persons arrested and i n
the examination of evidence documents . One of our NCOs has acted as a
liaison officer with us there, another has worked each and every day with
lawyers there on study of the evidence for final decisions on liberations or
on accusations . The center manned by members of the three forces who
formed the anti-terrorist squad sometime ago, we have had a liaison officer
on a 24-hour basis and from two to four analysts every day . Yet unless we
keep constantly calling and requesting, we are not in the picture until hours
later and then often only verbally .
A further memorandum bearing the same date read as follows :
Our man has been on standby at the office on a 24-hour basis to assist in
this operation and the manner of learning of developments as they occu r
204
�should not be as frustrating as it is . We shall try to improve the communication between our forces but because of mistrust, the desire to retain the
best intelligence for one's self and the fact that each force sees no need but
to report to its staff officers, we do not hold much hope for improvement on
what we have been doing this far .
The distrust reached such a level that, when the investigative efforts of
members of the R .C .M .P . Security Service led them to discovery of the
probable place of confinement of Mr . Cross, they did not inform thé other
police forces . It was on November 26, 1970 that Commissioner Higgitt
informed the Solicitor General and the Prime Minister that the R .C .M .P . had
very probably discovered the place where Mr . Cross was being held and where
members of the Chénier cell were to be found . However, it was on November
30, 1970, several hours before the freeing of Mr . Cross, that the R .C .M .P . gave
any information to the other police forces . Reporting on this matter on
December 10, 1970, Commissioner Higgitt wrote the Solicitor General as
follows :
It will be clear from this account that very little would have been needed to
undo many hours, indeed weeks of careful investigation . An unguarded
remark to persons who could not be entirely trusted, unskilled surveillance
or an unconscious inquiry in the wrong quarter and the kidnappers could
have moved and escaped . Throughout the course of this very difficult case,
one of our greatest concerns was that there might be a premature leakage of
information vital to the investigation through the multiplicity of centres
established to deal with various aspects of the crisis and which had
independent and often overlapping lines of communication . Thus I believe
our ability to limit the vital details of the investigation to as few persons as
possible contributed importantly to its successful outcome and there are no
doubt useful lessons to be learned from this fact .
Similarly, as a result of interception of a telephone call by the R .C .M .P., the
R .C .M .P . suspected that members of the Chénier cell were connected with .a
farm located in St-Luc, Quebec . Members of the R .C .M .P . established themselves at a point over four miles from the farm in order to attempt to conduct
interception of telephone calls to and from the farm . However, they did not
learn of the presence of the Rose brothers and Francis Simard at the farm .
After the freeing of Mr . Cross, they ceased surveillance of the farm on
December 4 because during all the time that the telephone to the farm was
tapped, there had been only two calls, neither of which was considered to have
any bearing on members of the cell . The point of this incident that is relevant
to our present discussion is that the R .C .M .P . did not pass on any information
to the other police forces as to their suspicions that the Rose brothers might be
hidden at Michel Viger's farm . It was only as a result of information,
subsequently received by the police forces, that the Rose brothers and Francis
Simard were hidden at the farm, that searches of the farm were carried out by
three police forces on December 22 and 25, 1970, without success, and that on
December 27 and 28 the Quebec Police Force searched it again, successfully,
due to information given to them by Michel Viger ùnder questioning . Commissioner Higgitt referred to the events of December 28 as follows in the letter to
the Solicitor General dated January 8, 1971 :
205
�It should perhaps be added that the RCMP learned of the arrest of Simard
and the Rose brothers from the Sûreté du Québec after the event, about 7
a .m . on the morning of the 28th of December . Subsequently we learned that
when it had been suggested in a telephone call from the farm house to Mr .
St-Pierre, Director General of the Sûreté du Quebec, made early on the
morning of the 28th December, that the Montreal City Police and the
RCMP might be invited to participate, he reacted negatively . Given the key
role which the RCMP played in the discovery of the location, the obvious
desirability of continuing to emphasize the joint nature of the various police
actions which had been mounted against the FLQ and other revolutionary
activities in Quebec in recent years, it is a pity that all three forces could
not have participated in the final phase of the dénouement . A rather
discouraging note upon which to end 1970, and hopefully not a harbinger of
the way in which cooperation between the three police forces in Quebec is
to be conducted in the new year and beyond .
In view of the concerns raised by Corporal Noël's memorandum of November
10, it is not surprising that the R .C .M .P. exercised extreme caution about
sharing vital information with other police forces . In the circumstances this
may have been the only wise course open to the R .C .M .P .
39. The lack of effective co-ordination among the three police forces during
the October Crisis should give cause for concern in the Government of Canada
for the future, if there should be another emergency of the same order in any
region of Canada or in all of Canada, particularly wherever police forces other
than the R .C .M .P . exercise local jurisdiction . Given the federal nature of
Canada, we can offer no panacea . Co-operation may be encouraged, and
attempts can be made in advance of any crisis to create regular mechanisms
that may enhance the possibility of effective co-operation . The police forces
themselves are jealous of their own autonomy, and are - perhaps quite
properly - hesitant to take initiatives without the support of their governments, for such initiatives may have broader ramifications in terms of federalprovincial relations . Therefore the impetus for creating an atmosphere in which
co-operation may grow, even if it may be expecting it ever to flourish may be
an exercise in optimism, must come from the governmental level . We recommend that the Government of Canada study the means by which, wherever
police forces other than the R .C .M .P . exercise jurisdiction, co-operation may
be achieved effectively in the investigation of crime and the enforcement of the
law, whenever situations develop that justify the concern and involvement of
the Government of Canada and the R .C .M .P . as well as of provincial law
enforcement authorities .
206
�CHAPTER 4
BACKGROUND TO CERTAIN SECURITY
SERVICE ACTIVITIE S
IN QUEBEC FOLLOWING THE OCTOBER
CRISIS, AND A N
ANALYSIS OF THREE ATTEMPTS TO RECRUIT
HUMAN SOURCE S
A . BACKGROUN D
1 . In this chapter and in Chapters 5 to 10 of Part VI we examine a series .of
events which raise questions of possible illegality and impropriety on the part of
members of the R .C .M .P. Security Service in the province of Quebec during a
period of a little more than two years following the October crisis of 1970 . The
events we shall examine in these seven chapters are as follows :
1971
October 4 - Attempted recruitment of André Laforest as a source . (Cas e
No . 1 in Part V1, Chapter 5 . )
October 2 0
Attempted recruitment of Jean Castonguay as a source . (Case
No . 2 in the present chapter . )
November 10
Attempted recruitment of Maurice Richer as a source . (Case
No . 3 in the present chapter . )
December
19 - Issuing of a false communiqué in the name of the Minerve Cell
of the F.L .Q . ("Communiqué Minerve 111") . (Reported on in
Part VI, Chapter 6 . )
1972
January 17 - Attempted recruitment of Reynald Michaud as a source .
(Case No . 4 in Part VI, Chapter 5 . )
February 1- Successful recruitment of a human source. ( Case No . 5 in th e
present chapter . )
Sometime - Attempted recruitment of Michel Lemay
early in as a source . (Case No . 6 in Part VI ,
1972 Chapter 5 . )
April - Taking of dynamite from Richelieu Explosives Inc . (Reported
on in Part VI, Chapter 8 . )
May 8-9 - Burning of a barn at Ste-Anne-de-la- Rochelle . ( Reported on
in Part VI, Chapter 7 .)
207
�June - Attempted recruitment of André Chamard as a source . (Case
No . 7 in Part Vl, Chapter 5 . )
October 6-7 - Operation Bricole : surreptitious entry into premises of the
A .P .L .Q . and other organizations and removal and destruction
of documents . ( Reported on in Part V1, Chapter 9 . )
1973
January 8-9 - Operation Ham : entry into the premises of a computer firm i n
order to remove, copy and return tapes bearing information
concerning the Parti Québecois. (Reported on in Part VI,
Chapter 10 . )
2 . These events, of course, represent only a small part of the activities of the
R .C.M .P. Security Service in Quebec relating to various aspects of the
separatist movement . There were many operations of which we are aware, in
which there was no illegal or improper conduct, such as other instances of
attempts to recruit human sources . It would be erroneous and unfair to paint
the actions of those engaged in these investigations with a broad brush of
criminality or wrongfulness .
3 . The period was marked by the establishment at Headquarters in 1970 of
"G" Branch, whose functions were given existence separate from their previous
home - the Countersubversion Branch . It was also characterized by a failure
on the part of Headquarters management personnel to provide proper controls
and guidance to "G" Branch so as to ensure that field operations would be
within the scope and intended limitations of the authority granted to "G"
Branch, and within the law . The officer heading "G" Section in Montreal had
then, and maintains today, a theory of police management that would see
operational decisions in delicate matters taken by the officer in charge in the
field rather than by senior management personnel at Headquarters . His
rationale was that in the event of exposure and outcry the field officer can take
the blame and the damage done to the police force as an institution will be less
than if the blame were attached to a member of the senior management . This
theory was not shared by the Director General of the Security Service, Mr .
Starnes . Nevertheless, when Operation Bricole was suddenly presented to the
officer for approval, as an operation to be carried out that very night, and he
was unable to contact Mr . Starnes, he, himself granted the approval . When
Mr . Starnes learned of the operation several days later, he sent a telex message
to the head of the Security Service in Montreal, saying that he was "considérably irritated" to learn of the operation after the fact . But no record of the
admonition was placed on the officer's personnel file, as would have been the
case if it had been truly regarded as a form of discipline .
4. We find it difficult to comment on the organization of "G" Section in
Montreal and whether the atmosphere or the system was conducive to the
carrying out of illegal or wrongful acts . The Officer in Charge, Inspector Cobb,
attempted to encourage an exchange of ideas among the members of the
Section, and among its several units . He had daily meetings to discuss
developments . He had all the members situated in a single large open offic e
208
�with the object of encouraging communication . Yet the inherent reserve of
police officers and of persons engaged in security intelligence work, particularly those engaged in the handling of human and technical sources and attempts
to recruit human sources, undoubtedly prevented any disclosure of details of
such work at meetings or even iri small groups . The need-to-know principle was
bound to defeat full disclosure'and discussion . We say this without criticism of
the members, especially in regard to human sources, for we fully recognize the
importance within an organization such as the Security Service, of protecting
the identity of sources and even of sources under development or being
considered for recruitment .
5 . Thus we prefer not to pass judgment on whether there was some defect in
the management techniques used in "G" Section that led to the events upon
which we report . We have less hesitation in making three observations of a
different character .
6. First, when Staff Sergeant McCleery was the senior non-commissioned
officer in G-2 (a unit charged with the responsibility for investigating terrorist
groups), he was highly impatient with what he regarded as an ineffective
approach by Mr . Cobb . Mr . McCleery thought that what was needed was
action . He saw Mr . Cobb as a talker but not as a man of action . He may well
have been wrong about this, but that was his perception and in his attitude lay
the seeds of certain of the events .
7. Second, the voluminous evidence we have of these events, particularly
those involving Mr . McCleery, illustrates vividly how little independent judgment is exercised by subordinates within a strongly disciplined police force
when they not only respect the orders of a superior but actually fear the wrath
of the superior if his orders, requests or decisions are even questioned . We are
satisfied that at least some of the men who were junior to Staff Sergeant
McCleery fell into this category in their relationship with him . Because of
these constraints they were prepared blindly and unhesitatingly to accept his
orders or requests, without protesting to him or even questioning him and
certainly without going over his head to raise the matter with a superior
officer . Sergeant Brodeur, who in 1972 was a Corporal serving under Staff
Sergeant McCleery in "G-2", told us that he remembered both Mr . McCleery
and Mr . Cobb saying, "If you can't stand the heat get out of the kitchen" (Vol .
76, p . 12298) . Sergeant Brodeur testified that hesitation about carrying out the
instructions of an immediate superior would result in being classified as
"negative", thereby affecting his chances of career advancement . Consequently, the effect of this atmosphere on Mr . Brodeur, he says, was that he always
obeyed orders and never questioned Mr . McCleery, taking into account that "I
had a wife and two children to look after" .
8. Third, in considering those events that occurred after March 1972 it is
important to remember that in March 1972 a meeting of senior officers of the
Security Service was held near Ottawa . A record of the matters discussed at
that meeting was distributed that same month by Mr . Starnes to senior officers
of the Security Service across Canada . The record stated as follows :
209
�THE NEED FOR DISRUPTION TECHNIQUE S
The Director General indicated that he wanted Security Service
Branches involved to be far more vigorous in their approach to disruptive
activity and that well-conceived operations of this nature would have his
complete support . These points evolved from the discussion .
(I) Disruption could be seen in terms of effective cost control . Where it
was clearly seen that the purposes of an organization or an individual
were at cross-purposes with the maintenance of domestic stability, they
should be neutralized .
(4) The problem of reticence of Divisional C .O.'s when confronted with
disruptive operations should not be allowed to influence our work in
this area . Security Service officers in the Field were committed to
ensuring the completion of tasks set for them by HQ . Those who failed
to comply would be subject to censure, including, if necessary, transfer .
(Ex . M-33, Tab 7 . )
9 . We turn now to an examination of a thesis that has been presented to us
with considerable emphasis by counsel for most of the members who were
involved in those incidents . It is that, in analyzing and characterizing the
conduct of members of the R .C .M .P . during the year following the 1970 crisis
(October to December 1970), regard must be had to the apprehension that
existed within the R .C .M .P . that in October 1971 there would be, as a
recognition of the first anniversary of the October crisis, a renewed outbreak of
terrorist violence. More generally, throughout 1971 there was a serious concern
within the R .C .M .P . that there might be a recrudescence of politically motivated kidnappings, bombings and robberies of the kind that were known during
the October crisis and the seven and one-half years that preceded it .
10. A concise summary of the politically motivated violence in Quebec of the
years preceding the October crisis of 1970 is as follows :
- March 7 to .May 20, 1963 : ten bombings or attempted bombings, resulting
not only in property damage but also in one death and one maiming .
- July 1963 to October 1964 : more bombings, bank robberies and attempted
arson .
- 1965 to 1968 : more robberies, bombings and attempted bombings, resulting
not only in property damage but also, in one instance, in the death of one
person and injuries to others, and, in another instance, in the death of a
man killed by the premature explosion of a bomb he was taking to be
placed at a factory .
- 1969 : more bombings and attempted bombings, as well as serious violence
related to labour-management disputes and hostility concerning language
matters . There were 97 demonstrations in Montreal between October 1 and
November 12 .
While this recitation has not referred so far to prosecutions arising from these
events, we pause to note that early in 1969 Pierre-Paul Geoffroy pleaded guilty
to 129 criminal charges arising out of acts committed between May 1968 and
March 1969 . These included a total of 93 charges of planting explosives,
conspiracy to manufacture bombs and manufacturing bombs, arising from 3 1
210
�bombing incidents . In speaking to sentence, his counsel admitted that 20 of
these were to protest against delay in settling strikes, five were to protest
against the economic-social climate in Quebec and four were in support of the
independence of Quebec . The presiding judge in the Sessions Court, Judge
André Fortin, in passing sentence, said that in the case before him what was
involved were "offences the carrying out of which plunged Montreal society
into a climate of collective panic" [our translation] . We now continue with the
last stage of our brief chronology :
,
- 1970 : during the first nine months there were more bombings, robberies
and thefts of dynamite . In February an attempt to kidnap the Israeli
Consul in Montreal was thwarted, and in June a plan to kidnap the
American Consul was thwarted . On October 5 the Libération cell of the
F .L .Q . kidnapped the Senior British Trade Commissioner in Montreal, Mr .
James R . Cross, and on October. 10 members of the Chénier cell of the
F .L .Q . kidnapped the Quebec Minister of Labour, the Honourable Pierre
Laporte ; who was murdered on October 17 . These two kidnappings caused
the federal Cabinet to proclaim regulations under the War Measures Act
effective at 4 :00 a .m . on October 16 . (We need not refer here to the steps
that were taken by the police forces under those regulations . Those aspects
of the War Measures Act that we have considered to be within our terms of
reference were discussed in Part IX, Chapter 1 of our Second Report. )
11 . We now wish to set forth some background to the contention that
members of the R .C .M .P . feared that there would be a renewed outbreak of
terrorist violence late in 1971 . In his testimony before us, Mr . Robin Bourne,
who was head of the Security Planning Analysis and Research Group
(SPARG) in the federal Solicitor General's Department from mid-1971
onward, said :
We were not only worried about separatists in Government, we were
worried about the extent to which the FLQ could re-emerge and whether
there was going to be another crisis ; and the whole business of the front
commun and getting together and there was a viable social force .
(Vol . 141, p . 21711 . )
The Honourable Jean-Pierre Goyer, who was Solicitor General from late
December 1970 to November 27, 1972, testified and produced a written report
(Ex . MC-70) dated October 29, 1971, which was prepared by SPARG,
obviously based on information provided by the R .C .M .P . It recited some
events of September and early October 1971, what fears existed in regard to
what might happen in mid-October, that the events feared substantially fâiled
to materialize, and why that may have been so . Mr . Goyer told us that on
September 24 there had been a briefing of Ministers at a meeting of the
Cabinet Committee on -Security and Intelligence, and a further briefing of
other Ministers and of the Leader of the Opposition (the Honourable R .L .
Stanfield) on October 1 . Mr . Goyer testified that in late September and early
October trouble was foreseen not only in Quebec but in cities outside that
province. As far as Quebec was concerned, the "apotheosis" was expected to
occur, he said, on October 16, when a mass demonstration was planned and it
was estimated that 30,000 people would participate . (In fact, only about 5,000
211
�people did participate that day, and a mass rally which, according to information received, had been scheduled for the previous evening at the Paul Sauvé
Arena in the east end of Montreal, was cancelled .) Mr . Goyer also mentioned,
as grounds for his having been "reasonably certain" that there was a risk of
serious occurrences, an anticipated strike of the "police forces" in Quebec (see
also Vol . 122, p . 19057), anticipated strikes by students and unions, and the
robbery at Mascouche on September 24 (Vol . C50, pp . 6825-30 ; Vol . 123, pp .
19321-2) . As a result of these fears, he stated, preventive actions were
increased, such as alerting the mass media so that they would not exaggerate
events, and letting persons in the terrorist milieu know that they were being
watched (Vol . 123, pp . 19314 et seq . ; Vol . C50, pp . 6801-28) .
12 . We shall now set out a chronology of selected events in Quebec in 1971,
as we have been able to ascertain them from R .C .M .P . files . Many of them are
publicly known . As we list them, we shall often give information that will
enable the reader to judge whether the event was one which was a cause for
apprehension in late 1971 to the degree that would have been the case if the
R.C .M .P. and other forces had not been reasonably successful in penetrating
some F .L .Q . cells or in investigating and arresting offenders . Some of these
events were included in a list of events in 1971 that was presented to us by
Chief Superintendent Donald Cobb when he testified on July 20, 1978 (Ex .
D-37) . It was presented in support of a claim he had made to us when he first
testified, in December 1977, that in late 1971 there had been an apprehension
of new violence .
1971
January
3 - A communiqué of l'Armée de Libération du Québec (section
métropolitaine) was issued in Montreal . It described l'Armée
de Libération as the military wing of the F .L .Q. Attached to it
was a photograph of armed men training in Jordan .
- During the night a theft of dynamite occurred at St-Paul
d'Abbotsford . According to a Montreal newspaper, Le Devoir,
127 sticks of dynamite and 377 detonators were stolen . Testifying before the Keable Commission in 1979, Madame Carole
Devault (whose code name was "Poupette") said that, as an
informer of the Montreal Police, she had told her handler,
Lieutenant Detective Giguère, of the possibility of this theft .
R .C .M .P . files indicate that after the event the identity of the
persons involved was known .
January
6 - A Molotov cocktail was thrown against a Brinks truck in
Montreal . The Quebec Provincial Police pursued those responsible but lost them . The participants were known to all police
forces from January 6, as a result of information provided by
Madame Devault to the Montreal Police . On January 7 three
daily newspapers received a communiqué from the André
Ouimet cell claiming responsibility for the attack .
January
8 - Le Devoir received a communiqué from the Viger cell . It
deplored the status of Quebecers .
February 12 - A Montreal newspaper, Le Journal de Montréal, received a
communiqué from the Délorimier recruitment cell . It attacked
212
�the capitalist system and referred to a forthcoming bulletin
that would describe how to make bombs . The news item
appeared February 14 . Another police force advised the
R .C .M .P . of the identity of the person who issued it . According to the Keable Commission Report, Madame Devault testified that she advised the Montreal Police of the identity of the
person who issued it . R .C .M .P . records indicate that the
R .C .M .P . was informed .
February 20 - A bomb was placed in the early morning at the Délorimier
post office by four individuals, one of whom was a source of
another police force . Poupette was one of those who planned
this incident, and, as she had warned the police force to which
she reported, members of all three police forces participated in
the police operations preceding and during the incident . Representatives of the R .C .M .P . and other forces had held two
meetings at which this information was received and the three
forces divided among themselves the duties of surveillance of
individuals and other duties . A Quebec City newspaper,
Québec Presse, published a communiqué from the Wilfred
Nelson cell claiming responsibility for the act . On February 21
there was extensive reporting and photographic coverage in
two Montreal newspapers, Montréal-Matin and Le Journal de
Montréal.
February 25 - Two juveniles tried illegally to obtain $500 from a Montreal
businessman and issued a communiqué under the name "Rodier cell" . The communiqué specified how the money was to be
paid . They were arrested the same day by another force .
March
6 - Le Journal de Montréal received a communiqué from the
organization cell called Joseph Duquet . It urged Quebecers to
take up arms . It was published on March 7 . Another police
force advised the R .C .M .P . within several days that the participants were known . According to her testimony before the
Keable Commission, Madame Devault was involved in issuing
this communiqué and reported on it to the Montreal Police
after its publication .
March 14 - A communiqué from the Denis Benjamin Viger cell was found
in a trash can at the exit of the Victoria Métro station . It
criticized the Montreal municipal government and threatened
the planting of bombs .
March 25 - A communiqué from the François Nicholas cell was received
by Québec Presse . It claimed responsibility for a theft from
Air Canada at Dorval Airport, Montreal, on March I 1 .
March 29 - Mario Bachand, who had been well-known to the police forces
as a very active member of the F .L .Q . in the late 1960s, was
murdered in Paris .
March 31 - Four Molotov cocktails were thrown against a Canadian National Railways shed at Ste-Rosalie . A communiqué claimed
that this act was the work of the Armée de Libération du
Québec under the sponsôrship of the Narcisse Cardinal cell .
213
�April - During the first two weeks of April, two communiqués were
issued, one by the Front de libération des professeurs, the other
by the Front de libération des étudiants du Québec . They
explained the groups' positions in opposition to the administration of the CEGEPs (junior colleges) .
April
8 - La Presse received a communiqué from the Amable Daunais
cell (opération CEGEP) . It expressed opposition to the
administration of the CEGEPs. Madame Devault testified
before the Keable Commission that she had furnished the
paper for this communiqué .
April 15 - Another police force received information that a group of
students at a CEGEP in Montreal were planning to kidnap a
federal or provincial minister about May 10 . The R .C .M .P .
was advised . On May 12 another police force advised the
R .C .M .P . that, as the kidnapping did not occur, members of
the other force would interview the participants in the plot .
May 8- A second communiqué from the Joseph Duquet organization
cell was sent to radio stations CKLM and CKAC in Montreal
and a copy was found near the cathedral in Montreal . It
criticized the policies of the provincial government and
attempted to justify the use of violence . Madame Devault
testified before the Keable Commission that she typed the
communiqué .
May 20 - The R .C .M .P. received information that the Laliberté network
of the F .L .Q . planned kidnapping in order to finance F .L .Q .
operations . This information had been obtained from a person
who, according to a document received dated June 2, 1971,
had met Jacques Laliberté on numerous occasions . In addition
to the access which the person had to information about the
activities of the cell, the R .C .M .P. had a human source in the
cell .
July 8- The Désormeaux network planned an armed robbery of a food
market . The conspirators were said to have been the authors of
a robbery of a restaurant in Montreal on May 6, 1971 . The
R .C .M .P .'s knowledge of the planning of the forthcoming
robbery was recorded in an R .C .M .P . telex message dated July
22, 1971 . The R .C .M .P. expected to learn in advance of the
date and place of the proposed hold-up .
August
3 - A bomb exploded at a Steinberg store in Arvida . On August
18 the Narcisse Cardinal cell of the F .L .Q. claimed responsibility in a communiqué . On August 18 another police force
advised the R .C .M .P. that the communiqué had been issued by
its source . Madame Devault testified before the Keable Commission that she had done so .
Late August - Toward the end of this month members of the F .L.Q . raided
three Quebec Civil Defence depots . These raids resulted in the
theft of equipment used for camping, communications, etc .
The Department of National Defence considered that the
nature of the things stolen suggested that a significant rura l
214
�guerrilla group might be set up . In early October 1971, three
persons were arrested in connection with these robberies .
September
3 - A bomb exploded at the Bell Canada office at Dorion, causing
damage of over $200,000 . Investigation of this crime was
unsuccessful .
September 10 - Some Montreal newspapers published a communiqué from the
F .L .Q . which stated that Pierre Vallières had gone into hiding .
He reappeared in December 1971 . Until then, the police forces
tried to find him without success .
- A bank was robbed in Montreal by Pierre Boucher (a convicted F.L .Q . terrorist, who had escaped from the Archambault
prison on August 30) and by two others, including one man
believed to be an F .L .Q . activist . (This event was referred to
by Mr . Goyer at Vol . 123, p . 19317, when he was quoting from
a report dated October 25, 1971, that was prepared by the
Security Planning and Research Group of the Solicitor General's Department - Ex . MC-70. )
September 24 - A Caisse populaire at Mascouche was robbed, one of the
robbers (Pierre Louis Bourret) was killed, and another police
force arrested three persons on October 4 .
September 25 - The Elie Lalumière "commando" of the Viger information
cell issued a communiqué . It claimed responsibility for a
robbery and a burglary .
October
7
A Montreal radio station, CKLM, received a call informing it
that a communiqué could be found in a trashcan at the
Rosemont Métro Station . The communiqué was found ; it was
signed by the Viger information cell . It proclaimed the continued existence of the Viger cell [i .e . despite recent arrests] .
Another police force advised the R .C .M .P . that it knew the
identity of the author of the communiqué . According to the
testimony of Madame Devault before the Keable Commission,
she had furnished the paper for the communiqué and kept her
Montreal Police handler informed .
October
7
A cell planned to kidnap Premier Robert Bourrassa on October 15, 1971 . This information was stated in a telex message
from the Security Service in Montreal to Headquarters on
October 1 5 . The information had come from another police
force, and the message reported that the other force "has all
the individuals belonging to this group under control" . This
wording may mean no more than that the identity of the
individuals was known to the police force and that they were
being watched . The force in question had a surveillance team
in the community where the group lived .
October 17 - Radio station CKLM discovered a communiqué from the
"Frères chasseurs" cell of the F .L .Q . near a Métro station at
the corner of Peel and Maisonneuve Streets in Montreal . It
contained an implied threat to kidnap Premier Bourassa . Two
other communiqués were received, both handprinted, one from
the O'Callaghan cell and one from the Charles-Ambroise
Sanguinet cell . Both threatened selective assassination .
215
�- The Pierre Louis Bourret cell of the F.L .Q . issued its first
communiqué . It was published in Le Journal de Montréal. As
we have already stated in Chapter 3 of this Part, this communiqué, the Frères Chasseurs cell's communiqué issued the
same day, and the second Bourret cell communiqué issued on
October 23, were all issued by a source of the R .C .M .P .
October 22 - Communiqué No. I of the Minerve cell was received by the
Journal de Québec . It attacked the provincial government and
appealed to workers .
- Another communiqué was received by a Quebec City radio
station from the Amable Daunais cell . It contained a threat of
selective assassination .
October 23 - The Pierre Louis Bourret cell issued its second communiqué . It
was found at the corner of Christopher Columbus and Sauvé
Streets in Montreal and a copy was received by a reporter for
Québec Presse .
- A communiqué from the Narcisse Cardinal cell was received
by a Quebec City radio station . It criticized the capitalist
system .
October 25 - A reporter for radio station CKLM found a communiqué
issued in the joint names of eight cells (Viger, Bourret, Nelson,
Ouimet, Délorimier, Duquet, Cardinal and Daunais) . It identified those cells as officially being cells of the F .L .Q . According
to the testimony of Madame Devault before the Keable Commission, she participated in issuing the communiqué and kept
her Montreal Police handler informed .
October 26 - A second communiqué from the Minerve cell was received by
Le Journal de Québec . It criticized the policies of the provincial government and supported the use of violence .
October 29 - A bomb was found in a letterbox situated at the main entrance
to the Rouyn seminary .
Late October, - During this period two additional communiqués were issued,
early November one by the Délorimier cell and one by the Fils de la Liberté
cell . The first announced the formation of the Délorimier cell
and criticized political leaders . The second proclaimed support
for the F .L .Q .
November 4 - A bomb exploded at Rouyn . Four young persons were injured
while handling the bomb and were arrested .
November
5 - A communiqué from the Front de Libération de l'AbitibiTémascamingue was received by a radio station in Abitibi . It
attacked American imperialism and contained threats in
regard to certain persons in the area .
November
9 - According to R .C .M .P . files, another police force's source
and 19 informed that force that a person planned to plant a fake
bomb at Dorval Airport and demand $200,000, which would
be sent to Jacques Lanctôt, an F.L.Q . exile, in Cuba . As
predicted, a communiqué from the Cellule de financement
Jalbert was found at Dorval Airport on November 19, accompanied by a detonator and a demand that Air Canada sen d
216
�$200,000 to Jacques Lanctôt in Cuba . Madame Devault testified before the Keable Commission that she collaborated in
the issuing of this communiqué and it is therefore obvious that
she was the source of the information . The R .C .M .P. file gives
other reasons as well for not taking the incident seriously .
November I I - The Viger cell issued a communiqué, which attacked the
"system" but stated that it is not necessary to use violence to
improve society .
November 19 - A communiqué from the Michèle Gauthier cell was received
by Le Journal de Montréal. It called for the liberation of
workers . Within a week the R .C .M .P. was advised that it had
been issued by a source of the Montreal Police . According to
the testimony of Madame Devault, she participated in the
production of the communiqué .
November 25 - A bomb exploded in a Montreal Police truck . On November
29, a communiqué from the Narcisse Cardinal cell was
received by Le Journal de Montréal, which published it on
November 30 . The communiqué claimed responsibility for the
bomb placed in the Montreal Police truck on November 25 .
November 30 - A communiqué from the F .L .Q . on the general strike was
received by Montréal-Matin .
December 4 - A bomb exploded under a Post Office truck in Montreal, and
another bomb exploded at a private firm in Montreal .
R .C .M .P. records show that, according to a source of another
force, a person had approached the source and asked that the
source prepare a communiqué claiming responsibility for the
two explosions but the source refused to do so because not
enough details were available .
December
7
Another force's source informed that force that the F .L.Q .
planned to commit a robbery that evening during a bingo at a
parish hall at the corner of Robin and Amherst Streets in
Montreal . That evening, four persons were arrested during the
robbery of a bingo cashier at that location . The R .C .M .P . were
informed of these details the next day. The R .C .M .P . file
indicated that Madame Devault participated in the planning of
this robbery, and she confirmed this in her testimony before
the Keable Commission . A document on the R .C .M .P . file
makes it clear that, through her, the other force was fully
aware of the forthcoming robbery in advance .
December
9
The R .C .M .P . received a report that members of the Comeau
network planned to extort money from the president of a food
retail chain . However, some members of the R .C .M .P . did not
take this threat seriously because they were sceptical about the
instigator of the plans, whom the R .C .M .P . may have suspected of being a source of another police force .
December 13 - Pierre Vallières published an article in Le Devoir, explaining
his dissociation from the F .L .Q . and violence, and recommending support for the Parti Québecois .
217
�December 17 - A communiqué issued by the Perreault cell disavowed the new
approach of M . Vallières .
December 20 - Le Journal de Montréal received a communiqué from the
"Phase 2 Libération cell" which questioned the position taken
by Pierre Vallières and demanded that M . Vallières explain his
position in a television interview .
December 20 - Montréal-Matin published the text of a third communiqué
issued by the Minerve cell . (This communiqué was in fact
issued by members of the R .C .M .P . The circumstances are
described in Part VI, Chapter 6 . )
December 21 - In Exhibit D-37 the R .C.M .P. claimed that the F .L .Q . was
planning a kidnapping as of this date . Our counsel and the
R .C .M .P . could not find any documentation referring to this,
although this may be the same matter as a written report that
on December 26, Poupette reported to the police force of
which she was a source that another person had said that a
group of the F.L .Q . was going to carry out a kidnapping .
(We add that there are two events that were referred to in Exhibit D-37 as
having occurred in 1971 that in fact occurred in 1972 : they were dated October
6 and 11 . That Exhibit also contained an item dated October 16, 1971, but we
have not included it in our chronology because the R .C.M .P . has been unable
to locate any document to substantiate it . )
13. Thus, our examination and analysis have demonstrated that of the items
listed the only ones that could be said to be foundations for alarm by October
1971 were those that occurred in July, August and September . Three of the
August and September events were specifically relied upon by Chief Superintentent Cobb when he testified that the events that particularly gave rise to
concern that in October 1971 there would be an outbreak of acts to make the
first anniversary of the October crisis of 1970 were :
(i) the raid in August on three Quebec civil defence depots, which
resulted in the theft of survival equipment that could be used to
equip a rural guerrilla operation ;
(ii) the bank robbery at Mascouche in September ;
(iii) the disappearance of Pierre Vallières in September and his
announcement that, in the words of Mr . Cobb, "he was going
underground to resume the leadership of the armed struggle" .
He stated that the Security Service saw these events a s
confirmation of the information that was also in hand that there was an
offensive being mounted - an offensive, as you can see there, that
appeared likely to involve an armed rural guerrilla operation financing itself
from bank robberies, and led by a person of the intellect of Pierre Vallières,
who, as you know, had previously led operations of the same kind in which
more than one person was killed (Vol . 68, p . 10954) .
14. To some extent we feel bound to discount the rather broad proposition
advanced by Chief Superintendent Cobb in his testimony in 1978, and t o
218
�observe that there was less objective foundation for the alarmist advice that
was given to the government in October 1971 than was required to justify that
advice . However, we readily concede that we have the advantage of hindsight,
and that the presence of police informers in violence-prone groups does not
altogether eliminate the danger which those groups may pose to . the lives and
property of innocent persons . Nevertheless it is unrealistic to ignore two facts .
The first is that each of the two F .L .Q . cells which, according to an R .C .M .P.
analysis dated November 24, 1971, entitled "Current F .L.Q . Groups" (Ex .
MC-195), were considered to be the most active, was penetrated and under
careful surveillance . One of them (Laliberté) consisted of persons who were
well-known to the police forces and had been infiltrated by an R .C .M .P .
source . The other (Comeau) was active only in issuing communiqués, and was
infiltrated by a source of the Montreal Police, and one of its members may
have been a source of another police force . To the extent of the access the
police forces had to the plans of the known cells regarded as most active, the
police were in a better position than they had been in October 1970 .
15 . Despite reservations based on our present knowledge that the police
forces in Quebec had a better intelligence-gathering capacity in 1971 than had
been realized until recently, we accept that there were grounds for continuing
apprehension in October 1971 that violence for separatist purposes might
continue and even escalate . We realize that the disappearance of Pierre
Vallières may well have reminded members of the Security Service of the
disappearance from observation in the late summer of 1970 of some of those
persons who later were involved in the Cross and Laporte kidnappings . It is
also appropriate to note again that there may have been some degree of
concern arising from the possibility that the members of the Quebec Police
Force would go on strike . While we realize that some members of the Security
Service in Montreal were aware that as many as eight of the communiqués
issued between January 1 and October 7 had been issued by or with the full
knowledge of a human source of another police force, and that the same source
gave full information concerning the Délorimier postal office bombing attempt,
nevertheless there were enough incidents remaining unsuccessfully investigated
and about which no similar inside information was available, that there were
grounds for genuine concern . On the other hand, while we try to avoid the
danger of wisdom long after the event, we cannot help but wonder whether the
same degree of concern would have existed if the analytical and reporting
functions of the Security Service had been of a higher calibre . If the latter had
been so, there might have been a comprehensive analysis at management level,
that would have demonstrated, that there were important reasons for some
discounting of the cumulative effect of-the events of 1971 .
16 . Even if the members of the R .C .M .P . were genuinely concerned that
violence might continue and escalate, that, of course, is no justification for
illegal or improper activities . Nor is it a justification for the fact that, somehow
- we do not suggest that it was with the knowledge of Mr . Starnes or anyone
else in senior management who reported to the Solicitor General - the
Minister was not informed of the extent to which the events of 1971 were fully
known to some members of the R .C .M .P . and that at least one of the othe r
219
�police forces had a human source who could provide timely and accurate
information about the activities of some F .L .Q . cells . (The extent of this failure
to provide full information to the government was discussed in Chapter 3 of
this Part . )
B . THREE ATTEMPTS TO RECRUIT HUMAN SOURCES
17 . In this chapter and Part VI, Chapter 4, we examine seven cases in which
members of the R .C .M .P . Security Service in Montreal approached suspected
members of the F.L .Q . in 1971 and 1972 . The objective was to attempt to
recruit them as sources of information about F .L .Q . groups and individuals . If
recruitment failed, it was hoped that knowledge in the milieu that the suspect
had been approached by the R .C .M .P. might cause the suspect'to be distrusted
and cause members of the group he was associated with to be concerned about
the extent to which the R .C .M .P. knew of their affairs .
18 . To a certain extent, therefore, the objective of this programme was,
failing successful recruitment, one of disruption . We note that disruptive
tactics were not a phenomenon peculiar to Quebec, inspired by the fears of a
repetition of the October crisis of 1970 in that province . In Part VI, Chapter 12
we discuss Operation Checkmate, a national programme of disruptive tactics in
the years 1972 to 1974 . All of the examples of that programme that are known
to us occurred outside the province of Quebec .
19 . The issues we shall examine relate not to the merits of the source
recruitment programme itself, but to some ways in which the approaches were
made . The question to be asked in each of these cases is whether the methods
employed were "not authorized or provided for by law" . In the three cases we
report in this chapter we conclude that there was no such conduct . Our report
as to the other four cases contains comments criticizing the conduct of some of
the R .C .M .P. members who were involved, and therefore that report is found
in Part VI .
20 . It is important to remember that these seven cases represent only part of
a large number of approaches that were made . The other instances of the
programme, when the facts were reviewed by our legal counsel, did not give
rise to any question of illegality .
21 . Testimony concerning six of these cases was heard in public on the
following dates in 1978 : March 6, 7, 13, 14, 15, 16 ; May 2, 3, 4, 9, 10, 11 ; June
8, 13, 14, 15, 17 ; July 17, 19, 20 ; September 26, 27, 28 . The corresponding
numbers of the volumes of transcript are 27, 28, 29, 30, 31, 32, 40, 41, 42, 43,
44, 45, 53, 54, 55, 56, 64, 67, 68, 78, 79 and 80 . Testimony was heard in
camera on June 7 (Vol . C13, released in edited form publicly as Vol . 66) and
June 14 (the testimony of the person who was Case No . 5) . Testimony
concerning Case No . 5 was heard in camera because the approach in that case
met with a degree of success in that the suspect became a source for the
Security Service for a time, and we considered that it would not be in the
public interest to disclose this identity .
220
�22 . . All the testimony concerning these cases was given in French, the words
quoted are in translation, and the translation is ours .
General background to the recruitment of human source s
23 . Early in 1970 the Security Service decided to form a new branch, "G"
Branch, to attend to certain functions that previously had been carried out by
the Countersubversion Branch . Thus, in late May 1970, Sub-Inspector Ferraris
was transferred to Headquarters to set up "G" Branch . He testified that its
objectives were as follows :
- to identify the movements of subversive and terrorist groups among the
francophone population in Canada
- the principal aim was to prevent terrorist activities .
(Vol . 27 , pp . 4371 and 4391 . )
By September 28, 1970, he had drawn up directives, which were approved by
the Director General, Mr . Starnes, which stated that the objective of "G"
Branch was that it was to be strictly responsible for dealing with problems
relating to terrorist and separatist activities in Quebec . ..(Ex . M-33, Tab 2) .
The same document stated that the establishment of "G" Branch reflected in
its own way the priority that the federal government gave to national unity . It
added that the "sheer size of the problem in Quebec" would require the
Security Service to concentrate its efforts on obtaining sources at the highest
possible level in organizations clearly of interest to us . Hence, the objective of
"G" Branch was to obtain as much information .as possible on several kinds of
activity, the first of which was all separatist/terrorist activities (Fr . : toutes les
activités séparatistes et terroristes) in the Province of Quebec . We have noted
that this phraseology is open to differing interpretations in the English and
French versions .
24 . Very shortly thereafter, on October 5, Mr . Cross was kidnapped and the
October crisis was under way . For the next two months the development of
such a programme took a back seat to the use of all available personnel for
purposes immediately connected with the crisis .
25. On February 12, 1971 Assistant Commissioner Parent approved a directive entitled "Re : Counter-Terrorist Program" . This had been prepared by
Inspector Long, Officer in Charge of the branch in charge of sources at
Headquarters . In regard to "Terrorist Targets" the memorandum itemized the
following, which were to be among the "future endeavours" of "G" Branch
which were described as having to be "all encompassing and extremely varied" :
(a) Human source penetration by infiltration (long term) ;
(b) Undercover operations by regular members (terminating) [Mr . Ferraris explained this as meaning "short term"] ;
(c) Disruption - coercion and compromise ;
(d) Technical sources as required .
The memorandum also stated :
In view of indications that further serious problems can be anticipated from
the F.L.Q . in the next few months, it is believed that any program that can
221
�be implemented quickly to minimize the effects of any F .L .Q . planned
action should receive top priority . It is contended that item (c) "Disruption
- coercion and compromise" has this potential . It is our belief that a well
conceived plan, properly administered, could have considerable impact on
the F.L .Q . movement .
26. On June 11, 1971, Sub-Inspector Ferraris, Officer in Charge of "G"
Branch, wrote a memorandum to the D .S .I . (Director of Security and Intelligence) (Ex . D-2) . In it he recognized that the Security Service had to
reappraise methods and instructions previously adhered to in regard to source
development . He stated that the development of human sources was to receive
"top priority" . He listed several means that were to be in addition to "normal
methods of source development", one of which was :
III
- Disruptive Tactic s
(a) Selective Interviews of Activists
This method was used during Expo 67 and did meet with some success . If
no agents develop out of this, we have noted that it has in some cases
neutralized the individual .
(b) Disruptive Tactics
Making use of sophisticated and well researched plans built around existing
situations such as, power struggles, love affairs, fraudulent use of funds,
information on drug abuse, etc ., to cause dissension and splintering of the
separatist/terrorist groups .
(c) C.O.D .
Approach known separatist/terrorists and offer them a lump sum payment
in return for good information leading to the arrest and or neutralizing of
terrorist groups. They would be run similar to criminal sources on a short
term basis, with cash paid on delivery for good information . They would be
aware .that if they were caught committing a criminal act they could expect
no help from us .
27. On July 26, 1971, Assistant Commissioner Parent sent to the Commanding officers of the Divisions in New Brunswick and eastern Ontario (Ottawa)
and to the Officer-in-Charge of the Security Se rv ice in Montreal a directive
(Ex . D-7) that reiterated the ideas expressed in Sub-Inspector Ferraris'
memorandum and used substantially the same wording :
III
- Disruptive Tactics
(a) Selective Interviews of Activists
This method has been used in the past with some success . It is felt that with
proper handling and follow through, this type of operation could have good
short term results .
(b) Disruptive Tactic s
Making use of sophisticated and well researched plans built around existing
situations such as power struggles, love affairs, fraudulent use of funds,
criminal activities, etc . have good potential to splinter groups and send
activists to jail .
222
�(c) C.O .D.
Approach known separatist/terrorists and offer them lump sum payment in
return for information leading to the arrest and/or neutralizing of terrorist
groups . They would be run in the same manner as criminal sources, with
the understanding that they could not expect any special favours if they are
caught in a similar situation .
However, Assistant Commissioner Parent's memorandum did not include the
words "coercion and compromise" .
28 . The evidence does not indicate that there was any attempt made by those
developing policy at Headquarters to interpet such words as "disruption",
"coercion" and "compromise" for the benefit of those who were to apply them
in the field, such as Inspector Cobb, who was in charge of "G" Section in
Montreal from May 1971 to August 31, 1972, or the members of the unit
within "G" Section in Montreal, "G-4", which was charged with the responsibility for developing sources among terrorist elements and within movements
that lent support to terrorists . This unit was formed in September 1971 and
was headed by Sergeant Laurent Hugo .
29 . In May 1972 Assistant Commissioner Parent asked for an analytical
report on the various methods of approach to potential sources, which had been
used during the previous six months in the anti-terrorist programme . Inspector
Cobb replied that a document was already being prepared by a civilian
employee, Marie-Claire Dubé, who had been in "G" Section since February
1972 . She had been employed as an analyst, having graduated with a B .A . in
psychology . Her 42-page report, entitled "Activities of Sub-group G-4 of "G"
Section since September 1971" (Exs . D-35 and D-36), was submitted to
Sergeant Hugo on June 9, 1972, and Inspector Cobb sent it to "G" Branch at
Headquarters on July 7, 1972 . Chief Superintendent Cobb testified that her
report was intended as no more than a report to be used for learning and
training purposes . Suggestions were made to us that Mademoiselle Dubé was
young and inexperienced, and that some of the language used by her was really
her own and not that of the members of G-4 whom she had interviewed .
Because some reference is made to her report in these chapters, we express our
view, having heard her testify and compared her report with testimony we have
received from a number of the men she interviewed, that her reporting of the
facts as they were given to her was accurate and reliable .
Case No . 2 : Jean Castonguay
30 . In 1970 Corporal Normand Chamberland was part of G-2 Section in the
Security Service in Montreal, the role of which was to collect information on
terrorist groups . At the beginning of July he telephoned Jean Castonguay, and,
after identifying himself as a member of the R .C.M .P ., he asked to meet him
at his office on St . Catherine Street in Montreal . He wanted to know whether
Mr. Castonguay had been involved in helping two persons who had left Canada
to go to Cuba while they were on parole . Some days later, Mr . Castonguay met
Mr. Chamberland as arranged . According to Mr . Chamberland Mr. Castonguay told him that he led a steady life, was not involved in anything, was livin g
223
�with a woman whom he considered his wife, that he did not want to become
involved again in anything whatsoever, did not want to get mixed up in
anyone's business, and did not want to reveal anything which might embarrass
him later . The interview lasted about half an hour and Mr . Castonguay left .
31 . One year later, still interested in knowing whether Mr . Castonguay had
participated in the travels of the two persons to Cuba, Mr . Chamberland
considered it appropriate to interview Mr . Castonguay again . He spoke about it
to Mr . McCleery who authorized him to do so . Taking into account that Mr .
Castonguay might eventually become a human source, Mr . Chamberland, at
the beginning of October 1971, met Mr . Dubuc, a member of "G" Section,
who had some responsibility for the recruitment of sources . Mr . Chamberland
explained to him that Mr . Castonguay led an orderly life and might respond
favourably to an offer to become a source since he seemed to be in financial
difficulty at the time . This suggestion appealed to Mr . Dubuc, who agreed to
review Mr . Castonguay's file . He spoke about the matter to his superior, Mr .
Hugo, and Mr . Hugo authorized him to make a payment to Mr . Castonguay of
up to $100 should the occasion arise .
32. On October 17, 1971, Mr . Chamberland decided to approach Mr .
Castonguay within the next few days . He learned that Mr . Castonguay worked
at night . On October 19, Mr . Chamberland agreed with Mr . Dubuc that they
would meet Mr . Castonguay the next morning when Mr . Castonguay finished
his work, which normally was about 7 o'clock . About 6 o'clock on the morning
of October 20, Messrs . Dubuc and Chamberland arrived at the parking lot next
to the warehouse where Mr . Castonguay worked . They had only one vehicle
and they were not in contact by radio with anyone else . They waited for Mr .
Castonguay until about 9 :30 a .m . because he worked overtime that day.
33 . After Mr . Castonguay left the warehouse, they followed him for about 15
minutes and finally, when they were close to Mr . Castonguay's home, Mr .
Dubuc brought his vehicle parallel to that driven by Mr . Castonguay so that
Mr . Castonguay could see that Mr . Chamberland was signalling him with his
hand . Mr . Castonguay slowed down, and stopped next to the sidewalk in a
no-parking zone, and Mr . Dubuc stopped his vehicle behind Mr . Castonguay's
vehice . Mr . Chamberland got out of his vehicle and went towards Mr .
Castonguay's car on the passenger side . Mr. Castonguay unlocked the door and
Mr. Chamberland got in . He says that it was not necessary that he give his
name, because it was evident that Mr . Castonguay recognized him when Mr .
Chamberland waved at him from the R .C .M .P . vehicle . Indeed, he says that
Mr . Chamberland stuck out his right hand to shake hands as Mr . Chamberland sat down in Mr . Castonguay's car . Mr . Chamberland says that he asked
Mr . Castonguay if he wanted to come and have a coffee with him and his
colleague, and that Mr . Castonguay accepted . Mr . Chamberland says he then
suggested that Mr . Castonguay park his car around the corner, which he did .
Then Mr . Castonguay and Mr . Chamberland went to the vehicle in which Mr .
Dubuc was sitting, and got into it . Mr . Chamberland says that he introduced
Mr. Dubuc by his name but did not identify him as a member of the R .C .M .P .
because he presumed that Mr . Castonguay would assume that Mr. Chamberland's companion was from the R .C .M .P .
224
�34. There is no essential difference between the version of the events just
described, based on the evidence of the two members of the R .C .M .P . who
were involved, and that given in testimony by Mr . Castonguay . Mr . Castonguay considered that the wave or gesture of Mr . Chamberland toward him was
an indication that he should stop, and we think that that was his interpretation
of what Mr . Chamberland was doing . It was what Mr . Chamberland intended,
for Mr . Chamberland certainly did intend to speak to Mr . Castonguay before
Mr . Castonguay reached his home . Mr . Castonguay said that he did not
recognize Mr . Chamberland, but he also said that he realized that the two men
were policemen . He testified that the policemen who approached him said that
they wanted to speak to him for a minute, and that he (Mr . Castonguay) said
"of course, I am civilized, come to my home, I live just around the corner" .
However, he says, the policemen said that they wanted to speak to him alone
and asked whether he could come into their car . Mr . Castonguay told us that
he agreed to do so, and he confirmed to us that he had the choice of going with
the policemen or not going with the policemen . He testified that he told the
policemen that he would go in order to see what it was they wanted, and that,
once he got into the car, they told him that they wanted to speak to him for a
couple of minutes in the car . He says that the car then started moving, and
what passed through his head was that these two men were either going to take
him somewhere into the woods and kill him or that they wanted to frame him,
for example, by saying that they had found a pound of cocaine or a pound of
hashish in his possession, in which case, as he already had a criminal record, he
would be "cooked like a rat" . Consequently, he says, he was afraid .
35 . In the R.C .M .P . vehicle Mr . Castonguay sat alone in the back seat . After
driving for about 10 minutes in the streets of Montreal, they went into a
restaurant and had a discussion over a cup of coffee . Mr . Castonguay told the
R .C .M .P . members that he led a steady life and was not interested in
co-operating with them . However, after about 15 minutes he agreed to
continue the conversation in a place where they could have a discussion more
easily . Mr . Dubuc slipped away to rent a room in a nearby motel, then
returned to the restaurant and the three of them went to the motel .
36 . The interview there lasted until 1 :30 in the afternoon . Mr . Castonguay
told them that in 1968 he had indeed travelled to Cuba with the two persons in
whom Mr . Chamberland was interested . Mr . Dubuc suggested that he become
a source . According to Mr . Dubuc, Mr . Castonguay indicated that he was
tired, that he had worked all night, and that hé would prefer to discuss the
offer with his wife and go to bed . Mr . Dubuc says that Mr . Castonguay
admitted that the offer was tempting . However, Mr . Castonguay testified that
he agreed to think the matter over for a couple of days in order to bring the
interview to an end and get away . Mr . Castonguay told us that while they were
in the motel room he was obsessed again with the thought, that the policemen
could say that they had found a pound of cocaine or a pound of hash in the
room, and the result would be that he would go to jail for 30 years . Therefore,
he says, he gained time in the sense that he let them know very clearly that he
was not interested in any form of co-operation with them but they did not take
his "no" for an answer .
225
�37. Before leaving the motel, Mr . Castonguay agreed to meet the two
policemen again . He was then driven to a point near his home .
38 . According to Mr . Chamberland, Mr . Castonguay phoned him on October
24, at the telephone number Mr . Chamberland had given him, and arrangements were made to meet the next day at a downtown hotel .
39 . As arranged, the next day, the two policemen met Mr . Castonguay in a
room in the hotel . Mr . Castonguay told them that he was not interested in
becoming involved again in the terrorist milieu .
Conclusions
40 . If Mr. Castonguay's evidence is accepted he was afraid for his safety once
he found himself being driven off, and he says that the same fear existed in his
mind when he was in the motel room . However, we accept the evidence of Mr .
Dubuc and Mr . Chamberland that nothing was said or done to justify such an
apprehension . Moreover, it is unnecessary to rely upon the acceptance of their
evidence in order to reach the conclusion which we do reach . We think that
Mr . Castonguay's claims that he was afraid are rendered incredible by his
admission that he could have left the restaurant at any time . On being asked
about this, he said that the restaurant was a public place and there were many
witnesses, but the fact remains that if he had been afraid, he could have left the
two policemen at the restaurant without any difficulty . It is, moreover, of
importance to note that Mr . Castonguay admitted that at no time during the
entire series of events did the two policemen threaten him in any way or use
any violence against him . He was very emphatic on that point . Our conclusion,
therefore, is that there was no improper conduct on the part of the R .C .M .P .
members involved . They were entitled to discuss the kinds of matters that they
did discuss with Mr . Castonguay . Whatever his reasons, he agreed willingly to
accompany them in their car, in the restaurant, and in the motel . Even though
Mr. Castonguay told us that before he went to the second meeting he had
arranged with his wife that she would contact his lawyer if he did not return .
There is no evidence whatsoever of false arrest, false imprisonment, kidnapping, or any other conduct which is reprehensible in any way .
Case No. 3: Maurice Riche r
41 . Mr . Hugo studied the file concerning Maurice Richer, and noted that this
young man, 20 years of age, had participated in the renovation of the home of
one of the principal members of a terrorist cell, and that some important
persons from that milieu had already met there . Mr. Hugo thought that Mr.
Richer might become an interesting informer .
42 . Members of the Security Service therefore kept an eye on his movements
for some days . Then Mr . Hugo, who was in charge of the operation, decided
that Mr. Richer would be approached on November 10, 1971 . He knew that
Mr . Richer finished work about the supper hour of that day, and Mr . Hugo
went with Corporal Langlois to Mr . Richer's home . Mr. Langlois parked the
R .C .M .P . car among other cars along the edge of the street . The two men
waited while Mr . Dubuc watched Mr . Richer's residence . This surveillance was
226
�the only participation of Mr . Dubuc in the entire operation . About 7 :00 o'clock
in the evening, Mr . Hugo learned from those who were patrolling in the
neighbourhood that Mr . Richer had just got off the bus .
43 . Mr . Hugo went to meet him . He met him on the sidewalk about 100 feet
from his home . He called him by his name and told him that they would like
very much to speak to him . Then Mr . Hugo gave his name and identified
himself as a member of the R .C .M .P . Without having any warrant and without
having any reason to believe that Mr . Richer had committed any offence
whatsoever, Mr . Hugo asked him to identify himself . He also asked him to put
his hands on the roof of one of the vehicles parked on the edge of the street, in
order to search him . Mr . Richer acquiesced readily to these demands without
asking any questions . According to Mr . Hugo, Mr . Richer could have run off.
Mr . Richer was not asked whether he felt free to go if he wished at that time,
but there is no indication in his testimony that he felt constrained, either then
or during the evening and the night that followed when he was in the company
of members of the R .C .M .P. at a restaurant and at a motel . Mr . Richer got
into a car with Mr . Hugo and Mr . Langlois, who was the driver . Mr . Langlois
drove off towards the northern part of Montreal . According to Mr . Richer,
after driving a short distance the car stopped and he got into another car in
which there were two other persons who identified themselves as members of
the R .C .M .P . Mr . Richer's memory is that during the rest of the evening and
night he was not in the company of the R .C .M .P . member who had first
,stopped him . However, Mr . Hugo and Mr . Langlois testified in detail about the
events during the balance of the evening and the night, and we believe that Mr .
Richer's memory must have failed him as to this matter . The discrepancy is of
little consequence, as there is no evidence on the part of Mr . Richer which
could be regarded as in the nature of a complaint against the conduct of the
two men in whose company he spent the balance of the evening and the night .
44 . They went to a restaurant where the two members of the R .C .M .P . had
something to eat but Mr . Richer did not . They then drove further north,
outside Montreal, and Mr . Richer did not know where they were going . Finally
they stopped at a motel and went into a room there . During the balance of the
night, Mr. Richer sat in a chair while the two men conversed with him .
According to Mr . Richer, they asked him about his life and his friends, and
why he had renovated the house we referred to earlier . He says that there were
no threats or violent actions directed against him . When morning came he was
driven back to Montreal and dropped off at the Metro so that he could go to
work . He says that during the course of the night he was offered something to
eat and drink although he did not take anything . At all times he was in the
company of either one of the R .C .M .P . members or both of them . At some
time during the night he says they offered him money if he would work for
them, but he refused to do so . He says he did not ask to leave the motel and did
not think of whether he was free to get up and go ; he says he was simply
waiting until it came to an end .
45 . Mr . Richer does not recall having seen the policemen afterwards, but Mr .
Hugo says he remembers having gone to see him at his place of work two day s
227
�later and being advised that Mr . Richer had not changed his mind and still did
not wish to co-operate with them . Mr . Hugo says that the R .C .M .P . did not try
to see him again .
Conclusion
46. During the whole of the night in question, there is nothing in the
evidence, even in that of Mr . Richer, to suggest that his liberty was constrained
or that he was intimidated in any way . When he testified, he was asked
whether he had been afraid, but he did not say that he had been . He said he
was uneasy and nervous, but he said that he had a nervous disposition . He also
said that he was tired. However, the evidence as a whole, particularly that of
Mr . Richer, satisfies us that the circumstances of this case were very different
from those of Mr . Laforest . There is no evidence that Mr . Hugo and Mr .
Langlois or any other member of the R .C .M .P . employed any form of conduct
which is in the nature of unlawful arrest, false imprisonment or kidnapping . No
doubt the members of the R .C .M .P . hoped that Mr . Richer would become a
source, but on this occasion, on the basis of the evidence before us, it appears
that the approach they took was entirely one of subtlety, in the hope of
persuading Mr . Richer to co-operate . While it may seem strange that Mr .
Richer would willingly stay up all night talking to policemen without really
knowing what the object of their interest was, it nevertheless remains the case
that from beginning to end there is no evidence that his liberty was
constrained .
47 . Consequently there is no evidence of any criminal offence on the part of
Mr . Hugo, Mr . Langlois or any other member of the R .C .M .P ., or any conduct
on their part which is in any way reprehensible .
Case No. 5
48 . Testimony concerning this case was heard in camera . The person, whom
we shall describe as "No . 5", was known to be in continual contact with several
suspected terrorists . Corporal Dubuc, having realized this from reading files
about the middle of January 1972, looked for No . 5 with the help of Constable
Daigle . As they had no success in locating him, Mr . Dubuc asked the watcher
service for assistance . They were successful in locating him, and this resulted in
Mr . Dubuc and Mr . Daigle sitting in a car near No . 5's place of work, waiting
for him to emerge . When he did so about 10 :00 a .m ., and approached Mr .
Dubuc's vehicle, Mr . Dubuc went towards him on foot, identified himself as
being a member of the R .C .M .P ., produced his badge, and asked "Would you
have any objection to talking with us?" According to Mr . Dubuc, No . 5 said
"No objection" and got into the car . No . 5 told us that he got into the back
seat, and was alone there . Then, Mr . Dubuc told us, he said to No . 5 that he
wanted to discuss several subjects and had a certain offer to make to him, and
Mr . Dubuc asked him if he would have any objection to going to a motel so
that they could discuss it more freely . Mr . Dubuc says, that No . 5 acquiesced
without hesitation .
49 . In a room at a motel, according to Mr . Dubuc, No . 5 was told that if he
became a source, he would receive financial assistance . No . 5 confirmed to us
that that offer was made, and testified also that the policemen told him that h e
228
�had done certain things and that drugs could be found at his residence, and
that that could create problems . No . 5 told us that he accepted the offer during
the first third of the conversation . Mr . Dubuc estimated that the discussion in
the motel room lasted about four hours ; No . 5 says that it was at least five or
six hours . Within that time, he says, having received a positive reaction to his
offer, he left the motel to go to see Inspector Cobb, to advise him that No . 5
was favourably disposed to the approach and had financial difficulties, and to
seek authority to pay him $100 . Having obtained the authority to make such a
payment, Mr . Dubuc returned to the motel . Another hour and half or more of
discussion ensued, concerning No . 5's financial difficulties and how much he
might earn as a source. Mr . Dubuc asked No . 5 to tell him about the people he
was seeing, and No . 5 replied by giving names of persons and talking about
what he had done with them . This kind of discussion went on both before and
after the $100 was paid to No . 5 . Mr . Dubuc testified that as far as he was
concerned, there was no intimidation of No . 5, and No . 5 confirmed that he
had not been threatened . Mr . Dubuc asserted to us that he had not threatened
to make difficulties for No . 5 in regard to No . 5's activities with drugs, even
though he knew of them . Mr . Dubuc told us that No . 5 did not ask permission
to leave the motel room and was never refused permission to leave . On the
contrary, Mr . Dubuc says that towards the end of the discussion No . 5
appeared to be enthusiastic about his new role . No . 5, however, testified that at
one point he asked if he could go and the policemen told him : "No, we haven't
finished with you yet ." This was, he said, after the passage of some hours .
When the meeting ended, the R .C .M .P . members drove No . 5 to within a few
blocks of his home .
50 . They met again the next day after No . 5 telephoned Mr . Dubuc . They
went for a long drive in the country and Mr . Dubuc gave No . 5 some literature
which he thought would help No . 5 understand the politics of the time - Mr .
Dubuc had come to realize that No . 5 was not "politicized" even though he
knew people in the terrorist milieu .
51 . Other meetings followed, over a period of six months . More sums of
money were paid .
52 . No . 5 himself did not, in his testimony, claim to have been taken away in
the car against his will, and the only circumstance in the motel room that gives
rise to the possibility of .unacceptable behaviour is the testimony of No . 5 that
he asked if he could leave and was told that they were not yet finished with
him . However, it is clear from his testimony that he had by that time already
accepted their offer and given them some information, and that the reply he
got did not mean that if he tried to leave he would be restricted . Rather, it
meant that they wanted to have more time with him discussing other people .
By that time he was a willing source of information and there is no reason to
treat his evidence as indicative of any restraint on his liberty .
53 . Therefore our conclusion is that the conduct of the R .C .M .P . members is
not open to reproach .
229
��CHAPTER 5
THE FAILURE TO REPORT OPERATION HAM
TO MINISTER S
Introductio n
1 . In Part VI, Chapter 10, of this Report we discuss in detail the operation of
the Security Service which was planned and executed under the code name
Operation Ham . It involved surreptitious entries on several occasions into
private commercial premises, the removal on one occasion of computer tapes
containing data concerning the members of the Parti Quebecois, the copying of
those tapes and their subsequent return to the private premises .
2. The testimony concerning the knowledge of senior R .C .M .P . officials and
Ministers about Operation Ham, on which our comments in this chapter are
based, is found in Volumes 84, 88, 90, 91, 114, 116, 126, 127 and C28 of the
transcripts of the Commission's hearings .
Summary of fact s
3 . The Honourable Warren Allmand was Solicitor General at the time
Operation Ham was carried out in January 1973, and he left the portfolio in
September 1976 . He testified that he did not know of Operation Ham until it
was revealed by his successor, Mr . Fox, in November 1977 .
4 . Mr . Higgitt was Commissioner of the R .C .M .P . from October 1969 until
his retirement in December 1973 . His evidence was that he had no knowledge
of Operation Ham until the evidence concerning the operation was disclosed
publiçly by Mr . Fox .
5 . Mr. Starnes, who was the Director General of the Security Service at the
time of Operation Ham and authorized it, testified that he did not inform Mr .
Allmand about it . He explained "that to do so would have given a political
flavour to the operation" and that therefore he "had good reason not to inform
the Minister" . He says that he informed neither the Commissioner of the
R .C .M .P . nor any other senior officials . He told us that " . . . to have involved
Ministers or to have involved persons outside the Security Service in the
decision about Operation Ham, . . . would not have been a proper thing to do" .
6. Mr . Dare, who succeeded Mr . Starnes as Director General of the Security
Service on May 1, 1973, was aware of Operation Ham at least as early as
August 19, 1974, when he received the Samson "Damage Report" . He testified
that he "did not perceive Ham to be illegal" . He said that he did not disclose
the Operation to any Solicitor General until October 31, 1977, when he did s o
231
�to Mr . Fox . As to the reasons that he did not advise Mr . Fox about Operation
Ham earlier than he did, Mr . Dare said : "[It was] . . . well known to the persons
in charge, the Commissioner of the day and my predecessor, and I did not see
it as my responsibility to re-open decisions of my predecessor or, indeed, throw
anything in a disparaging way on decisions of the Commissioner of the day" . It
is not clear whether, in saying that the operation was " . . .well known to
. .. the Commissioner of the day . .", he was referring to Commissioner Higgitt,
.
who was the Commissioner when the operation took place or to Commissioner
Nadon, who was the Commissioner at the time that Mr . Dare learned of the
operation in 1974 and remained Commissioner until September 1977 .
7 . We have indicated above that Mr . Higgitt's testimony was that he did not
become aware of the operation until it was disclosed publicly by Mr . Fox . Mr .
Nadon testified that he did not know about the operation until after he retired
from the R .C .M .P . in 1977 . However, Mr . Nadon testified that the Samson
Damage Report was discussed with him by Mr . Dare in August 1974 and as
noted above, that report makes reference to Operation Ham .
8 . It is clear that Mr . Starnes authorized the operation and was aware of its
execution and that he did not advise either Commissioner Higgitt or Mr .
Allmand about it . It is also clear that Mr . Dare became aware of the operation
at least as early as August 1974 and that he did not notify Mr . Allmand ; nor,
until December 31, 1977, did he notify Mr . Fox, who had become Solicitor
General in September 1976 .
Conclusion s
9 . We do not consider acceptable Mr . Starnes' reasons for not disclosing the
operation to his Minister, Mr . Allmand . For reasons which we expressed in
Part III, Chapter 1, of our Second Report, in our opinion it is not proper to
withhold information from a Minister on the ground that it might place him in
an untenable position . Nor do we consider that to advise the Minister would
"have given a political flavour to the operation" . If, in the opinion of Mr .
Starnes, the operation was an appropriate one to be undertaken by the Security
Service and, if discovered, it was liable to create serious difficulties for the
government, then it was precisely the sort of operation which he ought to have
discussed with Mr . Allmand in advance .
10. We also find unacceptable Mr . Dare's explanation for his failure to notify
Mr . Allmand and then Mr . Fox . Whether or not Mr . Nadon was fully aware of
the operation was irrelevant . Mr . Dare had a direct relationship with the
Minister and could have exercised his right to speak directly to the Minister .
Also, his view that he had no responsibility " . . . to re-open decisions of [his]
predecessor . . ." is, as we pointed out in Chapter 1 of this Part, also unacceptable, for it would excuse any person occupying a position from bringing to the
attention of his superior, any wrongdoing committed by a predecessor . Mr .
Dare's evidence that he did not consider Operation Ham to be illegal is, as we
also pointed out in Chapter 1 of this Part, impossible to reconcile with his
testimony that he considered surreptitious entries to search, prior to July 1,
1974, to be illegal . Our conclusion is that Mr . Dare did not give consideratio n
232
�to the legality of the operation but that he was aware of its details and its
extreme sensitivity in a political sense . While it may be argued that under those
circumstances he had no duty to report the matter to the Minister, nevertheless
it does appear that it amounted to bad judgment on his part not to have done
so . This conclusion may have the benefit of hindsight but we are concerned
about what appears to be an attitude shared by Mr . Dare that matters of
delicate sensitivity ought not to be disclosed to the Solicitor General .
233
��CHAPTER 6
THE KEELER MAIL INCIDEN T
Introduction
1 . We examine in this chapter an incident having to do with an article of
mail . The incident occurred in 1973, and resulted in an exchange of correspondence between a member of Parliament and the Solicitor General . Those
who testified with respect to this matter were the Honourable Warren Allmand, Commissioner W .L . Higgitt, Commissioner M .J . Nadon, Mr . Roger
Tassé, Mr . M .R . Dare, Mr. R . Bourne and Inspector J . Warren . The testimony
relating to this matter is found in Vols . 88, 89, 116, 125, 129, 140, 156 and
159 . In addition, one of the participants made representations to us as a
consequence of a notice served pursuant to section 13 of the Inquiries Act (Vol .
C122) .
Summary of facts
2 . On November 15, 1973, a constituent of Mr . Allan Lawrence, M .P ., Mr .
Wally Keeler, wrote to him complaining that a "piece of mail" addressed to
Keeler by a friend had come into the possession of the "Internal Security
Division of the R .C .M .P." and had never been delivered . Mr . Keeler and his
friend addressed correspondence to each other by their social insurance numbers and the mail in question was addressed to Mr . Keeler as follows :
Langtek
422-902-510
Apt . 5
(118)
K9A 1N 7
Mr . Keeler said that his friend had been interviewed on November 8, 1973, by
two members of the R .C .M .P . with respect to the item of mail . According to
Mr . Keeler, they told his friend that they had traced the Social Insurance
Numbers . His friend saw a photocopy of the piece of mail in the possession of
the R .C .M .P . members .
3. The piece of mail was a plasticized computer card . According to Mr .
Keeler's letter, the R .C .M .P . told his friend that the item had been "brought to
them" . Mr . Keeler told Mr . Lawrence that the incident made him "fearful" for
his "civil rights" .
4. On November 21, 1973, Mr . Lawrence wrote to the Honourable Warren
Allmand, the Solicitor General, enclosing a copy of Mr . Keeler's letter and
asking Mr . Allmand to investigate Mr . Keeler's allegation of unjustifie d
235
�interception of his mail by the R .C .M .P . and the photocopying of it, plus their
preventing it from reaching him . Mr . Lawrence's letter was received by Mr .
Allmand on the following day .
5 . On November 27, 1973, the Keeler and Lawrence letters were referred to
the R .C .M .P . for preparation of a draft reply for the signature of Mr .
Allmand . Sergeant J .S . Warren of the Security Service was asked to investigate and prepare a reply.
6 . Mr . Warren testified that he examined the Security Service file and found
that it contained the plasticized computer card through which a hole had been
punched by the R .C .M .P . so that the card could be placed on a spike . The card
did not have a postage stamp on it . The R .C.M .P . file contained an R .C .M .P.
report which showed that the investigation had been initiated when the card
was sent to the R .C .M .P . by the Department of National Defence on July 24,
1973 . Also in the file was a transmittal slip of Canada Post, addressed to the
Department of National Defence, on which there was noted the message
"found loose in mail stream at Alta Vista Terminal and returned to you" . Mr .
Warren said that he spoke to the R .C .M .P . corporal who had written the letter
to the field to request the investigation in the first place .
7 . Mr . Warren then drafted a letter for the signature of Mr . Allmand, which
he said was probably the precise form of the reply sent on December 4, 1973,
from Mr . Allmand to Mr . Lawrence . He testified that at the same time he also
probably drafted a letter from Mr . Dare, the Director General of the Security
Service, to Mr . Allmand's Special Assistant, transmitting the draft reply, and
briefly explaining the R .C .M .P .'s involvement in the matter . Mr . Warren's two
draft letiers reached the desk of Mr . Dare who testified that he reviewed the
proposed response to Mr . Lawrence with the officer who had brought the
drafts, then signed the one for his signature and sent them to Mr . Allmand .
Mr . Dare said he accepted the assurance given to him by that officer that the
reply was an accurate statement of fact . In the hierarchy of the Security
Service at that time, according to Mr . Warren, there were at least four people
between himself and Mr . Dare . There is no evidence whether all or any of these
four saw or read the draft letters . When Mr . Allmand received the letters he
signed the one to Mr. Lawrence, and sent it to Mr . Lawrence on December 7,
1973 . Mr . Warren testified that the computer card was returned to the post
office on the same date that the letters were sent to Mr . Allmand .
8 . The letter from Mr . Allmand to Mr . Lawrence describes the circumstances
surrounding the receipt of the card by the R .C .M .P . and the results of their
investigation of the matter . It sets out, in full, the text of the communication
typed on the card . The concluding paragraph of the letter reads :
I have been assured by the R .C .M .P . that it is not their practice to intercept
the private mail of anyone and I trust that the above explanation will set
your constituent's mind at ease .
9 . Our primary concern with this incident is not whether what the R .C .M .P .
did in the course of the investigation was proper, i .e ., whether they should have
retained the card for as long as they did, or whether they should have trace d
236
�the sender of the letter through his social insurance number, or even whether
they should have disclosed, in the letter they drafted for Mr . Allmand to send
to Mr . Lawrence, the contents of the communication contained in the card .
Our main concern is whether the contents of the last paragraph of the letter
from Mr . Allmand to Mr . Lawrence, quoted above, were a misrepresentation
by the R .C .M .P . to their Minister, the Solicitor General, with respect to mail
opening by the Force, the consequence of which would be a misrepresentation
by the Solicitor General to an opposition M .P . and one of the latter's
constituents . We are further concerned whether, if there was such a misrepresentation, there was an intention on the part of the Force to mislead the
Solicitor General and through him others, or whether the conduct of the Force
showed such a careless disregard of consequences that it is subject to reproach .
10 . At the time that he drafted the letter Mr . Warren had been in the
R .C .M .P . for over 13 years and in the Security Service for over 9 of those
years . He graduated from university in 1969 with a B .A . degree in political
science . Mr . Warren testified that in using the words "it is not their practice to
intercept the private mail of anyone" he did not intend that they convey the
meaning that mail was not opened by the R .C .M .P .
11 . Mr . Warren said that he did not intend anything to depend on the use of
the word "practice" in the sense that a certain number of occurrences would
have to take place before it could be said to be a "practice" . Mr . Warren
further said that in his understanding the word "intercepting" means "to have
seized, to have held, to hold, to divert from its intended recipient" . He told us
that he used the word "intercept" because it was the word used by Mr .
Lawrence in his letter . He said he believed "that the question that was being
addressed was the holding of the mail" and that in replying he meant to tell the
reader of the words, "I have been assured by the R .C .M .P. it is not their
practice to intercept the private mail of anyone" ,
that the R .C .M .P . did not make a habit of taking someone's property,
putting it on our file, punching a hole through it, and keeping it on our file
for some months ; that when an investigation had shown something bélonged
to someone else, it was returned to them, and that it was not our practice to
put it on the file and hold it on the file .
12. Mr . Warren told us that he was aware in November and December 1973
that the Security Service used, as one of its investigative techniques, the
opening of other people's mail without their knowledge or consent, and he
assumed that that technique had been in use . Mr . Warren said that he was not
aware of mail opening by the C .I .B . side of the Force, nor was he aware of
whether the Post Office Act prohibited or permitted mail opening .
13 . Mr . Warren testified that the letter which he drafted from Mr . Allmand
to Mr . Lawrence was not deliberately and intentionally misleading nor did he
know that Mr . Lawrence would be misled . Mr . Warren said that he did not
consider that Cathedral A, B and C operations of the Security Service, which
included examining mail covers and mail openings, constituted an "interception" of the mails .
237
�14 . Mr . Dare became Director General of the Security Service on May 1,
1973 . He said he first became aware of Cathedral A, B and C operations, as
techniques, in late 1973 or early 1974 and was also aware that all such
operations had been ordered suspended on June 22, 1973 . He said that he
would not have condoned or approved mail opening, which he considered to be
illegal . When. he forwarded the draft letter to Mr . Allmand for his signature, in
using the words "I have been assured by the R .C .M .P . that it is not their
practice to intercept the private mail of anyone" he said he meant to convey the
meaning that it was not the practice of the R .C .M .P . "to open the private mail
of anyone" . Mr . Dare said he had forwarded the letter before learning of
Cathedral A, B and C operations and of their suspension . Mr . Dare said that if
he had been aware that any mail openings had occurred before his draft letter
to Mr . Allmand, even if they had been prior to the suspension date of June 22,
1973, he would not have written the letter in the same language and he would
have advised the Minister . Mr . Dare stated that he first became aware of an
actual mail opening operation in July 1976 .
15. Commissioner Nadon, in December 1973, was the Deputy Commissioner
(Criminal Operations), of the Force . He said that on the C .I .B . side of the
Force, as of December 1973 the R .C .M .P . was intercepting mail . He recognized that the letter sent to Mr . Allmand and then to Mr . Lawrence could
mislead the Minister and Mr. Lawrence .
16. Commissioner Higgitt, who was Commissioner of the R .C .M .P . in
December 1973, said that the letter was accurate because there were not
enough instances of interceptions by the R .C .M .P. to constitute a "practice" .
We noteithat this was not an explanation advanced by Mr . Warren, the author
of the letter .
17. Mr . Allmand, the Solicitor General, told us that when he received the
draft letter he understood the word "interception" to mean "to open or to keep
mail" . He said that he had been told by the R .C .M .P . that they did not open
mail and the statement in the draft letter to Mr . Lawrence confirmed that for
him . He added that he understood the words "not their practice to intercept"
to mean that they did not intercept and that he considered the card in question
to be "private mail" .
18. Mr . Allmand says that he was told by the R .C .M .P . on several occasions
that they did not open mail and that he remembers discussing this particular
matter of the Keeler complaint with the senior officers of the R .C .M .P. at one
of the regular weekly meetings that he had with them .
19 . Mr . Allmand's recollection is confirmed by the testimony of Mr . Roger
Tassé, the Deputy Solicitor General, and Mr . R . Bourne, the Assistant Deputy
Solicitor General, both of whom attended the regular meetings between Mr .
Allmand and the senior officers . Mr . Bourne said that he was aware that the
R .C .M .P. were engaged in mail cover checks and he said that the language of
the letter to Mr . Lawrence meant to him, Bourne, that the R .C .M .P . did not
open mail .
20. Commissioner Higgitt testified that he has no recollection of having
discussed Mr . Keeler's complaint with Mr. Allmand . He said that the letter t o
238
�Mr . Lawrence was "not an assurance to the Solicitor General at all and should
not be taken as such" . He said further that the letter "was not a method that
the R .C .M .P . would have used to supply the Solicitor General with the
information . That would have been done quite separately" . He added ,
that is not an assurance the RCMP is giving to the Minister at all, and as a
matter of fact, the practice was in matters of this kind, the practice was
very often Ministers' letters were not exactly drafted on precise statements
of fact . The practice would be to explain the rule, to explain the whole
circumstances to the Minister, and then say, 'Mr . Minister, here is a draft
which we suggest you might find suitable to send to the complainant or
whoever it might be' . That is such a letter .
21 . Mr . Dare testified that Mr . Allmand did not enquire, at the time of the
response to Mr . Lawrence, whether the Security Service opened mail . Mr .
Dare said that Mr. Allmand "did not raise the issue" .
Conclusion s
22. In our opinion the letter from Mr . Allmand to Mr . .Lawrence was false
and misleading to the recipient . At the time that the letter was written it was in
fact the "practice" of the R .C .M .P . "to intercept the private mail" of people .
That is so whether or not the words "to intercept", in the particular circumstances, meant going as far as "to open" or simply meant "to stop in the
mailstream" . In our view, the normal meaning attributed to the word "intercept" in relation to mail would be the removal from the mailstream for any
purpose unrelated to delivery of the mail and no matter what the duration of
the removal . It is the act of interrupting the normal flow, whether to examine
the names and addresses of the sender and the proposed recipient, or to
examine the contents of the communication, either through opening the
envelope or otherwise (with respect to a card, the two objectives would no
doubt be combined because no opening is necessary) . Employing this definition
of "intercept", the language used in the letter could have misled Mr . Lawrence
both as to the opening of mail and the examination of the exterior of envelopes .
However, Mr . Warren thought that the word "interception" meant stopping
something from getting through and he therefore did not intend to mislead Mr .
Lawrence although he may have unwittingly done so . As for Mr . Dare, it is
unclear that at the time the letter was sent to Mr . Allmand, Mr . Dare knew of
either mail openings or the examination of the exteriors of envelopes . Consequently, it cannot be said that he intentionally contributed to the misleading of
Mr . Lawrence . Turning to Mr . Allmand, the word "interception" was felt by
him to mean mail opening ; he did not know about mail opening and it cannot
be said that he intended to mislead Mr . Lawrence.
23. There is some justification for Mr . Alimand's interpretation of "interception" because Mr . Lawrence's letter to him, immediately after mentioning
"intercepting private mail", says "not only making photostatic copies of the
correspondence, but also preventing the mail from reaching him" . This, plus
the fact that Mr . Keeler, in his letter to Mr . Lawrence, a copy of which
accompanied Mr . Lawrence's letter to Mr . Allmand, speaks of a "letter" when
referring to the card and also says that he had received mail previously "with
239
�the above addresses on the envelope", makes it easy to see how Mr . Allmand
could infer that the point in issue was mail opening. There is no doubt that in
the context of dealing with this letter to Mr . Lawrence, Mr . Allmand sought
and obtained assurances from senior R .C .M .P . officers at a meeting with them
that the R .C .M .P . did not open mail . This is Mr. Allmand's recollection and it
is confirmed by Mr. Tassé and Mr . Bourne . There is no evidence as to who
gave that assurance .
24 . Mr . Dare, in sending the draft letter to Mr . Allmand, and Mr . Allmand,
upon receiving it, both understood and intended the last paragraph to convey
the meaning that the R .C .M .P . did not open private mail .
25 . We reject categorically Mr . Higgitt's view that the draft letter to Mr .
Lawrence should not be taken as an assurance to the Solicitor General . To
suggest that the Minister could not rely on such a statement in a draft letter
presented to him for signature is also to suggest that the Minister should expect
to be a party to deceiving the recipient of the letter . That suggestion is, of
course, totally unacceptable .
26 . When Mr . Dare became the Director General of the Security Service on
May 1, 1973, there was a policy in place in the Security Service for conducting
Cathedral operations, which included the opening of mail . On June 22, 1973
the Security Service suspended all Cathedral operations . Mr . Dare said that he
was not aware of either the policy or its suspension, at the time he forwarded
the draft letter to Mr . Allmand on December 4, 1973 . Mr . Dare said he first
became aware of Cathedral procedures A, B and C either sometime after
December 4, 1973, or early in 1974 . On August 19, 1974, Mr . Dare received
the Samson Damage Report from the Deputy Director General (Operations),
Mr . Draper . That report includes the following statement :
He would be aware of our CATHEDRAL capability (mail intercepts) but
does not know our contact in this field and has never participated in one of
these operations .
In spite of having been apprised earlier of the technique of mail opening and
then reading the Damage Report in August 1974 which clearly talks about
"mail intercepts" in the present tense, Mr . Dare did nothing to bring to the
attention of Mr . Allmand that such a technique had been, or was still being,
used by the Security Service .
27 . Mr . Dare should have been informed of Cathedral operations long before
December 4, 1973 . That he was not so informed is a reflection of irresponsible
conduct on the part of those who reported directly to him . When he eventually
became aware of the Cathedral techniques he should immediately have advised
Mr . Allmand so that the latter could have rectified the impression which both
of them intended to leave, and no doubt did leave, with Mr . Lawrence .
28 . Mr . Dare testified that he first became aware of an actual incident of
mail opening by the Security Service in July 1976 when he was informed of one
by the Deputy Director General (Operations) Mr . Sexsmith . Mr . Dare said
that he has no specific recollection of being so informed by Mr . Sexsmith but
he is prepared to take Mr . Sexsmith's word for it . Mr . Dare was sufficientl y
240
�confident that Mr . Sexsmith had so informed him that he advised the Chairman of the House of Commons Standing Committee on Justice and Legal
Affairs that he wished to change previous testimony given to that Committee
to the effect that he had not known about any specific acts of mail opening
until early 1977 . Mr . Dare testified that as late as 1976 Mr . Allmand had
asked the senior officers of the Force whether mail was being opened by the
R .C .M .P . and had been told that it was not . In July 1976, when he was
informed of the mail opening incident by Mr . Sexsmith, he should have gone to
Mr . Allmand immediately and advised him about it, but he allowed Mr .
Allmand to continue in his belief that mail opening did not take place .
29 . Mr . Warren said that he drafted the last clause of the letter to Mr .
Lawrence with the intention that it be read in the context of the letter from
Mr . Lawrence which spoke of interception - "not only making photostatic
copies of the correspondence but also preventing the mail from reaching
[Keeler]" . Mr . Warren told us that for him "interruption" would be a more
appropriate word to describe "mail opening", rather than "interception" . We
find such a distinction difficult to accept . However, even assuming that Mr .
Warren's argument has some merit, in our view Mr . Warren was careless in his
drafting of the last paragraph of the letter, if only because he was instructed to
investigate, and drafted the letter in such a way as to speak for the entire
R .C .M .P., yet made no inquiries of the C .I .B . as to what their practice was .
We do not impute any intention on his part to deceive .
241
��CHAPTER 7
PRESENCE OF SECURITY SERVICE SOURCE
AT A MEETING
WITH THE HONOURABLE WARREN
ALLMAND AND TAPING OF
THE CONVERSATIO N
Introduction
1 . This chapter deals with the attendance of a Security Service source, Mr .
Warren Hart, at a meeting between the Honourable Warren Allmand, when he
was the Solicitor General, and Mr . Roosevelt Douglas. It also considers the
tape recording by Mr . Hart of the conversation at that meeting .
2 . Those who testified at the hearings were the Honourable Warren Allmand,
Mr . M .R .J . Dare, Assistant Commissioner H . Draper (ret .), Chief Supt . G .
Begalki, Ex-Staff Sgt . J .R . Plummer, Sgt . W .A . McMorran and Mr . W . Hart.
3 . Public testimony was heard on April 4 and 5, 1979 and January 8, 9, 10
and 16, and April 23, 24 and 29, 1980 . That testimony is found in Volumes
116, 117, 143-145, 151, 179, 180 and 182 . In camera testimony was heard on
January 17, April 30, October 9 and October 30, 1980 and is found in Volumes
C75, C92, C110 and C113 . In addition, one of the participants made representations to us on March 25, 1981, in response to a notice served on him pursuant
to the provisions of section 13 of the Inquiries Act . Those representations are
found in Vol . C126 .
Summary of fact s
4. In November and December 1974, Mr . Warren Hart was a paid informant
of the R .C .M .P . Security Service . At that time Mr . Hart was acting as a
bodyguard for Mr . Roosevelt (Rosie) Douglas who had recently been released
from prison and was on parole . Mr. Douglas was a target of the Security
Service .
5 . In a letter dated November 21, 1974 (Ex . QC-4) ; Mr . H .C . Draper,
Deputy Director General (Operations), reported to the Solicitor General the
current activities of Mr . Douglas . In a telex dated November 28 (Ex . QC-4), to
Mr . Robin Bourne, the Assistant Deputy Solicitor General, the Security
Service advised that it had learned that Mr . Allmand had an appointment with
Mr . Douglas on December 2, 1974, that Mr . Allmand had asked Mr . Douglas
to prepare a report on prison reform, and that the Security Service was
concerned that any government support of Mr . Douglas would "only serve t o
243
�legitimize his presence in Canada" . On that same date, Mr . Bourne, in a note
to the Deputy Solicitor General, Mr . Tassé, stated that Contrast, a "black
magazine", had recently reported that Mr . Douglas was preparing a report on
prison conditions . Mr . Bourne asked Mr . Tassé to clarify for the Security
Service whether there was "any official blessing by the Minister" of preparation of the report by Mr . Douglas . A note dated November 29, 1974, from Mr .
Bourne to the Director General of the Security Service advised that the telex
information was essentially true except that Mr . Allmand had not asked Mr .
Douglas to prepare the report : Mr . Douglas had approached Mr . Allmand and
told him that he was preparing such a report and Mr . Allmand had asked to
see it . Mr . Bourne confirmed that Mr . Douglas did have an appointment with
Mr . Allmand .
6 . The Security Service had learned, at least as early as November 22, 1974,
that Mr . Douglas had an appointment with Mr . Allmand on December 2 . The
evidence is conflicting as to how the Security Service came into possession of
that information . Mr . Hart testified that the Security Service had obtained it
tapping Mr . Douglas' telephone. Mr . Hart's handlers in the Security Service,
Sgt . Plummer and Corp . McMorran, said that they got the information from
Mr . Hart . However, those handlers also testified that they might have learned
of the meeting through a telephone tap .
7 . There is also a discrepancy as to when the meeting was held between Mr .
Hart and his handlers, Mr . Plummer and Mr . McMorran, at which the first
exchange of information took place about the proposed meeting between Mr .
Allmand and Mr . Douglas . Mr . McMorran said that the meeting occurred on
November 22, 1974 . Mr . Hart testified that it was held 48 hours before the
meeting between Mr . Allmand and Mr . Douglas, which would have placed it
on November 30 .
8. At that meeting between Mr . Hart and Messrs . Plummer and McMorran
there was a discussion about the possibility that at the meeting on December 2,
Mr . Allmand might offer Mr . Douglas employment . Mr . Hart told us that Mr .
Plummer said "I bet the S .O .B . will offer Douglas a job ." Mr . Plummer
testified that it is possible that he did say that . Mr . Plummer testified that
either Mr . Hart told them or they learned through other sources about the
possibility of a job offer by Mr . Allmand to Mr . Douglas . Mr . McMorran said
that Mr . Hart told them about the job offer .
9. There is also conflicting evidence as to what was said at the meeting when
Messrs . Hart, Plummer and McMorran first discussed taping the AllmandDouglas meeting . Both Mr . Plummer and Mr . McMorran believed that it was
Mr . Hart who raised the question as to whether he should tape the December 2
meeting, but Mr . Hart said that at the meeting either Mr . Plummer or Mr .
McMorran said "should we tape the bastard?" It is the evidence of Messrs .
Plummer and McMorran that when the question of taping was raised Mr .
Plummer left the meeting and phoned the "Black Power desk" at Headquarters in Ottawa to seek instructions on that question . Mr . Plummer could not
recall with whom he spoke at Headquarters . According to Mr . McMorran,
they were concerned about taping Mr . Allmand because he was the head o f
244
�their Department . Mr . Plummer testified that the instructions that he received
from Headquarters were that it was all right for Mr. Hart to attend the
meeting but that the Allmand-Douglas conversation was not to be taped . He
said he returned to the hotel room and advised Mr . Hart of that . Mr .
McMorran said that when Mr . Plummer came back from making the telephone call to Headquarters he, Plummer, said that he had been in contact with
Headquarters and that they had advised that they were not to tape the
Allmand-Douglas meeting . Mr . McMorran also testified that he thinks that
Mr . Plummer also said that Headquarters had no objection to the source
attending the meeting .
10 . Mr . Hart told us that when he first learned about the Allmand-Douglas
meeting from the R .C .M .P . contact, he understood that the sole purpose of
that meeting was to discuss the pamphlet that Mr . Douglas had written . He
said that it was his understanding that Mr . Allmand had called Mr . Douglas
and wanted to see him to discuss the pamphlet . The purpose of his discussion
with Messrs . Plummer and McMorran, according to Mr . Hart, was to arrange
for him, Mr . Hart, to go to Montreal with Mr . Douglas . Mr . Hart testified that
the only point of discussion was whether or not Mr . Allmand should be taped,
that the stated reason given for taping the conversation was that Messrs .
Plummer and McMorran thought that Mr . Allmand would offer Mr . Douglas
a job, and that Messrs . Plummer and McMorran indicated that they would
have to get instructions on the matter . He testified that the three of them met
the following day at another hotel where he was given a body pack . However,
later in his evidence Mr . Hart testified that at the first meeting he was told to
tape the conversation between Mr . Allmand and Mr . Douglas, and he denied
that he had received specific instructions not to tape Mr . Allmand . Mr .
McMorran said that he thinks that both he and Mr . Plummer reinforced the
instructions to Mr . Hart that he was not to tape the Allmand-Douglas meeting .
11 . Both Mr . Plummer and Mr . McMorran made it clear to us that they
were interested in whether Mr . Allmand would offer Mr . Douglas a job . Mr .
McMorran said he would have to assume that Headquarters was interested in
that question also . Mr . Plummer said that the possible job offer would have
been a part of the conversation he had with Headquarters when he checked to
see whether the meeting should be taped . He also told us that it is possible that
his superior told him that he, the superior, was similarly disturbed that Mr .
Allmand might offer a job to Mr . Douglas . Mr. McMorran said that his
concern about the job offer was one which was identified by his superiors and
not him, personally .
12 . Mr . Hart testified that both Mr . Plummer and Mr . McMorran expressed
to him at the first meeting their opinion about Mr . Allmand . He said they
talked about Mr . Allmand having leftist tendencies, being a Red, being a
Communist and being against the R .C .M .P. He said it was suggested to him
that they were taping Mr . Allmand because he was a Communist . Mr .
Plummer denied any discussion to the effect that Mr . Allmand was a Communist but admitted that he may have made a comment that Mr . Allmand had
socialist tendencies .
245
�13 . Chief Supt . Begalki testified that he knew that a meeting was planned
between Mr . Allmand and Mr . Douglas and that he was involved in discussions
with Mr . Draper which led to the recommendation that Mr . Allmand should
not meet with Mr . Douglas . They felt that Mr . Douglas would exploit the
meeting and turn it to his own advantage since he was under a deportation
order or still appealing the charges in relation to the destruction of the Sir
George Williams University computer . He said they saw considerable conflict
in having one Minister trying to rid the country of an individual and another
Minister intending to meet with him, ostensibly to offer employment . He told
us he was not aware whether Mr . Draper or the Commissioner or the Director
General were successful in persuading Mr . Allmand not to meet with Mr .
Douglas. He told us that he thinks that he understood in advance that what
was anticipated was that Mr . Allmand would be offering a job to Mr . Douglas
and that it was not as if Mr . Douglas was going to solicit a job . He said that
was a factor that led to the decision to recommend to Mr . Allmand that he not
attend the meeting . He said that Mr . Bourne or the Director General clarified
with Mr . Allmand their understanding that the Minister might be offering Mr .
Douglas a job . He testified that the reason that there is the mention in the telex
of December 2, 1974, that "there is no indication that Douglas will be
considered for employment by the Solicitor General nor has he been looked at
in an advisory role" is that the matter was raised by the Deputy Minister with
Mr . Allmand as a result of the handwritten note of Mr . Bourne .to the Deputy .
14. Assistant Commissioner Howard Draper said that he had heard from Mr .
Begalki that Mr . Allmand would be meeting with Mr . Douglas but he has no
recollection of being consulted about Mr. Hart's attendance at it . Mr . Draper
said he is not clear whether he knew about the job offer before the meeting or
afterwards . He told us that his advance knowledge about the meeting might
have come from someone within the Ministry or through normal Security
Service channels . He said he found it difficult to understand why a Minister
would want to meet with someone "that the government of the day had [the
Security Service] investigating fairly vigorously" .
15 . Mr . Dare told us that he was not consulted about Mr . Hart's attendance
at the meeting nor was he aware that Mr . Hart was going to attend . He said
that he thinks that he was aware, from a general conversation with the
Minister, that the Minister was going to meet Mr . Douglas . Mr . Dare said that
the concern of the Security Service About the meeting was whether Mr .
Allmand was being "taken in" by certain persons in the Black movement .
16. Mr . Hart testified that he does not recall any other meetings that were
planned in Montreal by Mr . Douglas and that the meeting with Mr . Allmand
was the only meeting that Mr . Douglas had . Later, Mr . Hart testified that he
did not recall whether Mr . Douglas was scheduled to speak in Montreal that
weekend at other meetings and that it was quite possible that he was . Mr .
McMorran told us that he learned from Mr . Hart of the date that Mr . Douglas
and Mr . Hart planned to go to Montreal and about one of the meetings that
they planned to cover in Montreal prior to meeting with Mr . Allmand . Mr .
McMorran said that Mr. Douglas and Mr. Hart had a meeting in Montreal
with the Haitian committee and a meeting with a Dominican group, one of th e
246
�meetings being on Saturday, November 30, and the other Sunday, December 1,
and that there was a further meeting with a small group of people in a house .
Mr . McMorran said that he, himself, went to Montreal and saw Mr . Hart
either Saturday night, November 30, or Sunday night, December 1, to debrief
him with respect to these meetings . He said he did not see Mr . Hart on
December 2 . Mr . McMorran said that at the meeting with Mr . Hart on
December 1, he reinforced the instruction that Mr . Hart was not to tape the
Allmand-Douglas conversation . He said he believes he did that because Hart
was still in possession of the body pack . He said he did not get the body pack
from Mr . Hart on December 1, because Mr . Hart did not bring it with him to
the meeting and he felt that in this particular instance Mr . Hart would follow
instructions .
17. Mr . Hart said that no meeting with any other person was arranged or
scheduled in advance of going to Montreal on the occasion when Mr . Douglas
went there to meet Mr . Allmand . When asked whether he reported to the
R .C .M .P . members that Mr . Douglas intended to meet with different people at
Dawson College and at McGill University he replied : "Not to my knowledge,
no" . He said that he does not recall a meeting at Dawson College at which
people from Dominica and people from Haiti were present during that same
visit to Montreal that they saw Mr . Allmand, and he added that it is possible
that Mr . Douglas could have talked to one or two people but he does not
remember .
18. Mr . Hart testified that he attended the meeting on December 2, between
Mr . Allmand and Mr . Douglas, which lasted from 45 to 48 minutes : the
subject of discussion was prison reform, except for the offer of a job made by
Mr . Allmand after he had looked through the pamphlet that Mr . Douglas had
written . Mr . Hart said that he taped the whole meeting between Mr . Allmand
and Mr . Douglas . He thinks that he and Mr . Douglas returned to Toronto the
day following their meeting with Mr . Allmand . Messrs . Hart, Plummer and
McMorran all testified that shortly after Mr . Hart's return from Montreal on
December 3, the three of them met at a Toronto hotel and Mr . Hart told them
that he had taped the Allmand-Douglas meeting .
19. Mr . Hart said that when he was given the body pack tape recorder by his
R .C .M .P . handlers it was understood that he would record the conversation
between Mr . Allmand and Mr . Douglas and anything else as long as he had
tape . He said that he was expected, in any event, quite apart from the tape
recording, to report back to his handlers on what was said between Mr .
Allmand and Mr . Douglas . He said that when he returned and met with
Messrs . Plummer and McMorran at the hotel he told them he had accomplished his job, and that he and Messrs . Plummer and McMorran met most of
the day and discussed the taping . He said that he and Mr . Plummer listened,
with earphones, to a cassette, which was not the original tape on the spool from
the body pack tape recorder, and he thought that Mr . McMorran also listened
to it . He said that the first recording on the tape was where Mr . Allmand
offered a job to Mr . Douglas and that he listened to that . He said that when
listening to the tape Mr . Plummer said "the S .O .B . did offer him a job" . Mr .
Plummer denied that he made such a statement because, he said, his listenin g
247
�to the tape did not lead him to believe that the job offer had been made . Mr.
Hart testified that he taped the whole meeting between Mr . Allmand and Mr .
Douglas and he was never told that parts of the tape were erased or non-existent . Mr . McMorran said that at the meeting with Mr . Hart, Mr . Hart said : "I
did tape Mr . Allmand and he offered Mr . Douglas a job" and that, when he
said to Mr . Hart "you are on specific instructions not to do this", Mr . Hart's
reaction was "I had the opportunity . Why not? "
20 . Mr . Plummer said that when Mr . Hart produced the tape at the meeting
he, Plummer, examined it very briefly with an earphone set to make sure that
there was conversation on it and that there was . He said that he took the tape
back to head office and transcribed it onto another tape recorder there and
then listened to that tape . Mr . McMorran testified that it was a rare exception
that Mr . Plummer had with him the equipment to plug in to listen to the tape
recorder and that he thinks that this might have been an isolated case . He said
that he would have to assume that Mr . Plummer just happened to have the
equipment there that day because Mr . Plummer did not know prior to the
meeting with Mr . Hart that Mr . Hart had taped the Allmand-Douglas
conversation . Mr . Hart testified that the machine on which they listened to the
tape was a large Bell and Howell tape machine into which you could plug
earphones and that they listened through earphones so that it could not be
heard in the next room in the hotel .
21 . Mr . Plummer said that he listened to the entire tape and either the first
or second part was not complete . He said the part about the offer of
employment was not on the tape but that he did not recheck with the original
tape to see if something had been missed in copying . He said that the tape ran
out and that the tape that he listened to did not cover the whole conversation
between Messrs . Allmand and Douglas . He said that all that Mr . Hart said
about the meeting was that the job was offered to Douglas and they naturally
wanted to confirm that from the tape recording .
22. Mr . McMorran said that after the tape was transcribed onto the cassette
he and Mr. Plummer listened to it . The only part that he can recall was
missing from the tape was at the very end when the tape ran out . He said that
there were other meetings recorded on the tape and that the meeting with Mr .
Allmand was the last item on the tape. He said it was obvious to him that there
was something else going on after the tape was fi nished but that the tape had
run out and the conversation was not finished .
23 . Mr . McMorran testified that Mr . Plummer told him that he had made a
telephone call to Headquarters and advised Headquarters that there was no job
offer on the tape . Mr . McMorran said that they received instructions from
Headquarters not to send the tape to Headquarters, not to debrief the tape in
writing, and to refer in a report only to what the source said and not to the
tape . He said it was made very clear to them that no written reference should
be made to the taping of Mr . Allmand . He said that when they listened to the
tape he does not know whether at that point a call had been made to
Headquarters . He said that after instructions were received from Ottawa and
the displeasure expressed concerning the existence of the tape, they "erased "
248
�the second tape and that the first tape had been "erased" by the section that
looked after the equipment . Mr . Plummer did not remember whether he was
"ordered to destroy" the tape or whether he "destroyed" it on his own initiative
but he agreed that in an earlier statement he had indicated that he had been
instructed "to destroy" the tape . He said that none of his superiors in the
Security Service chastised him for the fact that the tape had been made or for
listening to it after it was brought to him .
24. Mr . Draper said that he had not anticipated that Mr . Hart, whom he
regarded as a bodyguard, would be present at the meeting between Mr .
Allmand and Mr . Douglas . He said he was "furious" that Mr . Hart had
attended the meeting, but mostly that the meeting had been taped, and he
instructed Mr . Begalki to ensure that the tape was secured and destroyed
immediately and that no copies were made . He said his instructions were also
that there were to be no references on file to taping and he made it clear to Mr .
Begalki that anything in writing covering the incident should omit the fact that
the taping had taken place . He said Mr . Begalki replied that he had given
instructions that there was to be no taping . Mr . Draper said that he did no t
want the tape to be transcribed because copies have an unhappy way of being~
distributed . He said he felt it was a "ridiculous situation" and should not have
happened in the first place and should not be spread about because the
Minister "did not deserve that" . He said it seemed to him that, "having mad e
this social error", the Security Service must confine it to the narrowest circle .
He also told us that in ordering that there be no reference to the taping in the
files, his intention was not to hide the fact of the taping from anybody looking
in the files " . . as much as the possibility of somebody taking something out of
.
context and a sentence or two out of a tape" .
25 . Mr . Plummer testified that either he or Mr . McMorran made a written
report that Mr . Allmand had made a job offer to Mr . Douglas . On the other
hand, Mr . McMorran testified that after listening to the tape and learning
what was on it they advised Headquarters that there was no job offer on the
tape . This is confirmed to some extent by a telex dated January 15, 1975, in
which Mr . McMorran reported to Headquarters what had been discussed
between Mr . Allmand and Mr . Douglas at the meeting of December 2 . The
report states in part :
Towards the end of the conversation, Allmand asked Douglas if he had ever
considered working for the Federal Government . Douglas replied that the
Solicitor General and the Government considered him a risk to National
Security . Allmand stated that he was willing to reconsider his position on
that and that he could take care of that area .
The telex indicates that the information in it had been received from a
"reliable source" on December 7, 1974 . The telex also indicates that on
January 14, 1975, "a reliable source" advised of a further appointment which
Mr . Douglas was to have with Mr . Allmand during February 1975 and that
Mr . Douglas had said that he was "seriously considering accepting Allmand's
offer" . The telex added that further information was being compiled by "E"
Services Section and would be made the subject of an additional report . On
this telex, there is a handwritten note, dated January 22, 1975, from Mr . Dar e
249
�to the "DDG Ops" which states "Discussed with the Minister this date P .A ." .
(We understand that "P .A ." means "Put Away", which is simply a direction to
file the document without further action being taken) .
26 . In a telex dated December 2, 1974, from Security Service Headquarters
to Montreal, Toronto and Ottawa, Headquarters advised that Mr . Allmand
had not asked Mr . Douglas to prepare a report and that, in fact, Mr . Douglas
had approached Mr . Allmand and told him he was preparing a report which
Mr . Allmand asked to see . It also advised that Mr . Douglas had an appointment to see Mr . Allmand that day . It added further that there was no
indication that Mr . Douglas would be considered for employment or in an
advisory role by Mr . Allmand . Mr . McMorran said that he reported to
Headquarters his concern that the Solicitor General might experience embarrassment if he offered Mr . Douglas a job but did not get any follow-up on his
report . Mr . Plummer told us that he reported to Headquarters that Mr . Hart
had taped the conversation and that he had listened to the tape but he does not
remember whether he reported it verbally or otherwise . He also told us that
there was no written report about the taping : it was discussed verbally but he
did not consider it significant enough to report on paper . Mr . McMorran's
written report to Headquarters, dated January 15, 1975, relating the substance
of the Allmand-Douglas meeting did not refer to the taping . Mr . Plummer said
there was no need for the report to say that the conversation had been taped
because Mr . Hart carried a body pack with him everywhere he went and they
did not have to report that their information came from the body pack .
27 . Mr . Begalki testified that he was in Mr . Draper's office when Headquarters received word that Mr . Allmand's conversation had been taped . Mr .
Draper immediately exhibited his displeasure and contacted someone in
Toronto to say that the handlers were to meet with the source, recover the tape
and destroy it as quickly as possible so that Mr . Hart could not duplicate it and
use it for any other purpose . It was their understanding that the tape was still
in the hands of the source . Mr . Begalki said that the instructions were given
and Mr . Draper asked that he be notified when his instructions had been
carried out . He said he cannot recall any instructions being given to report on
the meeting but not to refer to the taping, nor did he know that a duplicate
tape had been made until he heard Mr . Plummer's testimony . Mr . Plummer
testified that between the Allmand-Douglas meeting on December 2, 1974, and
the date of Mr . McMorran's report of January 15, 1975, he was in touch with
his superiors every day and probably would have told them that he had a tape .
He said he does not recall receiving any instructions from his superiors as to
whether the tape should be destroyed or kept . He said he does not recall
whether anybody gave instructions about what to do with the tape and that he
did not consider the tape of any importance .
28 . According to Mr . Plummer it may have been indicated to him in his
telephone conversation with Headquarters that it would not be proper for Mr .
Hart to listen in on the conversation of the Solicitor General with Mr . Douglas .
He said he cannot recall anyone saying that Mr . Hart could not be present at
the meeting . He recalls that he was told that Mr . Hart was not to use a tape
recorder but not that Mr . Hart was not to be there . Mr . Plummer said it neve r
250
�crossed his mind that there was a question as to whether the R .C .M .P . should
have a source at a meeting . He said that he called the Black Power desk at
Headquarters, quite likely to ensure that Mr . Allmand would be made aware
that Mr . Douglas was going to take him up on his ôffer of a meeting, and that
part of the reason for phoning was to get authority for Mr . Hart to tape the
meeting . He said the response was that it was all right for Mr . Hart to go but
he was not to tape the conversation .
29. Mr . Begalki told us that he could not recall whether he was told that Mr .
Hart was intending to accompany Mr . Douglas to the meeting . Later, Mr .
Begalki told us : "The fact that the Division had raised the question of whether
Hart should carry a pack and tape a meeting, the probability of him being
invited was always there, even though it might have been an extremely long
shot" . Mr . Begalki denied that he authorized Mr . Hart to attend the meeting
or that he instructed anyone to authorize him to do so . He also told us that he
gave no instructions that Mr . Hart should do his utmost to avoid being present
at the meeting . He did recall that there were instructions to the Division that
there was to be no taping if Mr. Hart did go in to the meeting . He decided that
if Mr . Hart was present there would be an independent source to corroborate
Mr . Allmand's explanation of what took place . He said that he does not believe
any consideration was given to notifying Mr . Allmand that the person who was
accompanying Mr . Douglas was a source, because it has been "Force policy
through six Solicitors General" that the Ministry did not want such information in the Ministry Office "because of the turnover of personnel" in that office
and the consequent risk of disclosure about undercover operatives working for
the Force .
30. Mr . Plummer told us that Mr . Hart had a body pack "practically on a
permanent basis" . He said that Mr . Hart was urged to use the recorder
whenever it was convenient, so that there would be some corroboration of his
information and for that reason Mr . Hart was never without the recorder . Mr .
Hart said that the instructions given to him were to tape anything Mr . Douglas
was doing .
31 . Mr . Hart said that the R .C .M .P. handlers knew that he did not intend to
tell Mr . Allmand that the conversation was being taped . He said that he met
Mr . Allmand "later on" (by which he must have meant December 1975), and
told him that he had been taped .
32 . Mr . Allmand told us that he had met Mr . Douglas while Mr . Douglas
was in prison, and that Mr . Douglas had expressed a desire to speak to Mr .
Allmand when he got out on parole as he had written a treatise about prison
conditions and reform of prisons . Mr . Allmand said that after Mr . Douglas'
release, Mr . Douglas arranged an appointment to see him at his office, and
that two other black people were present at that meeting . According to Mr .
Allmand he took the paper that Mr . Douglas had prepared and told him that
he would read it . He said that Mr . Douglas indicated that "he was interested in
working with Corrections" and he told Mr . Douglas that there were "bars
against ex-inmates in certain areas of the correction system" but that he,
Allmand, was "in the process of changing the system" so that "ex-inmate s
251
�could work in certain areas" . According to Mr . Allmand, he told Mr. Douglas
that "if he was really interested he should apply through the Public Service
Commission" . Mr . Allmand added that he told Mr . Douglas that he, Allmand,
could not be involved in the matter directly . Mr . Allmand conceded later in his
testimony that he may very well have told Mr . Douglas that he would look into
the possibilities of employment in the Public Service, perhaps in the correctional field . Mr. Allmand said that such a discussion would have related to what
jobs might be open to ex-inmates and insisted that he did not offer Mr .
Douglas a job .
33 . Mr. Allmand testified that Mr . Hart came to see him in his constituency
office in Montreal to obtain his assistance in staying in Canada after the
termination of his agreement with the R .C .M .P . Mr . Allmand said that Mr .
Hart told him that he had been present at the meeting Mr . Allmand had had
with Mr . Douglas . Mr . Allmand testified that Mr . Hart did not tell him that he
had taped the meeting with Mr . Douglas . Mr . Allmand said that the first time
he heard that his meeting with Mr . Douglas had been taped was when Mr .
Hart made a statement later that he, Hart, had taped him on the instructions
of the R .C .M .P . Mr . Allmand said that the then Solicitor General, Mr . Blais,
checked with the R .C .M .P . and told him that the response that they gave to
Mr . Blais was that they had not asked Mr. Hart to tape or target him . Mr .
Allmand said that he was never informed whether or not he had been taped,
with the exception of the allegation made by Hart . As will be noted later, Mr .
Dare's testimony in this regard conflicts with that of Mr . Allmand .
34 . Mr . Allmand testified that someone informed him that he should not
meet with Mr . Douglas or that he should use caution but he cannot remember
whether it was the R .C .M .P .
35. Mr . Draper said that perhaps a week or so - or even longer - after
receiving the report about the meeting, he quite deliberately discussed the
matter with Mr . Dare and that Mr . Dare was shocked and a little taken aback
and wanted some detail . He said that Mr . Dare undertook to discuss the matter
with the Minister and subsequently came back and told him that he had
advised the Minister . He said he has a hazy recollection of Mr . Dare saying
that everything was fine as far as the Minister was concerned . He said he did
not consciously keep the matter from Mr . Dare and had no intention of ever
doing so and that he has no excuse for not advising Mr . Dare between early
December and mid-January .
36 . Mr . Dare said that before the middle of January 1975 he knew that the
meeting had taken place because of conversation with people in the R .C .M .P .
but he cannot recollect being told that the source was present at the meeting .
Mr . Dare said that Mr . Draper reported the taping to him about mid-January .
He said that his reaction when he learned of the taping was that it was totally
wrong and that the Minister should not be taped unless there was a formal
investigation of a criminal nature or some such situation which would be
applicable to any Canadian citizen, and then it would be done by the
enforcement side of the R .C .M .P . He said that he concurred in the instruction
that Mr . Draper had given to have the tape destroyed and that he did no t
252
�discuss with Mr . Draper any form of "remonstration" of Mr . Hart . Mr . Dare
told us that on January 22, 1975, he discussed the matter with Mr . Allmand
and that at that time he had with him the January 15, 1975, telex report from
Mr . McMorran . He said he gave Mr . Allmand the gist of the message
contained in the telex but did not show the telex to him . He said he told Mr .
Allmand that the Security Service source had been present at the meeting, that
the source had taped the conversation and that the tape had been erased . He
said that he cannot recall Mr . Allmand's response but that Mr . Allmand did
not say anything particular to the point . He said he told Mr . Allmand that the
source had taped the conversation contrary to clear instructions from his
handler . Mr . Dare said that he went over the contents of the telex with Mr .
Allmand to ensure that Mr . Allmand was knowledgeable about the subject
matter that was being discussed . He said his purpose was to apprise Mr .
Allmand of the fact that the taping had been done and that the Security
Service had ordered destruction of the tape . He said he wanted Mr . Allmand to
know that for operational reasons a human source of the R .C .M .P . had been at
the meeting and had reported on it . Mr . Dare said that he did not tell Mr .
Allmand that, in addition to taping the conversation, the source had given a
verbal report and he acknowledged that Mr . Allmand did not know that there
was such a record in the Security Service files .
Issues
37 . There are three issues with respect to this incident, as far as we are
concerned . First, did the R .C .M .P . advise the Solicitor General, either before
or after his meeting with Mr . Douglas, that an R .C .M .P . source would be, or
had been, present at that meeting? Second, did the R .C .M .P. instruct Mr .
Hart to tape a conversation of Mr . Allmand, or, knowing that Mr . Hart was
likely to do so, did they take any steps to stop him from carrying out his
purpose? Third, did the R .C .M .P . advise the Solicitor General either before or
after the meeting that his conversation would be, or had been, taped by Mr .
Hart ?
38 . We do not place the same emphasis as Mr . Draper and Mr . Dare on the
distinction between the attendance of Mr . Hart at the meeting and the taping .
In our opinion, the real issue is whether Mr . Hart ought to have been present at
the meeting at all, and subsequently ought to have reported to the Security
Service on what was said at the meeting . We consider that if it was appropriate
for Mr . Hart to be present and to be debriefed subsequently on what had been
said at the meeting, then it was appropriate for him to use a tape recorder if
that was otherwise prudent operational practice . If the target is appropriate,
and the meeting being attended by the target is appropriate for information
collection, the taping is not in itself objectionable . However, if the taping is to
obtain surreptitiously the views of a person who is not a target, then it is
improper . And even more so if such a taping, if it were to become known to
that person, would reflect a lack of confidence in that person . Such would, of
course, be the case if the Security Service intentionally taped the Solicitor
General without his knowledge .
253
�Conclusion s
39. From the above summary of the evidence it is obvious that there is
considerable discrepancy amongst witnesses on several key points . We find the
facts as follows .
40 . The Security Service learned that Mr . Allmand was going to meet with
Mr . Douglas in Montreal on December 2, 1974 . They made enquiries through
Mr. Allmand's office and received assurances that Mr . Allmand was not
considering Mr . Douglas for employment or as an adviser . There was confusion
within the Security Service as to whether the alleged offer to Mr . Douglas was
to be one of employment or related to the preparation of a pamphlet on prison
reform . The Security Service feared that Mr . Allmand was being "taken in" :
they could not understand why their Minister might offer employment to a
person who was a target of considerable concern to them . Mr . Hart's handlers,
Messrs . McMorran and Plummer, shared this concern .
41 . Sometime in late November 1974, Messrs . Plummer and McMorran
sought approval from Headquarters for Mr . Hart to attend the meeting and to
tape it . At the same time they raised the question of the potential job offer by
Mr . Allmand to Mr . Douglas . Someone on the "Black Power desk" at
Headquarters gave approval for Mr . Hart to attend the meeting but instructed
that there be no taping . Mr . Begalki was aware at that time that Mr . Hart
might be present at the meeting . Messrs . Plummer and McMorran relayed
those instructions to Mr . Hart . We do not believe Mr . Hart when he says that
he received no such instructions . Mr . Hart's assumption that delivery of the
body pack to him was tacit approval to tape the meeting is also not borne out
by the facts . We are satisfied that Mr . Douglas had other meetings in
Montreal from November 30 to December 2, 1974, which were of interest to
the Security Service and that those meetings had been planned by Mr . Douglas
in advance and were known to Mr . Hart . If that were not so, why would Mr .
McMorran have gone to Montreal on November 30? We accept Mr. McMorran's evidence that he went to debrief Mr . Hart in relation to those other
meetings . Since Mr . Hart was not debriefed in Montreal in connection with the
Allmand-Douglas meeting, Mr . McMorran's presence must have been for the
other purpose . It was entirely consistent with his role that Mr . Hart be given
the body pack to tape those other meetings .
42. After his return from Montreal, Mr . Hart met with Messrs . Plummer and
McMorran on December 7, the date shown on Mr . McMorran's telex of
January 15, 1975 . At that meeting, or perhaps before it, if Mr . Draper's
assumption at the time (which will be discussed shortly) was correct, Mr . Hart
advised that he had taped the Allmand-Douglas meeting . He delivered the tape
to Messrs . Plummer and McMorran at which time Mr . Plummer listened
briefly to the tape with an earphone, took the tape away and had it copied on to
a cassette tape, and then returned to the meeting . Upon his return the three of
them listened separately through earphones to all or parts of the tape . Mr .
Hart, who had used the body pack often, said that it was not technically
possible to listen with earphones to the spool tape from the body pack and that
Mr . Plummer had left to make a copy and returned later . We think that Mr .
254
�Hart is mistaken about it not being possible to listen to the body pack tape with
an earphone . Although, as Mr . McMorran said, it was very unusual that Mr .
Plummer had the earphones in his possession when they went to meet Mr .
Hart, we are convinced that Mr . Plummer did have the earphones because he
and Mr . McMorran had been told earlier by Mr . Hart that he had taped the
meeting but they had not yet received the tape . This would explain why,
according to Mr . Draper, when he was first told about the taping it was his
understanding that the tape was still in the possession of Mr . Hart and he
therefore ordered that it be recovered from Mr . Hart and destroyed .
43 . Mr. Draper's instructions were not only that the tape be recovered and
destroyed but also that there be no reference in the files to the fact that a
taping had taken place . We believe that Mr . Begalki has either forgotten or,
was not present when those instructions were given, is deficient when he says
that there were no instructions that there was to be no reference to taping in
files . Mr . Draper says he gave those instructions and Mr . McMorran says that
he received them . The original tape and the cassette tape were destroyed, but
not before sufficient detail was taken from the cassette tape to permit Mr .
McMorran to prepare the January 15, 1975, telex, reporting on the meeting .
We do not consider it necessary to decide whether or not the taping of the
meeting was complete and thus included a record of that part of the AllmandDouglas discussion about employment for Mr . Douglas in the Public Service .
44. Mr . Draper did not advise Mr . Dare that Mr . Hart had been present at
the Allmand-Douglas meeting and had taped it until after the January 15,
1975, telex report of the meeting had been received at Headquarters . On
January 22, shortly after receiving that advice from Mr . Draper, Mr . Dare
discussed the matter with Mr . Allmand . The concern of the Security Service
throughout was clearly that Mr . Allmand might give employment to Mr .
Douglas . We are satisfied that at the January 22 meeting Mr . Dare made no
mention of the taping to Mr . Allmand, nor did he specifically advise Mr .
Allmand that an R .C .M .P . source had been present at his meeting with Mr .
Douglas . We think it more likely that the conversation, which apparently took
place at a regular weekly meeting, was very brief and no doubt concentrated on
the inadvisability, from the point of view of the Security Service, of Mr .
Allmand helping Mr . Douglas to get a job in the Public Service . Mr . Dare said
that he gave Mr . Allmand "a general overview" of the contents of the telex essentially a summary of the Allmand-Douglas meeting which had taken place
only the previous month - so that Mr . Allmand would understand what he
was talking about when he advised that Mr . Hart had been present and had
taped the conversation . It should be borne in mind that the telex message did
not refer to taping . We find Mr . Dare's explanation implausible . We are
confident that because of the built-in antipathy of the Security Service to
disclosing to others the identity of their sources, Mr . Dare had no intention of
informing Mr . Allmand either of the source's presence at the December 2
meeting or of the taping and did not so inform Mr . Allmand . We are supported
in our conclusion by the evidence of Mr . Allmand, who says that he first
learned of the taping through the news media sometime after his later meeting
with Mr . Hart in December 1975 . We do not accept Mr . Hart's evidence tha t
255
�he told Mr . Allmand about the taping at this meeting . Upon learning about the
taping, Mr . Allmand raised the matter with Mr . Blais, who had succeeded him
as Solicitor General . Mr . Blais reported to him that the R .C .M .P . said that
they had not asked Mr . Hart to tape or target him . It would have been strange,
to say the least, for Mr . Allmand to raise the matter with Mr . Blais at that
time if helhad been made aware of the facts in his meeting with Mr . Dare, and
it would have been stranger still for the R .C .M .P . to give the reply that they
did to Mr . Blais to pass on to Mr . Allmand . Until May 13, 1981, we had felt
that further support for our conclusion was found in a letter dated February
27, 1978, from Commissioner Simmonds to Mr . Blais . In that letter he said :
It is clear to me that Mr . Allmand was never advised of the fact that
his conversation with Douglas was recorded, or in any way witnessed, by a
source reporting to the Security Service of the R .C .M .P . In my view, this
represents an error in judgement, but as you will note from the contents of
this memorandum, the Director General had no personal knowledge of this
situation . You may be assured that in the event cases of this nature arise in
the future, you would be informed by either the Director General or myself .
On May 13, 1981, we received from Commissioner Simmonds a copy of a
letter, dated May 12, 1981, which he had sent to the Solicitor General, the
Honourable Bob Kaplan . That letter reads as follows :
I have recently learned that certain assurances I gave your predecessor on
27 February 1978 were inaccurate based upon an incomplete understanding
I had of the incident of Warren Hart witnessing and making a tape
recording of a meeting between the Honourable Warren Allmand and
Roosevelt Douglas in December 1974 . I said :
"It is clear to me that Mr . Allmand was never advised of the fact that
his conversation with Douglas was recorded, or in any way witnessed, by
a source reporting to the Security Service of the R .C . M . P . In my view, this
represents an error in judgement, but as you will note from the contents
of this memorandum, the Director General had no personal knowledge of
this situation . You may be assured that in the event cases of this nature
arise in the future, you be informed by either the Director General or
myself. "
I now know that Mr. Dare did becomeaware about mid-January 1975 that
an RCMP source, Warren Hart, had been present at the meeting and that
he had made a tape recording of the meeting which was subsequently
destroyed on the instruction of the then Director General Operations,
A/Commr . Draper .
Mr . Dare clearly recalls advising Mr . Allmand on 22-01-75 of these facts
though I note from his evidence before the McDonald Commission of
Inquiry that Mr . Allmand cannot recall Mr . Dare having done so .
I sincerely apologize for the difficulties my earlier assurances may have
caused . Because I know this matter is central to certain decisions the
McDonald Commission must take within the next few days, I am sending a
copy of this letter to Mr . Justice D . McDonald .
As a result of this letter from Commissioner Simmonds to the Solicitor General
we reach our conclusions solely on the basis of our analysis of the testimony .
256
�45 . We accept Mr . Begalki's testimony that he did not authorize Mr . Hart's
attendance at the meeting . Nevertheless, we consider that Mr . Begalki should
have brought to the attention of Mr . Draper or Mr . Dare the fact that a source
might be present at a private meeting between the Solicitor General and
another person . This was an error in judgment on Mr . Begalki's part and
reflects a lack of appreciation by him of the relationship which the Security
Service ought to have with its Minister .
46 . Mr . Dare said that he told Mr . Allmand about the source's presence at
the meeting and about the taping a few days after he himself first became
aware of the fact . We have already said that we do not believe that he did so.
We think he ought to have . It was imprudent of Mr . Dare not to have done so
and in itself either manifested an attitude of distrust of his Minister or was
motivated by a desire to protect his subordinates . The former is unacceptable ;
the latter is misplaced loyalty if it results in a lack of candour with the
Minister . The Director General of the Security Service must at all times be
prepared to take the Solicitor General into his fullest confidence .
47 . We understand Mr . Draper's decision to destroy the tape because in the
wrong hands it might be edited and misused . Such misuse is not so possible
with a written report, of which copies appear on at least two files . However, we
are concerned about his instruction that the Security Service records not reflect
in any way that the taping had occurred . There was no operational reason for
that instruction . Mr . Draper, in his testimony, described the taping as a "social
error" . He did . not want any more people to know about it than those who
already did . We are satisfied that his purpose was to protect the Security
Service from criticism . We consider that it is improper to alter what would be
the ordinary course of reporting for that reason, just as it is to destroy a file or
a document for that same reason .
48. Finally, we are concerned about the response of the R .C .M .P . to Mr .
Allmand's inquiries made through Mr . Blais . Mr . Allmand was advised that
the response from the R .C .M .P . was that they did not instruct that he be
targetted or taped by Mr . Hart . Apparently no further explanation was given
to him as to the circumstances surrounding the incident . It is difficult for us to
conceive the frame of mind which would lead the top echelon of the Force to
conclude that it owed nothing further to a former Solicitor General, and still
Minister of the Crown, than such a brief statement that was so open to
misinterpretation .
257
��CHAPTER 8
NORTHSTAR INN INCIDEN T
Introduction
1 . In the early summer of 1975, a Task Force, consisting of members of the
R .C .M .P . and various municipal police departments in the three prairie
provinces, was formed to investigate the affairs of the Royal American Shows
(R .A .S .), an American carnival operation which annually toured the major
cities in Western Canada . During that investigation certain matters became of
considerable public concern .
2 . Consequently, on April 22, 1977, the Attorney General of Alberta, the
Honourable James Foster, announced the appointment of Mr . Justice J .H .
Laycraft to conduct a Judicial Inquiry (the Laycraft Inquiry) pursuant to the
Alberta Public Inquiries Act, into those matters .
3 . One of the matters "considered relevant" under the terms of reference of
the Laycraft Inquiry was an allegation that members of the R.C .M .P . Security
Service had monitored, by electronic listening device, rooms occupied by
members of the Edmonton City Police (E .C .P .) in the Northstar Inn in
Winnipeg during the month of December 1975, while three E .C .P . members
and an R .C .M .P . member working with them were investigating the activities
of the R .A .S . in Winnipeg .
4 . At the conclusion of the Inquiry, Mr . Justice Laycraft reported :
In my opinion, on the evidence available to me, it cannot be concluded
that any conversations between Radey, Hahn, Stewart, or Burke [Radey
being the R .C .M .P . member and the latter three being the ECP officers]
were intercepted in Winnipeg while they were in Winnipeg, in December
1975, nor was there any attempt to do so .
In coming to that conclusion he noted that the evidence given by several key
R .C .M .P . witnesses was contradictory and irreconcilable . He also noted that
limits of territorial jurisdiction did not "authorize me to enter into an lnquiry
into collateral matters in Manitoba" . Finally, for what was stated, in an
affidavit made by the Solicitor General of Canada under section 41(2) of the
Federal Court Act, to be reasons of injury to international relations and
national security, he was not allowed access to internal Security Service
documentation .
5 . We do not suffer under the constraints of the same limit to territorial
jurisdiction and non-access to Security Service documents . We therefore
determined to investigate, if possible, the allegation that Corporal Radey, who
was an R .C .M .P . member assigned to the National Crime Intelligence Servic e
259
�in Winnipeg and was working on the R .A .S . case, and the three E .C.P .
members, were the subject of an electronic surveillance by the R .C .M .P .
6 . We heard testimony on this matter in public on May 27, 28 and 29 and
June 5 and 6, 1980 . That testimony is found in Volumes 184-188 . We received
in camera testimony on May 28 and June 6, 1980 which is found in Volume
C95 . In addition, on May 22, 1980 we heard argument by counsel for certain
members of the R .C .M .P . with respect to certain evidence, and that is found in
Volume C94 . Those who testified were the Honourable Francis Fox, Commissioner R .H . Simmonds, Commissioner Maurice Nadon, Assistant Commissioner M .S . Sexsmith, Chief Supt . B . James, Chief Supt . J .A .B . Riddell, Inspector
S .D . Maduk and Sergeant J .D . Hearfield . Statutory Declarations were filed
with us by Insp . Maduk and Source One . We also received written representations from two members in response to notices given pursuant to section 13 of
the Inquiries Act .
Summary offacts
7 . On December 9, 1975, at 2 :55 p .m ., the three E .C .P . officers, Messrs .
Hahn, Stewart and Burke, checked into the Northstar Inn and were assigned
three rooms on the 24th floor . On the previous day a room had been reserved at
the Northstar Inn, through the hotel security officers, for Inspector S .D .
Maduk, the Officer in Charge of the Security Service at "D" Division in
Winnipeg . At 1 :17 p.m . on December 9, room 2405 had been assigned, by the
reservations clerk, to Inspector Maduk, who had pre-registered under the alias
"J . Swaan" of Poplar Field, Manitoba .
8 . At approximately 4 :00 p .m . the three E .C .P . officers were joined in the
room of one of them by R .C .M .P . Corporal William Radey, to make preparations for the next day when the interviews were to begin . All interviews were to
take place outside the hotel rooms at either the residence or place of business of
the person to be interviewed . For purposes of these interviews, Cpl . Radey was
teamed with Detective Burke .
9 . Inspector Maduk told us that he first arrived at room 2405 at approximately 5 :00 p .m . on December 9 . He said that the reason for his attendance in
that room on December 9 was to interview a female public servant (Source
One) employed as a stenographer by R .C .M .P . "D" Division Headquarters in
Winnipeg . Inspector Maduk said that the purposes of the meeting were (a) to
review Source One's intention to apply for a job as a backroom reader with the
Security Service, (b) to obtain information from her respecting a former
Security Service member whose security clearance had recently been downgraded due to a serious drinking problem and who had consequently been
transferred out of the Security Service, and (c) to discuss generally members
under his, Maduk's, command .
10 . Mr . Maduk told us that the business part of the meeting lasted approximately two to two and one-half hours and that the balance of the evening,
approximately two and one-half hours - during which they consumed a bottle
of Vodka - related totally to personal and social matters of a non-Force
nature . The Statutory Declarations filed by Mr . Maduk and Source One eac h
260
�disclosed that the personal and social matters included "sexual activity" . Mr .
Maduk confirmed that Source One's knowledge about the member with a
drinking problem was second-hand, coming from an associate of that member .
11 . Insp . Maduk said that he did not make a memorandum of the December
9 meeting either on the Casual Source File or on the file of the member whose
conduct allegedly precipitated the meeting with Source One . Chief Supt .
James testified that it was not a requirement of the Force that a memorandum
be made in such circumstances, but that it was good practice .
12 . Testimony before the Laycraft Inquiry disclosed that, on the morning of
December 10, Cpl . Radey and the three E .C .P . members left the hotel to
continue their interviews and that at a time, estimated by Messrs . Burke and
Radey to be approximately 4 :00 p .m ., the two of them returned to the 24th
floor of the Northstar Inn and encountered Inspector Maduk in the hallway in
the act of closing the door to room 2405 . Insp . Maduk told us that he met them
at the elevator . In any event, Messrs . Burke and Radey were aware that Mr .
Maduk had been in room 2405 . Insp . Maduk testified that he had just
concluded an interview with Julius Koteles, a Winnipeg lawyer (Source Two),
that it was approximately 4 :30 p .m . when he left the hotel room and that he did
not return to the room again that day . The Statutory Declaration of Source
One, filed with us, states that she did not go to the Northstar Inn at any time
on December 10, 1975 .
13. Again, according to testimony before the Laycraft Inquiry, following this
encounter with Insp . Maduk, Messrs . Radey and Burke became suspicious
about Mr . Maduk's presence in the Northstar Inn and sometime between 6 :00
p .m . and 7 :00 p .m . checked the door to room 2405 and found that the night
lock pin was out (engaged) . This indicated to them that the room was occupied .
14 . Evidence before the Laycraft Inquiry also disclosed that because of Insp .
Maduk's position with the Security Service, the four police officers concluded
that his earlier presence and the apparent occupation of the room were
indicative that they were the target of an electronic interception and that room
2405 was being used as the control centre .
15 . Detective Burke of the E .C .P . testified at the Laycraft Inquiry that he
kept a watch on room 2405 on December 10, from approximately 7 :00 o'clock
in the evening until about midnight, and that during that time the room
lock-pin remained in the out or locked position . According to Mr . Maduk, on
the morning of December 11 Cpl . Radey confronted him with the suspicion
about bugging and he, Maduk, volunteered to discuss the matter with the
E .C .P . officers . He said that he attempted to demonstrate that the lock-pin
could accidently engage, and that, as he recalled when testifying, it did engage
during the experiment . The testimony of Detective Burke before the Laycraft
Inquiry was that Mr . Maduk's attempted demonstration was not successful .
16. In the absence of conclusive evidence to allay their continuing suspicions,
the three E .C .P . officers nevertheless eventually decided to let the matter rest .
There the matter did rest and would likely not have surfaced again but for the
revival of the topic by Cpl . Radey of the R .C.M .P . in early 1977 . In 1977 ,
261
�following receipt of new information - information that Cpl . Radey had
which allegedly confirmed that a bugging had taken place - Alberta Deputy
Attorney General R . Paisley asked, through the senior ranking R .C .M .P .
officer in Alberta, Asst . Commissioner Wright, that the matter be at once
thoroughly investigated .
17. At the request of Mr . Paisley, Asst . Commissioner Wright asked Asst .
Commissioner Wardrop, Officer in Charge of "D" Division, Winnipeg, to
investigate the allegation . That investigation resulted in a report by Mr .
Wardrop to Mr. Wright which contained a number of errors . Receipt of the
Wardrop report and subsequent assurances by Commissioner Nadon that he
personally "saw no reason to believe the allegation of bugging" did not allay
the growing concern of the Attorney General of Alberta that the Force was not
fully cooperating with him in providing a complete and independent
investigation .
18 . In late March 1977 Commissioner Nadon therefore appointed a high-level investigation team from the C .I .B . side of the Force, headed by Deputy
Commissioner J .P . Drapeau and assisted by Chief Superintendent James
Riddell and Staff Sergeant I .B . Lambert, to look again into the allegation of
bugging . On March 23 Commissioner Nadon wrote to Attorney General Foster
advising him :
I have appointed Deputy Commissioner Drapeau to fully investigate the
issues raised in your letter . . . Deputy Commissioner Drapeau will be able to
approach the entire matter with a fresh and impartial outlook .
19 . This approach was consistent with the recommendation of then Deputy
Commissioner Simmonds that a senior officer "run this right to the ground
. .before this paranoia goes any further" . Chief Supt . Riddell told us that the
.
intention was that the investigation " . . .would leave no stone unturned, sor t
or ,
20 . Mr . Riddell testified that on March 28, 1977, he interviewed Mr . Maduk
in Winnipeg and learned for the first time that Mr . Maduk had interviewed
Source One on December 9 and that she was an employee of the R .C .M .P . He
said that he interviewed Mr . Maduk alone and took no statement or notes of
any kind and that in order not to risk "burning" the source, he instructed Mr .
Maduk to report to Ottawa through the regular channels in the Security
Service, and to document the name and the circumstances under which he had
interviewed Source One . Mr . Maduk did so by report dated March 30, 1977,
but that report gave no details about the interview of Source One on December
9 and referred to her only by her maiden name . Mr . Riddell said that although
he was "inwardly" concerned about the fact that Mr . Maduk had interviewed
Source One alone in the hotel room and had served liquor, he did not question
Mr . Maduk further on that aspect because it was his understanding that the
Security Service regularly debriefed sources in hotel rooms, much more than
the C .I .B .
21 . Insp . Maduk testified that he was reluctant to volunteer the full details of
what had transpired with Source One on December 9, 1975, and that he did
not give the full details to his superiors until January 1980 . He said that h e
262
�never advised Chief Supt . Riddell that some portion of the meeting with Source
One on December 9, 1975, was taken up with personal and social matters . Mr .
Maduk told us that he does not recall seeing Source One on December 10,
1975, and that, if he did, it was at work .
22 . Chief Supt . Riddell said that he did not attempt to verify the answers he
obtained from Mr . Maduk because the investigation had not proceeded to that
stage .
23. On March 31 the investigation team met with Attorney General Foster to
report on their efforts to date and to seek permission to interview E .C .P .
members and the Attorney General's confidential source . Their request was
refused for the time being . Both Mr . Drapeau and Mr . Riddell assured the
Attorney General at that time, based on their Winnipeg interviews, that Mr .
Maduk's attendance in the hotel was "completely legitimate" and that they
were "completely satisfied" that Inspector Maduk was in the hotel for the
purpose previously explained ( to interview the two unidentified sources) and
for no other purpose .
24 . Thereafter, according to the testimony of Mr . Riddell, the Drapeau
Investigation was "held in abeyance" waiting to obtain permission to interview
the Edmonton City Police members . In written representations made to us, Mr .
.
Riddell said that Commissioner Nadon " . . called a halt to this investigation
on 4 April, 1977" . Mr . Riddell wrote :
. . it was impossible for me to ensure that a complete and accurate
.
investigation was carried out because I was advised to terminate the
investigation approximately 12 days after it commenced and before I had a
reasonable time to investigate all issues .
Former Commissioner Nadon testified that the Drapeau investigation continued after March 31, 1977 but he was not sure how much longer . He said it
was halted for two reasons : because the Attorney General of Alberta would not
permit the investigators to interview the E .C .P . members, and because the
Laycraft Inquiry was set up . He told us that he believed that the investigation
had continued until the commencement of the Laycraft Inquiry on April 22,
1977 . He said :
What I am getting at, [the investigation] could have continued, but it was
stopped at the point of the Laycraft Inquiry .
Elsewhere in his testimony he said :
But it wasn't the Laycraft Inquiry that stopped us . It was the - I say this
was on another basis, on the fact that we could not see the original
complainants .
25 . On April 26, 1977, a report of the incident was prepared by the R .C .M .P .
for Solicitor General Francis Fox's handbook . That report referred to "complete", "thorough", and "in-depth" investigations and inquiries in Winnipeg
and stated "there is no reason to suspect that our member was there for any
purpose other than official Force duties" . Mr . Fox said that as a result of those
statements he was satisfied that all necessary elements in the internal inquiry
had been completed .
263
�26 . On May 17, 1977, Insp . Maduk forwarded a written report to the Deputy
Director General (Operations) in Ottawa . That report, addressed to Mr .
Sexsmith, for the first time disclosed the identity of Source One as a public
servant working at "D" Division, identified her by her married name, and
detailed the matters allegedly discussed during her debriefing . Former Commissioner Nadon testified before us that, had he known about that report, he
would have advised the Solicitor General, would likely have ordered a separate
inquiry, and would have checked out the genuineness of the statements made in
it, including whether Source One was a genuine source .
27 . The testimony of Mr . Sexsmith and Chief Supt . James reveals that, since
the appropriate senior officers within the Security Service at Headquarters had
no knowledge respecting the Northstar Inn Incident, they attached no significance to the report and it was therefore simply noted and filed . Chief Supt .
Riddell told us that because the Drapeau investigation had been terminated he
did not bother to obtain a copy of that report for his file . The existence of this
report was not known to any of the legal representatives of the Force appearing
before the Laycraft Inquiry until after that Inquiry had ended .
28 . As a result of a request for documents by the Laycraft Inquiry, on June 2,
1977, the R .C .M .P . Legal Branch in Ottawa was instructed to draft an
affidavit to be executed by the Solicitor General under section 41(2) of the
Federal Court Act claiming privilege for Inspector Maduk's December 1975
expense account and a memorandum of his interview with Mr . Koteles . On
June 6, 1977, the Solicitor General, Mr . Fox, executed an affidavit protecting
Insp. Maduk's memorandum of March 4, 1976, respecting two interviews with
Source Two (Mr . Koteles), one such interview being on December 10, 1975 . In
his affidavit Mr. Fox deposed as follows :
4 . 1 have examined the original of the specified report and verily believe
and certify, pursuant to the Federal Court Act, R .S .C . 1970, 2nd Supplement, c .10, sec . 41(2), that the production or discovery of the specified
document or its contents would be injurious to international relations and
national security .
7 . 1, therefore, object to the production, discovery or disclosure of the
specified document, or its contents, by any member of the Royal Canadian
Mounted Police or any other person on the further grounds that such
production, discovery or disclosure would seriously jeopardize or hamper
the continued gathering of such information and that this result would be
injurious to international relations and national security and, therefore, not
in the public interest .
8 . Having examined the specified document and having read the terms of
reference of the Commission of Inquiry, I have formed the opinion and
verily believe that neither the document nor its contents refer in any
manner, directly or indirectly, to matters involving Royal American Shows,
Inc . or to any of the matters directly or indirectly related to the terms of
reference of the Commission of Inquiry .
29. Although Mr . Maduk's May 17, 1977, report was briefly noted by the
Corporal acting as the R .C .M .P.'s document coordinator for the Laycraft
Inquiry, its significance was not appreciated and it was not brought to th e
264
�attention of the Solicitor General during the meeting on June 6, 1977, when
the affidavit under section 41(2) was executed . At this meeting no knowledgeable member of the Security Service was present . The May 17, 1977, report
did not surface again until November 1977 when Chief Supt . Riddell travelled
to Winnipeg to interview Source One and Source Two, at the rèquest of the
Solicitor General . Even then, its contents were not made known to Deputy
Commissioner Drapeau or the Laycraft Inquiry .
30 . The Solicitor General had requested that Source One and Source Two be
contacted to ascertain if they were prepared to testify . Mr . Riddell said that he
conducted no other investigation, did not re-interview Inspector Maduk, and
was very careful in the statement obtained from Source One not to deal with
the subject matter of her interview with Mr . Maduk . He said that he did not at
any time express his own private concerns about the propriety and necessity of
Insp . Maduk interviewing Source One alone in the hotel room on December 9 .
He said that he simply drafted a report for the Commissioner to forward to the
Solicitor General which was intended to convey the impression that there was
no cause for concern with respect to either of the sources . That letter of report,
dated November 18, 1977, was forwarded to Mr . Fox . There is no mention in
the letter of the fact that Source One was an employee of the R .C .M .P .,
although that fact was known to Chief Supt . Riddell as a result of his interview
with her .
Conclusions
31 . Our concerns in this matter were fourfold . First, we wished to determine
whether there was any additional evidence that Mr . Justice Laycraft had not
been able to inquire into as to whether there had been bugging . Second, we
wished to determine whether a proper investigation of the alleged bugging had
been conducted by the R .C .M .P. itself. Third, we were interested in determining whether the Laycraft Inquiry had been misled in any way . Our fourth
concern was whether the Solicitor General had been fully informed of all the
relevant facts .
32. We did not set out to try to establish whether or not there had been an
electronic surveillance of the E .C .P . officers by the R .C .M .P . Mr . Justice
Laycraft examined that question and stated that on the evidence available to
him it could not be concluded that there had been such surveillance . Our
investigative staff and counsel, in the course of pursuing our objectives, also
looked into that question thoroughly and concluded, and so advised us, that
there had been no surveillance . They found no new evidence on that matter .
Since we heard very little evidence on the question and did not pursue it we do
not propose to make any finding in that regard .
33 . The investigation by the R .C .M .P . was actually conducted in two stages .
The first stage was that undertaken by Assistant Commissioner Wardrop in
early 1977, at the request of Assistant Commissioner Wright, after the latter
had spoken to the Attorney General of Alberta . That investigation, which
could have gone a long way to allay the concerns of the Attorney General of
Alberta, was so incomplete and inaccurate that it could have done nothin g
265
�other than to heighten the suspicions which that Attorney General already had .
The careless manner in which it was carried out was exemplified by the fact
that it referred to the events of December 10 as having occurred on December
11 . This conclusion was arrived at by relying exclusively on Insp . Maduk's
memory with no apparent reference to any of the available documentation
which would have provided the correct date .
34 . The second stage of the R .C .M .P . investigation was that ordered by
Commissioner Nadon and conducted under the direction of Deputy Commissioner Drapeau by Chief Supt . Riddell and Staff Sgt . Lambert . The purpose of
the investigation was to determine whether or not there had been an electronic
surveillance of the E .C .P . by the R .C .M .P . At the outset, the only known
person alleged to be involved in such surveillance was Inspector Maduk, and
the allegation arose out of his presence in the Northstar Inn on December 10 .
The allegation having been denied by Insp . Maduk, the logical way to proceed
with an investigation would have been to establish positively what Mr . Maduk
had been doing at the Northstar Inn on December 9 and 10, thus disproving his
participation in any electronic surveillance . Chief Supt . Riddell appears to have
made no effort to follow that course . Mr . Riddell did not conduct interviews
with Sources One and Two to confirm Mr . Maduk's story as to the reason for
his presence in the hotel on those two days . We are satisfied that, had Mr .
Riddell delved into the matter, he would have discerned the nature of the
meeting with Source One on December 9 . Knowledge about what actually
occurred on December 9 would have helped to explain to all concerned Insp .
Maduk's conduct and reluctance to disclose his actions . Only when the
investigation could verify the de-briefings of December 9 and December 10 and
anything that flowed from that knowledge, could the Force be in a position to
truly report to Attorney General Foster and the Solicitor General that it had
conducted a "complete and thorough" investigation .
35. The decision of Deputy Commissioner Drapeau not to carry on with the
investigation, after he was denied the opportunity to speak to the E .C .P .
members and the source of the Attorney General of Alberta, is also difficult to
understand in the circumstances . There were still a number of avenues open to
the investigating team, such as interviews with the sources, as mentioned
above, and a follow-up of Insp . Maduk's report of March 30 to Security
Service Headquarters . That report of March 30 was clearly incomplete and by
Chief Supt . Riddell's own acknowledgement not what he expected would be
filed by Mr . Maduk . Yet the matter was not pursued at the time .
36. It is our conclusion that the investigâtion in this matter was inept and
careless . Chief Supt. Riddell should have conducted it more thoroughly and
Deputy Commissioner Drapeau should have ensured that it was so conducted .
Despite the incompleteness of their investigation, Deputy Commissioner Drapeau and Chief Supt . Riddell assured the Attorney General of Alberta that
Insp. Maduk was in the hotel room to interview two sources and "for no other
purpose" . In so reporting they acted carelessly and were derelict in their duty,
particularly bearing in mind that they knew that their report would be the
basis of information to be given to the Attorney General of Alberta .
266
�37 . The report of April 26, 1977, to Mr . Fox was clearly not correct . The
investigation could not in any sense have been described as "complete",
"thorough" or "in-depth", even in relation to investigations and inquiries in
Winnipeg . We fail to see how such a statement could have been made
responsibly when there had not even been any interview by the investigators
with the two sources . We consider that the language used in the report was
both extravagant and inappropriate .
38. When, at Mr . Fox's request, the sources were interviewed in November
1977, Chief Supt . Riddell learned for the first time that Source One was a
female employee of the R .C .M .P . That information was not passed on to Mr .
Fox . The relevance of conveying such information to Mr . Fox should have been
obvious to Mr . Riddell .
39 . The combination of the inadequacy of the Drapeau Investigation and the
structures put in place by the R .C .M .P ., both to investigate an allegation of the
E .C .P . members and to respond to the Laycraft Inquiry, resulted in both the
Solicitor General and that Inquiry not being provided with all relevant
information . The Security Service had very little input into either the Drapeau
Investigation or the Laycraft Inquiry, even though the Northstar Inn Incident
was a Security Service matter . That this adversely affected the investigation
and the information provided to the Laycraft Inquiry cannot be doubted
because it meant that no one within the Force was totally knowledgeable about
the Northstar Inn Incident . No one from the Security Service was appointed to
the Drapeau Investigation team, even in a liaison capacity . Thus, there was a
total lack of coordination between the investigators and the Security Service
with respect to the flow of documentation . Nor was there any mechanism to
coordinate the C .I .B . and Security Service involvement in the Laycraft Inquiry,
including the collection and review of relevant Security Service documents
respecting Source One and Source Two. This resulted in some documents, and
particularly the very significant document of May 17, 1977, not being brought
to the attention of the Solicitor General when he was executing the affidavit
under section 41(2) of the Federal Court Act . That document of May 17,
1977, for the first time, disclosed that Source One was a female public servant
employed by the R .C .M .P . Had that fact been made known to the Solicitor
General on June 6, 1977, when he executed the affidavit, events might well
have taken a different course . For the reasons stated above we have concluded
that both the Solicitor General and the Laycraft Inquiry were misled by the
Force, albeit unintentionally .
40 . Many of the problems which arose in this matter, beginning on December
10, 1975, could have been avoided had Inspector Maduk prepared and filed, in
a timely fashion, a comprehensive report concerning his interview with Source
One on December 9, 1975 . His failure to do so was contrary to good practice
and contributed greatly to the senior officers of the Force, the Attorney
General of Alberta and the Solicitor General, not being completely informed at
the earliest possible time as to what had actually occurred at the Northstar Inn
on December 9 and December 10, 1975 .
41 . It is obvious to us that the combination of Inspector Maduk's failure to .be
forthright, and the deficiencies of Asst . Commissioner Wardrop's report an d
267
�Asst . Commissioner Drapeau's investigation, contributed immeasurably to an
exacerbation of the relationship between the Attorney General of Alberta and
the R .C .M .P . We do not know whether, had the truth about Inspector Maduk's
meeting of December 9 meeting with Source One been known to the Laycraft
Inquiry, its proceedings would have been shortened . It is clear, however, that
the Laycraft proceedings would have been different in relation to the December 9 meeting .
42 . Since drafting our report on this matter we have received a copy of a
report, prepared in 1980, of an internal R .C .M .P. investigation of certain
aspects of this incident. According to the report that investigation dealt with
the following :
PART I
Section 41(2) Federal Court Act (FCA) affidavit issued by
The Honourable Francis Fox on 77-06-06, in respect to the
Laycraft Inquiry .
PART II
Insp . S .B . Maduk's conduct throughout the entire episode,
including the accuracy of his expense account for the period
75-12-01 to 75-12-15 .
PART 111
Irregular handling of two key Security Service documents (i .e .,
Insp . MADUK's memoranda to A/Commr . M .S . SEXSMITH dated 77-03-30 and 77-05-17), and the consequences
that flowed therefrom .
PART IV
The adequacy of D/Commr . J .P.J .P . DRAPEAU's investigation, including the adequacy of reporting of the information
gathered to more senior personnel .
PART V
PART VI
The adequacy of reporting to the Solicitor General .
Accuracy of certain testimony at the Laycraft Inquiry and the
McDonald Commission of Inquiry .
The report also says that there was one aspect that was not investigated . It
states :
The investigation did not encompass the alleged electronic monitoring of
the Edmonton City Police by the RCMP at the North Star Inn on 75-12-09
and 75-12-10 . A review of all relevant material establishes beyond doubt
that there was no interception of any conversation between Cpl . W .P .
RADEY, Insp . H. HAHN, S/Insp . W .H . STEWART, or Detective B .
BURKE (Edmonton City Police), nor was there any attempt to do so .
There was no point, therefore in re-investigating this aspect of the matter .
Our counsel had been given an opportunity to read a copy of the Report some
time ago but no copies were made available to us at that time . The investigation was conducted under the direction of Assistant Commissioner R .R .
Schramm . Although we have made no attempt to verify the accuracy of the
interviews conducted by the investigators, we are very favourably impressed
with the quality of the report itself.
43. We recommend that this chapter of our Report and a copy of the
R .C .M .P . internal investigation report be referred to the Attorney General of
Canada, the Attorney General of Alberta and the Attorney General of
Manitoba .
268
�CHAPTER 9
DESTRUCTION OF AN ARTICL E
Introduction
1 . The evidence on which the facts in this chapter are based was heard in camera
and is found in Volumes C110 and C111 . The witnesses were Mr . John Starnes
and Assistant Commissioner H . Draper ( retired) .
Summary of fact s
2 . Some years ago a suspected Intelligence Officer of a foreign power visited
Canada . The Security Service suspected that this person was interfering in
Canadian political affairs and consequently placed him under surveillance .
During the course of the surveillance an article was surreptitiously removed by
the Security Service from the possession of the person, with a view to
examining it and returning it without the person's being aware of its removal .
This was done without the benefit of a search warrant . Due to a turn of events
beyond the control of the Security Service officers involved, it was not possible
to return the article without the person's becoming aware that it had been
removed . An examination of the article disclosed that it belonged, not to the
foreigner, but to a Canadian citizen who was accompanying the foreigner .
3 . The matter was reported by the Security Service investigators to the
Officer in Charge of the C .I .B . at the Division, with the recommendation that
the article be returned to its owner through a local police department in a
manner which would make it appear that the police department had recovered
the article as though it had been lost or stolen . That recommendation was
passed on with approval by the C .I .B . Officer in Charge to the Deputy Director
General of the Security Service . The Deputy Director General (Operations) at
that time, Assistant Commissioner Draper, discussed with the Director General, Mr . Starnes, what ought to be done with the article and Mr . Starnes
ordered that it be destroyed . That instruction was passed on through Mr .
Draper and the article was in fact destroyed .
4 . We were advised by the Commissioner of the R .C .M .P . that, upon learning
of this incident in late 1977 or early 1978, he brought it to the attention of the
attorney general of the province in which it had occurred . We confirmed that
with the attorney general when we were discussing other matters with him .
5 . Mr . Starnes told us that he felt he had no other choice than to order the
destruction of the article because of " . . . the possibility of an international
ruckus . ." and " . . the domestic political ramifications . . ." if it had become
.
.
known that the Security Service had been conducting a surveillance and ha d
269
�removed the article for examination . He said : " . . anything that could be done
.
to prevent that kind of thing happening [i .e . an international ruckus or
domestic political ramifications], it seemed to me was worthwhile" .
Conclusions
6 . We do not propose to discuss here the implications of the warrantless
search and seizure of the article . Such activities are examined in Part III of our
Second Report . Our concern here is the destruction of the property . Since this
particular incident was reported to the attorney general of the province in
which it occurred, we will make no further recommendations in that regard in
relation to the legal consequences . We do, however, feel that we must comment
on the conduct of Mr . Starnes in ordering the destruction of the property .
When Mr . Starnes said that "anything" (our emphasis) would be "worthwhile" to prevent the problems which might arise from disclosure, we do not
take him literally . Nevertheless, we are extremely disturbed that he was
prepared to go to the lengths that he did to prevent disclosure . He was faced
with the possession by the Security 'Service of property which had been
removed surreptitiously by the Security Service, and without warrant, from the
possession of a person, and then discovered to be the property of another
person . Regardless of the suspicions of the Security Service with respect to the
activities of the two persons involved, there is no evidence that those persons
were acting unlawfully and they had a full right to the article in question . As
soon as the facts came to the knowledge of Mr . Starnes, he should have
instructed that the article be returned to its rightful owner in whatever lawful
fashion ran the least risk of disclosure of the Security Service's activities . Mr .
Starnes was not faced, as he told us he was, with a`Hobson's choice', or, at
least, not with the Hobson's choice that he described . He ought to have
considered that the only choice open to him was to see that the article was
returned to its owner, and then concentrated on the best method of returning it .
We consider that his conduct in the circumstances was improper . Were such
conduct to be considered as acceptable, no one's property would be safe from
destruction by the Security Service, if to do so would assist in concealing or
furthering an operation of the Security Service .
270
�CHAPTER 1 0
A REPORT ON CERTAIN MATTERS,
PRINCIPALLY
COMPLAINTS FROM MEMBERS OF THE
PUBLIC
Introduction
1 . From the beginning of our work we realized the importance of receiving
allegations from members of the public. We considered that our investigation
of complaints might lead us to conduct by members of the R .C .M .P. that was
"not authorized or provided for by law", and from there we would be able to
consider whether the conduct was exceptional or endemic . We also considered
that receipt and investigation of complaints was one way of restoring public
trust in the R .C .M .P ., such trust having been specifically referred to by the
Order-in-Council that created our Commission . To make the public aware of
our willingness to receive and investigate allegations from members of the
public we published, during October and November 1977, a notice in most of
the daily newspapers in Canada and many ethnic newspapers requesting the
public to submit complaints to us . That notice was reproduced as Appendix
"M" to our Second Report .
2 . In June 1978 our Chief Counsel attended a meeting of provincial attorneys
general to discuss jurisdictional problems associated with the investigation of
complaints arising within the provinces . The discussions at that meeting set the
tone for the relationship which prevailed between our Commission and the
attorneys general of those provinces in which we had complaints to investigate .
The full text of the statement read by our counsel to the attorneys general at
that meeting may be found in Appendix A to this Report .
3 . In October 1979 we published, in 27 daily newspapers across the country, a
notice indicating that we could not investigate any allegations received after
November 19, 1979 . That notice was reproduced as Appendix "N" to our
Second Report .
4 . 293 persons wrote to us beforeNovember 19,1979, most of them complaining about the conduct of members of the R .C .M .P ., some about non-members .
In six instances the matters raised did not constitute allegations about such
conduct but related to questions of policy . These six files, while not investigated, were referred to our research staff for consideration .
5 . Following the "cut-off " date, 45 persons submitted complaints which we
did not investigate . In most cases we advised these people to refer thei r
271
�allegations directly to the Commissioner of the R .C .M .P . or the Office of the
Solicitor General . We might here observe that, if recommendations contained
in our Second Report, Part X, Chapter 2, were adopted and implemented, that
there be an Office of Inspector of Police Practices, such complaints might have
been referred to that office or directed by the complainant directly to that
office .
The nature of our investigatio n
6 . From the outset, we considered it essential to preserve the confidentiality
of the complaints received from members of the public . We also felt it
necessary to attempt to interview all complainants .
7. Whenever possible, as occurred in most instances, our investigators interviewed the complainant as a preliminary step in the investigation . They they
invariably reviewed relevant R .C .M .P . files . During the course of three years'
work by our investigators thousands of files were examined . Following such
examination in each case, our investigators, whenever possible, conducted an
interview of R .C .M .P . members who had been involved, and of other witnesses .
8 . After each investigation, detailed reports were prepared by the investigator, reviewed by Commission counsel and submitted to us for consideration .
9 . Many allegations required the investigators to work closely with our
counsel in order to produce detailed studies . Examples are some of the
allegations submitted by labour and ethnic groups . These detailed studies were
used in the preparation of certain chapters of our Second Report and other
chapters of this Third Report .
Statistical information
Types of complaints
10. 287 complaint files were investigated by us . In several cases individuals
wrote on behalf of groups or associations . Consequently, the number of persons
on whose behalf our investigations were conducted is significantly higher than
287 .
11 . The 287 complainants produced 496 specific allegations which we categorized as follows :
Category Number o f
%
complaints
Agents
and
sources
15
3
(illegal acts of)
Arson
Assault
5
Blackmail
Breach
of
1
21
4
5
contract
3
1
0.75
Bribes
4
0.75
Conduct unbecoming 12 2 .5
Damage
to
property
Detention ( improper)
Disciplinary
process
(improprieties during)
272
9
24
7
2
5
1 .5
�Category Number o f
complaints
%
Disruption and 24 5
Disruptive tactic s
Entrapment 4 0 .75
Exhibits (improper use of) 2 0 .5
Electronic surveillance 56 11 .25
Falsification of documents 8 1 .5
Harassment 77 15 .5
Information (improper use of) 19 3 .75
Investigation
(improper or inadequate) 53 10 .75
Mail openings and intercepts 29 5 .75
Murder
2
0 .5
Obstruction of justice 16 3
Perjury
6
1 .25
Screening and clearances 9 2
(improprieties during )
Searches
17
3 .5
Surveillance (electronic an d
physical)
33
6 .5
Thefts
15
3
Threats
13
2 .5
Training (inadequate) 4 0 .75
Warrants (improper use of) 4 0 .75
TOTAL
496
10 0
12 . The complaints came from persons representing a cross-section of society .
They included labour leaders, leaders of ethnic groups, fishermen, presidents of
corporations, housewives, lawyers, doctors, farmers, prison inmates, members
and ex-members of the R .C .M .P ., and politicians .
13 . Many of the complainants had sought redress elsewhere prior to contacting us, in many instances through direct dealings with the R .C .M .P . Although
we are persuaded that in most cases R .C .M .P . investigations into allegations
against their own members are fair and thorough, we feel that a greater
amount of openness by the Force in their dealings with complainants would go
a long way towards resolving many of the complaints received by it . In our
Second Report, Part X, Chapter 2, we expressed our view that once the
R .C .M .P . has completed the investigation of a complaint it should advise the
complainant whether the Force has determined the allegation to be founded,
unfounded or unsubstantiated . We recommended, however, that the nature of
the discipline or punishment given an R .C .M .P . member need not necessarily
be communicated to the complainant .
14 . Some of the complaints filed with us were unfair attacks on members of
the R .C .M .P ., motivated solely by a desire for revenge . Because the facts
presented to us by the complainant contained only one or two distorted details,
such complaints were sometimes difficult to distinguish from those allegations
which were made in good faith .
273
�15 . Our investigators and counsel concluded that 83 of the 287 complaints
(29%) were by mentally disturbed persons . In many instances the mental
instability of the complainant was evident on the face of the complaint, while in
other cases the instability became apparent only during some stage of the
investigative procedure . In each of these cases, a full investigation was conducted in order to determine whether there was any substance to the allegation .
The following are some examples of this sort of case . We mention them to
illustrate that in many of these cases the mental stability was evident on the
face of the record :
(i ) During an interview with one of our investigators, a complainant
blamed the R .C .M .P . and another police force for ordering the
installation of a transmitting device in his teeth while he was
undergoing nose surgery . This complainant further alleged that his
brains had been "bugged" thus depriving him of "the privacy of
thought" .
( ii) One man who blamed the government in general and the R .C .M .P .
in particular for harassing him wrote to say : "I was stopped several
times on the street and told if I pursue the case I will either be put
away like the Russians or killed . Since I was murdered in [place]
died and brought back to life by friends, and left partially paralyzed, [ . ..] was picked up and drugged and murdered on January
20, 1973 . "
(iii) A woman attended at our offices to file a complaint . During an
interview with our counsel she indicated her firm belief that she
was being controlled by short wave and subjected to radiation . The
complainant also stated that she constantly heard people talk on
T .V . about her most personal secrets and had on several occasions
been sexually assaulted in her apartment by unknown forces . She
said that on one occasion she had been assaulted by a male who
identified himself as a member of the R .C .M .P .
16 . The statistical analysis of allegations by province, territory and country is
as follows :
Province, Territory Number o f
or Country complaints
%
97
33 .8
British Columbia 59
20 .6
Quebec
44
15 .3
Alberta
31
Saskatchewan 18
10 .8
Ontario
Manitoba
6 .3
8
New Brunswick 8
2 .8
Nova
2 .8
2. 1
Scotia
Newfoundland
8
6
Prince Edward Island I
Northwest Territories 0
Yukon
Outside Canada
2 .8
.3
0
0
0
7
2 .4
287
10 0
TOTAL
274
�Conclusions concerning the merit of the allegations
17. Of the 287 complainants who contacted our Commission :
(a) 51 had complaints which we consider were well-founded or partially
well-founded ;
(b) 189 had complaints which after investigation we considered were
unfounded ;
(c) 16 had complaints which we were unable to investigate fully for one or
more of the following reasons :
- the matter was sub judice (before a judicial tribunal) ;
- there was lack of cooperation from the complainant or a provincial
authority ;
- we were unable to locate the complainant ;
- the complaint did not come within our mandate ;
- the complaint related to incidents which had occurred so long ago
that most of the witnesses had died and many relevant documents
had been destroyed .
(d) 31, upon examination, were found to contain no real complaint or
allegation against the R .C .M .P.
18 . 27 persons submitted unintelligible material which we did not investigate .
No files were opened by us in these cases and they are not included in the 287
complainants referred to earlier .
19 . With respect to the 51 complainants whose complaints were partially or
fully well-founded, we have selected 36 to report on in this chapter . In some
instances, where more than one complaint of a similar nature has been
received, we have made a selection in order to present only the most illustrative
of the group. Certain other well-founded or partially well-founded allegations
are not reported on here but are discussed elsewhere in our Second Report and
this Third Report, although they may not be clearly identified as allegatiôn
files . These other cases include certain types of complaints which dealt with
institutionalized practices such as mail openings and surreptitious entries .
20 . As indicated earlier, we always felt it was essential to preserve the
confidentiality of the complainants corresponding with the Commission . This
explains the format chosen for the presentation of our 36 detailed summaries,
which follow the style invariably used by provincial Ombudsmen in the
presentation of their reports . In all 36 cases we have preserved the anonymity
of the participants by leaving out the names of all participants and exact dates
and locations .
Conclusion
21 . Our work in this area has been extremely useful in three respects beyond
the circumstances of each particular complaint . First, on occasion it' has served
to identify some specific problem areas which we then decided to examine in
greater detail . Second, it brought home to us the importance and seriousness o f
275
�jurisdictional problems which can arise during the investigation of public
complaints concerning the activities of a federal police force required to
function within provincial and municipal jurisdictions . Third, it contributed to
our confidence in recommending, in our Second Report, Part X, Chapter 2, the
creation of an Inspector of Police Practices who can function with the
cooperation of the judiciary, the police and provincial and municipal
authorities .
22 . Current R .C .M .P . policy concerning the engagement of recruits for the
Force does not call for the professional administration of standard psychological tests designed to reveal propensities for violence on the part of the
applicant . While the validity of this procedure may be argued, the fact remains
that a number of police forces have adopted it as part of the physical and
mental fitness requirements which must be satisfied before an applicant is
accepted . As an example the Minnesota Multiphase Personal Inventory
(M .M .P.I .) questionnaire, when properly administered, may raise enough
doubts about an individual's attitude and mental ability to respond to stress
without resorting to the use of force, to justify a recommendation that the
application be rejected .
23. We are satisfied that the great majority of well-founded or partially
well-founded allegations refer to incidents which are isolated and do not reflect
an institutionalized or systematic practice .
24 . Although difficult to ascertain with any great precision, it is probable
that many complainants would not have complained had our Commission not
existed . We infer this from the fact that many persons who wrote to us after
the cut-off date, when advised that we would not investigate but that they
could forward their allegations directly to the Solicitor General or the Commissioner of the R .C .M .P ., expressed the view that such action would inevitably
prove to be useless .
DETAILED SUMMARY NO . 1
1 . This complaint was brought to our attention by the R .C .M .P . Task Force
Co-ordinator, together with the complete file concerning an internal
investigation .
2 . On March 17, 1979, the complainant and a companion were arrested for
drunkenness and taken into custody by an R .C .M .P. constable, a member of a
municipal detachment . The companion was lodged in the cells without incident
but the complainant was said to have become uncooperative during the booking
procedure, provoking the constable into using force. During a struggle the
constable choked, kicked and struck at the complainant with his police baton,
and finally dragged the complainant to the cells by his hair . The complainant
was reported to have suffered a minor injury to his forehead . Following his
release he filed a complaint of assault against the constable, which resulted in
what is known within the R .C .M .P. as a full service investigation. The
complainant did not wish to initiate criminal proceedings but when the report s
276
�and evidence were reviewed by the Attorney General he instructed that the
constable was to be charged with assault causing bodily harm . . Disciplinary
action taken against the constable consisted of an official warning . The
constable later appeared before the provincial judge, pleaded not guilty and
was acquitted . There was no appeal .
Conclusions
3 . This case is a good example of. an . impartial and thorough internal
investigation - i .e . an investigation within the R .C .M .P . - into a citizen's
complaint, resulting in criminal charges being preferred against the member
involved, even though the complainant declined to do so, and even though the
constable was acquitted - somewhat to our surprise, in view of the internal
investigation and the statements of witnesses .
4. Furthermore, a disciplinary sanction was imposed independent of the court
result . It would be of interest here to note the four levels of discipline that are
provided for in the Force's Administrative Manual (11 . 13 11c) : (1) cautioning ;
(2) warning ; (3) charging with a service offence ; (4) compulsory discharge .
The last two are self-explanatory . The meaning of the first two may be derived
from the explanations given in the manual, as follows :
(1) Cautioning
A member should be cautioned for a minor breach of conduct or unsatisfactory performance when an official warning is deemed too severe .
(2) Warnin g
A member should be warned for a breach of conduct, unsatisfactory
performance of his duties, or where there is evidence of a correctable fault
or shortcoming when a cautioning is deemed inappropriate and a service
charge toô severe .
DETAILED SUMMARY NO . 2
1 . In September 1978, the Chairman of this Commission, following a chance
discussion with another judge from his court, learned of this matter and
requested and ultimately obtained an Appeal Book from the Registrar of the
Appellate Division of the Supreme Court of Alberta . The document revealed
that at a trial a joint statement by the defence counsel and the Crown attorney
was read into the record to indicate that two members of the R .C .M .P . had
used physical assault and oral threats against the accused .
2 . Without delay we brought this information to the attention of the
R .C .M .P . The ensuing R .C .M .P . internal investigation and our study of court
documents have revealed the following story .
3 . The accused person, a juvenile at the time, was hitchhiking in Alberta . He
had in his possession a sawed-off rifle . The victim, travelling alone in his car,
stopped to take in the accused as a passenger . The pair travelled together fôr
some 40 miles, at which time the accused shot the victim, stole his belongings
and hid the body down a side road . The accused then went on his way with th e
277
�victim's car and documents of identification . The accused was arrested in
British Columbia while masquerading as the victim and attempting to negotiate a forged cheque .
4 . A corporal and a constable of the R .C .M .P . were assigned to investigate
these incidents . They quickly realized that the accused had been responsible for
the murder and set out to prove that fact . During the investigation the corporal
kicked the accused in the genitals and attempted to intimidate him by threats .
Although the constable did not participate in the physical assault, he was
present . The accused finally confessed and was convicted of second-degree
murder without eligibility for parole before 20 years .
5 . The constable, since promoted to corporal, was warned for his "passive
participation" in the assault on the accused . The other corporal, who was
suffering from arrythmia, was granted a medical discharge from the Force .
After his discharge, the investigation resulted in a charge of assault causing
bodily harm being laid against him . In October 1979 he appeared in court in
B.C ., entered a plea of guilty to a reduced charge of common assault and was
granted an absolute discharge .
6 . Shortly after the accused's arrest, the fact that he had been physically
abused was openly discussed by some members, senior N .C .O .'s and a commissioned officer . No one at that time instituted an investigation . The matter of
the assault was discussed in an attachment to a division investigative report on
the homicide .
Conclusions
7 . Although the accused was arrested in "E" Division (B .C .) and both
investigating members were from B .C ., the commanding officer of "E" Division was not told of the assault incident at the time it happened in Alberta . The
commissioned officer, a Superintendent, who had learned of the incident, was
officially warned for "failure to initiate an investigation" once he became
aware of the assault committed by the members under his command . He had
been told of these incidents by an Inspector who felt that the counselling he
had given to the two members was sufficient and that no further action was
necessary . The subsequent internal investigation concluded that both the
Inspector and the Superintendent had handled the matter of the assault in a
careless fashion . We have been advised by the R .C .M .P . that steps have been
taken in "K" Division - Alberta - "to ensure that review procedures are
adequate to avoid similar situations in the future" .
8 . This case was referred to in our Second Report, Part III, Chapter 10 .
DETAILED SUMMARY NO . 3
1 . A lawyer wrote to inform us of two separate and unrelated incidents in
which he questioned the conduct of members of the R .C .M.P . The first
involved a boating mishap in which five persons from a small capsized craft
were in the water for five hours before they were rescued by a boat whose cre w
278
�accidentally spotted them while searching for another vessel . The second
consisted of an alleged `deal' in which an R .C .M .P . member agreed not to
proceed with an impaired driving charge if the accused supplied him with
information on drug dealers .
The First Matter:
2. Inquiries into the first incident disclosed that the captain had radioed a
distress call on his C .B . radio just before the boat capsized . The call was
received by a woman who notified the local R .C .M .P . detachment . Following
the instructions of the member on desk duty, this woman contacted a fish plant
in the area, and requested that they inform their fishing vessels to keep on the
look-out for a pleasure craft in difficulty . Later the same day, someone from
the fish plant notified the woman that none of their vessels had seen a boat in
trouble . The woman relayed this information to an R .C .M .P . member on desk
duty who stated "It is probably a hoax" . The member on desk duty made no
further inquiries and the incident was considered closed . As it turned out the
distress call had been legitimate and the victims were eventually rescued only
by good luck .
3 . Following criticism in the local newspaper for this inaction, the R .C .M .P .
ordered an internal investigation . The result was that the R .C .M .P . chiinged
their policy and procedures manual dealing with distress calls . Previously, on
receipt of a call, the R .C .M .P . investigated its authenticity, and only then, if
satisfied, notified the Rescue Co-ordination Centre . Since the incident
described above, they immediately notify the Rescue Co-ordination Centre
first, and then attempt to verify the call .
4 . Investigation by our staff confirmed that hoax calls in this particular area
are not uncommon . Considering R .C .M .P . policy at the time we cannot fault
the members concerned .
The Second Matter:
5. The second incident concerns events which occurred following a motor
vehicle collision in which a man and a woman were involved . Their car left the
roadway, plunged into a harbour and was completely submerged . The man and
woman swam to shore and were taken to hospital by ambulance . While the
man was at the hospital, the investigating R .C .M .P. member gave him a
standard breathalyzer demand and requested that the man accompany him to
the police car . En route to the police station the conversation revolved around
the fact that the member had formerly been in the drug section and that he
was acquainted with the man's brother . While at the local detachment,
according to the man, the member refused to allow him to take the -breath test,
charged him with failing to provide a breath sample, and told him that the
charge would be withdrawn if he would provide enough information to allow
the member to make a big drug `bust' . According to the man, he gave the
member drug information on at least two occasions following his release, but
the member did not consider it sufficient to warrant withdrawing the charge .
279
�6. In frustation, the accused related his version of the events to his solicitor .
The accused appeared in court with his counsel and the charge was dismissed,
not because of the alleged deal, which had become the principal defence, but
because the judge was not satisfied that the R .C .M .P . member had had
sufficient grounds to demand a breath test in the first place .
7 . This matter raised problems because the evidence of the accused and that
of the member, as to who instigated the deal and whether or not the man
refused to take the breathalyzer test, was completely contradictory. The
R .C .M .P . internal investigation resulted in the member being informed that he
might have been indiscreet . In a report a senior R .C.M .P. officer stated :
"The member was perhaps indiscreet and slightly overzealous but acted
properly, however, senior management has taken steps to counsel members
as to the proper procedure to be followed under similar circumstances" .
8 . There is ample evidence that a "deal" was discussed : (a) The court date
was set far enough in advance to allow the accused time to produce evidence on
drug offences . (b) The accused was given the member's home telephone
number . (c) The accused contacted the member on at least two occasions . (d)
The member admitted in court that he honestly intended to take action to have
the charge withdrawn should evidence on a drug `bust' be forthcoming . We are
unable to make findings as to the specific allegations of misconduct in this
case . We do believe that R .C .M .P . members, regardless of the circumstances,
should not give the impression that they possess the power to have charges of
any kind withdrawn .
9 . There is evidence from this investigation and others that members, when
required to assume new functions, may not be properly briefed or prepared for
the change in their duties . It is also evident from the experiences of our
investigators that sometimes members are not as conversant as they should be
with Force policy and guidelines as set out in the various manuals . The
experience of our staff leads us to make the following comments : When an
R .C .M .P. member is assigned to new functions in a field in which he has no
previous experience, he should receive guidance and formal training as to his
new duties, rather than being left to learn by trial and error . This, we believe,
would eliminate mistakes and improve community relations .
10. In our Second Report, Part VI, Chapter 2, we expressed our views as to
the importance of formal training in the security intelligence agency . We have
formed the opinion that there is a similar need on the criminal investigation
side of the R .C .M .P . We recognize that certain courses and guidance already
exist, but wish to draw attention to the ever-increasing need for continuing
education in police work .
DETAILED SUMMARY NO . 4
1 . A Member of Parliament sent us copies of correspondence dealing with the
complaints of a former R .C .M .P. auxiliary constable, who had served at an
R .C .M .P . Detachment for twelve months .
280
�2. R .C .M .P . files indicate that his services were terminated as a result of an
internal investigation into an assault incident that occurred in his second
month . Service court proceedings alleging assault and improper conduct had
been instituted against two constables, and the auxiliary constable was asked to
appear as a witness .
3 . During the service court proceedings, it was reported that, in an effort to
protect one of the accused members, a number of other R .C .M .P . members,
including the auxiliary constable, were reluctant to give an accurate and
complete account of the circumstances surrounding the alleged assault . When
the matter was concluded, the auxiliary constable's security clearance was
rescinded ; he was released from the auxiliary programme, and subsequently
refused re-engagement .
4. He complained to the Commanding Officer of his Division that his
interview at the time of the incident had been conducted in a rude and arrogant
manner, and that the loss of his security clearance had impugned his credibility, honesty and integrity within the community where he lived and had served
as an auxiliary .
5 . The grievance was investigated by a Corporal who reported that he had
little doubt that the auxiliary constable had not told all he knew during the
investigation, and in fact had "probably lied during the investigation and
service court" . The corporal continued : "The evidence available is not sufficient to justify charges ; however, it does cast a grave doubt to the subject's
honesty and therefore his security status" .
6 . The Commanding Officer then advised the auxiliary constable that he
agreed with the decision to rescind the security clearance . Later the auxiliary
constable met with the Commanding Officer of the Division . As a result of this
interview the clearance was restored and the Commanding Officer instructed
that the auxiliary constable's suitability for re-engagement, which was regarded as a separate issue, now be reported on . The reply was that the auxiliary
constable not be recommended for re-engagement . The reasons for this suggestion were given as follows :
(a) Very reluctant to give a complete and accurate account of the original
incident involving the internal investigation of members .
(b) Conduct and attitude indicative of a union person and advocate . After
discharge he endeavoured to collaborate with some auxiliary and
regular members to better his position of appeal .
(c) Discussion with the non-commissioned officer in charge of the auxiliary
programme resulted in the recommendation that he would be detrimental to their auxiliary programme .
(d) He displayed a dominant personality in that he worked his way to the
position of Secretary of the auxiliary programme in the engaged twelve
months and appeared most anxious to further the leadership role .
7. The auxiliary constable was advised by the R .C .M .P . Commissioner in a
letter of the decision not to recommend him for re-engagement . He then
approached the Member of Parliament, who complained to the R .C .M .P. Thi s
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�complaint caused a further review of the files by two officers . The first one
concluded :
On reviewing material available here it does seem that the auxiliary
constable may have been treated unfairly . His security clearance should
never have been a factor . He apparently committed no breach of conduct
that was any worse than has been committed by regular members who were
simply given an official warning . Points mentioned in the review to illustrate that the auxiliary constable was unsuitable over and above security
clearance concerns dealt with, seem somewhat flimsy .
The second officer reported as follows :
Having thoroughly reviewed the reports of this investigation, there is no
doubt in my mind that after the assault the members collaborated and
decided to withhold evidence in an effort to protect one of the members .
They obviously included the auxiliary constable in their decision and as a
result this left him in the awkward position in that if he had told the truth,
he would have been ostracized by the members of the detachment . Wrongly
but understandably, he chose to follow the course of action which he had
been prompted to follow by the other members in an effort to protect the
member from disciplinary action .
Considering the unenviable position in which our members placed the
auxiliary constable, I believe that he was too harshly dealt with, particularly in light of the penalties imposed on the regular members involved, and
that any re-engagement application from him should be considered on its
present merits, not on the incident which resulted in his dismissal .
8. Following this review, the R .C .M .P . Commissioner decided that the auxiliary constable could "re-apply to join the auxiliary programme with the
complete assurance that past actions will have no bearing on his application" .
At the conclusion of our investigation, the former auxiliary constable had not
re-applied .
Conclusion s
9 . We are in agreement with the last two investigating officers who concluded
that the auxiliary constable was unfairly and too harshly treated . Had the basic
principles of discipline, which call for uniformity of sanction in similar cases,
been observed in this case, the auxiliary constable would not at this time find
himself in the unenviable position of having to seek re-engagement . (Issues
related to the internal disciplinary process and complaint procedure are
reported on generally in our Second Report, Part X, Chapter 2) .
DETAILED SUMMARY NO . 5
1 . A citizen complained to us that three members of the R .C .M .P . had
"forced their entry into and ransacked [his] home . ..harassed [his] wife
. . and did not bother to offer an explanation as to the motive of their search" .
.
He was not on the premises at the time and was therefore not personally
involved .
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�2 . The complainant had been under investigation by the Montreal Section of
Customs and Excise regarding the importation of pornographic magazines into
Canada . The two R .C .M .P . constables who conducted the search were accompanied by a reporter .
3 . The R .C .M .P . conducted an internal investigation . The complainant would
not permit the R .C .M .P . to interview his wife, and told the investigators that
the members had not been impolite to his wife (contrary to his initial
complaint) . His only remaining complaint was that no reason had been given to
his wife for the search .
4 . The search had been conducted under the authority of a Customs Writ of
Assistance . In an effort to avoid embarrassment for the suspect, and in
compliance with Customs and Excise policy, the wife was not told that the
search was for pornographic magazines, only that they were searching for
illegally imported magazines .
5. The R .C .M .P .'s internal investigation brought to light the fact that the
third person present during the search was a reporter who was writing an
article on pornography and had approached the R .C .M .P . for assistance with
his research . He had been given permission by an officer and a non-commissioned officer of the Force to accompany the constable during the search, as an
observer only .
6 . In the Customs Act, the powers of the Officer acting under a Writ of
Assistance are specifically set out in section 139 :
Under the authority of a Writ of Assistance, any officer or any person
employed for that purpose with the concurrence of the Governor in Council
expressed either by special order or appointment or by general regulation,
may enter, at any time in the day or night, into any building or other place
within the jurisdiction of the court from which such writ issues, and may
search for and seize and secure any goods that he has reasonable grounds to
believe are liable to forfeiture under this Act, and, in case of necessity, may
break open any doors and any chests or other packages for that purpose .
7 . The issuing section of the Customs Act reads as follows :
A judge of the Exchequer Court of Canada may grant a Writ of Assistance
to an officer upon the application of the Attorney-General of Canada, and
such writ shall remain in force so long as the person named therein remains
an officer, whether in the same capacity or not .
8 . Keeping in mind the provisions of the Customs Act, we feel that the
journalist who accompanied the R .C .M .P . members was nothing but a trespasser . We consider that the conduct of the members .who permitted him to
accompany them was unacceptable . Quite apart from the legal issue raised by
the trespass, we are of the view that a police officer should not enable any
person not covered by a search warrant or Writ of Assistance to be in a
position to violate the privacy of individuals .
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�DETAILED SUMMARY NO . 6
1 . A Commission investigation was instituted at our initiative as a result of
reading a newspaper article, sent to us by an uninvolved person concerning the
conduct of several R .C .M .P. members during a homicide investigation . The
article reported that a Provincial Court Judge, when discharging an accused at
a preliminary inquiry, had said that some members of the R .C .M .P . had
violated the Canadian Bill of Rights during their interrogation of the suspect
but had not committed a criminal offence . We referred to this case in our
Second Report, Part III, Chapter 10 .
2 . R .C .M .P . files disclosed that an R .C .M .P. internal investigation had been
conducted into the conduct of the members involved .
3. A woman was taken to the R .C .M .P . offices by two R .C .M .P . corporals for
questioning regarding the death of her common-law husband . A short time
later, when she attempted to leave, she was placed under arrest and cautioned .
The questioning continued from 7 :00 p .m . until about 2 :30 o'clock the following morning, when she was taken to a local hospital suffering from an overdose
of a prescribed drug . She had apparently taken the pills in a washroom during
a break in the questioning . She was released from the hospital at 9 :45 that
morning and returned to the R .C .M .P. offices where the questioning continued
until about mid-day.
4. During the questioning the woman was not given the opportunity to consult
counsel, although she had asked permission to call a lawyer on more than one
occasion . She was not physically assaulted but was interrogated to the point of
exhaustion . The questioning had been tape-recorded, and the internal investigation concluded that noises heard on the tape indicated the R .C .M .P .
members were slapping her wrists to find out if she was awake or not .
5 . The suspect was remanded for psychiatric examination . As no sheriff's
officers were available, two members of the R .C .M .P . escorted her to the
sheriff's office . While seated with one of the members, she saw a photograph of
the deceased in the investigator's files and began to cry . There is no evidence
that the incident was prearranged, but the members took advantage of the
situation to question her again without the benefit of counsel .
6. The internal investigation also revealed that, although the accused had
suggested the presence of her counsel, no counsel was present during a
polygraph test conducted by a sergeant . Following the polygraph examination,
the sergeant questioned her about the murder although her lawyer had been
given an undertaking that this would not happen .
7 . At the conclusion of the internal investigation, all members received an
official warning which contained a detailed summary of the facts and concluded in all cases that they had used methods that were not considered acceptable interrogation techniques, and that constituted an infringement of the
accused's rights under the Canadian Bill of Rights .
284
�8 . In all cases the members were sternly advised that incidents of this nature
were not to recur, and that, if they did, more severe disciplinary action would
be taken .
9 . The subject of interrogation techniques in „general, and this case in
particular, are discussed in our Second Report, Part III, Chapter 10 .
DETAILED SUMMARY NO . 7
1 . A citizen, who was not personally involved, brought to our attention a
well-publicized incident in 1972 relating to the escape of two convicted
criminals from a penitentiary in Quebec . Basing his information on newspaper
reports, he accused the R .C .M .P . of being responsible for the issuing, by the
Department of External Affairs, of two false passports . This was said to have
occurred as part of the R .C .M .P.'s attempts to recapture the two escapees .
2 . During our investigation all available, relevant R .C .M .P . files were examined and members of the R .C .M .P . were interviewed, as were members of the
Quebec Police Force who, in 1972, had had primary responsibility for the
recapture of the convicts .
3 . The facts uncovered by our investigation differed considerably from the
information published in the news media, which the complainant relied upon to
support his allegations . The following sequence of events was established .
4 . In October 1972, the R .C .M .P . received information that the two escapees
were planning to procure Canadian passports in Montreal . The R .C .M .P .
arranged -immediately for the source of that information to contact an officer
of the Q .P .F. who was responsible for the recapture of the two wanted men . By
the time the Q .P .F . took action, one of the escapees had already obtained a
Canadian passport on the basis of a fraudulent application processed unwittingly by the Montreal Passport Office . The passport was delivered to a third
person who had a letter of authority signed by the applicant .
5 . The escapee was arrested in France the following March . He was held in
custody awaiting trial on a number of serious charges, but managed to escape
again in May 1978 . In November 1979, he was killed in a police ambush . The
Canadian passport was found in his possession and seized by French
authorities .
6 . When the second escapee applied for a passport about one week after the
first, the Q .P.F. were on the alert . Because of the police inquiries into the
circumstances surrounding the issuing of the first passport, the Montreal
Passport Office recognized the second escapee's application, under an alias, to
be fraudulent and refused to process it . However, the Q .P .F . insisted that the
passport be issued, since they considered this to be the only real lead they had
to recapture both escapees, whose whereabouts were then still unknown . Faced
with the Passport Office's refusal, the Q .P .F . enlisted the help of the R .C .M .P .
After discussions in Ottawa between a Deputy Commissioner of the R .C .M .P .
and the Director of the Passport Office, the latter agreed to accede to th e
285
�Q .P .F . request and gave instructions to the Montreal Passport Office to issue
the passport .
7. The issuing of the second passport, and its delivery to a third person,
sparked a massive police surveillance operation in which the R .C .M .P. were
not involved . Eventually the trail was lost because the passport was handed
from one person to another, making it difficult for the police to maintain
contact with the many suspects .
8. The second escapee was arrested by Q .P .F. and Montreal Urban Community Police in December 1972 . The passport was not recovered . He claimed to
have thrown it into a garbage can at a hotel in New York, as he did not want to
be found in possession of a "hot" passport . In October 1974 he was killed in a
shoot-out with the R .C .M .P . in Montreal .
Conclusion
9 . It was not until December 1972 that External Affairs acknowledged that
the R .C .M .P . had not participated in the issuing of the first passport, which
was done unwittingly by the Montreal Passport Office . In so far as the second
escapee's passport application was concerned, R .C .M .P . involvement was limited to interceding on behalf of the Quebec Police Force . The ultimate decision
to process the fraudulent application and issue the passport was taken by
External Affairs .
10. The Canadian Passport Regulations (SOR 73-36 ; PC 1973-17) passed
pursuant to the Department of External Affairs Act (RSC-1970, ch . E-20)
provide no guidance in determining the propriety of the actions taken in this
case .
11 . We therefore conclude that the facts inquired into as a result of this
complaint do not indicate any conduct by members of the R .C .M .P . that was
not authorized or provided for by law .
DETAILED SUMMARY NO . 8
1 . In March 1979, a lawyer brought to our attention an incident in which he
alleged that an accused person had been denied access to counsel . His
complaint related to a citizen who, along with other persons, had been arrested
on drug-related charges .
2. Following his arrest the accused was placed in the detachment cells . Some
time thereafter he was allowed to speak to a lawyer, to whom he indicated that
he wished to see counsel to discuss solicitor-client matters. After a series of
police calls a local barrister agreed to see him .
3 . When the barrister arrived at the R .C .M .P . offices, he was informed that
the accused had been permitted to make a phone call but would not be allowed
to see counsel until after completion of the investigation . Several unsuccessful
attempts were made by the lawyer to talk to the accused by telephone . During
286
�the evening, the accused was moved to another detachment . When counsel
asked a member of the R .C .M .P . where the accused was, he was told that the
member did not know but that he would try to find out from the Corporal in
charge of the investigation . The member was apparently unable to contact the
Corporal and the message was never passed on . From the time of his arrest on
Friday morning until his remand on Monday morning, the accused was held at
three different detachments.
4 . After this complaint had been transmitted by us to the R .C .M .P ., the
R .C .M .P . conducted an internal investigation . The investigator concluded that .
"the defence lawyers were hampered in their efforts to consult with their
prisoner clients after the original phone call between the accused and counsel
had been allowed" . The report also refers to "a definite breakdown in
communications" between certain members of the R .C .M .P .
5 . In June 1980, the Corporal was disciplined in the form of an official
cautioning concerning his "failure to properly instruct general duty members at
the Detachment relative to : (1) what specifically was taking place at the time
of the arrests, (2) what action was to be taken relative to the persons arrested,
particularly pertaining to phone calls they could or could not make or receive,
(3) what access the arrested persons were to have to counsel . . ." . Finally-the
Corporal was advised that "repetition of this type of occurrence will not be
tolerated and will be dealt with more severely" .
6. The question of access to counsel and a study of R .C .M .P . policy in this
area may be found in our Second Report, Part III, Chapter 10 and Part X,
Chapter 5 .
DETAILED SUMMARY NO . 9
1 . A Canadian company with numerous subsidiaries and international affiliations, engaged mainly in the exploration and exploitation of natural resources
in Canada and abroad, together with an international shareholders committee,
submitted several allegations of R .C .M .P . wrongdoings to us, supported by
massive documentation . The allegations were as follows :
(a) The R .C .M .P. investigation to which they were subjected was politically
motivated by and on behalf of a provincial government ;
(b) There had been abuse of the criminal process through the unlawful and
improper retention of company material seized in the execution of search
warrants at company and affiliate offices, thereby paralyzing the operations of the company ;
(c) A foreign regulatory agency had been given access to seized documents,
unlawfully and improperly, for the purpose of enabling that agency to
recommend trading suspensions ;
(d) Witnesses and members of the company's executive had been intimidated
and harassed thereby forcing several of them into dissent and causing a
split in the direction of the company ;
287
�(e) There had been illegal communication intercepts and unauthorized disclosure of information so obtained to members of a foreign regulatory
agency .
2 . Our investigation consisted of personal interviews by our staff with a
number of individuals,, including two of the R .C .M .P . members assigned to the
Force's long and complicated investigation, as well as an examination of
approximately 55 volumes of R .C .M .P . files .
3. The R .C .M .P . investigation into the company had been prompted by a
request from a provincial minister who suspected illegalities in the granting of
a timber concession to a foreign company by a former government official . It
appears that no statutory authority existed for this transaction . In 1969, the
concession was sold to the complainant company for $4,000,000 .
4 . The second phase of the R.C .M .P . investigation concerned the circumstances under which, in 1970, the company purchased two buildings located on
a former U .S . Air Force Base for $250,000 when their value was assessed at
$8,150,000 . This deal was found to have been authorized by the former
government official in his capacity as the acting Minister of Public Works .
After making only one payment of $100,000 in 1971, the company was said to
have indicated its willingness to reconvey the two buildings to the provincial
government for $650,000 . When this price was challenged, the company
claimed that it represented their total investment because $550,000 worth of
shares had been issued to a third party in connection with the building
transaction .
5 . The investigation eventually uncovered sufficient evidence to justify the
laying of charges of fraud against the president of the company, and charges of
breach of trust against a former provincial Minister, since deceased . The
president of the company was arrested on a warrant but obtained bail under
conditions which precluded his leaving the province . Because of a long delay in
bringing the case to trial, the president of the company succeeded in obtaining
a new bail hearing, at which all restrictions on his freedom of movement were
lifted . His passport was returned to him and he immediately left Canada for a
Central American country, of which be became a citizen and no longer
extraditable . A Warrant of Arrest and charges are still outstanding . He was
reported to be also the subject of an outstanding arrest warrant in the United
States, as a result of skipping bail in 1965 .
6 . The third phase of the R .C .M .P . investigation resulted in 406 charges of
fraudulent stock manipulation (known as "wash trading") under section 340 of
the Criminal Code, being preferred against the president and seven other
persons . Of these persons, only one has been tried . He pleaded guilty to 184
charges and was fined $25,000 . All other accused have remained outside
Canada and charges against them are still before the courts .
7. The first phase of the R .C .M .P . Commercial Crime investigation had to be
abandoned in 1978, because of lack of cooperation on the part of certain
European authorities, and the refusal by banking organizations in those
countries to provide essential evidence of deposits in numbered accounts .
288
�8 . In the course of our investigation we uncovered no evidence to substantiate
allegations (a), (b), (d) and (e) . As far as allegation (c) is concerned,
documentation as well as information provided by senior R .C .M .P . investigators appeared at first to be somewhat confusing and contradictory . The
involvement of a foreign regulatory agency was admitted but only in so far as
cooperation was necessary in areas of mutual interest and concern . Specific
access to any of the material seized from the cômplainant company in the
execution of search warrants, though sought by the agency, was denied . The
foreign agency was invited to apply to the court having jurisdiction in accordance with criminal code procedures . However, the R .C .M .P . officer who had
the overall responsibility for the investigation between 1972 and 1975, indicated that, during that period, investigators of the foreign agency were permittèd
to look at certain records, which had been seized under search warrants, to
enable the agency to check into the trading activities of that company and of
individuals associated with it, in the foreign country . This was done without the
permission of the court which may be obtained pursuant to section 446(5) and
(6) of the Criminal Code . Fontana in his book of The Law ojSearch Warrants
in Canada,' in what appears to be his own interpretation of the section, implies
that such a permission must be obtained in all cases where goods obtained
under a search warrant are to be examined by any party having an interest .
9. Although of no direct concern to us because of its civil nature, another
action taken in respect of the complainant company had certain ramifications
which were looked into . In March 1977 the Restrictive Trades Practices
Commission, Ministry of Consumer and Corporate Affairs, ordered an investigation into the business activities of the company with a view to determining
what effects the continued control of the company by the President and
associates from abroad, through a partisan Board of Directors, was having on
its financial standing and the interests of its shareholders . This investigation is
still going on .
10 . In conjunction with this investigation, assistance and cooperation were
sought from and given by the R .C .M .P . in the matter of documentary evidence
relevant to both civil and criminal proceedings . This was challenged by the
company in a claim filed in the Federal Court of Canada in 1978, which was
subsequently dismissed . A number of hearings were held, the latest one on July
23, 1980 . On this occasion, sworn testimony was taken from the R .C .M .P .
officer in charge of the investigation with particular reference to the disposition
of company material under seizure . In answer to a specific question, he
categorically denied that anyone had been allowed access to any record that
was not the property of that person .
11 . Based on the transcript of these proceedings, the complainant company,
through its counsel, immediately filed a complaint of perjury with the Attorney-General of Ontario . This complaint is currently the subject of an investigation by the Ontario Provincial Police .
James A . Fontana, The Law of Search Warrants In Canada, Butterworths, Toronto,
1974 .
289
�12 . Concurrently, the former government official has approached the Solicitor General of Canada, on essentially the same issue . He demanded an
investigation into what he alleged were leaks of information by the R .C .M .P . to
the media, relative to the investigation under section 114 originating from
documentation under seizure, which he said constituted an attempt to create
prejudicial publicity against him and others .
13 . In view of the fact that specific issues raised by the complainant company
and its shareholders committee have now been brought to the attention of the
competent federal and provincial authorities, and that any resultant actions are
likely to go beyond the life span of this Commission of Inquiry, we have not
pursued a full investigation . Although in all other aspects the R .C .M .P .
investigation appears to have been conducted in accordance with the authority
and provisions of the law, we do find it difficult to understand why the
R .C .M .P . permitted a foreign agency to inspect records under legal seizure
without the permission of the court, as may be granted pursuant to section
446(5) of the Criminal Code . The scope and ambit of section 445 need
clarification . A rigid interpretation would lead to situations where goods seized
under warrant could not be shown to their owner for identification without a
court order . Another possible interpretation is that the officer in charge of the
seized goods has complete discretion in determining who may examine the
goods in question . Under this interpretation, court permission must be obtained
only in those cases where the custodian of the documents does not wish to allow
examination . The court order is then used to force production . We consider
that the uncertainty as to the meaning of section 445 should be clarified by
legislative amendment .
DETAILED SUMMARY NO . 1 0
1 . This complaint was received from a lawyer who represented five families
who alleged that they were physically abused and that their property had been
damaged by members of the R .C .M .P .
2. This case received wide publicity in the news media and representations
were made to the Federal Solicitor General and the Provincial Attorney
General . Our investigation permits us to draw a picture of the facts as follows .
3 . An R .C .M .P . sergeant received information that a confrontation was to
take place between a group of juveniles and members of another local group .
He was also told that, to prepare for this encounter, the juvenile group had
obtained restricted weapons, which were stored in their homes . The sergeant
obtained warrants to search the residences of nine of the juveniles .
4. One morning at 5 :00 o'clock the sergeant, accompanied by five R .C .M .P .
members armed with two shotguns and a sledge hammer, began a systematic
search of these homes . Two members guarded the back door while four
members entered by the front . The only items located and seized during the
first five searches were a starter pistol, a small amount of ammunition, a
knuckle duster and a small cedar club . The sergeant then cancelled the
remaining four searches .
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�5. In one home an altercation occurred between a female occupant and the
sergeant, when the female, in attempting to strike the sergeant, missed and
knocked off his hat . The sergeant retaliated by slapping the woman in the face
and later charged her with assaulting a police officer . The charge was
subsequently withdrawn in court by the Prosecutor on orders from the Deputy
Attorney General of the Province . Later the same dày, occupants of the
premises that had been searched complained that their front doors had been
smashed, their furniture and personal property damaged and their homes lèft
in disarray .
6. The R .C .M .P ., following an internal investigation, imposed disciplinary
sanctions on the sergeant in the form of an "official warning" and he was
transferred from his command post to a subordinate role in a large municipal
detachment . The sergeant appealed to the Division Review Board . The appeal
was allowed and the disciplinary sanction removed .
7 . The sergeant was then officially given an amended warning and he again
appealed to a second Review Board . This Board vindicated the sergeant in the
matter of legality and procedure of the searches but found him guilty of errors
in judgment in his evaluation of manpower, the timing of the searches and the
carrying of shotguns . The Board recommended that, as his transfer had been
punitive in nature, the official warning be removed and that he be constructively counselled . He was counselled and the investigation was completed .
8 . Enquiries and interviews by our investigator confirmed that all the facts
and circumstances in this case were revealed by the internal investigation . The
disciplinary action taken by the Force properly concludes this matter .
DETAILED SUMMARY NO . 1 1
1 . A complainant wrote to this Commission to advise that he had personal
knowledge that R .C .M .P . members were involved in illegal acts .
2 . During an interview, the complainant related that on his release from
prison after serving three years for various criminal offences, he met an
individual, whom we shall call Mr . Z, and joined him in a business venture .
3 . The complainant stated that Mr . Z, a former member of the R .C .M .P .,
was also a licensed bailiff and a personal friend of two serving members . The
complainant alleged that Mr . Z, after repossessing vehicles in his capacity as a
bailiff, was tampering with the speedometers before reselling them and that the
two R .C .M .P . members were aware of this and condoned it .
4 . The complainant also alleged that the two members, while on duty, would
stop vehicles and, if the vehicle was wanted for repossession, would detain the
driver until Mr . Z arrived at the scene to execute the court order to repossess .
For this service, it was alleged, the members would receive $50 per vehicle .
5 . The complainant claimed that he had related his concerns to members of
the Commercial Crime Section but that no corrective action had been taken .
291
�6 . The investigation conducted by our staff revealed that Mr . Z is not, and
never has been, a member of the R .C .M .P ., that the two members were not his
personal friends and that there is no basis for the allegations that the two
members were aware of and condoned speedometer tampering and that they
were involved in detaining drivers of vehicles so that Mr . Z could execute the
court orders .
7 . The allegation that the R .C .M .P . Commercial Crime Section took no
corrective action on the complaint was also unfounded . It was established that
the complainant had been an informant for the R .C .M .P. The R .C .M .P .,
realizing that he was untrustworthy and difficult to control, dismissed him .
Through another informant, the R .C .M .P . were successful in obtaining evidence which led to six counts of theft, four of fraud, two of forgery and two of
uttering being laid against Mr . Z, and eight of speedometer tampering being
laid against a business associate of Mr . Z .
8 . The making of this complaint to us affords a good example of a person
seeking revenge on the R .C .M .P., attempting to use an independent inquiry as
his vehicle. It is interesting to note that part of the complainant's allegation is
well-founded, in that speedometers were being tampered with . However, the
allegation of impropriety on the part of members of the R .C .M .P. proved to be
unfounded .
DETAILED SUMMARY NO . 1 2
1 . In a brief submitted to us by a labour organization, comment was made
about the harassment of a medical doctor in Nova Scotia by members of the
R.C .M .P . The case had received wide-spread publicity and was the subject of a
Nova Scotia Public Inquiry, presided over by His Honour Provincial Court
Judge Leo Maclntyre (the "MacIntyre Inquiry") . The existence of the provincial inquiry prompted us to limit our investigation to an examination of the
provincial commission's records and R .C .M .P . files, and an interview with the
doctor's lawyer .
2 . The MacIntyre Inquiry looked into the doctor's allegations which covered
the period from 1971 to the time of that Inquiry . The allegations were as
follows :
(a) harassment by the R .C .M .P. ;
(b) the unwarranted laying and prosecuting of charges under the Criminal
Code of Canada ; and
(c) an unwarranted continuing investigation by the R .C .M .P .
3. Testimony about the strained relationship between the doctor and some
members of the R .C .M .P., which began in the late 1950s, was heard by the
Maclntyre Inquiry as a preamble to the study by the Inquiry of the following
four incidents :
(a) alleged illegal entries at a medical centre operated by the doctor ;
(b) an assault charge against the doctor involving a member of a motorcycle
gang ;
292
�(c) a medical insurance fraud investigation involving thé doctor ; and
(d) an abortion investigation involving the doctor .
We shall discuss each of these in the same order :
(a) The evidence revealed that four entries took place at the medical centre in
1973-74 . In one case, drugs were stolen while in the others the office was
ransacked, files disturbed and the photocopying machine used . The
Inquiry concluded that the R .C .M .P . were not involved in any illegal
entries made to the medical centre premises .
(b) In August 1971, members of a motorcycle gang visited the medical centre
seeking aid for one of their group . An altercation took place between the
doctor and one of the members, resulting in charges of assault being laid
against the doctor . The Inquiry found that there was no harassment of
the doctor or unwarranted laying and prosecuting of charges in this
instance, but did conclude that the whole investigation of this incident left
much to be desired and could not be classed as sound police procedure.
(c) In 1973, a medical services insurance investigation was initiated by the
R .C .M .P. Searches were conducted at the medical centre and at the
doctor's home . No charges were ever preferred against the doctor . The
Inquiry found that the overzealous manner in which the investigation was
carried out constituted harassment of the doctor . In his report, Judge
Maclntyre said that the searches were* more in the nature of a fishing
expedition than proper searches, and that the matter brought little credit
to the R .C .M .P .
(d) In June 1978, following an R .C .M .P . investigation, charges of abortion
were preferred against the doctor and an associate . The matter was
dismissed at the preliminary inquiry in September of that year for lack of
sufficient evidence . The MacIntyre Inquiry found in this instance that
there was no harassment of the doctor, no unwarranted investigation' or
laying and prosecuting of charges . During the preliminary inquiry a
listening device, which the doctor said he found at the medical centre,
was entered as an exhibit . This exhibit, along with others, were given over
to an R .C .M .P . constable by the court for safe keeping . The constable
later gave the device to an R .C .M .P . officer for examination, and the
officer then testified it was not the type used by the Force . The Maclntyre Inquiry was critical of the R .C .M .P . for permitting an exhibit to, be
examined without the authorization of the court .
4 . We express no opinion and make no finding about this case . It is a matter
on which we are reporting solely on the basis of the results of the provinçial
Inquiry and the presentations made to it by the R .C .M .P . so that the Governor
in Council may be made aware of: (i) the types of problems that can arise
when the relationships between certain members of a detachment and the
community they serve go sour ; (ii) the inherent jurisdictional problems which
necessarily arise from contract policing, relating to control by discipline and
other means over members involved in that work ; (iii) the problems which a
federal review body (such as our Commission of Inquiry or the Inspector o f
293
�Police Practices whose creation were recommended in our Second Report)
involved in the examination of complaints against a federal police force
operating on provincial territory inevitably encounters . Those subjects are
reported on in our Second Report, Part V, Chapter 8 and Part X, Chapter 2 .
DETAILED SUMMARY NO . 1 3
1 . This allegation was brought to the attention of one of our investigators
while he was conducting enquiries into an unrelated matter . The concern was
whether the R .C .M .P . had been involved in any way with a break, enter and
theft which had occurred at a provincial minister's office .
2. Enquiries by our staff confirmed that someone had entered the office by
breaking the glass in the front door, used a key to enter the main office, forced
open an inner door, and then forced open the filing drawers and stolen some
files .
3 . The local police department's investigation revealed that two different
government agencies were located in the same building, and that an atmosphere of hostility existed between the two sets of employees . The theory of the
police investigators was that an employee of the agency that was not victimized
gave the key to the culprit(s) or committed the crime himself .
4 . The police reports show that, on a date not recorded, one of the detectives
received a telephone call from the R .C .M .P . (name of member unknown) to
the effect that the person responsible for the break, enter and theft was [person
named] but that the R .C .M .P. member requested that the detective not
approach the suspect as the suspect, if approached, would immediately identify
their informant . Further enquiries were conducted by the local police but the
suspect was not interviewed and the case, although unsolved, has been closed .
5. Our investigator interviewed the local police detective who received the
telephone call from the R .C .M .P. but he was unable to identify the caller . The
R .C .M .P . corporal who forwarded the telex message to Ottawa, when interviewed, could recall the occurence but could not remember who informed him
or who he informed but is confident he did not advise the police department in
question . The suspect named by the R .C .M .P . was interviewed by our staff and
vehemently denied committing the criminal offence but readily admitted being
aware of the incident .
6 . In addition to the above, our staff interviewed numerous other persons,
looked at relevant R .C .M .P . files and conducted other inquiries . From the
information available we conclude that the R .C .M .P . were not directly or
indirectly involved in this occurrence .
DETAILED SUMMARY NO . 1 4
1 . The owner of an aviation company complained that the manner in which
the R .C .M .P . conducted a Customs Act investigation concerning the purchase
and licensing of an aircraft by him "represented nothing more than bureau294
�cratic Gestapo tactics" . The aircraft had been imported from the U .S .A . and,
because of the owner's declaration, was regarded as "class 4 Charter Commercial Air Service" and therefore was exempted from federal sales and excise tax .
2 . Two years later, when the complainant was piloting the plane, it crashed .
An R .C .M .P . Customs and Excise Branch investigation revealed that his
passenger, a friend, had been a non-revenue passenger, a fact which constituted
a violation of the tax exemption conditions .
3 . The aircraft wreckage, was seized by the R .C .M .P . under the provisions of
the Customs Act although the R .C .M .P . never actually took physical possession of it . No charges were laid against the complainant but arrangements were
made by him to pay the required duty and a penalty to Revenue Canada .
4 . Later, the R .C .M .P . wrote to him indicating that a further penalty equal
to the taxes was being assessed . Information had come to the attention of the
R .C .M .P . that he had never used the aircraft commercially and that he had
boasted how he had obtained it without paying the required taxes .
5 . In March 1979 a representative of Revenue Canada advised the R .C .M .P .
that the penalty assessed did not fall within Revenue Canada guidelines . Based
on a legal interpretation of certain words it was felt that section 58 of the
Excise Tax Act and the provisions of the Customs Act did not apply . It was
therefore suggested that the seizure action be withdrawn and that the order
prohibiting disposal of the aircraft be lifted .
6 . Following receipt of this information, R .C .M .P . Headquarters sent a telex
dated March 30, 1979, to the Customs and Excise Section of the local
R .C .M .P . advising that there appeared to be no need to pursue this investigation further, that the file could be concluded and the order lifted .
7 . It was not until May 22, 1979, that the R .C .M .P . wrote to the complainant
that the order had been lifted and that the seized aircraft was being released to
him . It was not until our investigator read this letter and discussed with
members of the R.C .M .P. Task Force that the Force sent a further letter to the
complainant indicating clearly that no other monies were owing as a result of
the seizure .
8. Our investigation in this matter consisted of interviews with the complainant, a review of R .C .M .P . files and discussions with a member of the
R .C .M .P . Task Force . The local members were not interviewed .
9. In our opinion, the R .C .M .P. had every reason to investigate in this case
and did so properly . Our concern is with the delay by the local R .C .M .P .
officers in advising the complainant after they had been told by Headquarters
in Ottawa to conclude their investigation and lift the order . There seems to
have been no acceptable reason for the delay .
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�DETAILED SUMMARY NO . 1 5
1 . An ex-member of the R .C .M .P . made a number of specific accusations
with references to members of the R .C .M .P . : (1) arson ; (2) surreptitious
entries ; (3) perjury ; (4) indecent assaults ; (5) excessive force used during an
arrest ; and (6) the use of influence to have him dismissed from a position with
a government which he filled after his service with the R .C .M .P. The facts
arising out of each allegation will be dealt with in the order of the allegations
just listed .
Arson
2 . The ex-member alleged that R .C .M .P . members committed arson in a
total of three instances . Our staff investigation established that two of these
allegations are completely unfounded while the third has been the subject of a
thorough R .C .M .P. investigation . In this third case, the R .C .M .P . identified
three serving members as suspects, but the Force lacked sufficient evidence to
substantiate criminal charges . The Force, however, charged the three members
with numerous offences under the R .C .M .P . Act . The members pleaded guilty
to all charges and the hearing officer fined them and recommended their
discharge . The members appealed and the appeal was denied . The Commissioner then intervened, recommending the members not be dismissed . He
ordered that the two senior members be reduced in rank from ist class to 3rd
class constables and immediately transferred to places far from the locations to
which they were then posted . The third member, who was on probation, was
ordered transferred from his post to another division and placed under close
supervision . His promotion to second class constable was not to take place
without the Commissioner's approval . Prior to transfer, all members were
paraded before the Commanding Officer and told that they were being
retained on strength on a probationary basis and if they did not meet full
expectations they would be subject to immediate dismissal . All members were
transferred from that district and at the time of our investigation all were still
members of the Force .
Surreptitious entries
3 . Inquiries disclosed that in 1970, following a serious criminal offence and
after an exhaustive investigation, R .C .M .P . members entered four residences to
install electronic listening devices . In each instance they had to enter the
premises to remove the devices when they were satisfied they no longer served a
useful purpose . In each case the members received authorization from the
appropriate superior officer before proceeding with the installation . These
procedures are typical of the electronic surveillance conducted before July 1,
1974, discussed by us in bur Second Report, Part III, Chapter 3 . Our analysis
of the legal issues in such cases may be found in that Report .
Perjury
4 . The allegation of perjury was found to be an isolated case which is
reported to have occurred during an in-service court hearing . The incident had
already been reported to superior officers who had ordered an immediate
internal investigation which found that the complaint was without merit .
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�Indecent assaults
5 . The ex-member told our investigator that the complaint that a member of
the R .C .M .P . indecently assaulted two women had been made to him by one of
the alleged victims . He admitted that he tried to obtain the name of the second
victim without success . This complaint has been the subject of an internal
investigation by the R .C .M .P . When this investigation began, counsel for the
woman who complained to the ex-member informed the R .C .M .P . that the
woman did not have a complaint and did not want the matter pursued . The
R .C.M .P . investigator thus was unable to prove or disprove this allegation and
the investigation terminated . Our investigators faced with similar lack of
co-operation from witnesses, could not prove or disprove the allegation .
Excessive force used during an arres t
6 . The concern that the R .C .M .P . used excessive force when making an arrest
centered around an incident in which two members attempted to arrest a
person for a minor provincial offence . Other persons at the scene interfered
with the members, and the end result was that the members shot one of the
interfering persons, four or five times . The R .C .M .P . members, fearing reprisals, then left the scene and radioed for an ambulance and back-up assistance .
Before the arrival of the ambulance the injured person was taken to hospital by
private car . The injured person recovered and was charged, along with others,
with criminal offences . The R .C .M .P ., on completion of its investigation,
conferred with counsel for the provincial Attorney General . The Attorney
General recommended that the members not be charged with any criminal
offences . The investigating member, satisfied that the two members believed on
reasonable and probable grounds that the force used by them was necessary to
protect themselves from possible harm or grievious harm, recommended no
disciplinary action . Since this incident has been looked at by the provincial
Department of the Attorney General and was subject to an internal investigation by the Force, coupled with the fact that civil actions by the victims against
the two members are still before the courts, no comment or conclusion as to the
actions of the members will be made .
The use of influence to cause his dismissal from a position with a governmen t
7 . The ex-member's allegation that a senior R .C .M .P. member influenced a
government official in a way which led to the termination of the employment of
the ex-member proved unfounded . Inquiries by our investigator revealed that a
meeting had taken place between the senior R .C .M .P. member and the
government official but both denied that it led to the dismissal . The government official, when informed by the R .C .M .P . of the allegation made to us,
wrote directly to the Commissioner of the R .C .M .P . to assure him that the
senior R.C .M .P . member had not influenced his decision to terminate the
employment of the ex-member . We-conclude there was no impropriety on the
part of the senior R .C .M .P . member .
297
�8 . Some of the concerns raised by the ex-member proved to have been
well-founded . In each case, however, where a serious complaint became known
to the senior administration of the Force, an internal investigation had been
ordered . In these instances a thorough and competent investigation had been
conducted and the recommended action taken . Our inquiries into these incidents confirmed that the concerns of the ex-member were properly investigated
immediately after they became known by senior R .C .M .P . management .
DETAILED SUMMARY NO . 1 6
1 . The complainant wrote to us alleging that certain members of the
R .C .M .P ., while conducting a search at his residence, mistreated his family by :
(a) holding them under arrest for 18 hours ;
(b) handcuffing one member who was a juvenile and interrogating him
without the presence of his parents ;
(c) refusing to allow them to contact their lawyer ; and
(d) using an unreasonably large number of members to conduct the search .
2 . An investigation by our staff disclosed that the police search had been
prompted by information received that marijuana was being cultivated and
processed on the complainant's farm . The search of the farm resulted in the
seizure of 3353 .3 grams of marijuana as well as 36 plants from an abandoned
building . A person (not related to the complainant's family) was subsequently
arrested, charged with trafficking and, on conviction, received a sentence of 18
months imprisonment .
3. Aside from the convicted person, four others were at the complainant's
farm at the time of the raid . Two of these were sons of the complainant and the
other two were the wife and foster son (a minor) of one of the sons . The wife at
that time was pregnant .
4. The complainant's property was searched by six R .C .M .P . members and
two provincial police force officers . The four members of the complainant's
family remained with the police during the search, following which all were
arrested and transported to an R .C .M .P . detachment office and a city police
station for further interrogation and fingerprinting . When it was established to
the satisfaction of the investigating officers that the building and fields where
the marijuana was found had been "verbally" leased to the convicted person
and a rural co-operative for the cultivation of vegetables, all members of the
complainant's family were released .
5. As a result of complaints received, the R .C .M .P . conducted an internal
investigation . At the conclusion of their inquiry, the Officer in Charge of
Administration and Personel, in a memorandum to the Officer in Charge of
the Federal Policing Branch, stated :
Our investigation revealed our members [under the direction of a Corporal]
acted according to normal procedures under the circumstances, however,
did show, to a minor degree, some lack of judgement when dealing with th e
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�young pregnant girl, the requests for breakfast and permission to make a
telephone call to a lawyer as well as handcuffing a juvenile . For these
reasons, the Corporal in charge was counselled with a view of avoiding
situations which may lead to similar complaints in the future .
6 . It would appear from the memorandum quoted that the Corporal in charge
was disciplined for his conduct when in fact he was not . According to the
R .C .M .P . administration manual, chapter 11 .13, under the heading Complaints
and Discipline, section I .l .b, "Counselling does not have a disciplinary connôtation" . The complete section reads as follows :
When a first line supervisor believes that disciplinary action is unwarranted,
he may impart advice or guidance by orally counselling a member . (Counselling does not have a disciplinary connotation .) However, the supervisor's
officer or commanding officer may initiate disciplinary action if necessary .
1 . Supervisors should record counsellings in a performance -log and may
include reference to them in performance evaluation and interview reports
when necessary .
2 . Supervisors will :
(a) report counsellings resulting from substantiated complaints, unjustified
use of firearms, and police motor vehicle incidents, e .g ., Category "D"
accidents ;
(b) if counsellings do not have the desired effect, report prior relevant
counsellings and recommend disciplinary action .
7. We find that the Corporal and other R .C .M .P .
judgment in :
members used poor
(a) keeping the pregnant woman and her juvenile son under arrest for 1. l
hours ;
(b) handcuffing and fingerprinting the juvenile male ; and
(c) failing to allow the suspects access to their counse l
and in our opinion they should have received some form of discipline .
8. The areas of concern identified in this case have been explored in our
Second Report :
(a) The fact that no disciplinary action was taken points out the need for an
Inspector of Police Practices to monitor the handling of complaints of
police conduct . Our recommendations in this area may be found in Part
X, Chapter 2 .
(b) A discussion of the right to counsel may be found .under Part X, Chapte r
5.
(c) We looked at certain methods of criminal investigations and their control
in Part X ; Chapter 5 .
299
�DETAILED SUMMARY NO . 1 7
1 . A complainant wrote to us to bring to our attention an incident in which he
believed a member of the R .C .M .P . acted improperly . The concern arose from
the member, acting in his personal capacity, having written to a provincial
Director of Prosecutions on R .C .M .P . letterhead recommending the withdrawal of a book from the library of a school which his child attended . The Director
of Prosecutions, believing that the concern was an official request from the
R .C .M .P ., ordered the removal of the book .
2 . The complainant originally voiced his concern in a letter to the federal
Solicitor General and requested to know what disciplinary action, if any, was
taken against the member concerned . The Solicitor General replied that "it is
the policy of the Royal Canadian Mounted Police not to release such details .
Internal disciplinary measures are considered to be confidential" . This letter, in
our opinion, would lead one to believe that some form of disciplinary action
had been taken against the member when in fact such was not the case .
3 . Enquiries by our staff revealed that during an internal investigation by the
Force, the offending member admitted using the R .C .M .P . letterhead but said
that he wrote the letter strictly on a personal basis and as a concerned parent .
A high-ranking R .C .M .P. officer reached the conclusion that the indiscretion
on the part of the member did not warrant disciplinary action . The member
was, however, informed that the use of Force letterhead for personal communication must cease forthwith .
4. We are satisfied that the member was counselled but, according to the
R .C .M .P . Administration Manual, counselling does not have a disciplinary
connotation . The letter to the complainant, drafted by the R .C .M .P. and
bearing the Solicitor General's signature, was therefore misleading as it
erroneously left the impression that the member had been disciplined when he
had not .
DETAILED SUMMARY NO . 1 8
1 . This case was drawn to our attention by two disinterested persons acting
independently of each other . Two issues arise :
(a) The first is the procedure which was used by a member of the R .C .M .P .
to secure the release of an accused person under section 460 of the
Criminal Code . The corporal had applied to a magistrate in one case, and
to a single Justice of the Peace on two occasions (contrary to section 460
which requires that two Justices of the Peace act in a case such as this)
for the release of the prisoner to further a murder investigation . The
corporal testified to this effect at trial . In other words, the real reason for
the release was not one which is permissible under section 460, which
provides that a magistrate may order that a prisoner be brought before a
court for his preliminary inquiry or trial or to give evidence . The corporal
also testified that each time he made an application for the accused' s
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�release, he explained to the Magistrate or the Justice of the Peace, as the
case may be, that while the order would show that the prisoner was
needed to appear as a witness, in fact he was required for other purposes .
As a result of an investigation by the provincial attorney general's office
into this matter, it appears that the corporal-did not mislead the Magistrate or the Justice of the Peace . Our knowledge of the facts in this casé
was obtained from an examination of R .C .M .P . files and court transcripts . We did not interview the judge or the Justice of the Peace .
(b) On one occasion the corporal secured the release of the accused under
section 460 for the purpose of having him submit to a polygraph test, a
purpose not covered by the section . Before the test, which was conducted
under the supervision of a sergeant, the accused (a boy of 17 or 18) asked
to talk to his lawyer . This request was first made to the sergeant, who
refused it . The sergeant testified in court that he could not accede to the
accused's request because to do so would be to risk the prisoner's escape .
It seems somewhat paradoxical, however, that the sergeant later found it
acceptable to accompany the accused to a bathroom at a distance that
was considerably greater from the interview room . In any event, the
accused persisted in his request for counsel . The sergeant was successful
in talking the prisoner out of his request to speak to his lawyer by giving
him to understand that the corporal himself would talk to the lawyer
while the examination was taking place . The corporal never did call the
lawyer .
2 . Following the publicity given to this case, the associate deputy attorney
general of the province concerned instructed all Crown counsel, chiefs of police
and the R .C .M .P . of the practice to be utilized thenceforth and the requirements of section 460 of the Criminal Code . The instructions issued required
strict compliance with section 460 . The question of the improper use of section
460 in this case has therefore already been examined by the responsible
provincial authorities . The R .C .M .P . advised us that they have not made any
representation to the government to have the relevant provisions of the
Criminal Code altered or amended . This concern, however, was raised and
discussed during a meeting of the Uniform Law Conference in 1978 .
3 . The federal Department of Justice advised us that there are now no
provisions, whether in the Criminal Code or elsewhere, whereby a prisoner may
be released into the custody of the police, other than in the circumstances
specified in section 460 . The lack of authorizing provision has caused concern
both to the police and to Crown officials . The Department has received
requests from various provincial departments of the attorney general to have
section 460 amended . At the present time, consideration is being given to
amend the section so that a judge would be empowered to authorize the
transfer of a prisoner to the custody of a peace officer where the judge is
satisfied that such a transfer is required for the purpose of assisting a peace
officer acting in the execution of his duties . As there appears to be a serious
gap in this regard in the relevant statutes, we recommend that the matter be
examined by the Law Reform Commission of Canada .
301
�4 . The second portion of this complaint illustrates the need for an Inspector
of Police Practices to monitor complaints of police misconduct . Our recommendations in that regard may be found in the Second Report, Part X, Chapter 2 .
5 . The propriety of refusing to allow the accused access to counsel was
discussed in the Second Report, Part X, Chapter 5, in a section entitled
"Interrogation Techniques" .
DETAILED SUMMARY NO . 1 9
1 . This allegation came to our attention through a newspaper editorial in
which it was reported that a person had been arrested on a warrant but had not
been brought before a Justice of the Peace within 24 hours or at the first
opportunity, as required by section 454 of the Criminal Code of Canada .
2 . Investigation by our staff confirmed that a person had been arrested by the
R .C .M .P. on a charge of impaired driving . This person failed to appear to
answer to the charge and a Bench Warrant was issued . Over a year later this
person was arrested on the Bench Warrant and lodged in the local detachment
cells . He remained in the cells for six days before appearing before a Justice of
the Peace, who then remanded him for a further eight days .
3 . The accused, through his lawyer, made a motion to the Provincial Judge to
stay the proceedings, arguing that the failure of the police to bring the accused
before a Justice of the Peace as required by section 454 constituted an abuse of
process . The judge dismissed the motion . The accused appealed unsuccessfully
to the provincial Supreme Court . He then appealed to the provincial Court of
Appeal where he was also unsuccessful .
4 . The R .C .M .P . admits that section 454 of the Criminal Code was not
complied with in this case, because, it is said, of an oversight . We find, having
had the opportunity to review numerous allegations and complaints, that this
appears to be an isolated incident .
DETAILED SUMMARY NO . 2 0
1 . The complainant in this case is a lawyer who alleged that an R .C .M .P .
corporal prejudiced his client by turning over transcripts of intercepted private
communications, which had not been tested in the courts, to Canadian immigration officials . The lawyer alleged also that the same R .C .M .P . member
attempted to coerce a citizen into testifying against his client by accusing the
citizen of bigamy .
2 . The client, an immigration officer, was the subject of a joint police
investigation following receipt of information by his superiors that he had
accepted bribes and had been involved in frauds upon the government .
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�3 . During the investigation, a municipal police force involved in the investigation obtained judicial authorization for electronic interception of the private
communications of the immigration officer and four other area residents . Some
four months later the R .C .M .P . corporal preferred charges under the Immigration' Act against the immigration officer and an area resident who was
sponsoring members of his family as permanent residents . The immigration
officer was suspended from duty .
4. In an effort to support the suspension the immigration officer's superior
requested information from the R .C .M .P . corporal . After consulting with
Crown Counsel, the corporal released the transcripts of two conversations
which were considered pertinent to the immigration proceedings . These were
never produced or directly referred to at the immigration officer's grievance
hearing .
5. During the investigation the R .C .M .P . corporal interviewed the owner of a
business establishment at Toronto International Airport . According to thé
lawyer who wrote to us, it was during this interview that the Corporal
attempted to coerce him into testifying against the immigration officer by
accusing the businessman of bigamy . The R .C .M .P . corporal, when interviewed
by our staff, said that he established that the businessman had committed the
offence of bigamy and charged him accordingly . He denied having attempted
to coerce the witness . Later, following consultation with Crown Counsel the
charge of bigamy was withdrawn .
6 . With respect to the allegation that the R .C .M .P . corporal attempted to use
the bigamy charge to coerce the businessman into testifying against the
immigration officer, we cannot resolve the discrepancies between the conflicting stories of the member and the businessman . We therefore make no finding
in this regard .
7 . With respect to the allegation that the R .C .M .P . corporal unlawfully
delivered a tape recording, or portions of a transcript of a tape recording, of a
conversation which had been intercepted under section 178 of the Criminal
Code pursuant to judicial authorization, there is a difficult issue involving the
interpretation of sections 178 .16(3 .1), 178 .2(a) and 178 .2(b) of the Criminal
Code . There is a lack of clarity in these provisions, in circumstances such as
those disclosed to the Commission . In view of the fact that the corporal
acceded to the immigration supervisor's request only after obtaining the advice
of counsel for the Crown, we consider it undesirable to reach a conclusion as to
whether the law permitted him to do that which he did . The statute should,
however, be examined by the Department of Justice, to determine what
legislative clarification is necessary .
DETAILED SUMMARY NO . 2 1
1 . The complainant in this case wrote to us alleging mistreatment by the
R .C .M .P . following his arrest and conviction on a drug-related offence . He was
arrested by the R .C .M .P . at an international airport . The R.C .M .P . confiscat303
�ed hashish and personal property which included his eyeglasses, passport and
bank bonds. He complained that the R .C .M .P . did not return his property
following his arrest, and that his wife, who lived outside Canada, suffered
because of this .
2 . Counsel for the complainant wrote to the R .C .M .P . following his conviction, requesting the return of his personal property, including the bonds which
were valued at approximately $10,000 . Since the bonds had been entered as an
exhibit at trial, the R .C .M .P . advised counsel that the property would be held
until after the decision was rendered in the event of any appeal . Some nine
months later the R .C .M .P . wrote to the complainant advising him that his
personal property, including the bonds, had been destroyed in error .
3 . The R .C .M .P . later compensated the complainant in the amount of $300
and signed the necessary documents to enable replacement of the destroyed
bank bonds .
4 . The circumstances surrounding the accidental destruction of the complainant's property became the subject of an R .C .M .P. internal investigation . A
Corporal and two Constables were counselled and a Sergeant was counselled
and transferred as a result of their involvement in the destruction of the
property .
5 . We are certain that this case represents nothing more than an isolated
incident of carelessness in the handling of detained property .
DETAILED SUMMARY NO . 22
1 . We point out at the outset that we are not a Commission of Inquiry into
the problem of enforcing the narcotics and drug laws . Nonetheless, certain
investigative techniques that are used in drug investigations by members of the
R .C .M .P ., and that raise issues of conduct "not authorized or provided for by
law", have come to our attention . Some practices employed in the enforcement
of narcotic and drug laws, because they are used by undercover members and
informants, rarely came to public light ; others may be disclosed in court, but
because evidence obtained illegally is at present admissible in Canadian courts,
defence counsel usually ignore any possible illegality in the methods used by
undercover members and informants, and judges have no need to pass comment on the legality or illegality of such practices . Thus, important and
troubling legal issues have tended to be ignored . Our discussions with senior
members of the R .C .M .P .'s Criminal Investigation Branch have revealed a
dichotomy between members who recognize the importance of facing up to
these legal issues and seeking legislative protection for necessary investigative
practices, and members who would prefer to regard some of these practices as
being only "technical violations" of the law. As we have seen often in the
course of our inquiry, the latter attitude has caused both the Security Service
and the C .I .B . to avoid discussion of, and legislative assistance in regard to,
other techniques . The result has been to place members in the field in a n
304
�unenviable dilemma . They are expected to produce investigative results, but
they frequently must be concerned about their own position in law . We
consider it unfair to such members that they should be expected by senior
management and by the people of Canada to fight against drug traffickers and
yet leave them exposed, however "technically", to the possibility of prosecution . Moreover, as we have indicated in our Second Report, Part III, Chapter
8, the toleration of violations of law by the police in order to protect society is
the top of a slippery slope, and creates in the police force, as it does in a
security intelligence agency, an atmosphere of willingness to accept "bending"
the law in order to achieve a noble purpose . This may lead to unforeseeable
consequences, and is to be deplored .
2 . In our Second Report, Part III, Chapter 9, we described a number of legal
problems that have arisen in drug investigations, as follows :
42 . In drug investigations, an undercover member or source necessarily
adopts the guise and mannerisms of individuals who typify the drug
community. In the course of playing the part of an addict or trafficker, the
undercover operative may be asked to handle, administer or deliver drugs .
Criminal investigation officers have repeatedly stressed that such acts are
essential to attaining and maintaining credibility in the drug community .
However, under existing law, such acts may, depending on the circumstances, result in the commission of drug offences by the operative .
43 . Drug offences are defined in the Narcotic Control Act and the Food
and Drugs Act . Section 3 of the Narcotic Control Act prohibits the
possession of a narcotic. Section 4(l) of the Act provides that "no person
shall traffic in a narcotic or any substance represented or held out by him to
a be a narcotic" . Section 4(2) provides that "no person shall have in his
possession any narcotic for the purpose of trafficking" . The expression
"traffic" means "to manufacture, sell, give, administer, transport, send,
deliver or distribute", or to offer to do any of these activities . Section 5 of
the Act states that except as expression "traffic" means "to manufacture,
sell, export from or import into Canada, transport, or deliver", otherwise
than under the authority of Part III of the Act or the regulations . There is
no offence of possession of a controlled drug simpliciter . Under section
41(1), it is an offence to possess a restricted drug . Section 42(1) prohibits
trafficking in a restricted drug or any substance represented or held out to
be a restricted drug, and section 42(2) prohibits possession of a restricted
drug for the purpose of trafficking . The expression "traffic" has the same
meaning as it does in the context of controlled drugs .
44 . We now examine a number of problem situations which arise in
connection with drug investigations as such problems were presented to us
in meetings with senior officers from the R .C .M .P .'s Criminal Investigation
Branch .
(i)
The Commission or Kickback/Trafficking Situation : In making a
purchase of narcotics directly from, or as a result of an introduction
by a middleman, the undercover operative frequently has been
expected to comply with the custom of the trade by giving a small
percentage of the purchase to the middleman as a commission .
Under present legislation, the undercover operative would be committing the offence of trafficking .
305
�(ii) The Administering/Trafficking Situation : In the course of their
associations with addicts, undercover members or sources (the
latter of whom may themselves be addicts) have been asked by the
addict to administer or assist in administering the drug . As in the
"kickback" situation described above, administering a drug may
constitute the offence of trafficking .
(iii) The Passing On/Trafficking Situation : Again, because of their
required association with drug users, undercover operatives have
been called upon to "take a joint" of marijuana, sniff cocaine, or
even inject heroin . Undercover members have been instructed to
simulate the act where possible or, if necessary, refuse the drug and
pass it on . By passing on the drug, the undercover member may
commit the offence of trafficking . Undercover sources, who may be
regular users in any event, have been given no instructions to
simulate the use of the drug . Nonetheless, in passing on the drug,
they may also have committed the offence of trafficking .
(iv) The Offering/Trafficking Situation : As part of establishing and
maintaining credibility, undercover members have been encouraged
to offer drugs for sale, but never to carry through such an offer by
actually making a sale. This has been a regular operational practice . Undercover sources (who are sometimes established traffickers) have generally been allowed to operate as they normally would .
Often this has meant that sources are permitted to continue their
possession or trafficking of drugs . In the case of both members and
sources, the offence of trafficking may have been committed .
(v) The Distribution/Trafficking Situation : The "controlled delivery"
of narcotics is another operational technique which has raised
questions of legality. In order to gain sufficient evidence or intelligence to implicate the principals in illicit drug organizations,
decisions have been made to "sacrifice" an amount of drugs
(normally only a small amount) for distribution to users in order to
avoid the target's suspicion that would arise when a quantity of
drugs destined for the "market" did not arrive . Evidence led at a
recent British Columbia Supreme Court drug trial illustrates this
operational technique . C .I .B . handlers, after taking samples of a
drug supplied to their source by the target, permitted the source to
sell the remainder of the drug for this very reason . `Sacrifices' have
also occurred in `Test Run' situations, where an international drug
enterprise, having set up a major deal with an undercover operative
to import drugs into Canada, will first run a comparatively small
amount through the planned route before delivery of the main
shipment . Where undercover operatives have become directly
involved as couriers, they may have committed the offences of
importing and trafficking .
(vi) .Possession : Section 3(1) of the Narcotic Control Regulations states
in part :
3 . (1) A person is authorized to have a narcotic in his possession where that person has obtained the narcotic pursuant to
these Regulations and . . .
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�(g) is employed as an inspector, a member of the Royal
Canadian Mounted Police, a police constable, peace officer or
member of the technical or scientific staff of any department
of the Government of Canada or of a province or university
and such possession is for the purposes of and in connection
with such employment .
The apparent breadth of section 3(1) is limited by the requirement
that the narcotic be obtained "pursuant to these Regulations" . We
do not think that when an undercover member comes into possession of a narcotic while investigating narcotic trafficking, he is
protected by this section . While the member does have possession
"for the purposes of and in connection with .such employment", he
has not obtained the narcotic "pursuant to these Regulations" . The
Regulations provide protection only in the specific case of an
R .C .M .P . member being supplied the narcotic by a licensed dealer
(section 24(2)) . A provision- similar to section 3(1)(g) is included in
the part of the Food and Drugs Regulations dealing with restricted
drugs . (It will be recalled that there need be no corresponding
exemption in the case of a controlled drug, as possession of that
drug is not an offence) :
J..01 .002 . The following persons may have a restricted dru g
in their possession :
.(c) an analyst, inspector, member of the Royal Canadian
Mounted Police, constable, peace officer, member of the staff
of the Department of National Health and Welfare or officer
of a court, if such person has possession for the purpose and in
connection with his employment .
Unlike the Narcotic Control Regulations, however, the Food and
Drugs Regulation does not cover possession by sources . In addition
to the exemptions described above for the possession of a narcotic,
the Minister may, pursuant to the regulations, authorize possession
of a narcotic as follows :
68 .(] ) Where he deems it to be in the public interest, or in the
interests of science, the Minister may in writing authoriz e
(a) any person to possess a narcotic, for the purposes and
subject to the conditions . in writing set out or referred to in the
authorization .
These authorizations for possession of narcotics and restricted
drugs must, however, be read in light of the comments of Mr .
Justice Laskin, when he was still a member of the Ontario Court of
Appeal, in Regina v . Ormerod. At that time, the Regulation read
as follows :
An inspector, a member of the Royal Canadian Mounted
Police, constable or peace officer or member of the technical or
scientific staff of any department of the Government of Canada,
of a Province or ùniversity, may be in possession of a narcotic
for the purpose of, and in connection with, his employment
therewith .
His Lordship limited the effect of the section (now section 3(1)(g) of
the Narcotics Control Regulations, and similar to section J .0 1 .002 of
the Food and Drugs Regulations) by holding that the Regulation di d
307
�not protect an undercover member of the R .C .M .P. who had
purchased narcotics and therefore had "possession as a direct
consequence of trafficking which ensues from solicitation by a
policeman" . It may be argued nonetheless that the member and even
his source would have a defence if charged with possession since the
courts have held the offence of possession to involve a degree of
con tr ol which would not be present if the possession was solely for
the purpose of furthering the investigation and the person in
possession had the immediate intention of turning the drug over to
the police . In long-term undercover operations, however, it is not
always the member's or source's immediate intention to turn the
drug over to the police . The six operations described earlier in this
paragraph, although they may be unlawful, have been referred to us
by the R .C . M . P . as vital to the successful prosecution of drug-related
offences.
3 . Later in our Second Report, Part X, Chapter 5, we briefly discussed a
mechanism which would allow these necessary investigations to be pursued in a
legal manner . We said :
The Narcotic Control Act and the Food and Drugs Act should be
amended to broaden the circumstances in which it is lawful for agents or
members of the R .C .M .P . to handle drugs for the purpose of gathering
information or evidence concerning drug-related offences . The amendments
should provide that a person who is employed as a member of the R .C .M .P .
or a person acting under the instructions of the R .C .M .P . shall not be guilty
of the following offences related to a narcotic or a controlled or restricted
drug so long as his acts are for the purpose of and in connection with a
criminal investigation : possession, trafficking, possession for the purpose of
trafficking and sale . To prevent abuse of this exemption, and to ensure that
it is relied upon to protect undercover members in the specific situations
described in Part III, Chapter 9 (kickbacks, administering, passing on,
offering, distribution and possession), the R .C .M .P . should deal with this
exemption in a detailed way in its guidelines governing the use of undercover operatives . For one thing, these guidelines should provide direction as to
the extent to which undercover members or sources may release drugs into
the market, a subject which we will discuss in a future Report .
4. Here, we examine six cases which have been brought to our attention as
illustrations of the complexities of current drug law enforcement practices . At
the end of our summary of these cases, we isolate and examine the issues raised
in these Fases . At the outset, however, we note that our summaries of the facts
lîn these,cases must not be viewed as being absolutely accurate . In some cases,
our investigators were not permitted access to divisional files, and in other
cases they were not permitted to speak with R .C .M .P . members involved in
those cases, as the cases were reported to us as still being under investigation .
Where, because of these circumstances, it has not been possible to ascertain
whether the findings of our investigators are accurate, we have stated our
version of the facts as well as that of the R .C .M .P .
Case 22A
5 . In this case, an informant had advised the R .C .M .P . that two individuals,
A and B, had approached him to assist them in importing hashish to Canada .
308
�The R .C .M .P. commenced an investigation and soon discovered that a third
person, C, was also involved in the intended operation . Eventually, an undercover member, through the informant, was introduced to the three suspects and
discussed the purchase of drugs with them . The undercover member later
purchased 250 grams of liquid cannabis resin from A and B . The informant
then, acting on R .C .M .P . instructions, notified the suspects that he had a
contact at Canada Customs who could assist them with the importation of
drugs . Another undercover member was then introduced to C as the Customs
contact . C, together with the informant and an undercover member, made two
trips abroad but were unsuccessful in their attempts to purchase the required
drugs . The informant and an undercover member finally met A in another
country and obtained baggage stubs and baggage keys from him . The informant and the undercover member then returned alone to Canada, cleared the
baggage through Customs and placed the baggage, containing 100 pounds of
hashish, in C's car as pre-arranged . A, B, C and C's son were then arrested and
charged with conspiracy to traffic in narcotics and importing narcotics .
Case 22 B
6 . In this case, D, one of the accused, had been contacted in June of 1977 by
an R .C .M .P . informant who indicated that he was interested in making a drug
purchase from D . D initially refused . The informant made approximately 15 to
20 telephone calls to D between June and September, insisting that D secure
cocaine for him until finally, in September, D contacted his former girlfriend
E, and persuaded her to obtain 1 gram of cocaine for the informant . R .C .M .P .
files indicate that at approximately this time the informant advised police that
D was involved in cocaine distribution and that D had access to a "connection"
which could supply bulk amounts . One month later, the informant persuaded D
to supply one half-ounce of cocaine and paid $1,100 .00 (supplied by the
R .C .M .P .) to D . Present during this last transaction was an undercover
member . The informant then dropped out of the picture and the undercover
member began to undertake negotiations with D for the further supply of
drugs . D finally agreed to supply the drugs to the undercover member . D
testified that he made this decision because the undercover member had
applied pressure, indicating that he had been told that the undercover member's physical well-being would be threatened if D did not supply the drugs .
(R .C .M .P . representations to us, however, were that once D was convinced of
the trustworthiness of the undercover member, the question of Ij selling
cocaine to him was never at issue . The only problems encountered were D's
insistence that the money had to be "fronted", and his refusal to introduce the
undercover member to his drug connection) . The undercover member refused
to front the money for the purchase and, after further negotiation, was allowed
to accompany D to the residence of the supplier, E . At that time the
undercover member purchased the cocaine (some two and one-half ounces at a
price of $4,900) : D and E were subsequently arrested and charged with two
counts of trafficking in cocaine, for which they were both convicted .
7 . In this case, the informant was the same informant who had appeared in
court and given evidence in the trial of Case No . 22F . During that trial, h e
309
�admitted under oath that he had travelled to Europe, Malaysia and Bangkok
and smuggled heroin into Canada on behalf of another individual, Q . Upon his
return to Canada in 1976, the informant was given three ounces of heroin by Q
as payment for the trip and was then instructed to go to a certain hotel . When
the informant arrived at the hotel he was arrested by the R .C .M .P . It appears
that the informant had been "set up" by Q . The informant stated in evidence,
however, that he was never charged but has been an informant for the
R .C .M .P. ever since .
Case 22C
8 . In this case, the majority of the evidence deals with one H, who disappeared in an airplane crash prior to trial . H had been charged and acquitted at
a previous trial with respect to conspiracy to traffic in MDA and was about to
stand trial on a second set of conspiracy charges when he disappeared . An
employee of H, J, therefore proceeded to trial alone and was convicted and
sentenced to three years . The relevant circumstances of the case follow .
9 . In the summer of 1976, R .C .M .P. Corporal K was introduced to an
informant who was then known to the police to be a small-time drug trafficker .
Corporal K, who had been attempting to obtain evidence against H but who
had been unable to do so, decided to engage the informant to befriend H and
then eventually to purchase drugs from H . The informant, with R .C .M .P.
encouragement, began to socialize with H over a period of several months,
cultivating his friendship and finally, again acting upon the instructions of the
R .C .M .P ., offered to sell empty gelatine capsules, which could then be used in
trafficking operations, to H . To this end the R .C.M .P. supplied approximately
400,000 specially identifiable capsules to the informant, who in turn sold them
to H . The informant then sought to have H sell him MDA . H agreed and
deliveries of MDA were made in March of 1977 in three transactions, totalling
three and one half pounds . At trial, Corporal K admitted that during this
investigation, senior R .C .M .P . officials, as well as the Crown Attorney, were
aware of the informant's continuing criminal activities when under the direction of the R .C .M .P . They were also aware that of the three and one half
pounds of MDA purchased from H, three pounds were allowed to remain in
the informant's possession and that the informant would be selling those drugs .
Corporal K testified at trial that he had nonetheless not intended to lay
criminail charges against the informant . He further testified that when he was
introduced to the informant, the informant was a small-time marijuana dealer,
but thàt the informant progressed to dealings of a much larger scale while
working for the R .C .M .P . For example, Corporal K admitted that he was
aware that the informant was importing MDA to the United States and selling
it, and that he was also selling cocaine in Canada by ounce . The informant
testified that in 1976, after commencing work for the R .C .M .P., his drug
dealings progressed from those involving four to five pounds of marijuana to
those involving hundreds of pounds, and from grams to ounces in cocaine . He
also testified that he imported some sixteen hundred pounds of marihuana and
imported and sold come eight to ten ounces of cocaine at $2,000 dollars per
ounce . The informant was also allowed to possess at least one unregistere d
310
�firearm, to the knowledge of his handler . An inspector of the drug enforcement
branch testified that he was aware that the informant was dealing in illicit
drugs and was an active trafficker during the course of this operation undertaken on behalf of the Force .
10. We note that there is some disagreement as to the degree of encouragement that was necessary to persuade H to traffic in MDA with the informant .
The trial transcripts appear to indicate that the relationship between the
informant and H was developed over a period of several months, and that,
when the suggestion was made to H that he supply MDA to the informant, H
was reluctant . Representations made by the R .C .M .P., however, indicate that
the Force was advised upon debriefing the informant after a meeting with H,
that H had unexpectedly "fronted" him with one quarter pound of MDA and
that H was also offering to set him up in a laboratory to make MDA .
Furthermore, the Force suggest that there was never any reluctance by H to
sell MDA . The informant merely had to satisfy H that he was not a police
agent .
Case 22 D
11 . In this case, an undercover R .C .M .P. constable purchased one capsule of
heroin from the accused, N . N, acting as the middleman, having purchased the
capsule from two others, demanded to have a "jimmy" from it before giving it
to the undercover constable . The constable and N then proceeded to N's
residence where N requested the constable knock off a bit of heroin into a
spoon . The constable did as requested and N then "cooked up" and attempted
to inject himself . Encountering difficulty, N requested the undercover constable to squeeze N's forearm in order to facilitate the injection . The constable
complied . The remainder of the capsule was turned over to the undercover
constable. N and the two individuals from whom he had purchased the drugs
were charged subsequently with trafficking in heroin . One of those two
individuals subsequently swore out an information charging the constable with
trafficking in heroin . A stay of proceedings was subsequently ordered by the
provincial Director of Criminal Law .
Case 22E
12 . O was originally charged, along with numerous other persons; with
conspiracy to traffic in heroin ; he was acquitted . He was then charged with two
counts of trafficking in heroin and O claims that because of poor health he
pleaded guilty to both counts and was subsequently sentenced to sixteen years .
He then appealed both convictions and the sentence . The facts are as follows . ,
13 . 0 had met and befriended a police informant. The informant used O as a
courrier to pass heroin to an undercover member (note that the R .C .M .P .
contest the statement that the informant used O As a courrier) . The drugs were
enclosed in a cigarette package and the money was hidden in a similar
container. The first transaction occurred in 1976 when the informant requested
O to deliver a package to the undercover member, and the second transaction
occurred just a few weeks later, under the same circumstances . (Note agai n
311
�that the R .C .M .P. contest this conclusion ; drug investigators indicate that on
neither occasion did the informant request O to deliver a package of heroin to
the undercover member . They state that O made his own arrangements for
meeting with the member, controlled his own transactions and made his own
arrangements for future meetings) .
14. Prior to trial, the informant was shot and killed by police, following a
high speed chase . It is known that the informant, as well as another individual,
were used by the R .C .M .P . to introduce members of a foreign drug ring,
described in Case No . 22F. There was no indication that O gained financially
from these two transactions (again, the R .C .M .P . question the validity of this
statement . When O was arrested, $86,000 .00 was seized from him and,
although he was unemployed at the time he had paid $51,000 .00 for his house
and had apparently made a delivery of $32,000 .00 to an "overlord" in the drug
trade) . O claims that he was only interested in smuggling his inheritance from
an eastern block country into Canada and was convinced that the informant
and the undercover member could assist him . There was no evidence to
indicate that O was involved in drug transactions with anyone else ; the only
two people involved in this case were the informant and the undercover
member (the R .C .M .P . claim that this statement is false . O's involvement in
importing heroin to Vancouver from South East Asia was known but these
transactions occurred at a level much above that of the dealings of the
informant) .
15 . The source of the heroin which the informant gave to O for delivery to
the undercover officer was not disclosed, but it is believed to have been
supplied by the R .C .M .P ., then recovered by the undercover member (the
R :C .M .P. flatly state that they did not provide any heroin and that the
informant did not have any to give) .
Case 22F
16. Here, a number of foreigners, including P, were charged with conspiracy
to traffic in heroin . Three undercover members were involved at various stages .
In addition, two informants were involved - the one referred to in Case No .
22E (who was subsequently killed by the police) and the other, Q, who was
reportedly one of the top drug dealers in the Vancouver area . (The R .C .M .P .
contest the assertion about the importance of Q . They claim that Q was not one
of the top drug dealers in Vancouver during the course of this investigation,
and that he became involved in a substantial way only after the arrests of those
being investigated . )
17 . Our research indicates that P was a small-time drug dealer working for Q
when he was introduced by Q to an undercover member . (The R .C .M .P .
contest this point, claiming that they had no way of knowing how much heroin
P sold before meeting the undercover member, and also claiming that he was
not in reality working for Q .) The undercover member then encouraged P to
purchase heroin for him by visiting on him almost every day, phoning him etc .
P then encouraged others to purchase heroin so that he could sell it to the
undercover member, resulting in all the accused becoming much more deepl y
312
�involved in the heroin trade than before the undercover member was introduced to them . (Again, the R .C .M .P . contest this statement ; they claim that P
and P's organization were more than anxious for the business of the undercover
member .) All accused were convicted and sentenced from 10 years to life .
18 . During the trial of the accused, Q's name was raised several times . One
witness for the crown, a police informant (the same informant who was
involved in Case No . 22A) testified that he formerly was a courrier employed
by Q to smuggle drugs into Canada . Another individual admitted to being a
courier working for Q, smuggling heroin into Canada . A defence witness,
presently serving 10 years on a charge of conspiracy to traffic in heroin,
testified that in 1976 he was recruited by Q, whom he knew as the head of a
drug importing organization, to deal in drugs . He worked for Q until his (the
witness's) arrest in February 1977 . The defence witness claimed that during
this period of time he peddled six pounds of heroin for Q and paid Q between
150 and 200 hundred thousand dollars . The witness further stated that he had
personal knowledge that Q had drug connections in South America, Hong
Kong, Bangkok and Amsterdam . Another individual, presently serving a
10-year sentence for trafficking in heroin, testified that he was employed by Q
as a courrier since 1974 and that on three occasions he accompanied Q to
Bangkok and smuggled a total of 72 ounces of heroin into Canada . On the first
trip, Q paid him $8,000 .00 and on the two subsequent trips, he was allowed to
keep 12 ounces of heroin .
19 . At trial, an R .C .M .P . sergeant admitting using Q as an informant and
acknowledged his awareness of three investigations concerning Q's involvement
in drug importation . During the course of this trial Q's residence was searched
by the R .C .M .P . and eight point four ounces of heroin were seized . A charge of
possession for the purpose of trafficking was laid, but later stayed .
Conclusions on legal issues raised by these case s
20 . In Case No . 22A, the activities of the two undercover members and the
informant may have amounted to conspiracy to import narcotics, and one
undercover member and the informant may have been guilty of the importing
itself. In Case No . 22B, the informant and the undercover member may have
been guilty of conspiracy to traffic in cocaine and of trafficking itself . In Case
No . 22C, the R .C .M .P . Corporal and Inspector may have been guilty of
conspiracy to traffic in a number of narcotics or a restricted drug, and the
informant may have been guilty of trafficking in those same substances . In
Case No . 22D, the undercover R .C .M .P . member may have committed the
offence of trafficking in heroin by assisting the accused, N, in administering
the drug. In Case No . 22E, the informant may have committed the offence of
trafficking in heroin . In Case No . 22F, the undercover member may have
conspired with the accused, P, to traffic in heroin .
21 . These possible violations of the law serve to illustrate the problems we
raised in our Second Report, Part III, Chapter 9, from which we quoted a t
313
�length at the beginning of this section . We emphasize here the view we
expressed in our Second Report, that such activities, which currently amount to
crimes, must have the legal consequences removed if drug laws are to be
enforced effectively.
Other policy issues
22 . We discussed above only possible legal violations . Entrapment, however,
is also a concern . Entrapment, absent counselling or conspiracy, is not an
offence in Canada, nor does it appear to provide a defence for the entrapped
individual . Yet we express concern, particularly in this field of drug crimes,
over the use of practices which, as we have seen in some of the above cases,
may border on entrapment . We repeat here what we proposed concerning
entrapment in Part X, Chapter 5 of our Second Report :
91 . We therefore propose that there be a statutory defence of entrapment,
embodying the following principle :
The accused should be acquitted if it is established that the conduct of a
member or agent of a police force in instigating the crime has gone
substantially beyond what is justifiable, having regard to all the circumstances, including the nature of the crime, whether the accused had a
pre-existing intent, and the nature and extent of the involvement of the
police .
92: In addition to the provision of a statutory defence, we think that the
Commissioner of the R .C .M .P . should issue guidelines relating to informers
and instigation, and these should be made public . Such guidelines have been
issued and made public in England and the United States . The guidelines
should be approved by the Solicitor General . Breach of the guidelines
should be regarded as a disciplinary offence . These guidelines should direct
that "no member of a police force, and no police informant, counsel, incite
or procure the commission of a crime" . This aspect of the guidelines has
been discussed in Part V, Chapter 4 in relation to the use of informants by
the security intelligence agency . On the issue now under discussion, they
should require that the undercover policeman have reasonable grounds to
believe that the person instigated had been engaged in similar conduct in
the past . However, the guidelines cannot be too specific, for otherwise
criminals will be able to test persons they are dealing with in the light of
known detailed police procedures .
WE RECOMMEND THAT the Criminal Code be amended to include a
defence of entrapment embodying the following principle :
The accused should be acquitted if it is established that the conduct of
a member or agent of a police force in instigating the crime has gone
substantially beyond what is justifiable having regard to all the circumstances, including the nature of the crime, whether the accused had a
pre-existing intent ; and the nature and extent of the involvement of the
police .
(284 )
314
�WE RECOMMEND THAT the administrative guidelines concerning the
use of undercover operatives in criminal investigations which we recommended earlier be established by the R.C .M .P ., include a direction that no
member of the R.C .M .P. and no agent of the R .C .M .P . counsel, incite o r
procure an unlawful act .
(285 )
23 . We also note the policy direction concerning entrapment which is found
in the R .C .M .P . Operational Manual .
Do not allow your informant to deliberately provoke or instigate a crime in
order to trap the intended victim .
1 . Such conduct is deplored by all . The case would likely be dismissed by
the courts and there would be criticism against the member and the Force .
24 . Yet some of the cases we have summarized in this section indicate that
there is a strong possibility that informants have instigated crimes in a manner
that may have amounted to entrapment .
25 . A further policy issue is that of "targetting" . It seems appropriate that
those who are the most highly-placed in a drug organization should be the
`targets' of drug investigations . To this end, informants should be targetted
"upwards", i .e . the informant should be in a lower position in the organization
than the target . What we have seen in a number of cases, however, is a senior
member of a drug trafficking organization providing evidence against others
who hold lower positions in the organization or in the criminal community in
general . This situation gives the senior individual tremendous power over those
below him ; yet his providing information to the Force may result in that senior
individual himself not being arrested and charged . Thus, the principal in a drug
organization may carry on while only the foot soldiers are caught .
26. While the R .C .M .P . have indicated to us that they "in most cases" target
upwards, there is no written policy regarding targetting . Furthermore, the
Force has pointed out that it is not always possible to restrict the type of
information they will receive from their informants, and that in consequence it
may be impossible to prevent a senior person from providing information
concerning a junior in the drug organization .
27 . We have evidence before us which establishes that the R .C .M .P . is
prepared to use a significant figure in the underworld in order to obtain
convictions of lesser drug dealers, and during the course of the investigation
permit a major dealer to sell very large volumes of narcotics to others than the
R .C .M .P . in order to maintain his credibility . This practice has allowed drugs
to reach the streets in large quantities . Concern about this practice has been
expressed by a middle-rank C .I .B . officer, who observed that the practice
permits too much narcotics to reach the streets . He felt that such a practice
meant, in effect, that the R .C . M . P . were licensing the dealer to traffic in narcotics . Another officer also indicated his concern that should it become known by
agencies responsible for policing that the R .C .M .P . allowed narcotics to be sold
without the knowledge of those agencies the R .C .M .P . could be damaged
forever . Furthermore, he apparently felt that if the federal government or the
general public were to become aware of drugs reaching the streets in this
manner, the repercussions against the Force would be tremendous .
315
�28 . These R .C .M .P . arguments notwithstanding, we stress the need to target
upwards wherever possible . To catch the "foot soldiers" while leaving the
principals untouched serves only to preserve the integrity and strength of the
drug trafficking organization, while at the same time affording those principals
even more power over those who work for them .
29. A third issue arises from what, according to the R .C .M .P., is an imperative that informants and undercover members be allowed to pass drugs that
reach them into the market . The R .C .M .P . are adamant that this is necessary
in order to preserve the credibility of the undercover operatives and consequently their lives and the eventual success of the operation . Yet, in law, this
may mean that informants and undercover members are trafficking . When we
suggested to senior members of the Force that drugs should not, wherever
possible, be allowed to reach the street, they responded in a number of ways .
First, they acknowledged that our suggestion was sound in principle . However,
they indicated that it is impossible in some cases to prevent drugs from
reaching the street because of the unpredictability of informant behaviour and
the ability of some targets to elude surveillance (see, for example, Case No . 7) .
In other cases, it is seen to be an operational necessity to permit drugs, which
might otherwise be seized and removed from circulation, to reach the streets .
Targets, we were told, are notoriously suspicious ; if drugs given to an informant in order to be distributed in a particular district do not reach that district,
the target may cease dealings with the informant and traffic through other
individûals who are not informers . Thus, the trafficking continues, the informer's ability to obtain evidence ends, and he himself becomes suspect in the eyes
of the tArget . This loss of credibility may cost him his life .
30 . One senior drug enforcement officer indicated in addition that the
R .C .M .P., with its responsibilities at the international level to combat international trafficking, must appear to be effective in its work . He told us that the
R .C .M .P . cannot hope to stem international traffic in drugs simply by always,
in an investigation of a particular importing ring, stopping the first shipments
that enter Canada . To do so might result only in catching the "foot soldiers" . It
is sometimes only upon the arrival of the second, third or later shipments that
the R .C .M .P . are able to infiltrate the higher levels of the organization and
obtain evidence on the principals, and thereby stop future shipments of even
larger quantities of drugs .
31 . There are therefore sound operational reasons for allowing drugs to reach
the street . Yet, at the same time, the Force may be allowing new addicts to be
created by this very acquiescence, and it is ignoring crimes which many feel it
has a duty to combat . One senior R .C .M .P . officer told us that the dilemma
created by making decisions whether to allow a shipment of drugs to reach the
street in furtherance of an operation "tears our insides out" . We feel that the
R .C .M .P . and other drug enforcement agencies should not be left to struggle
alone with such questions of law and policy, as these problems are not solely
the concern of the Force, nor can they be dealt in a manner that makes the
Force for all practical purposes unresponsive to governmental and Parliamentary control unless some external scrutiny of the decisions taken is undertaken .
We do not say that the decision whether to let drugs onto the street, if at all ,
316
�and in what quantity, and in what circumstances, is one which will always be
easy . While making the decision may be difficult, even more troubling is the
absence of external guidance and the apparent absence of requests for governmental guidance in regard to these sensitive problems .
R .C.M .P. policy on informant s
32 . R .C .M .P . policy on informants states :
A paid informant may think he has a license to commit any offence in order
to gain the desired result. To combat this :
I . Do not leave him to his own devices .
2 . Make him operate on strict instructions .
3 . At every stage of the operation, set out his limits .
4 . Tell him that any consideration he may get depends on whether he
follows instructions.
5 . Tell him he has no license to violate the law, but let him use all the
stealth and inventiveness he can, provided he stays within the limits you
set out for him .
33. It is readily apparent that this policy, aimed at controlling informant
behaviour, leaves any member attempting to apply it with a number of doubts .
The policy is vague and, as a senior R .C .M .P . officer admitted, it was a
"stop-gap" policy . Nonetheless, despite its vagueness, the policy does provide
some guidelines ; we have seen even these guidelines violated .
1
34. In examining the cases described above, it became clear that the informants were not always under the control of their handler . The informant in
Case No . 22B, will be recalled, progressed from dealing in relatively minor
amounts of drugs to dealing in significantly larger quantities while acting for
the R .C .M .P. His handler testified at trial that he had no intention to charge
the informant while the informant was in the employ of the R .C .M .P . In view
of these facts, it is difficult to see how R .C .M .P . policy was not violated ; it is at
least arguable that the informant was in effect given a licence to commit
crimes while in the employ of the R .C .M .P.
35. We express our concern as well about another feature of informer-police
relationships - the tendency to ignore an informant's criminal activities ' in
areas other than those in which he assists the police . For example, the police
might tend to overlook a drug informant's activities in "fencing" stolen goods .
Jerome Skolnick, in his study of law enforcement techniques in two American
cities, observed :
In general, burglary detectives permit informants to commit narcotics
offenses, while narcotics detectives allow informants to steal . . . .[U]sually
neither the narcotics detective nor the burglary detective seriously attempts
to learn about his informant's involvement in the other detective's field of
interest .2
2 Jerome Skolnick, Justice Without Trial : Law Enforcement In Democratic Society
(2nd ed . 1975) p . 129 .
317
�While there is some justification for allowing a narcotics informant, for
example, to continue to traffic (in order to enhance his credibility and further
the operation), there can be no such justification for turning a blind eye to
unrelated criminal activities which the informant may commit . We feel that
not enough attention is paid to reducing to the absolute minimum the chances
that an informant will indulge in criminal activities unrelated to the subjectmatter of investigation . Any tolerance of such a situation is entirely unacceptable . R .C .M .P. policy on informants should reflect this view .
DETAILED SUMMARY NO . 23
1 . The complainant first contacted us in June 1978 . His complaints can be
summed up as follows :
(a) He believed that his security clearance was revoked in 1971 . Although
he had no direct evidence of this fact it appeared to him to be a logical
conclusion in view of his 1971-73 career development . At this time his
name had appeared on a list circulated by the Solicitor General . The
complainant felt that his name was added to the list as an afterthought,
without justification, and because of bureaucratic politics .
(b) He believed that adverse security reports were a factor in his dismissal
from a government agency . Although he had no evidence of this he felt
that the individuals concerned used an adverse security report as a
lever in reaching the decision to dismiss him . He believed that possibly
the R .C .M .P . Security Service were innocent bystanders in the affair
and that the weight of evidence revealed to date points to an irresponsible and malicious application of the provisions of Cabinet Directive
35 by hostile elements in the government agency .
2 . The Security Service has kept records on the complainant since the 1940s .
The current file was opened in January 1952 . In the fall of 1970 a file on the
"penetration of the [government agency]" was opened . On this and other files,
the complainant's name is mentioned in connection with a group of student
activists employed by the agency . Similar comments were included in a brief
prepared by the Security Service, concerning the "Extra-Parliamentary Opposition" (E .P.O .) . It was forwarded to the Solicitor General on May 12, 1971
and later to four friendly foreign intelligence agencies .
3. On June 15, 1971, a letter from the Solicitor General, dealing with the
E .P .O . brief was delivered by hand to the Minister of Regional and Economic
Expansion, the Secretary of State, the Minister of Health and Welfare, the
Minister of Manpower and Immigration, and a Minister without Portfolio
responsible for the government agency . Attached to each letter was a list of
names of government employees which had been compiled by the Solicitor
General's office from the R .C .M .P .'s brief on the E .P .O . Every name on the
list is found in the brief. From our examination of R .C .M .P. files we have
found no indication that the brief and the list were forwarded to people other
than the parties to whom they were delivered by the Solicitor General's office .
4 . It appears from the record that no formal consultation took place between
the Solicitor General's office and the Security Service as to the handling of the
material in the E .P .O . brief . However, the Security Service was aware of the
318
�Solicitor General's intention to communicate in some way with other Ministers .
This proposed plan of action was noted in a memo dated June 7, 1971 from an
official of the Solicitor General's office to the Director General . During
November 1971, a meeting took place between 'members of the Security
Service and the head of the government agency concerning the presence of
E .P .O . sympathisers in that agency .
5 . At this meeting the R .C .M .P. advised the head of the government agency
that since the time when the complainant had been cleared to secret standards
when he had been considered for a Privy Council office position, he had not
come to their attention in any adverse context . Because of this, and because the
information they had about him was so dated, the R .C .M .P . advised that there
was no reason for the Security Service to change its views on the clearance
issue .
6 . On August 18, 1972, an Inspector and the Director General of the Security
Service called on the Minister, at the latter's request, to discuss the leak of a
report . During the course of this meeting the Minister indicated his displeasure
with the complainant and stated that he had sufficient grounds to fire him . No
adverse security report on the complainant was made by the Security Service
at this meeting .
7 . Three days later the Inspector met with the acting head of the government
agency and the Minister's Exécutive Assistant to discuss the problem of leaks .
In the course of this interview the acting head indicated his opinion that the
complainant could not be trusted and was unsuitable for any position in
government . According to an R .C .M .P . report of the meeting, the Executive
Assistant again mentioned that they wished to obtain material on the complainant . It appears that the Security Service, while anxious to assist the Minister
and his senior officials, was reluctant to build an adverse security case against
him when there was little to support it .
8 . On July 19, 1973, the new Director General wrote a detailed report on the
complainant to the newly appointed head of the government agency . This
report summarized the material concerning the complainant on file in the
Security Service and concluded :
14 . The subject's involvement in matters of interest to the Security Service '
has been very slight particularly in recent years with the exception of
his being responsible for the hiring of a number of individuals by [the
government agency] who are of interest . The names of these persons
are included in a brief explanation of "revolutionary Extra-Parliamentary Opposition" which is attached and which was forwarded 14 April
1972 to the Minister of State for Urban Affairs by the Solicitor
General .
15 . A current assessment of the [complainant] is difficult inasmuch as his
own utterances received from untested sources are now quite dated
[ . ..] . We held concern in 1971 regarding his involvement in hiring
persons of interest to this Service but in the absence of any information
that this practice has continued or was done with malice aforethought
our concern is diminishing . You are undoubtedly in a better position to
assess the comments made in paragraph 13 respecting his difficulties
with your [agency] .
319
�16 . 1 am sure you will appreciate that some of the information contained in
this letter and the attachment, emanates from sensitive sources . Hence,
the Security Service would be grateful if it would be handled on a
need-to-know basis within your [agency] and we would be consulted
before any further dissemination is initiated .
9 . In October 1973 the complainant was dismissed from the government
agency . He commenced legal proceedings for unjust dismissal . The Supreme
Court of Ontario found that the dismissal had not been justified and awarded
damages in the amount of $18,000 . The only specific cause for dismissal raised
by the agency at trial was the fact that the complainant had allegedly been
indiscreet and had shown lack of judgment in disclosing a Cabinet document or
causing it to be disclosed . The court found that no such indiscretion had taken
place and that the complainant had merely followed an agreed-upon plan of
action . There had therefore been no cause for dismissal .
10 . Our investigation, which was restricted to a review of R .C .M .P . files,
leads us to conclude that adverse security information was not an important or
even significant factor in the complainant's dismissal . It seems clear that while
a personal file was maintained on him, no significantly adverse information
from a security point of view had been provided by the Security Service to
departments during the 15 years preceding his dismissal . At the time of the
dismissal the Security Service had reached the conclusion that the information
on file was outdated and that he was not a subject of current interest .
Furthermore, to the extent that we can judge from R .C .M .P . files, it appears
that from the time the complainant arrived in the agency there were conflicts
between him and the agency that were unrelated to security concerns .
11 . Furthermore, we have found no information to indicate that the complainant had suffered the revocation of his security clearance . We were able to look
at information on R .C .M .P . files, obtained from departmental sources, which
alleged that the complainant was somewhat unreliable and headstrong, but this
would appear to reveal a problem of conflict of personalities within the
government agency rather than a security problem .
12 . We have found no evidence that members of the R .C .M .P . acted in this
matter in any way that was not authorized or provided for by law .
DETAILED SUMMARY NO . 2 4
1 . The leader of a labour union forwarded a letter of complaint to the federal
Minister of Justice of the day with a copy to us . In it he complained that
during the previous several years the union and its members had been subjected
to improper surveillance by the R .C .M .P.
2 . The specific concerns expressed included illegal surveillance, infiltration,
and espionage by members of the Force .
3 . Investigation revealed that this labour union was considered by the Security Service as one of the most militant in the province in question . A senior
executive in the union was known to have made numerous contacts with
subversives in a number of organizations and to have cooperated with th e
320
�Soviets . A second executive member had travelled to Communist countries and
met with their union leaders . A third high-ranking official in this union was
suspected of being an agent of influence for the Soviet Union .
4 . The R .C .M .P ., for these reasons, had opened a file on the union in 1947,
on the senior executive in 1969, and the second executive member in 1972 . Our
investigation confirmed that the R .C .M .P . has infiltrated the union by employing undercover members and paid informants, and has monitored the activitiés
of its members and their telephones . In each case, the authorization to
intercept private communications was obtained under the appropriate section
of the Official Secrets Act .
5 . We found no evidence of any activity by members of the R .C .M .P . that
could properly be said to be "not authorized or provided for by law" . A
detailed outline on the extent of surveillance by the R .C .M .P . on unions may
be found in our Second Report, Part V, Chapter 3 . An analysis of the legal
issues regarding authorizations to monitor private communications is in Part V,
Chapter 4 of that report .
DETAILED SUMMARY NO . 2 5
1 . A former government employee, complained to us about the manner in
which members of the R .C .M .P . Security Service debriefed him upon his
return to Ottawa from duties in a foreign country . Our investigation revealed
that the Security Service felt the government employee had jeopardized his
position while abroad, and that the Service was interested in whether he had
been approached by agents of a foreign power .
2 . The complainant was met at the airport in Ottawa by Security Service
personnel, taken to the R .C .M .P . offices and later to a local hotel for
debriefing . Members of the R .C .M .P . remained with him at the hotel for
several days . Although he visited his Member of Parliament, a doctor and a
close relative during this time, he felt that his freedom of movement had been
restricted .
3 . On the basis of our investigator's reports as to the interviews conducted, we
are satisfied that the complainant was not detained against his will or physically maltreated .
4 . This case demonstrates the need for setting down, in advance, as a term of
employment or assignment, the obligation to submit to a debriefing in every
case where a government employee is posted abroad . Such debriefings whenever necessary, would then not come as an unpleasant surprise to the employee
returning to Canada . This subject was dealt with in our Second Report, Part
III, Chapter 10 and Part V, Chapter 6 .
DETAILED SUMMARY NO . 2 6
1 . The complainant in this case wrote to us, alleging that he had been the
subject of R .C .M .P . su rv eillance for many years .
2 . Our investigation determined that the complainant became of interest to
the R .C .M .P . Security Service in the mid-thirties and continued to be, of
interest to them until 1964 .
321
�3 . The R .C .M .P.'s concerns were prompted by his relationship with the
Communist Party of Canada and other Communist-controlled groups . He was
known to have associated with intelligence officers from a foreign country and
was himself suspected of being an intelligence agent .
4 . During the time . period in question, the complainant was the subject of
intensive surveillance which included telephone interceptions, electronic eavesdropping and mail interceptions . The extent to which such conduct was not
authorized or provided for by law is discussed in our Second Report, Part III,
Chapters, 3, 4 and 8 .
DETAILED SUMMARY NO . 27
1 . A Member of Parliament wrote to us and asked that we conduct an
investigation into break-ins and thefts that occurred at five business establishments in Toronto and ascertain if members of the R .C .M .P . or their agents
were in any way responsible .
2 . The five establishments referred to us were :
(a) the offices of a research corporation ;
(b) the offices of two publishing companies ;
(c) the offices of an ethnic group ; an d
(d) the offices of an aid organization which received funds from the federal
government .
3 . The break-in, arson and theft of documents from the research corporation
received widespread publicity and was the subject of an investigation by the
Metro Toronto police and later by the Ontario Provincial Police/Ontario
Police Commission . These, investigations and ours concluded that no member
of the R .C .M .P . or an agent at their request was involved . More information
on our investigation can be found in Detailed Summary No . 28 .
4. The four other break-ins referred to us by the Member of Parliament were
investigated by our staff and we concluded that no member of the R .C .M .P .
was involved and that no person acting at the request of the R .C .M .P . was
involved .
DETAILED SUMMARY NO . 28
1 . This case was brought to our attention by a lawyer who was concerned
about possible R .C .M .P . involvement in a break-in, arson and theft of documents which occurred at the offices of a research corporation . The news media
speculated that the R .C .M .P . were responsible or had encouraged the offences .
2 . Approximately two months after the occurrences, some of the stolen
documents were turned over by a source of the R .C .M .P . to the R .C .M .P .
Security Service . A newspaper editor publicly acknowledged much later that
he too had been a recipient of some of the stolen documents and had given the
documents to the R .C .M .P . Security Service . The R .C .M .P . retained both sets
of documents for some seven years .
3 . Whether the R .C .M .P . were involved in any way with the break-in, theft
and arson was the subject of a full-scale investigation by the municipal polic e
322
�force . A similar type joint investigation was conducted by the provincial police
and the provincial police commission . All the investigative agencies concluded
that no member of the R .C .M .P . or agent at their .request was involved . Our
staff investigation found no evidence that would be at variance with that
conclusion .
4 . Although our investigation has not revealed any facts not already brought
to the attention of the Attorney General concerned, the one legal issue not
really previously examined in depth arises from the retention of the documents
by the R .C .M .P .
5. We have looked at the provisions of section 312 of the Criminal Code
concerning the unlawful possession of property obtained by crime . It might be
argued that this section was violated by members of the R .C .M .P . in this case
when they retained the stolen documents for nearly seven years . We take no
position in attempting to determine this issue but recommend that the matter
be referred to the Attorney General of thé province in question for consideration of this issue .
6. For related discussion on the retention of documents in espionage cases see
our Second Report, Part III, Chapter 9 .
DETAILED SUMMARY NO . 2 9
1 . The Central Committee of a leftist workers' organization, established in
1977 through the fusion of three groups, complained of R .C .M .P. wrongdoings
in a brief to us . Later letters from numerous members of this movement were
received in support . The allegations were that the R .C .M .P . :
(a) Broke into the Toronto office to steal the membership lists of one of the
defunct groups ;
(b) Caused the firing of a female employée at the 1976 Olympics because she
was a security risk ;
(c) Collaborated with the management of a major industry in Winnipeg, to
bring about the dismissal of three workers ;
(d) Characterized an American draft-dodger as a subversive, so that citizénship was denied to him ;
(e) Authored, mailed and distributed at meetings, anonymous, divisive letters
to members of one of the defunct components in which the secretary's
ability and emotional stability were questioned .
2 . Our investigation determined allegations (a) to (d) to . be unsubstantiated
by any evidence which we considered adequate . These findings also apply to a
number of individual complaints of wrongdoings solicited from members of the
organization by its counsel and forwàrded to us .
3 . In the course of the investigation by our investigative staff, approximately
40 persons, including R .C .M .P . members, were interviewed and some 216
volumes of R .C .M .P. files were examined . Allegation (e) and Operation
Checkmate generally are examined in our Second Report, Part III, Chapter 7
and in Part VI, Chapter 12 of this report .
323
�DETAILED SUMMARY NO . 30
1 . The complainant wrote to the Commission alleging that the Security
Service of the R .C .M .P . had fabricated evidence in a security report, thereby
causing his dismissal from a government agency .
2. The complainant was born in a foreign country and immigrated to Canada .
Some years later, he obtained employment with the government agency but
was dismissed while still on probation . He was told that he did not have the
potential required for the government agency's overall career mobility
programme .
3 . His suspicion that this was not the true reason for his dismissal prompted
him to complain to the Human Rights Commission . An officer of the government agency advised the Human Rights Commission that the reason for the
complainant's release had been his failure to qualify for security clearance .
4 . The government agency had requested a security clearance for the complainant . The R .C.M .P . Security Screening Branch had replied by relating
certain events and concluding that "All of these factors cause the Security
Service to doubt the subject's suitability for a position requiring access to
classified information at this time" . The information supplied by the Security
Screening Branch had been obtained from sources deeply involved in the
community of which the complainant was a member .
5. We have dealt with the subject of security screening for Public Service
Employment in our Second Report, Part VII, Chapter 1 . It is interesting to
note that the government department in this case seems to have failed to abide
by the provisions of Cabinet Directive 35 (as amended) which requires "an
attitude of much greater frankness with employees whose reliability or loyalty
is in doubt . . ." . Following amendments on December 27, 1963 (Ex . M-35),
departments and agencies were required "to tell an employee about whom
doubt has arisen on security grounds of the reasons for that doubt, insofar as is
possible without endangering important sources of security information, and to
give him an opportunity to resolve the doubt ;" and "if dismissal appears to be
the only prudent recourse, to have the case reviewed and the employee
interviewed by the deputy minister, to give him a further opportunity to resolve
the doubt that has been raised about him ; . .." .
6 . The complainant was under the misapprehension that the Security Service
was responsible for the refusal to grant him a security clearance when in fact
the responsibility for that decision rested with the agency .
7. It is obvious that the government agency in this case did not abide by the
requirements of the revised Cabinet Directive on security . We did not examine
the conduct of that agency in depth as to do so would have exceeded our terms
of reference . Our investigation leads us to conclude that the complainant's
allegation against the R .C .M .P . of having fabricated evidence, is not
well-founded .
324
I
�DETAILED SUMMARY NO . 3 1
1 . This complaint file was opened following a Toronto newspaper's coverage
of the trials of three members of a right wing organization who had been
charged with, among other things, possession of explosives . The articles
indicated that an R .C .M .P . informer who had infiltrated this organization had
taken part in painting abusive graffiti against Jews, Blacks and known Communists while being paid by R .C .M .P .
2. Testimony at the trial, given by the informer and his R .C .M .P . handler,
showed that many of the acts of vandalism carried out by the informer were
performed with the full knowledge of the handler and his superiors .
3 . The R .C .M .P . did not take any disciplinary action against the member for
his handling of the paid informer in view of the trial judge's comments at the
conclusion of the trial . He said :
I do not agree that [the informer] induced acts of mischief with [the
member's] approval, and I accept [the member's] evidence that he learned
of [the informer's] illegal activities after the fact, and I am satisfied that
[the member] did his level best to confine [the informer's] activities to a
degree where he, and by that I mean [the informer], refrained from truly
criminal conduct consistent with obtaining information essential to the
protection of the public safety .
4 . Using only transcripts of the trial, we find it hard to reconcile the findings
of the trial judge with the testimony of all concerned . The transcripts reveal
that the member admitted that he was aware of a large number of offences
committed by the informer ; he did not know if he was told of every specific one
and would have to count through his notes to estimate the number, but
submitted that he realized that the informer was committing offences over a
14-month period . He went on to state that he was aware that the informer was
being paid by the R .C .M .P . at the time he was committing the offences and
that his superiors were aware of this . Later in his testimony he said he
approved the informer going along for the purpose of postering and spraypainting and admitted that this was an illegal act .
5 . We have examined the issues raised by this case in which a human source
was recruited and placed within a group which had attracted the attention of
the Security Service . An analysis of the informer's involvement in this instance,
along with the related issues, can be found in our Second Report, Part III,
Chapter 9 .
DETAILED SUMMARY NO . 3 2
1 . The leader of a Canadian group complained to us that over the last decade
members of his organization have been subjected to harassment, improper
surveillance, and numerous other questionable police tactics by members of the
R .C .M .P .
2 . The specific concerns were as to whether the R .C .M .P. (a) infiltrated its
organizations ; ( b) monitored its telephones; (c) engaged in disruptive activities ;
325
�(d) opened or detained its mail ; and (e) participated directly or indirectly in
numerous break, enter and thefts of its offices .
3 . Investigation revealed that this group first became a concern to the
R .C .M .P . and the federal government in the early 1970s when 150 of their
members forcibly occupied a government building . This left the R.C .M .P . in an
embarrassing position as it had had no prior knowledge that this occupation
had been planned and as a result the Force was not prepared to answer
government concerns . The R .C .M .P . Security Service, in an attempt to prevent
a recurrence, immediately coordinated a programme of source development,
increased its manpower and set up a desk at Headquarters in Ottawa to deal
exclusively with this group .
4 . During the next several years, members of this organization were involved
in violent demonstrations across Canada, which included occupation of buildings and property, road blocks and other forms of disturbance . Additional
concerns were that other groups, regarded by the Security Service as subversive, were thought to be exercising influence over this group and the fact that
members of a similar organization in another country were coming to Canada
to encourage and promote violence .
5 . Inquiries by our staff confirmed that during this period :
(a) The Security Service infiltrated the organization, employed undercover
members, paid informants who were members of the organization to
attend meetings, and questioned group leaders, all in order to keep
abreast of planned activities .
(b) The Security Service monitored the telephones of some of the organization's headquarters but in each case an authorization to intercept private
communications was obtained under the appropriate section of the Official Secrets Act . A discussion on the use of electronic surveillance may be
found in the Second Report, Part III, Chapter 3 .
(c) The allegations. of disruptive tactics, including allegations relating to the
activities of Warren Hart, have been thoroughly investigated by our staff
and we have concluded that this concern is unfounded . A detailed study
into the surveillance of this group by the Security Service may be found in
the Second Report, Part V, Chapter 3, and a review of the activities of
Warren Hart, while employed by the R .C .M .P ., may be found in this
Report, Part VI, Chapter 11 .
(d) We are satisfied that the allegations of mail openings are unfounded .
(e) The concern that members of the R .C .M .P . were involved in numerous
"break and entries" of, and thefts from, its offices was investigated
thoroughly . Because of the seriousness of this allegation, our staff spent a
great deal of time to obtain the facts surrounding each incident . There
was a total of six reported forcible entries . A brief synopsis of our finding
in each case is reported below :
(i) A break, enter and theft occurred in an area in which a great deal of
hostility existed between factions of the group . Entry was so amateuris h
326
�that it would lead one to believe that the culprit or culprits was or were
more interested in causing damage than in stealing items of value or
interest . The Security Service had only one man in the area, and from
interviews with him we are satisfied he was not directly or indirectly
responsible . The police have suspects but to date no charges have been
laid .
(ii) A break, entry and theft occurred at an office located in a small city and
has been investigated by the local police . Investigation revealed that a
man and woman were seen leaving the building the morning after the
break in . There was evidence that the couch in the office had been used
and it appeared that this couple entered the building to seek shelter .
There was no evidence of R .C .M .P . involvement .
(iii) A break and entry of a local office in a remote area, which was reported
to our investigator, was never reported to the local R .C .M .P . detachment . The complainant, despite attempts by our investigator to contact
him, did not make himself available for further inquiries . Consequently,
this investigation was not pursued further . We are satisfied from the
information in our possession that if a break and enter did occur, the
R .C .M .P . were not involved .
(iv) The break and entry of an office situated in a large city had already been
investigated by the local police . The only article stolen would not have
been of any interest to the Security Service . There were no suspects and
the case remains unsolved .
(v) Numerous break-ins at the residence of two employees of this Canadian
group have also been investigated by the local police . The employees were
not a concern of the Security Service and the method of making the
entries would indicate that the culprit was familiar with the occupants'
habits . No arrests have been made and the case remains unsolved .
(vi) The break and entry of a school located in a city was investigated by the
local police force . In this case, there was no evidence of forced entry . A
member of the staff of the school advised the investigating police
department that it was an inside job, requested no further action by them
and said that the problem would be dealt with internally . The police
discontinued their inquiries .
6 . We have reached the conclusion, on the basis of the information available
to us, that the R .C .M .P . were not involved in any of these incidents .
DETAILED SUMMARY NO . 3 3
1 . In October 1978 we read press reports concerning what was described as a
large-scale police raid on members of a Canadian Marxist-Leninist group who
were conducting clandestine study sessions . According to the reports, the
R .C .M .P. Security Service was responsible for the operation, during which
members of the organization alleged that they had been harassed, threatened
and intimidated . This incident later became the subject of protests addressed t o
327
�the Solicitor General of Canada and the Commissioner of the R .C .M .P ., with
copies to the Prime Minister and provincial government officials . However, the
leader of the organization declined to be interviewed by our staff or file a
complaint with us .
2 . The absence of a complaint notwithstanding, a Commission investigation
was initiated to look into the circumstances surrounding this Security Service
operation . Personal interviews were conducted with the R .C .M .P. members
involved and relevant R .C .M .P. records were examined . Termed an "overt
surveillance", in which a total of 25 members participated, the operation was
considered by the Security Service to be in accordance with its mandate . The
publicly declared objectives of the organization, its political philosophy and the
background of its leaders were said to characterize it as a subversive movement, meriting close attention .
3 . The Security Service also maintained that the operation was the only
means available to identify members of the organization . It was also said to
have served as a "deterrent and disruptive" tactic by forcing destruction of
records and sowing the seeds of suspicion amongst the members that they had
been infiltrated .
4 . The Commission investigation revealed that the planning of the operation
had initially met with disagreement at R .C .M .P . divisional and HQ levels,
where serious doubts as to its usefulness and timeliness were raised . However,
the advice of the officer in charge of the Security Service in that area was
finally acted upon, and Headquarters approved the action . Although he was
not made aware of it initially, the Director General of the Security Service
later ratified the operation and so stated in his testimony before the
Commission .
5. While we determined that no illegal acts were committed by the participating R .C .M .P . members, the case does raise a question as to the justification of
such an operation in the light of the results obtained and the adverse publicity
created . In our opinion, if the Force was in attendance for the purposes of
surveillance and disruption only, it was unnecessary to employ 25 armed
members . However, if the purpose was to "intimidate" the group, through a
display of force - which the R.C .M .P . denies - then such manpower would
be required . We have dealt with physical surveillance and countering in our
Second Report, Part III, Chapters 7 and 8 and with conspicuous surveillance in
Part V, Chapter 6, and expressed our views there as to what the policy ought to
be with respect to conspicuous surveillance .
6 . We found also that the incident raised the issues of use, employment and
control of Security Service manpower in that division . The abundance of
personnel and equipment so readily available for that type of operation permits
an inference to be drawn that its cost-effectiveness had been of little if any
concern in deciding whether to mount the operation . This brings into focus the
need to reassess realistically the present strength of the Security Service, as
well as C .I .B . establishments, in terms of workload in larger centres across the
country, which may be in excess of actual need .
328
�DETAILED SUMMARY NO . 3 4
1 . The leader of a Canadian group complained to us that over the past decade
he and members of his organization have been the target of R .C .M .P .
surveillance, harassment, racial discrimination and police activities . Complaints had already been addressed to two Solicitors General and other
members of the federal government .
2 . Specific allegations were made regarding mail openings, communication
intercepts, physical surveillance, exchanges of information with foreign
authorities on the travel and activities of certain members of this group,
surreptitious entries, thefts of documents, arson, adverse reporting on citizenship applications, and manipulation of recent immigrants to develop them as
sources .
3 . Investigation disclosed that this group and affiliated associations became
of interest to the Security Service in the early 1970s . This interest was
generated by the increase in international terrorist incidents, including letter
bombs and hijackings of aircraft, for which several foreign militant groups
claimed responsibility . It had by then become apparent that members of the
Canadian group provided not only moral and financial support for these
activities but also openly and frequently criticized Canadian Government
policy towards the countries involved .
4 . Following the terrorism at the Olympic games in Munich in 1972, and in
preparation for the 1976 Olympics in Montreal, the Security Service established a special group known as the "International Terrorist Guerrilla .Section" . It was their responsibility to keep the Directorate of Criminal Investigations as well as "P" Directorate informed of any threats to the safety of foreign
dignitaries, diplomatic representatives and their staffs, the Prime Minister, and
foreign and domestic airlines in Canada . Cooperation with the security intelligence agencies of other countries was intensified with a view to obtaining
advance information about the travel of suspected terrorists to Canada . A
thorough identification programme was started .
5 . In 1973 the Security Service received information, and informed External
Affairs as well as the Department of Manpower and Immigration, that
counterfeit Canadian passports were being used by foreign terrorists . At the
same time certain Canadian members of the complainant group became the
subject of close attention . Their travels, activities and contacts with foreign
embassies were considered to characterize them as supporters and sympathizers of acts of international terrorism committed by the militant factions of a
"liberation organization", and they had taken part in demonstrations in
Montreal, Toronto and elsewhere . While there was no concrete evidence that
any of them actually advocated the use of violence in Canada, investigation of
some of these extremists and their associates was undertaken, including
electronic surveillance, mail openings and other means of constant monitoring .
Authorizations for the investigative techniques used were requested and
received under the appropriate sections of the Official Secrets Act .
329
�6 . The Security Service, in cooperation with the intelligence services of other
Canadian police forces and foreign authorities, also discovered close links
between the Quebec association of the complainant group and Canadian
extreme left-wing movements, some of which were considered to be of a
subversive nature . It was further determined that Canadian public funds,
destined for a Canadian student organization, were being diverted through a
Quebec group to the "liberation movement" overseas . The appropriate Canadian government agency was alerted to this situation .
7 . Prior to the 1976 Olympics a defusing programme was initiated by the
Security Service, comprising personal contact and interviews with key members
of the group . By then, a number of foreign embassies from countries involved
in the continuing hostilities had been identified as the source of funding,
coordination, direction of propaganda and indirect participation in leadership
conventions and other activities of the complainant group . In this connection, a
high ranking official of one embassy was found to have interfered in the
internal affairs of Canada, declared persona non grata and expelled . This man
was one of the key contacts for, and exerted considerable influence on, the
Canadian group in question .
8. Early in 1977 the Security Service reviewed and redefined the various
forms of international terrorism, as well as the threat potential posed by
individuals or groups to Canadian security both domestic and abroad . The
intent was to develop a response capability in conjunction with other Canadian
Police Forces and government agencies on the basis of long-term and consistent
intelligence collection techniques to feed data bank facilities .
9. For about a decade the Security Service monitored the situation by means
of communication intercepts duly authorized in respect of individuals under the
appropriate sections of the Official Secrets Act . During the period 1972 to
1976 additional electronic and physical surveillance operations were conducted
with a view to detecting any security threat involving the Montreal Olympics .
Several members of the complainant group identified as extremists were
subjected to mail openings . Close liaison and cooperation were maintained with
Canadian police forces, government agencies and foreign law enforcement
authorities, to monitor and report upon the international movements and
contacts made by prominent activists of the group . Meetings were infiltrated
and reported upon . In some cases, extensive physical surveillance was conducted in collaboration with provincial and municipal police forces . Efforts were
also directed towards the recruiting and development of informants possessing
the requisite language capabilities and background . A defusion programme put
into effect in 1976 led to direct confrontation and interviews with group
leaders .
10 . Our staff investigated all aspects of the allegations presented by the group
and arrived at the conclusion that those referring to arson, thefts of documents,
adverse reporting on citizenship application, the manipulation of recent immigrants to force them to cooperate with the R .C .M .P . under threat of expulsion,
etc ., were unfounded . As for the allegations that racial discrimination was
practised by members of the R .C .M .P . in specific occupations in whic h
330
�numerous members of the complainant group were engaged, our staff determined that in one case only was the complaint justified . As a result of a long
and thorough R .C .M .P . internal investigation into that complaint, appropriate
disciplinary action was taken against the R .C .M .P . member concerned .
DETAILED SUMMARY NO . 3 5
1 . In 1973 two R .C .M .P . members attached to the Security Service were
dismissed from the Force as unsuitable under Regulation 173 of the regulations
concerning the organization, discipline and administration of the R .C .M .P .
Both members later became involved in a private security firm .
2. The two ex-members filed complaints with us in which they challenged the
legality of their discharge from the Force and they alleged that they had been
harassed personally and that their security business had been disrupted or
interfered with by the Security Service since their separation from the Force .
For these reasons they claimed their business operations had suffered losses of
government and private sector contracts . A third allegation concerned an
affidavit filed during a Federal Court action commenced by the complainants,
who sought a court order to reverse the Commissioner's decision in this
dismissal . It was alleged that the R .C .M .P . were instrumental in denying the
court access to certain documents by misrepresenting their nature to a Minister
acting on behalf of the Solicitor General, whose sworn affidavit was required to
claim "Crown Privilege" in respect of the production of certain documents . As
a result documentary evidence favourable to their claim was allegedly withheld . The complainants eventually discontinued their action .
3 . Investigation by our staff into these allegations and concerns expressed by
the two former R .C .M .P . members established that :
(a) Their complaints of illegal discharge had already been examined by
another Commission and were the subject of court action which the
complainants chose to discontinue . Had that action proceeded to trial,
they would have had the benefit of a judicial ruling as to whether the
procedure used in their discharge was according to law . In these circumstances we prefer not to make any finding as to this complaint .
(b) No evidence was uncovered to substantiate the allegations of R .C .M .P .
interference or disruption relative to the complainants' business activities
since their discharge . As for harassment, Commission investigation disclosed one documented instance of Security Service surveillance of the
business premises by means of an observation post in an attempt to
identify two persons suspected of having posed as members of the
Security Service and having used an R .C .M .P . identification card . Initial
physical description suggested that one of the ex-members might have
been implicated . His photograph and that of other members of the
security company were taken from the observation post but no one was
positively identified . The surveillance operation was, therefore, abandoned . Even though the Security Service had been looking for two male
suspects, they did not limit their photography to taking pictures of males
331
�entering the business premises . Because of the location of the observation
post at the side of the building, it appears that only employees entering
the building were photographed . There does not appear to have been any
intention on the part of the Security Service that the ex-members learn of
this surveillance . Consequently we conclude that what was done cannot
be said to have constituted "harassment" . Nevertheless, we are concerned
as to the object of the observation post and photography . The information
that had been received was that two males had been involved in the use of
the identification card ; the R .C .M .P . already had photographs of the two
ex-members, and it is difficult to understand why photographs were taken
of their female employees . Moreover, the informant had advised the
R .C .M .P . that the two males spoke French as a first language, whereas
the only one of the two ex-members who could fit the physical description
of the two males clearly speaks English .
(c) In regard to the signing of an affidavit under section 41(2) of the Federal
Court Act to deny the Federal Court access to certain documents, our
staff investigation established clearly that the Minister responsible for
signing the affidavit, the Honourable Bryce Mackasey, did so with full
knowledge of the contents of the documents in question . He concurred
with R .C .M .P . representations that their disclosure to the court would be
detrimental to national security as well as to Security Service operations .
However, the Minister, after examination of the documents, decided to
allow certain material to be made available for study by the court and
counsel only . Thus it is not true that, as alleged by the complainants, all
the documentation was withheld .
4. Basically, we consider the complainants' allegations to be unsupported by
any acceptable evidence that they had been subjected to investigative practices
not authorized or provided for by law . Nevertheless, we have found it difficult
to understand why the Security Service would undertake a surveillance operation of such magnitude as is described in the previous paragraph, on the basis
of rather flimsy information, and without apparent concern for the costs and
manpower involved in the setting up of an observation post for three days close
to the complainants' business premises . In examining the circumstances surrounding this particular incident, we could not escape the impression that the
whole action was indicative of a vindictive attitude towards these ex-members
by a particular member of the Security Service . Aside from this aspect, our
inquiry into this matter caused us to be concerned as to whether the complement of Security Service and C .I .B . personnel may be unnecessarily large in
major centres across the country and should be realistically assessed in terms of
true needs .
5. In connection with the documented Security Service activity concerning
the complainants, the sworn testimony before us of the Officer in Charge, to
the effect that he was not aware of any Security Service operation in respect of
the complainants, appears to be in conflict with the known facts . We did not
pursue this apparent discrepancy and therefore make no comment about it .
332
�6. While reviewing R .C .M .P. files we became aware of another aspect of the
R .C .M .P .'s concern abôut the conduct of these ex-members . Following their
discharge, but before the Protection of Privacy Act introduced the present
provisions in the Criminal Code for electronic eavesdropping on July 1, 1974,
the R .C .M .P . employed telephone tapping . It was authorized by a search
warrant, issued purportedly under section 11 of the Official Secrets Act, by a
Deputy Commissioner in his capacity as a Justice of the Peace under section
17(l) of the R .C .M .P . Act . The "Information" in support of the application of
the warrant, sworn by an officer, stated that he believed that the ex-members
to be directly or indirectly associated with a foreign powe r
and to be
about to communicate information by telephone which is calculated to be or
might be or is intended to be directly or indirectly useful to a foreign power
contrary to section 4 of the Official Secrets Act .
(The reference to section 4 should have been to section 3 . )
The examination of the file by one of the Commissioners has revealed that
there was no suggestion on the file that the ex-members were suspected of
having communicated, or of being about to, communicate information of any
kind to any foreign power . Indeed, the file revea!ed that the purpose of the
telephone tapping was completely unrelated to counter-espionage . As a memorandummade in June 1974 by a Deputy Commissioner stated in a review of
the events of the preceding several months, the object wa s
to establish once and for all if any members of the Security Service in "C"
Division were involved with undesirable characters outside the Force or if
any of our operations had been compromised .
And again he said :
As mentioned earlier, we resorted to complete covérage of the principals
concerned in this investigation, making use of COBRA [telephone tapping]
. . . facilities . The purpose of the investigation was to determine once and
for all if some of our people in "C" Division had, in fact, been compromised
in any way and as a result were involved in activities detrimental to the
Force and the Security Service . . .
It remains to be added that the files indicate that the kind of "undesirable
characters" who were suspected of being in touch with members of the
Security Service were thought to be "undesirable" dué to suspected criminal
activities and associations, not due to involvement with a foreign power . The
use of warrants under section I 1 of the Official Secrets Act was the means by
which, between 1954 and 1974, the Security Service effected telephone tapping, as we explained in our Second Report, Part iII, Chapter 3 . What we did
not comment on there was the practice that appears to have developed, as in
this case and in that of Detailed Summary No . 32, of obtaining warrants under
section 11 when the facts could not be said to be such as to do what section
1 1(1) required - namely, to satisfy a justice of the peac e
that an offence under this Act has been or is about to be committed .
333
�Thus section II permitted a search warrant to be issued only when there was a
past or imminent act that would constitute communication of information
"that is calculated to be or might be or is intended to be directly or indirectly
useful to a foreign power" (section 3(1)(c)), or when he has information "that
has been entrusted in confidence to him by any person holding office under Her
Majesty, or that he has obtained . . . owing to his position as a person who holds
or has held office under Her Majesty" and he "uses the information in his
possession for the benefit of any foreign power or in any other manner
prejudicial to the safety or interests of the State" (section 4) . (We mention
only those parts of the Act that relate to the communication of information .)
Because of the change in the law in 1974, we have not reviewed the circumstances of the many warrants that were issued during the years preceding July
1, 1974, to determine the number of cases in which warrants were issued,
purportedly in compliance with the provisions of section 11, when in fact there
was neither belief nor suspicion in the minds of the R .C .M .P . that information
might have been communicated to, or might be communicated to, a foreign
power . (Another example of this occurring was found in the case which is the
subject of Detailed Summary No . 36 .) It is now old history . But it did occur,
and the story serves a usefûl purpose : it confirms some of the reasoning that
forms tt► e basis of our recommendation, in our Second Report, Part V, Chapter
4, that warrants for electronic eavesdropping in security intelligence matters
should be issued by a judge of the Federal Court of Canada . It will be noted
that before July 1, 1974, the warrants were issued by an R .C .M .P . officer
acting as a justice of the peace, but only after the Commissioner had obtained
the administrative, non-statutory authorization of the Solicitor General to
apply, for the warrant . (We explained this procedure in our Second Report,
Part III, Chapter 3 .) As the Deputy Commissioner was unlikely to turn down
his Commissioner's request and in any event that aspect of the procedure was
no longer relevant after July 1, 1974, our focus is on the Solicitors General
from the mid-1960s . They took upon themselves, as a matter of administrative
control, to review any proposed application for a warrant . They were in much
the same position in fact (although not in law) as are Solicitors General have
been since July 1, 1974, under section 16 of the Official Secrets Act, pursuant
to which they issue warrants . Just as we have, in our Second Report, Part III,
Chapter 3, commented upon the several legal issues that have gone unnoticed
and unattended sincé 1974, here we note that before July 1, 1974 as well the
procedure provided fertile ground for legal error . It is not so much a matter
here of the R .C .M .P . misleading Solicitors General, as that no one appears to
have noticed that a practice that lacked legal foundation had developed . The
fact that this can so easily happen when matters that are subject to so little
independent scrutiny are involved is one of the grounds upon which we have
made our recommendation that the final decision as to whether the facts
comply with the statute should be made by a judge .
334
�DETAILED SUMMARY NO . 36
1 . A lawyer wrote to us raising several interesting legal issues and specific
problems such as :
(a) the problem of surreptitious entries and electronic surveillance pursuant to warrants under the Official Secrets Act ;
(b) the question of security certificates issued under the Immigration
Appeal Board Act and the new Immigration Act and the criteria for
admissibility to Canada in immigration cases;
(c) the lawfulness and appropriateness of certain disruptive' operations
against various political groups ; an d
(d) the possibility that he might have improperly been the target of
Security Service surveillance .
2 . The first two topics referred to above are dealt with in out previous
Reports . The legal issues surrounding surreptitious entries and electronic
surveillance were discussed in our Second Report, Part III, Chapters 2 and 3,
and Part V, Chapter 4 . Our opinions as to Security Screening for immigration
purposes are outlined in our Second Report, Part VII, Chapter 2 . The subjects
of countermeasures and disruptive tactics, particularly those carried ôtit 'ûnder
the code name Checkmate, are dealt with in our Second Report, Part III,
Chapter 7, and Part V, Chapter 6, and in this Report,- Part VI, Chapter 12 .
3 . With repect to the fourth issue, our investigation has revealed that the
complainant was the subject of several volumes of. Security Service files . He
first came to the attention of the R .C .M .P. because of his contact with the
missions of a foreign country in Canada and his visit to that country as a
member of a "protest committee" .
4 . A high-ranking R .C .M .P . officer, in a letter to. the Solicitor General's
office stated :
During mid-September a second untested source in a position to know,
advised of learning that [the complainant] (a barrister who has been known
to represent revolutionary youth elements in legal matters and who, along
with his legal partner, alludes to be sympathetic to the revolutionary
movement in Canada) was extensively involved in the planning of [a prison
fracas .] [The complainant's legal partner] is defending one of the penitentiary inmates, apparently charged as a result of the riot, and is allegèdly
working out of a commune in the area . According to our source [both the
complainant and his partner] have allegedly infiltrated some level of the
Penitentiary staff.
We are presently endeavouring to develop further intelligence regarding
these matters and you will be kept advised accordingly .
5 . The following year, for a six-month period, the Security Service monitored
the office telephone of the complainant . This operation was conducted under
the authority of the Official Secrets Act . The request for the authority to issue
the search warrant under section 11 of the Official Secrets Act read as follows .
The entire text of the body of the request is hereunder reproduced with
appropriate deletions as to names, date and places .
335
�The Honourable, the Solicitor General, authorization is hereby requested to
issue Search Warrant under section 11 of the Official Secrets Act for the
purpose of intercepting telephonic communications relative to the activities
of [the complainant] Barrister, whose office is located at , telephone number , a person suspected of being engaged in activities
which constitute offences against the said act .
The Complainant] is a supporter of both the non-violent sectors of New
Left and Communist groups . In his capacity as a barrister, he had recently
defended in court [an American fugitive] . His law partner is a member of a
militant neo-Marxist revolutionary youth organization ; and, his secretary is
a sister to a nationally prominent Maoist .
6 . The information to obtain a search warrant, a document which forms part
of the documentation to obtain authorization for the communications intercept,
reads in part as follows . Appropriate deletions as to names, dates and places
have been made .
The information of [R .C .M .P. officer] taken this Ist day of September in
the year One Thousand Nine Hundred and Seventy Two who says that [the
complainant] whom/which he believes to be directly or indirectly associated
with a foreign power is or is about to communicate information by
telephone which is calculated to be or might be or is intended to be directly
useful to a foreign power contrary to Section 3 of the Official Secrets
Act . . .
7. Following this period of interception the R .C .M .P . analysed the information obtained and concluded as follows :
19 . There is no reason to believe that [the complainant] will cease to be
anything but a "movement lawyer" because he has the trust, respect
and confidence of the "movement people" . Should he become a
Member of Parliament, he would be removed from those people from
whom he draws his political strength, and so would perhaps become
less political .
20 . In my opinion [the complainant] does not represent a threat from the
information that has been presented as he is not an instigator or
planner of action and he is too much of an individualist to commit
himself to a party that demands submission to a line . It might be
possible that [he] will eventually become only a source for the leftist
people to use when wanting examples of injustices in society .
Conclusion : This is considered an excellent example of a thorough source
debriefing over a lengthy period of time . The goal in this instance was an
attempt to obtain an assessment of [the complainant] who consistently
waffles in the grey area . There is little doubt that assessments such as this
are worth the time and effort expended in this connection .
8. The R .C .M .P. still devotes some time to the monitoring of certain of the
activities of the complainant . There has, however, been only one instance of
electronic surveillance and that is the episode referred to above .
9. In light of the conclusion reached by the Security Service at the completion of their electronic monitoring of the complainant we must wonder at the
accuracy of the statements made in the information to obtain the searc h
336
�warrant as outlined above . As was the case with Detailed Summary No . 35, it
appéars that the standard form of "Information" to be sworn in support of an
application for a search warrant in counter-espionage cases, as had been
drafted by the .Department of Justice in 1954 was used, quite inappropriately
and incorrectly, in a factual situation that had nothing to do with counterespionage . These two cases were not isolated . This practice had developed over
a period of years and the members of the R .C .M .P . involved in the administration of this technique do not appear to have been conscious that section 11 was
being used in circumstances when the facts were such that it was entirely
fanciful to swear that there was belief or suspicion' that an offence would be
committed under the Official Secrets Act . The failure, whether by Solicitors
General or members of the R .C .M .P., to detect and prevent this abuse of
power, however unintentional it may have been, affords a signal demonstration
of the need to import a judicial element into the process of deciding whether
electronic interception should be permitted, as we recommended in our Second
Report, Part V, Chapter 4 .
337
��CHAPTER 1 1
THE TREATMENT OF DEFECTOR S
General
1 . We have reviewed the policy of the Government of Canada, as it has
developed during the past 35 years, toward persons who defect from the service
of certain foreign countries and wish to settle in Canada and have information
of intelligence value . It would be unwise to publish the details of this history or
of the present policy, although we shall provide those details for the eyes of the
Governor in Council . For public purposes, it suffices to say that a rational and
generous programme of support for such persons has been established by the
government over a period of many years .
Mr. Igor Gouzenk o
2. Mr . Igor Gouzenko did not get in touch with us to complain about the
R .C .M .P . However, complaints attributed to him in the press in 1980 caused
us to have members of our legal staff review the R .C .M .P'files concerning the
relationship between him and his wife, on the one hand, and the Government of
Canada and the R .C .M .P . on the other . Our staff also interviewed Mr . and
Mrs . Gouzenko to determine whether certain of his complaints were
well-founded .
3 . It will be recalled that in September 1945, Mr . Gouzenko, accompanied by
his wife, delivered documents to the R .C .M .P . which he had taken from the
Soviet Embassy in Ottawa, where he had been employed as a cipher clerk . The
documents and his testimony formed the basis of the R .C .M .P .'s investigation
and the Royal Commission on Espionage, commonly known as the TaschereauKellock Commission . In turn, there ensued prosecutions that led to a number
of convictions . The documents and his testimony disclosed the existence of
espionage networks in Canada and elsewhere, and enabled the identification of
many members . In its final Report, dated June 27, 1946, the Commission said
of Mr . Gouzenko:
He has undoubtedly been a most informative witness and has revealed to us
the existence of a conspiratorial organization operating in Canada and
other countries . He has not only told us the names and cover names of the
organizers, the names of many of the Canadians who were caught "in the
net" . ..and who acted here as agents, but he has also exposed much of the
set-up of the organization as well as its aims and methods here and abroad .
( p . 11 . )
Again, the Commission said :
339
�In our opinion, Gouzenko, by what he has done, has rendered great public
service to the people of this country, and thereby has placed Canada in his
debt .
(p. 648 . )
4 . We have not attempted to examine in depth the allegations that Mr .
Gouzenko is reported to have made to the press that the intelligence he
provided was not used effectively by the R .C .M .P . or by the Royal Commission
beyond those individuals who have been publicly identified . To attempt to
review the uses to which that intelligence was put in Canada or elsewhere
would be beyond our resources . However, we have inquired into the following
allegations, attributed to Mr . Gouzenko in the (Toronto) Sunday Star on
September 7, 1980 :
.
.. they . . .have complaints about their treatment in Canada .
I They cite the long fight over their daughter's birth certificate and
persistent rumours they have heard of government personnel ripping off
official funds in their name.
They've also been told that government cheques, supposedly for their
support, were forged in their name between the time of their defection until
1962, when they began receiving a $500-a-month pension .
Gouzenko insists he didn't receive a cent of government money until
1962 and supported his family on his own until then .
Five years ago, then Solicitor General Warren Allmand said in a
written answer in the House of Commons that "from 1946 to 1962, Mr .
Gouzenko was looked after entirely by the Canadian government" .
When the Sunday Star recently asked the Solicitor General's department to double-check the facts, it took four days for officials to say : "We
can't tell you anything . It's classified" .
Our findings are as follows in regard to these matters .
(a) The daughter's birth certificat e
5. When Mr . and Mrs . Gouzenko defected, Mrs . Gouzenko was pregnant . A
daughter was born . Some years later the Gouzenkos wanted to obtain a birth
certificate for their daughter . As the birth had not been registered normally,
the authorities required sufficient independent proof of the birth and where it
had occurred . The examination of R .C .M .P . files discloses that former members of the R .C .M .P., who had the personal information necessary, eventually
co-operated in order to provide the necessary evidence . We note that the issue
of obtaining a birth certificate arose first many years ago, although it was not
pressed by the Gouzenkos until recent years . Nonetheless, the importance of
providing such documents for use in modern society is undeniable . Birth
certificates and other forms of identification are vital ; any delay in providing
such elementary tools for the resettlement of defectors (or, indeed, any
individual who needs a new identity) is difficult to excuse . We appreciate that
existing laws may have seemed to pose an obstacle to legally obtaining such
documentation . However, in due course the birth certificate was obtained
lawfully and it is unfortunate that the same steps were not taken earlier .
340
�(b) Their financial affair s
6 . The best framework for our report on these allegations is to quote in full
the Parliamentary Question in 1975, and its answer by the Solicitor General,
the Honourable Warren Allmand . The relevant part of Question No . 2332, put
by Mr . Tom Cossitt, M .P ., was as follows :
What are all the reasons that a governmeni pension was not given to Mr .
Igor Gouzenko from 1946 up to the time the government of the Right
Honourable John G . Diefenbaker took such action in 1962 ?
Mr . Allmand's reply was as follows :
From 1946 to 1962 Mr . Gouzenko was looked after entirely by the
Canadian government . Since 1962 he has been the recipient of a monthly
stipend .
Mr . Allmand's reply does not appear to have come to . the attention of Mr . and
Mrs . Gouzenko for some time . They did, however, write to Mr . Allmand's
successor, the Honourable Francis Fox, in September 1977, about the answer .
They also spoke of it to our counsel, to whom they stated that they did not
understand it . The phrasing of the statement has led them to suspect that Mr .
Allmand was under the impression that the. Government of Canada, in the
years 1946 to 1962, was the sole source of their financial support . As it was
principally their substantial independent income that supported them during
those years, they came to suspect that government funds intended for them had
been diverted, and that Mr . Allmand was ignorant of that fact . Otherwise, why
would Mr . Allmand have made such a statement ?
7 . We have reviewed the history of the matter carefully, as it is disclosed by
R .C .M .P . files . The story, in almost every aspect, is a crystal clear one . It is not
true that from 1946 to 1962 Mr . Gouzenko was looked after "entirely" by the
Canadian government . He did, of course, have income from the two books and
magazine articles which he wrote and from various media interviews . However,
in 1962 the Canadian Government did in effect retroactively provide some
significant financial support in respect of those 16 years, and Mr . Gouzenko is
well aware of its details . Mr . Allmand's statement would have been accurate if
it had reported those facts . The inaccuracy in his statement appears to have
been unknown to Mr . Allmand, as the answer was drafted by the R .C .M .P .
Security Service . However, our examination of the files reveals that the draft
originally suggested by a senior officer (the'Officer in Charge of the Counterespionage Branch) was :
From 1946 to 1962, Mr . Gouzenko was looked after entirely by the
Canadian Government apart from some personal income he had, and in
1962 a monthly stipend was commenced .
[Our emphasis . ]
Somehow, and for reasons we cannot understand, the words underlined were
deleted from the draft reply sent from the Director General's office to Mr .
Allmand . The answer, as originally drafted, would have been much more
accurate than the one given in the House of Commons . Our examination of the
files has not disclosed that there was any sinister design that may reasonably b e
341
�attached to the answer given in the House of Commons . From 1946 to 1962
there were no government or R .C .M .P. funds intended for the benefit of Mr .
Gouzenko that were improperly applied . Thus, we can find no support for the
suspicions of Mr . and Mrs . Gouzenko in regard to this matter .
8. As a final check, we requested the Treasury Board Secretariat to determine whether any payments to the Gouzenkos had been authorized or made
during this 16-year period . We were advised by letter, dated April 23, 1981,
that Treasury Board "files could not be expected to contain records of
payments themselves ; those would be found in the files of the paying agency, in
this case the R .C .M .P ." . The Secretariat confirmed that appropriate authority
existed for a number of payments to and on behalf of the Gouzenkos including
the following :
(â) police protection to be provided to Mr . Gouzenko and his family, as
might be deemed necessary by the Commissioner of the RCMP
pursuant to a decision of March 20, 1947 ;
(b) a living allowance of $500 a month to Mr . and Mrs . Gouzenko,
approved on July 11, 1962 ;
(c) change of the $500 a month allowance referred to at (b) above, making
it payable to the National Trust Company and to be applied in
accordance with a trust agreement of April 10, 1963, approved on
April 11, 1963 ;
(d) various payments since 1968 for house repairs and related matters, as
well as increases in the monthly living allowance .
In the letter they added :
. . .1 note that the 1947 decision concerning police protection would clearly
involve benefits to Mr. Gouzenko, both direct and indirect, but not necessarily any commitment to periodic or lump-sum payments . Our review of
RCMP files, though by no means exhaustive, indicates that Mr . Gouzenko
received $1,000 from -the Government in 1958 . The 1947 protection order
could be construed as authorizing such a payment, by exception, in relation
to the security risk posed by Mr . Gouzenko's representations for financial
aid, but clearly would not have covered the broader commitment involved in
the decisions of 1962 and 1963 .
There is no indication, however, that any authority existed for regular payment
of sums of money during the 1946-62 period, as alleged by the Gouzenkos, and,
to the extent of the records available, we are satisfied that no funds intended
for the Gouzenkos were diverted .
9. Before leaving the subject of Mr . Gouzenko's finances, it is appropriate to
quote the remainder of the questions put by Mr . Cossitt, M .P ., in 1975, and the
answers given by Mr . Allmand :
2 . Is the government aware (a) that because of the special circumstances
under which he must live, Mr . Gouzenko cannot earn income from regular
employment (b) that his present pension income is inadequate to maintain a
decent standard of living and that as a result of this he is indebted to a bank
in the amount of thirteen thousand dollars (c) that the normal cost of livin g
342
�additions made to his pension has only been applicable for the past several
years and is insufficient ?
3 . Has the government given serious consideration recently to the words of
the 1946 Report of the Royal Commission on the Gouzenko case . "In our
opinion, Gouzenko by what he has done, has rendered great public service
to the people of this country and thereby has placed Canada in his debt"?'
4 . Will the government increase Mr . Gouzenko's pension by an adequate
amount ?
Hon . Warren Allmand (Solicitor General) :
2 . (a) Originally Mr . Gouzenko did live under special circumstances and
there was fear for his life ; however the security requirement has greatly
diminished and there is now no reason for Mr . Gouzenko not to seek
employment, (b) Mr. Gouzenko's present pension income is approximately
$1,050.00 per month, tax free, which was approved by Treasury Board and
is considered adequate . (c) The normal cost of living increases have been
granted during the past several years and are in line with the average
industrial wage for the particular area of his residence .
3 . The words of the 1946 Report of the Royal Commission were appropriate at the time and the Canadian Government has provided adequat e
reward for his services .
4 . Mr . Gouzenko's pension is reviewed annually and will be reviewed
again in 1975 bearing in mind the cost of living and the average industrial
wage increases for his particular area of residence.
[our emphasis]
On the basis of our examination of R .C .M .P . files, we confirm the accuracy of
those answers as at 1975 . We should add that since then the annual reviews
have taken place and Mr . Gouzenko's pension, which is treated as tax free, is
now in the amount of $1,667 .00 a month .
10 . In our opinion, the Canadian Government has been reasonable and
generous with financial support for Mr . Gouzenko over the years . Some details
of the support are given above, but there are other details, the publication of
which we would consider undesirable .
11 . We shall now report briefly on some other allegations or suspicions
expressed by Mr . and Mrs . Gouzenko to our counsel . There are four
allegations :
(a) Mr . Gouzenko believes that such criticisms or negative statements as
have appeared about him from time to time in the press or books have
resulted from stories planted by the R .C .M .P . He suspects that those
within the R .C .M .P . who are responsible are Soviet infiltrators- determined to discredit him . There is no indication in the R .C .M .P . filés
concerning him that any such stories or comments have originated with
the R .C .M .P. Whether individual members or past members have discussed him with journalists, we, of course, have no way of verifying .
(b) Mr. Gouzenko suspects that in January 1954, the R .C .M .P . attempted to
kill him . He thinks that that is the explanation for the manner in whic h
343
�he was driven to a meeting with United States Senator William E .
Jenner, Chairman of the Internal Security Sub-committee of the United
States Senate Committee on the Judiciary . The meeting was held at a
location near Ottawa . The R .C .M .P . files contain reports on the matter,
from which it is quite apparent that the R .C .M .P. member charged with
the responsibility of driving Mr . Gouzenko to the meeting took "imaginative" steps to avoid individuals who were attempting to pursue them .
There is no indication whatever in the files of any intention to harm Mr .
Gouzenko . Mr . Gouzenko suspects that a statement that was drafted for
possible use by the Minister of Justice was prepared in the event of his
death at that time . The file clearly shows that it was prepared more than
one year after the trip to Ottawa, and that it was intended for use in the
event that Mr . Gouzenko's identity was revealed .
(c) Mr. Gouzenko alleges that late in the 1950s the Force may again have
intended to get rid of him . He says that one of his guards casually
suggested that he go to Cuba to live . This, he says, occurred a few months
before Fidel Castro's rise to power . Mr. Gouzenko suspects that some
senior member of the Force attempted, through the guard, to encourage
him to travel to Cuba, and that the senior member knew that Castro,
backed by the Soviet Union, was about to seize power . We find no
indication in the files that this suspicion of Mr . Gouzenko's has any
foundation .
(d) Mr . Gouzenko suspects that the R .C .M .P . was responsible for the
disclosure of his true identity to a refrigerator . repairman in the mid1950s. The file discloses quite the contrary : that Commissioner McClellan himself was in contact with the repairman, after the R .C .M .P .
learned of the repairman's intention to publish an article on the Gouzenkos, to attempt to dissuade him from proceeding with the publication .
However the repairman originally came to identify Mr . Gouzenko, it is
apparent that Commissioner McClellan's conduct was inconsistent with
an intention on his part that Mr . Gouzenko's assumed identity and
whereabouts be disclosed publicly .
12 . We recommend that the government address its attention not only to
what portions of this chapter, dealing with the Gouzenkos, should be published
but also to what portions not published should nonetheless be reported to Mr .
and Mrs . Gouzenko in some fashion .
Conclusion
13 . We are satisfied in general with the treatment afforded Mr . Gouzenko
and his family. Nonetheless, we express concern over the nature of Force files
kept on the Gouzenko family over the years . We have no doubt that the
intimate relationship which necessarily has existed between the Gouzenkos and
the Force over the past 36 years has given rise to tensions and legitimate
complaints, both on the part of the Gouzenkos and on the part of the Force . (It
must be remembered that Gouzenko was also Canada's first major defector ;
the novelty of the defector problem likely also was responsible for some of th e
344
�tensions that arose) . Furthermore, we appreciate that the adaptation to the
Western way of life posed problems for the Gouzenkos, particularly in their
handling of financial affairs . Yet we question why the Force's files tend to
emphasize criticism and ridicule of Mr . Gouzenko . A member newly assigned
to some aspect of the administration of the Force's relationship with Mr .
Gouzenko could only, upon reading what may best be described as inflammatory statements, form the opinion that Mr . Gouzenko was a continual nuisance,
of little or no value to this country . The unflattering editorializing that
permeates R .C .M .P . reports on dealings with Mr . Gouzenko could only have
served to predispose any reader to hold Mr . Gouzenko in low esteem, without
permitting him the opportunity to form an independent assessment of Mr .
Gouzenko's character or worth . We find this sort of editorializing unnecessary
and damaging, and we have little doubt that relations between the Force and
the Gouzenkos have been made more difficult by the fact that those reviewing
the files or becoming aware of their contents would thereby become disposed to
treat Gouzenko as a constant troublemaker .
14 . A second concern arises with respect to the defector policy itself . It must
be remembered that defectors are human . Many have unusual personality
traits ; otherwise they might not have defected in the first place . The human
element in the treatment of defectors is often heightened by the presence of
their families, who have special problems and fears of their own, as we have
seen in the Gouzenko case .
15 . We wish here to emphasize our belief in the importance of paying heed to
the human needs of resettlement . A defector should not simply be drained of
all useful intelligence information and then ignored in so far as his human
needs are concerned . In saying this, we are not suggesting that this has been
the case in Canada . Nonetheless, we wish to make it clear that our defector
policy must be able to take into account not only those whose defection and
resettlement run relatively smoothly, but also the expectations of those who
experience difficulties upon resettlement . (We note that a satisfied defector can
be of considerable value in encouraging others .) In fact, we suggest that
individuals dealing with defectors should accept difficulty as the norm in
handling defectors . The adoption of such an attitude will undoubtedly ease the
tensions that we have seen are likely to develop between defectors and their
handlers .
16 . We do not feel that the R .C .M .P ., or, in the future, Canada's security
intelligence agency, should be the organization responsible for formulating
policy with respect to the human needs of defectors . That is not and should not
be the function of the Force or the security intelligence agency, which properly
should be concerned with receiving defectors, providing physical security ;to
defectors, and gathering useful intelligence from defectors . In effect, what is
needed is a person or body, independent of all other interested groups (including the Department of External Affairs or the security intelligence agency), to
give attention on a continuing basis to defector policy .
345
�PART V
SPECIFIC CASES REFERRED FOR
POSSIBLE DISCIPLINARY ACTIO N
INTRODUCTION
1 . The incidents which we describe in this Part involve conduct which, in our
view, does not require reference to an appropriate authority for determination
as to whether there ought to be prosecutions . The conduct of the R .C .M .P .
members is such, however, that we consider that it ought to be reviewed to
determine whether internal disciplinary proceedings should be brought against
such persons as are still serving members of the R .C .M .P .
2 . Each chapter in this Part relates an incident, or incidents, falling within
the category of conduct which we described in Part III, Chapter 1, of our
Second Report as follows :
The common thread which we have detected running through these incidents is that of a willingness on the part of members of the R .C .M .P . to
deceive those outside the Force who have some sort of constitutional
authority or jurisdiction over them or their activities . We have come to this
conclusion reluctantly and regretfully because in our view it might well be
the most .serious charge which we are levelling against the Force in our
Report . Nevertheless, we are convinced that the practice existed . We have
received evidence that federal Ministers of the Crown responsible for the
R .C .M .P. were misled by the R .C .M .P . and that on other occasions
relevant or significant information was intentionally withheld from Ministers . There is evidence that the same thing has occurred at the provincial
level with respect to a provincial minister . There is also evidence that there
was a similar approach adopted by the Force in dealing with senior public
servants .
It is not only the chapters of this Part which contain elements of deceit . Some
of the chapters of Parts IV and VI also describe conduct of the same nature .
However, for reasons explained in the introduction to Part IV, we are not
making recommendations as to referral for possible disciplinary proceedings
with respect to conduct examined in the chapters of that Part, whereas the
conduct reviewed in the chapters in Part VI may, in our view, constitute not
only conduct that may give rise to disciplinary proceedings but also illegal
activity, and our report as to those forms of conduct is therefore not included in
this Part .
347
��CHAPTER . 1
MEMORANDUM OF AN OFFICER OF THE
R.C.M.P .
CONCERNING THE INCOME TA X
Summary of fact s
1 . In Part III, Chapter 6, of our Second Report we described the circumstances surrounding a memorandum, dated. January 19, 1968, sent by Inspectqr
J .G . Long to Chief Supt . J .E .M . Barrette . In the memorandum, Inspector
Long acknowledged that the provision of information to the Security and
Intelligence Directorate by a source in the Department of National Revenue
was a violation of the Income Tax Act . He therefore recommended that no
opinion should be sought from the Department of Justice on the question since
that opinion could only be that there was a contravention of the Act and
receipt of such an opinion would place the Security and Intelligence Directorate in the position that, if it continued with the practice, it would be "in
contravention of a recent and explicit ruling from the legal officer of the
Crown" .
Conclusions
2. We acknowledge, of course, that an opinion from the Department of
Justice does not determine whether a matter is or is not legal, and therefore,
would not have affected the legality of the practice . We consider that, if doubt
existed as to legality, it would have been quite improper not to seek an opinion
for fear that it would be adverse . However, to acknowledge that the practice
was clearly illegal, as Inspector Long had done, and then to recommend that no
legal opinion be sought because this would aggravate the situation, is, in our
view, even worse and is unacceptable . It shows a complete disrespect for the
law and for the legal process within government designed to ensure compliance
with the law .
349
��CHAPTER 2
APPLICATION TO PROVINCIAL
ATTORNEYS GENERAL FOR LICENCES
UNDER SECTION 311 OF THE CRIMINAL COD E
Introduction
1 . The summary of facts in this chapter was extracted from the documents
which were contained in R .C .M .P . files . We heard no testimony on the topic .
We did, however, receive representations in response to notices given by us
pursuant to section 13 of the Inquiries Act .
Summary of fact s
2. In the early 1960's General Motors supplied their dealers with master keys
for GM automobiles . No controls were placed on the sale or possession of those
keys . Consequently, they became available commercially . There were large
increases in theft of GM automobiles . In an attempt to combat the increased
theft, section 311 of the Criminal Code was passed in 1969 and came into force
on January 1, 1970 . That section reads :
311 .( l) Every one wh o
(a) sells, offers for sale or advertises in a province an automobile master
key otherwise than under the authority of a licence issued by the Attorney
General of that province, o r
(b) purchases or has in his possession in a province an automobile master
key otherwise than under the authority of a licence issued by the Attorney
General of that province ,
is guilty of an indictable offence and is liable to imprisonment for two
years.
(2) A licence issued by the Attorney General of a province as described in
paragraph (1)(a) or (b) may contain such terms and conditions relating to
the sale, offering for sale, advertising, purchasing or having in possession of
an automobile master key as the Attorney General of that province may
prescribe.
(3) Every one who sells an automobile master ke y
(a) shall keep a record of the transaction showing the name and address
of the purchaser and particulars of the licence issued to the purchaser as
described in paragraph (1)(b), an d
(b) shall produce such record for inspection at the request of a peace
officer .
351
�(4) Every one who fails to comply with subsection (3) is guilty of an
offence punishable on summary conviction .
(5) For the purposes of this section, "automobile master key" includes a
key, pick, rocker key or other instrument designed or adapted to operate the
ignition or other switches or locks of a series of motor vehicles .
It will be noted that simple possession of an automobile master key, without a
licence, is an indictable offence .
3 . The basic recommendations to the Government of Canada for the new
legislation came from the R .C .M .P . Apparently at an earlier Dominion-Provincial Conference on Organized Crime the Minister of Justice of Quebec had
raised the matter .
4 . In a memorandum of May 13, 1971, Corporal A .E . Fry, a member of the
Security Equipment Section in "F" Division (Saskatchewan), noted that a
recent request to give evidence in a British Columbia case had identified the
problem that no exemption had been provided in the legislation for the
possession of automobile master keys by peace officers, and he therefore asked
Chief Superintendent E .R . Lysyk, the Officer in Charge of C .I .B . at "F"
Division, for policy guidance with respect to his possession of automobile
master keys . Cpl . Fry's concern was forwarded by Chief Superintendent Lysyk
to Headquarters . At Headquarters the matter was referred to the Legal
Branch . In a memorandum dated June 23, 1971, Inspector J .V . Cain, the
Officer in Charge of the Legal Branch, advised the Officer in Charge of C .I .B .
at Headquarters, Superintendent J .R .R . Quintal, that ,
. . possession of automobile master keys . . is prohibited unless the Attor.
.
ney General of the Province has issued a licence authorizing their use .
Consequently if charged under s . 295 B [now section 311], it would be of no
avail for the possessor to show that he had lawful excuse to use the keys ;
the only successful defence would be a licence issued by the Attorney
General .
He added a hand-written note to the memorandum as follows :
As a post-script, should Cpl . Fry be required to cross Prov'l Boundaries, it
would be necessary ( on any operation) for him to have his "licence" from
those particular A .G .'s . As an interim solution, perhaps the CIB Of fi cer
"F" Div . could write to his 4 Western counterparts seeking a "concensus"
on the matter . My feeling is that each would be receptive ( each AG that is)
especially if the proposal contained the suggestion that "possession by our
specified officers is intended to provide a service" as opposed to an objective
which is "repugnant" ( i .e . need to obtain evidence illegally) .
5 . By memorandum dated July 2, 1971, Sub/Inspector D .A . Cooper, the
Assistant C .I .B . Officer at Headquarters, raised with Mr . Quintal the fact that
pick sets had been issued to C .I .B . Services Sections in all divisions as well as
to a number of investigators . He pointed out that this also included S .I .B . and
the Security Equipment Section at Headquarters . He suggested that licences
be obtained from all attorneys general including those of Ontario and Quebec .
Mr . Quintal referred the matter, on July 5, 1971, to the Director of Criminal
Investigations with the following note :
352
�Sir :
A serious question has been raised which requires a decision .
I think we shoul d
(I) advise C .O .s which members have been issued with this equipment ;
(2) ask those contract divisions to approach their A .G .s in this regard ;
(3) ask S .G . to obtain licence from A .G . of Ont . and Que . ;
(4) 1 think they must be to specific members and not the Force in general .
We were advised by Mr . Quintal's counsel that Mr . Quintal was transferred on
August 9, 1971, from Officer in Charge, C .I .B ., to Departmental Advisor on
Bilingualism .
6 . In a letter dated October 21, 1971, from Sub/Inspector Cooper to the
Commanding Officer of "F" Division, it was pointed out that the request from
that Division had " . . . been examined in the overall context as it relates not
only to Security Equipment Section personnel but also G .I .S . and Security
Service members across the Force . who use lock pick equipment as well as
automobile master keys" . "F" Division was instructed, as a pilot project, to
approach the Saskatchewan Attorney General to obtain a licence . The instructions went on as follows :
In the application for this licence it should be stressed that possession by
our Cpl . Fry is intended to provide a service (expert court testimony re
examination of master keys, etc ., found in possession of a criminal(s)) as
opposed to an objective which is repugnant as we do not wish to officially
acknowledge at this time that possession of these aids would be used to
obtain evidence illegally (surreptitious searches . )
7 . By letter dated October 26, 1971, Chief Superintendent Lysyk wrote to the
Deputy Attorney General of Saskatchewan to apply for a licence . The text of
the letter read as follows :
1 . We have on staff at this Headquarters a fully trained member in the
field of lock testing and examination and his services are called upon
frequently to assist Detachments on investigations in relation to his knowledge and experience in this field .
2 . In order for this member to give expert testimony relating to his field, it
is essential that he experiment with all types of locking apparatus familiar
to the criminal element . In this regard the possession of automobile master
keys and lock picks are necessary . I would therefore respectfully request
that a licence be issued by the Attorney General pursuant to Section 311(2)
of the Criminal Code authorizing Cpl . A .E . Fry of this Headquarters to
possess such instruments for the purpose outlined .
3 . You will appreciate, I am sure, that should our member be called upon
to give expert evidence in relation to his examinations, that some embarrassment would result should it be learned that his examination and tests
were conducted with the aid of devices which have not been licenced by the
Attorney General .
4 . As there is some urgency to this request, I would ask that your early
consideration be given, please .
353
�It will be noted that this letter talks only of "lock testing and examination" and
makes no mention of the fact that the member would be using the automobile
master keys during the course of operations .
8 . On November 2, 1971, the Attorney General for the Province of Saskatchewan issued a licence to the member on whose behalf the application had been
made . That licence read as follows :
LICENCE UNDER SECTION 311
OF THE CRIMINAL COD E
I, ROY JOHN ROMANOW, Attorney General for the Province of
Saskatchewan, by virtue of the power vested in me by section 311 of the
Criminal Code do hereby authorize and licence CORPORAL A .E . FRY, a
member of the Royal Canadian Mounted Police attached to "F" Division
Headquarters, to purchase and have in his possession an automobile master
key or keys, and keys, picks, rocker keys or other instruments designed or
adapted to operate the ignition or other switches or locks of a series of
motor vehicles, and coming within the definition of "automobile master
key" contained in subsection (5) of section 311 of the Criminal Code for
use in connection with his duties with the Royal Canadian Mounted Police
including experimenting with all types of locking apparatus in order that he
may be able to give expert evidence in relation to the use of such
automobile master keys, picks, rocker keys or other instruments .
DATED at Regina, in the Province of Saskatchewan, this 2nd day of
November, 1971 .
9. In reporting, by letter dated November 12, 1971, to Headquarters on the
receipt of the licence Chief Superintendent Lysyk made reference to Mr .
Cooper's letter of October 21, 1971 . Mr . Lysyk, in referring to the licence,
said :
The term "for use in connection with his duties with the Royal Canadian
Mounted Police" is not, in our opinion, restrictive in any way .
Mr . Lysyk made representations to us in writing and through his counsel with
respect to his role in this matter . He explained that role in a letter dated
January 27, 1981, addressed to his counsel . That letter was filed with us as part
of Exhibit UC-40 . In it Mr . Lysyk says that he " . . cannot recall seeing
.
S/Insp . Cooper's memorandum of 21 October '71 at any time prior to seeing it
at your office in January 1981 and feel[s] it is in the realm of good probability
"the system" would cause it to by-pass [his] desk" .
10. In a niemorandum dated November 22, 1971, Sub/Inspector Cooper
asked Staff Sergeant Jensen, the N .C .O . in charge of the Security Equipment
Section at Headquarters, to provide him with a list of members for whom
licences were desired, and he said that he would then refer the list to the
Commanding Officer of "O" Division for the necessary action . He pointed out
that the licence would be for Ontario only and would be " . . .only to justify
your possession of picks, etc ., in Ontario and Quebec (if you want Quebec)" .
He said that the fact that they did not have licences for the other provinces was
not a major concern " . . . as main requirement other locations would be for
court testimony and don't need a licence for that aspect" .
354
�11 . By a telex dated September 22, 1977, the Commissioner of the R .C .M .P .
requested that all operational policies of the Force be reviewed .
12. An undated memorandum, prepared subsequently to November 3, 1977,
indicates that in 1966 a complete set of automobile , master keys was obtained
by the Technical Development Branch of the Security Service through the
Crime Detection Laboratories of the R .C .M .P . The memorandum points out
that " . . . it is an offence under section 311 of the Criminal Code of Canada
. . for a person to have in his possession in a province an automobile master
.
key otherwise than under the authority of a licence issued by the Attorney
General of that province" . The memorandum recommends as follows :
Because these keys have not been used by "J" Operations since they were
acquired in 1966, and the legal implications under the Criminal Code of
Canada it is recommended that the set of Automobile Master Keys
presently held in safekeeping by "J" Operations be returned to Security
Engineering Section .
13 . In a memorandum dated June 1, 1978, from Inspector D .P . Pederson on
behalf of the Assistant Officer in Charge, Security Engineering Branch, to the
.Director of Protective Policing, section 311 was cited and it was pointed out
that members of the Security Engineering Branch and of Security Engineering
Sections in the field carried instruments which fell within the definition of
automobile master keys . It was stated that, as a first step to complying with
section 311, the Branch would like to obtain licences for appropriate members
from the Attorney General of Ontario . It was recommended that when that
had been completed the Branch should advise divisions to acquire licences for
their section members . It was also pointed out that instruments falling within
.
the definition in the Code were common to both the " . . routine service and
maintenance work [Federal Security Equipment] of the Branch . . . as well,as
[their] operational assistance role, thus Section members involved in both aréas
should be licenced . "
14. In a letter dated June 14, 1978, from Chief Superintendent D .W .
McGibbon, Assistant Director, Protective Policing, to the Attorney General of
the Province of Ontario, licences were sought for five members of the Security
Engineering Branch at Headquarters . In that letter the role of the Branch was
described as follows :
The Security Engineering Branch of the Royal Canadian Mounted Police is
responsible for planning, developing and coordinating programs for the
research, design, development, testing and evaluation of security equipment ;
structural engineering involving the selection and application of security
hardware and systems, structural materials and building designs ; and
electronic Security Systems to ensure the protection of the assets, property,
personnel and information of the Federal Government .
This responsibility includes the service and maintenance of security equipment and locking systems for the Federal Government. In order to perform
these duties the Security Engineering Branch technicians are required to
have in their possession locksmithing tools, lock picks, or other instruments
designed to operate locks and locking systems .
355
�These lock technicians are also involved in the testing and evaluation of
locks and locking systems proposed for use by the Federal Government
Department .
These technicians must therefore work with all types of locksmithing tools
and equipment used to defeat locks and locking systems in order to properly
evaluate security equipment .
Included in the mandate of the Security Engineering Branch is the requirement to train R .C .M .P . members to fill Security Engineering field sections
within the various Divisions . These trainees are transferred to Ottawa
where they spend 12 to 18 months on an in-service training program . Each
trainee is under the direct supervision of a senior SEB technician during
this training period .
15. On July 19, 1979, licences, as requested, were issued by the Acting
Attorney General of the Province of Ontario . They were stated to be issued to
the members
. . . in connection with the performance of their duties as police officers,
including the training of police officers under their supervision . . .
16. In the course of the correspondence leading up to the issuance of the
licences the Director of the Crown Law Office in the Ministry of the Attorney
General, Province of Ontario, wrote to the Assistant Director, Protective
Policing, R .C .M .P ., on September 7, 1978, stating as follows :
I apologize for the delay in answering your request for a licence pursuant to
section 311 of the Criminal Code. It has raised an interesting question . To
my knowledge, it is the first application under Section 311 and as such
required careful consideration which delayed our reply to you .
In subsequent correspondence from Chief Superintendent McGibbon, no mention was made to the Ontario Attorney General's office of the fact that a
licence had been obtained several years earlier in Saskatchewan . The Security
Engineering Branch had suggested that the office of the Ontario Attorney
General be provided with copies of the material on the "F" Division experience
in Saskatchewan but that suggestion did not meet with favourable
consideration .
17 . According to a memorandum dated November 7, 1979, from Assistant
Commissioner J .U .M . Sauvé, the Director of Protective Policing, to the Officer
in Charge, Operational Task Force, because General Motors had improved and
redesigned their locks " . . .to the point where these `master keys' are of little or
no concern particularly as the earlier models disappeared from the scene . .. . .
.
section 311 of the Code is essentially obsolete . However, because " . . .the
Commissioner directed during the McDonald Inquiry that all operational areas
of the Force ensure that they are scrupulously adhering to the letter of the law,
this Branch sought and received licences in accordance with 311, . .." .
18 . By memorandum dated April 25, 1978, from Chief Superintendent R .R .
Schramm, the Officer in Charge, Criminal Operations, to the Officer in
Charge, Protective Policing, the question of possession of keys was dealt with .
Chief Superintendent Schramm states :
356
�. . . I have concluded that the retention of keys after the expiration of the
lawful authority, i .e . Search Warrant, Court Authorization to intercept
private communications, Writs of Assistance used in a specific investigation
on reasonable and probable grounds, is probably a criminal offence and
most certainly contrary to the spirit and intent of existing legislation .
He then discussed section 309(1) of the Criminal Code which deals with house
breaking instruments. He instructed that all keys that the Security Equipment
Section had " . . .which fall within the category of house breaking instruments . . ." be destroyed forthwith . He said that the Security Equipment Section
must only render assistance to operational units when entry will be made upon
premises when there is a valid search warrant, valid court authorization to
intercept private communications or when there is a writ of assistance in an
emergency situation when it is not possible to obtain a search warrant . He sai d
. . under no other circumstances shall entry to premises be made . This
includes entry of private vehicles, etc :"
19 . By a further memo dated April 26, 1978, from Chief Superintendent
Schramm to the Officer in Charge, Detachment Police, the Officer in Charge
Divisional Management Audit Unit and the Area Commander of the Security
Service in South West Ontario, a copy of the memorandum of April 25, 1978,
was forwarded for the information and guidance of all members under their
command . He stated tha t
. . . it goes without saying that the principles enunciated in the attached
memorandum to the O .i/c Protective Policing concerning these matters
apply equally to all members and not only to S .E .S . Therefore, should any
member have a key(s) which may have been obtained during the course of a
previous investigation, such key(s) is to be destroyed forthwith .
He added :
As all members will appreciate, the Force must at all times carry out its
duties within the bounds of the law . What necessarily flows from this
fundamental principle is that we must ensure the legality of all our
investigative practices and procedures . This is essential in order that the
Force may continue to maintain the trust and confidence of the people of
Canada .
Conclusions and recommendation s
20. There are two aspects of this matter with which we propose to deal . The
first is the application to the Attorney General of the Province of Saskatchewan for a licence under section 311 of the Criminal Code . The second is the
possession of automobile master keys by members of the R .C .M .P . after
passage of section 311 of the Criminal Code .
21 . Counsel for Messrs . Cain, Cooper, Lysyk, and Quintal submitted that
there is a distinction to be made between the meaning of the words "deceive"
and "mislead" . He said that the word "deceive" included an element of intent
whereas the word "mislead" did not necessarily include any intent . He cited, in
support of his submission several judicial decisions interpreting the meaning' of
those words in different statutes . We accept the distinction drawn by him and
when we use the words "deceive" or "deception" we mean that what was dône
was done, in our opinion, with the intention to mislead .
357
�22 . We are shocked by the deception practised on the Attorney General of
Saskatchewan by the members of the Force involved . The documentation
clearly discloses that the intended recipient of the licence would be using the
automobile master keys in his possession for two purposes : one - "lock testing
and examination" - was disclosed in the application ; the second - the use of
the keys to surreptitiously enter vehicles during the course of specific operations - was intentionally withheld from the Attorney General . We are also
shocked that the suggestion that the matter be approached in this fashion first
came from Inspector Cain, the Officer in Charge of the Legal Branch of the
R .C .M .P . He clearly counselled not making a full disclosure to the attorneys
general of the four western provinces when he wrote that " . .. each would be
receptive (each A .G . that is) especially if the proposal contained the suggestion
that" possession by our specified officers is intended to provide a service "as
opposed to an objective which is" repugnant "(i .e . need to obtain evidence
illegally)" .
23 . It is disturbing that Mr. Quintal did not nip this matter in the bud .
Having received Mr . Cain's memorandum of June 23, 1971, Mr . Quintal
appears either not to have recognized the seriousness of what Mr . Cain was
counselling or to have ignored it . We note that in his handwritten memorandum of July 5, 1971, to the Director of Criminal Investigations, in which he
makes his recommendations as to what he thinks the procedure ought to be to
resolve the problem, he makes no reference to Mr . Cain's proposal .
24. Unfortunately, Mr . Cain's counselling was picked up by Sub/Inspector
Cooper in his instructions to the C/O of "F" Division . Those instructions were
followed, without further question, by Chief Superintendent Lysyk in making
the application by "F" Division . However, because of the representations made
to us by Mr . Lysyk we are not prepared to conclude that he was aware of the
intention to deceive the Saskatchewan Attorney General . There can be no
excuse for the conduct on the part of those who participated in this deception .
We recommend that this chapter of our Report be forwarded to the Attorney
General of Saskatchewan .
25 . The second point of concern to us is the continued possession by members
of the Force of automobile master keys after passage of section 311 of the
Criminal Code . Immediately upon passage of that section it should have been
obvious to the Force that possession of an automobile master key in a province,
without a licence from the Attorney General of that Province, was an indictable offence . That fact does not appear to have been apparent to anyone until
1971 when it was raised by Cpl . Fry in "F" Division . In June 1971, Inspector
Cain, the Officer in Charge of Legal Branch, advised the Officer in Charge of
C .I .B . that anyone in possession of an automobile master key would have no
defence unless the licence had been issued by the Attorney General . With the
exception of the licence issued to one member in "F" Division, no further
licences were issued until the Attorney General of Ontario licenced five
members in July 1979 . It is obvious from the documentation that between 1971
and 1979 many members of both the C .I .B . and the Security Service were in
possession of automobile master keys . Such members included both investigating officers in the field and personnel in the Security Equipment Section an d
358
�Technical Development Branch at Headquarters . It was not until April 1978
that instructions were given to members of the Force to destroy all keys in their
possession which were not being used in current investigations in which there
was a valid search warrant, valid court authorization to intercept private
communications or a writ of assistance . During the'seven-year period, as far .âs
can be determined from R .C .M .P . files, from the time the legal opinion was
given by the Officer in Charge of the Legal Branch until the order was given to
destroy all keys, with the exception of Mr . Quintal's memorandum to the
D .C .I ., no concern appears to have been expressed about the fact that all
members of the Force who were in possession of such keys were probably in
violation of the Criminal Code . This is a serious illustration of an attitude
within the Force that the law did not apply to it .
359
��CHAPTER 3
DESTRUCTION OF CHECKMATE FILE S
Introduction
1 . In our Second Report, Part III, Chapter 7, we referred briefly to some
countering measures carried out by members of the Security Service in the
years 1971 to 1974 under the umbrella code name of Checkmate . In Part V,
Chapter 6, of the Second Report we discussed the kinds of countermeasures
which we think may appropriately be carried out in the future by Canada's
security intelligence agency . In Part VI, Chapter 12, of this Report we discuss
a number of the specific Checkmate opérations. In the present chapter we
examine the circumstances in which members of the Security Service destroyed
the contents of files relating to those operations and the general file that
contained discussion about proposed but unexecuted operations . Most of the
evidence with respect to the destruction of the Checkmate files was heard in
camera in Ottawa on November 6, 7, 13, 18 and 25, 1979, and on February 12,
1980 . The testimony of former Commissioner Nadon was heard in public on
October 30, 1979 (Vol . 136) . In camera testimony was given by Commissioner
Nadon, Superintendent Robert Gavin, Superintendent R . Yaworski, Chief
Superintendent G . Begalki, Staff Sergeant James Thomson, Staff Sergeant
Ervin Pethick and Sergeant R .G . Hirst . The in camera testimony is found in
Volumes C57, C60, C63, C64 and C84 . It was released publicly in edited form
in Volumes 300, 305, 302, 303, 304 and 306 (listed in the corresponding
order) . Representations were made by one of the participants and his counsel,
in response to a notice given pursuant to section 13 of the Inquiries Act (Vol .
C129) .
Summary of facts
2 . The files relating to Operation Checkmate were destroyed by the Security
Service after undergoing two separate and independent internal file reviews one in 1974-75 and one in 1977 .
(a) Phase One (1974-75 )
3. Staff Sergeant Yaworski was the N .C .O . responsible for the Special
Operations Group (S .O .G .) that supervised Operation Checkmate . In a series
of discussions in November or December 1974 with Deputy Director General
(Operations) Draper, Staff Sergeant Yaworski recommended that the Checkmate files be destroyed . Mr . Yaworski has no recollection as to whether his
immediate superior, Superintendent Begalki, was part of these discussions .
After discussing other alternatives, including the complete destruction of the
files, Mr . Yaworski and Mr. Draper eventually decided to destroy those part s
361
�of the Checkmate files which related to mere proposals for operations, and, in
all Checkmate files which related to completed operations, to prepare summaries before eliminating certain materials from the files . Mr . Yaworski then
instructed two members of the Security Service - Sergeant Hirst and
Corporal McMartin - to carry out the actual destruction . The Checkmate
files comprised approximately 25 volumes in total, and those which contained
only proposals for operations were sent immediately to "F" Operations
(Records Management) for destruction . No file assessment forms were prepared for them . Mr . Hirst and Mr . McMartin then prepared summaries of the
contents of those files which related to completed operations . Mr . Yaworski
personally reviewed all of these summaries . After returning these files to Mr .
Hirst, Mr . Yaworski says that he assumed that these Checkmate files and the
attached summaries would then be returned to form part of the permanent
records registry system within the Security Service . Mr . Yaworski reported
verbally to Mr . Draper in May 1975 that no attempt was made to record the
contents of the files relating to the proposed review process . Although Mr .
Begalki was Mr . Yaworski's immediate superior, Mr . Yaworski has no recollection whether he also reported to Mr . Begalki ; nor does he know whether Mr .
Draper discussed this destruction with Mr . Dare . In a subsequent telex
authorized by Mr . Draper, instructions were given to individual field units to
destroy any corresponding Checkmate files that they might hold .
4 . Mr . Yaworski testified that he recommended the destruction of the
Checkmate files to Mr . Draper for one principal reason . By November 1974 he
was of the opinion that many of the operations which had been carried out
under the code name 'Checkmate' were "wrong" . He came to that conclusion
in large part due to his increasing awareness of mounting public criticism in
the United States of comparable programmes which had been carried out by
the F .B .I . Since there had been recent instances of leakage of government
documents, Mr . Yaworski was very much concerned about the possibility of the
disclosure of what he considered to be "very sensitive" and "very explosive"
information and about probable consequent embarrassment to the Security
Service as a whole . The purpose of the summaries, as he explained it in his
testimony, was simply to reduce the volume of material on the files so as to
lessen the possibilities of exposure of Operation Checkmate . Although Mr .
Yaworski admits that the Security Service would thereby be placed in a less
advantageous position in the event it became necessary to answer future
questions about Checkmate, he nevertheless insists that his aim was to reduce
the risk of leaks to the media or to the government, by eliminating the bulk of
the documents on the files . In giving instructions for the actual destruction,
Mr . Yaworski relied upon the fact that the Deputy Director General (Operations) had given his consent to destroy the files and, therefore, Mr . Yaworski
says, he did not consider the standard criteria for destruction contained in the
"I" Directorate Manual and the Specific criteria for destruction applicable to
the "938" category which had been assigned to the Checkmate files . Mr .
Yaworski was able to overcome the objections of the N .C .O . in charge of "F"
Operations by persuading him that the Checkmate files did not properly belong
to category "938" and by indicating to him that the Deputy Director Genera l
362
�(Operations) had already given his approval for this particular destruction
procedure .
5 . Mr . Hirst says that he regarded the instructions he received as an unusual
procedure since it was not carried out according to the regular file review
programme . The files were divided between Mr . Hirst and Mr . McMartin,
with the former given approximately 18 to 20 files and the latter the rest . Mr .
Hirst prepared only five or six summaries which he gave to Mr . Yaworski to
review . No copies were made of any of these summaries . Mr . Hirst had
complete discretion in this review which took place sometime in late 1974 or
early 1975 . He did not consider any of the material on the files to be of
potential operational value to any other branch . He therefore removed all
documents except extracts from other files and any independent research that
had been done by the section . No file review forms were completed . He was
personally responsible for placing in the secret waste all of the material which
had been earmarked for destruction . After typing one or two of his handwrittén
summaries, he placed them with the remainder of the files in a safe and, when
he was transferred . in December 1976 left them in the custody of the N .C .O . in
charge of the S .O .G . All of this material was apparently in the same condition
when he returned to review the files in 1977 .
6. When he was first given the Checkmate files to review, Mr . Hirst
recommended to Mr . Yaworski against total destruction for two main reasons :
(1) The impossibility of eliminating an entire category of files because o f
the nature of the extracting process whereby references to each of the
Checkmate files would appear in many other files scattered throughout
headquarters and the division and ,
(2) the impossibility of destruction of a whole category of files since some
portions of the Checkmate files would have already been copied at the
command level .
7 . In spite of the reservations expressed by Mr . Hirst, Mr. Yaworski decided
to proceed with his and Mr . Draper's alternative plan for partial destruction .
(b) Phase Two (1977 )
(i) Evidence of Sergeant Hirs t
8 . According to Mr . Hirst, when he returned to the S .O .G . in March or April
of 1977, Chief Superintendent Begalki instructed him, in the presence of Staff
Sergeant Pethick, to complete the review of the Checkmate files .
9. Mr . Hirst testified that, when Chief Superintendent Begalki instructed him
to finish the review of the Checkmate files, Mr . Begalki merely indicated that
the S .O .G . was being phased out and that the Checkmate files would no longer
be of any operational value . Mr . Hirst says that he raised some objections with
Mr . Begalki over the proposed wholesale destruction of the files . Mr . Hirst says
that he pointed out to Mr . Begalki that a prior review of the files had taken
place in 1974-1975 and explained some of the problems which both he and Mr .
Yaworski had encountered, at that time, in contemplating the destruction of ân
entire category of files . Although Mr . Hirst told us that he "discussed" wit h
363
�Mr . Begalki the potentially "very explosive" nature of what little material was
still on the files, he did not tell us whether he explained what he meant by that
or that he told Mr . Begalki that the "problems" involved possible illegalities .
He has no memory as to what Mr . Begalki said . His testimony is clearly that
what he told Mr . Begalki was that in 1974 the main consideration was that the
files were no longer of value, and that Mr. Begalki gave the same reason for
deciding that they should be destroyed . In carrying out his review, Mr . Hirst
decided to destroy almost all of the remaining contents and summaries because
he could find nothing of operational or historical value . Having done this, he
delivered what was left of the files to Staff Sergeant Pethick .
10. Although Mr . Hirst prepared a file review form for each file, he did not
prepare any list of, or report concerning, the material he had destroyed . He
himself remembers little of the actual file contents . He had no further
discussions with anyone concerning the destruction which he had carried out .
11 . In conducting his review, he says that he was never aware of the possible
establishment of a Commission of Inquiry or of a possible moratorium on the
destruction of files . He was not instructed by Mr . Begalki and did not himself
look for any illegalities in the files during his review process .
(ii) Evidence of Chief Superintendent Begalk i
12 . According to Mr . Begalki, the only review and destruction of the Checkmate files was carried out under his personal instructions in May and June
1977 . As Officer in Charge of "D" Operations (the Countersubversion
Branch), Mr . Begalki instructed Staff Sergeant Pethick to conduct a review of
the Checkmate files with a view to their eventual destruction . Any material
which was retained after Mr . Pethick conducted his review was transmitted to
another active file . No record was kept of the file to which this information was
transferred . The remainder of the files were then sent to "F" Operations for
the purpose of undergoing a second assessment . Mr . Begalki approved this
portion of the destruction process by writing a memorandum on May 3, 1977,
to that effect . He also sent a list of the files to be destroyed to Superintendent
Gavin who was Officer in Charge of "F" Operations .
13. In giving his reasons for authorizing this review and destruction, Mr .
Begalki said that the S .O .G . was winding down and therefore some of its files
had become obsolete . He could see nothing of any future operational or
historical value in them . Moreover, he regarded them as superfluous in the
sense that the subjects of any reports submitted by deep cover agents, who had
been involved in the Checkmate programme, would already be contained in
various other files throughout the regular filing system . He distinguished the
assessment of the Checkmate files from that of other files (which were
reviewed at the same time and were also considered to be redundant, working
files) on the basis that material in those files was retained because it was of
historical significance . Mr . Begalki says that he believed that the S .O .G . files
did not form part of the regular file review lists, and that therefore they were
treated separately from other files under review, on a need-to-know basis .
When giving the files to Mr . Pethick, Mr . Begalki did not suggest any specific
criteria which might be considered . Mr . Begalki says that he did not take into
364
�consideration whether the contents of the Checkmate files fell within the limits
of the 1975 Security Service mandate, or the possibility of a forthcoming
Commission of Inquiry . Mr . Begalki says that the possible embarrassment to
the Security Service in the event of the disclosure of any of the contents of the
Checkmate files did not "separately" have a bearing on his decision that the
files should be destroyed . He later explained that that was not his reason, and
that he did not know the contents of any of the files or that there were any
illegalities described in them . He maintains that the lack of intelligence value
was the criterion he applied in authorizing this destruction of the files, and
which he expected Staff Sergeant Pethick to apply as he went through the files .
(iii) Evidence' of Staff Sergeant Pethic k
14. Mr . Pethick says that he conducted his review of the S .O .G . files in April
1977 . He was assisted in this task by Mr . Hirst who took approximately half of
the total number of files . The entire review of nearly 40 files involved two or
three days work . Many of the files which Mr . Pethick received were empty
except for an opening chit or some extracts . There were no summaries on the
files nor did Mr . Begalki request that any summary be made . As a result, Mr .
Pethick had no recollection of any of the details concerning the actual
Checkmate operations . At most, he says that he only vaguely remembers
reviewing a file on an individual . Mr . Pethick says that he retained only three
documents : (1) an outline of the finances of either the Communist Party of
Canada or a communist front organization, (2) a description of an individual's
departure from a suspected communist front organization and (3) a document
from an agency outside the Security Service . He says that Mr . Hirst did not
recommend the retention of any documents . After completing this review, Mr .
Pethick took all the files and the attached file review forms to Staff Sergeant
Thomson at "F" Operations . No lists were made of the files, whether of those
that were retained or of those that were destroyed . Mr . Pethick did not give
any instructions to Mr . Thomson and merely assumed that the files were
thereafter destroyed by him .
15 . According to Mr . Pethick, Mr . Begalki's sole reason for carrying out this
review was to weed out the superfluity of S .O.G . documents arising from the
considerable accumulation of files that developed during the period when the
S .O .G . was responsible for security at the Olympics . He says that Mr . Begalki
never mentioned potential sensitivity of some of the file contents, or suggested
the use of any particular criterion, but left the review of the files to the
discretion of both Mr . Pethick and Mr. Hirst . Although the Checkmate files
had been assigned the "F" Operations category number 938, Mr . Pethick
relied almost entirely on the general criteria set out in the "I" Directorate
Manual . He saw nothing of operational interest in the files worthy of retention .
In conducting his review, Mr . Pethick says that he was never aware of the
possibility of a forthcoming moratorium on the destruction of documents or of
the establishment of a Commission of Inquiry . Moreover, he says that Mr .
Begalki never directed him to consider whether the documents within the
Checkmate files fell under the 1975 Security Service mandate . At the beginning of this review, Mr . Pethick learned from Mr . Hirst that a prior review of
these files had been carried out . However, Mr . Pethick says that Mr . Hirst di d
365
�not elaborate to him on any of the details with respect to that previous
assessment .
(iv) Evidence of Superintendent Gavi n
16 . About the same time that Mr . Begalki asked Mr . Pethick to carry out a
review in "D" Operations of the Checkmate files, he also asked Superintendent
Gavin, Officer in Charge of "F" Operations (Records Management) to carry
out a subsequent review . Mr . Gavin then designated Mr . Thomson to conduct
the actual "F" Operations assessment, which took place some time between
May 10 and May 22, 1977 . Mr . Thomson, who was given full authority to
conduct the review, destroyed the files in their entirety on June 10, 1977 . No
attempt was made to summarize the files beforehand .
17 . Mr . Gavin says that he assumed that Mr . Thomson would rely on the
normal destruction criteria provided in the "I" Directorate Manual and on his
own personal experience . Mr. Thomson says that the possibility of a forthcoming moratorium on the destruction of files was not a factor in Mr . Gavin's
thinking . Mr . Gavin says that he had heard rumours about the possibility of
the establishment of some kind of an inquiry, though not about this Commission, but that those rumours in no way influenced his instructions with respect
to destruction . The Checkmate files were apparently permanently recorded in
"F" Operations under the category number 938 but had been physically
maintained in "D" Operations on a need-to-know basis . Until 1971, the
category number 938 denoted that the files were to be kept for an indefinite
period . With the amendment of the retention schedules in 1971, the policy
thereafter relating to the destruction of 938 files was as follows : "Policy
relating to the destruction of these files can be found on file" . We do not know
exactly what that means but at the very least it means that the regular
destruction criteria of "F" Operations were not applicable to files in that
category . The 938 category referred to confidential human sources files .
According to Mr. Gavin, the Checkmate files might have been more properly
classified as either organizational or operational files . Prior to the creation of
the Operational Priorities Review Committee, such files were always kept for
an indefinite period . This meant that each file was to be assessed on its own
contents and merits, although the general criteria in the "I" Directorate
Manual were usually applied . The organizational and operational files were
normally reviewed first by the individual branch using operational criteria and
then were sent to "F" Operations where the more established criteria were
applied .
18 . Mr . Gavin says that he was never aware of any review of the Checkmate
files prior to that carried out in May and June 1977 .
(v) Evidence of Staff Sergeant Thomso n
19. In early May 1977 Mr . Thomson took charge of the Checkmate files
which were handed to him personally by Mr . Pethick . Mr . Pethick had also
sent over the file assessment forms attached to each file which merely indicated
which files had been destroyed and the basis for this . Mr . Thomson has no
recollection of any summary being sent over with the files . Mr . Thomson wa s
366
�not given any list of the contents of the files or of the documents which had
been removed . Moreover, the transit slip forms on each of the files from "D"Operations did not indicate which documents had been extracted before being
sent to "F" Operations . In view of the fact that there was scant material left on
the files, he made an assessment that there was nothing of value left to retain
and endorsed Mr . Pethick's recommendation for destruction . He destroyed the
files himself on June 10, 1977 .
20 . Mr . Thomson says that when Mr' Gavin designated him to carry out the
final stages of the review process, Mr . Gavin merely indicated that Mr . Begalki
was phasing out a special unit and no longer considered the S .O .G . files to be
of any further operational value . Mr . Gavin did not suggest to him that he use
any specific criteria ; the matter being left entirely to his discretion and
judgment . Nor did Mr . Pethick discuss with Mr . Thomson the destruction
criteria which Mr . Pethick had employed . Since Mr . Thomson felt that the 938
category which had been assigned to the S .O .G . files was not really applicable,
he relied in his review on three very general criteria : (1) operational value, (2)
record value (i .e . for the records branch) and (3) historical significance . Mr .
Thomson stated that there was no discussion about a possible forthcoming
Commission at that time . Nor was he concerned with whether the files fell
within the 1975 mandate because the mandate was not relevant to the process
of file review . Mr . Thomson says that he saw nothing unusual in this
destruction procedure .
21 . Mr . Thomson says that he knew nothing of any prior review of these files
in 1974 or 1975 . He told us that he had never heard of any instance where two
complete reviews of files had taken place . In such a case, he believed that it
would be necessary to make some official notation to that effect or at lea'st to
prepare summaries of the contents of the destroyed files .
Conclusions and recommendation s
22 . In our opinion the explanation given by Mr . Yawbrski for recommending
in 1974 the destruction of the Checkmate files, when analyzed, amounts to
nothing less than an intention to reduce the possibility of the Government of
Canada learning of acts which he himself had come to consider to have beën
"wrong" . Standard criteria for the destruction of files were deliberately
disregarded by him and by Mr . Draper . We cannot ignore the fact that more
than three years earlier, on June 30, 1971, in a memorandum prepared by Mr .
Yaworski (although signed by Sergeant Pethick), it was said that "containment
measures being considered or attempted" might be "of such a sensitive nature
that they are not to be committed to paper" . Mr . Yaworski told us that by
"sensitive" he did not mean "illegal" but rather the fact that the Security
Service was using information from a source which might put the source in
jeopardy, and to the fact that the Security Service was itself taking action
rather than simply reporting its information to some other branch of govern-'
ment . We find this explanation unconvincing and we believe that Mr . Yaworski, drafting the memorandum for Sergeant Pethick's signature, was referring
to a willingness to use deterrent methods, including illegal ones if necessary, to
achieve what he described in the memorandum as a "more aggressive an d
367
�positive approach" to operations which would "impede, deter or undermine"
target groups .
23 . The essential facts relating to the destruction of the files were adequately
established by the witnesses whom we called and we therefore did not consider
it necessary to call Mr . Draper to testify on this subject . In earlier testimony
with respect to the operations themselves, he co-operated with us in the process
of reviving the history as best he could (of which we are satisfied) .
24 . For the reasons given, we consider that the conduct of Mr . Yaworski and
Mr . Draper was unacceptable .
25 . Turning to the review that was carried out in 1977, we were initially very
concerned that the reasons for that review may also have been questionable,
but after our intensive hearings on the subject we are not prepared to find that
there was any improper motive for what was done in that year .
368
�CHAPTER 4
REPORTING OPERATION BRICOLE AND
CERTAIN OTHER ACTIVITIE S
"NOT AUTHORIZED OR
PROVIDED FOR BY LAW"
TO MINISTERS AND SENIOR OFFICIAL S
Introductio n
1 . In Part VI, Chapter 9, we shall report in detail on "Operation Bricole"
("Bricole", in English, means "Handyman"), which resulted, on the night of
October 6-7, 1972, in the entry of members of the Security Service of the
R .C .M .P. and two other police forces into premises occupied by the Agence de
Presse Libre du Québec (A .P .L .Q .) and two other organizations in Montreal,
and the removal by them from those premises of many of the records of the
organizations, the examination of those records, and the ultimate destruction of
the records . As we explained in the General Introduction to this Report, it is
this conduct which, when revealed publicly by a former member of the
R .C .M .P . at a trial arising from another matter in March 1976, ultimately
produced circumstances which in July 1977 led to our appointment to conduct
this Inquiry .
2 . In this chapter and the next, which cover a period of five years, we shall
examine whether the fact of Operation Bricole was disclosed to the Solicitor
General and the extent to which, after its public disclosure in March 1976,
there was full and frank disclosure by the R .C .M .P . to the Solicitor General,
and to the Government of Canada generally, of illegal practices that were
carried on in the R .C .M .P . Although the theme of deceit comes to the surface
in other chapters of this Report, and particularly those in this Part and in
certain chapters of Part III, it is in this chapter in particular that we find
illustrations of what we described in Part III, Chapter 1, of our Second Report,
in the passage which we quoted in the Introduction to this Part . The issue in
this chapter is whether, at the several stages of the chronology, deceit was
practiced toward the government . We shall see that the "need to know"
principle makes it sometimes difficult to assign blame to a particular member,
and that considerable ingenuity was exercised to avoid recognizing that the
A .P .L.Q . incident was not "isolated" as an illegal act . In the following chapter
we shall examine whether, when it appeared that former members of the Force
might reveal illegal activities to the Solicitor General, efforts were made to try
to prevent that from occurring at the very moment when the Solicitor Genera l
369
�was planning to assure the House of Commons that the A .P .L .Q . incident was
"isolated" and that the practices of the Force conformed to the law .
3 . This chapter encompasses a great deal of evidence taken throughout our
Inquiry . The evidence of a large number of the witnesses who appeared before
us was relevant in some respects to the matters dealt with . Those whose
testimony touched most directly on the issues in question were the Honourable
Jean-Pierre Goyer, the Honourable Warren Allmand, the Honourable Francis
Fox, the Honourable Bud Cullen, Mr . Jérôme Choquette, Mr . Roger Tassé,
Commissioner W .L . Higgitt, Commissioner M .J . Nadon, Commissioner R .H .
Simmonds, Mr . J . Starnes, Mr . M .R .J . Dare, Assistant Commissioner M .S .
Sexsmith, Chief Supt . Henri Robichaud, Mrs . Rita Baker, former S/Sgt . D .
McCleery, former S/Sgt . Gilles Brunet, former S/Sgt. Gilbert Albert and Mr .
J .R . Cameron . Their relevant public testimony is found in Volumes 19, 64, 81,
84, 87,'88, 90, 91, 114-117, 122, 123, 125-129, 136, 137, 139, 154-156, 160,
161, 168, 169, 189-191 . The in camera testimony is found in Volumes C50,
C58, C81-83, C87 and C89 . In addition we received representations in
response to notices given pursuant to section 13 of the Inquiries Act (Vol .
C 1 22) .
A . REPORTING `OPERATION BRICOLE' TO
MINISTER S
PRIOR TO PUBLIC DISCLOSURE BY ROBERT SAMSON
IN MARCH 197 6
Summary of facts
4 . Operation Bricole took place early on the morning of October 7, 1972 . The
Director General of the Security Service, Mr . Starnes, was absent from
Ottawa, and was only advised by telex about the operation on his return from
Montreal on October 10 . Commissioner Higgitt, who was absent from Ottawa
for approximately one week following October 8 or 9, testified that he does not
recall being made aware of the operation before his departure and was told
about it on his return by Mr . Starnes .
5 . During Commissioner Higgitt's absence, the Acting Commissioner was
Deputy Commissioner Nadon . On October 11, Mr . Nadon received a letter
from Mr . J .R . Cameron, the Departmental Assistant of the Solicitor General,
Mr . Goyer, enclosing copies of a letter dated October 9, 1972, addressed to the
Solicitor General from the Agence de Presse Libre du Québec (A .P .L .Q .), the
Mouvement pour la Défense des Prisonniers Politiques Québécois
(M .D .P .P .Q .) and the Coopérative des déménagements du 1°- mai (1 1, mai) .
These organizations described a theft of documents from their offices on the
night of October 6 and 7, and advised Mr . Goyer that a telegram (a copy of
which was attached to the letter) had been sent to the R .C .M .P ., the Quebec
Police Force (Q .P .F .), and the Montreal City Police (M .C .P .) . In the letter
they said :
At this time, everything points to this being an act carried out by police
forces ; . . .
[our translation ]
370
�In referring to the telegram to the three police forces they said :
In this telegram we asked them whether their respective organization was
responsible fôr this act .
[our translation ]
They concluded the letter as follows :
In your capacity as Solicitor General, we ask you to intervene as quickly as
possible so that our question will receive a clear and accurate reply . We
await a reply between now and October 13 at 11 o'clock .
[our translation ]
6 . Mr . Nadon told us that he has no recollection of receiving the letter from
Mr . Cameron . By reconstruction from the documents, he assumes that he
referred Mr . Cameron's letter and the enclosures to the Director of Criminal
Investigations on October 11 . He noted on the letter on October 11 "check this
out with Sec . Serv . and `C' Division and see if we can come up with some
answer" . He told us that he infers that the Director of Criminal Investigations
must have called him back and told him that there was nothing on the criminal
operations side of the house and that it was probably then that he wrote on the
letter "Best answer may be we are unaware" . Mr . Nadon says that he heard
nothing further about the operation until 1976 .
7 . Assistant Commissioner Parent, the Deputy Director General of the
Security Service, responded to Mr . Cameron's letter of October 11, 1972, by a
letter dated October 26, 1972, addressed to Mr . Cameron . This letter was
signed on Mr . Parent's behalf by Sub-Inspector Yelle, who was the assistant
head of "G" Branch at R .C .M .P. Headquarters . Mr . Parent's letter acknowledged receipt of Mr . Cameron's letter and said "We recommend that no
acknowledgment of the A .P .L .Q .-M .D .P .P.Q . letter be made" . Mr . Starnes
was in Europe from October 17 or 18 to October 29 or 30 and told us that he
did not participate in the decision to recommend that no acknowledgment be
made of the letter . He said that before his departure for Europe no thought
had been given as to what kind of answer should be sent . Commissioner Higgitt
testified that he does not recall whether he was made aware of the advice given
in the letter .
8 . On October 12, 1972, the Attorney General of Quebec, the Honourable
Jérôme Choquette, sent a telegram to the A .P .L .Q . advising that the R .C .M .P .,
the Q .P .F . and the M .C .P . were not involved in the matter and that the M .C .P.
was conducting an investigation . He sent that telegram without consulting
either the R .C .M .P . or the Solicitor General of Canada . Mr . Goyer testified
that, upon reading about it in the newspapers, he did not find Mr . Choquette's
assurance on behalf of the R .C .M .P . strange, first, because there were joint
police operations, and second because there were channels of communication
among the three police forces, and, since Mr . Choquette was Attorney General
of the province, it was normal that he should be the spokesman .
9. Mr . Goyer was absent from Ottawa when the letter from the A .P .L .Q .,
M .D .P .P .Q . and 1°r mai arrived . He testified that when he was told about the
letter by his office staff he was advised that it had been sent on to the
R .C .M .P . He said that he was told, on October 26 or shortly thereafter, that a
371
�letter had been received from Mr . Parent recommending that there be no reply
to the A .P .L .Q . letter . Mr. Goyer explained that he knew that the A .P.L .Q .
was a target of the Security Service, suspected of subversive activities ; consequently they did not attract his sympathy, and on the contrary, he did not wish
to have any dealings with them . He told us he was not surprised when the
R .C .M .P . recommended that he not reply and thought that the recommendation was perfect ("c'est parfait") . It should be borne in mind that we have
come across no evidence that by October 1972 there had been any event that
should have caused Mr . Goyer to be concerned as to whether the R .C .M .P .
would lack candour in their dealings with him .
10 . According to Commissioner. Higgitt's notes, Mr . Goyer met with Mr .
Higgitt and Mr. Starnes on November 3 and November 6, 1972 . Mr . Tassé,
the Deputy Solicitor General, was also present at both meetings . Prior to those
meetings both Mr . Starnes and Commissioner Higgitt were aware that the
R .C .M .P. Security Service had participated in the break-in and removal of
documents from the A .P .L .Q., M .D .P .P .Q ., 1 1, mai premises . Commissioner
Higgitt and Mr . Starnes were both also aware, at that time, of the reply given
by Mr . Choquette to the A .P .L .Q ., M .D .P .P .Q . and 1°, mai . Mr . Goyer
testified that at that meeting he had before him the letter from Mr . Parent to
Mr . Cameron and it was discussed briefly . He said that either Commissioner
Higgitt or Mr . Starnes told him that the M .C .P . was investigating the matter,
and if there was anything to it it was up to the Attorney General to carry out
his duty and that is why the R .C .M .P . considered that no reply should be
made . Mr . Goyer also testified that he was not told by the R .C .M .P . that they
had been involved in the operation, that Mr . Parent's advice not to reply to the
A .P .L .Q . meant to him that the facts in the A .P .L .Q . letter were completely
false, that he did not ask whether there had been a theft, and, that he first
became aware of the R .C .M .P . involvement in Operation Bricole from the
newspapers in about March 1976 .
11 . Mr . Tassé testified that he recalls a meeting with Mr. Goyer, Commissioner Higgitt and Mr . Starnes in the few days following the election at the end
of October 1972 but that he does not recall any discussion about the recommendation of. Mr . Parent that there be no acknowledgment of the A .P.L .Q .,
M .D .P .P .Q ., 1°' mai letter . He said that on March 16, 1976, he was advised by
Mr. Dare about the details of Operation Bricole and R .C .M .P . participation in
it, and if what he learnt then had been said in his presence in 1972 he would
certainly have remembered .
12 . Commissioner Higgitt told us that he does not recall any definite time
when he had a specific conversation with Mr . Goyer about Operation Bricole .
Nevertheless, he stated that it is "inconceivable" to him that he would not have
had such a discussion and that the weight of logic tells him that he discussed
Operation Bricole with Mr . Goyer . Yet Mr . Higgitt's notes from his meetings
with Mr . Goyer on November 3 and November 6 do not mention the
Operation . He also told us that if Mr . Goyer had asked him about the
operation he would not have lied .
372
�13 . Mr . Starnes' evidence was :
. . . I have no recollection, in fact, of talking to the Minister about this
subject . I must have . You know, logic leads me to believe that I did, . . .
In response to a hypothetical question as to what his reply would have been if
Mr . Goyer had asked him whether the R .C .M .P . were involved in the operation, Mr . Starnes testified that he would have said yes . Mr . Dare testified that
in a conversation with Mr . Starnes, on or about March 31, 1976, Mr . Starnes
told him that he, Mr . Starnes, had not informed Mr . Goyer about Operation
Bricole because it would have placed Mr . Goyer in an untenable position . Mr .
Dare gave this information to Mr . Allmand, who had succeeded Mr . Goyer as
Solicitor General, by letter dated April 1, 1976 . Mr . Starnes told us that Mr .
Dare's recollection of that conversation is accurate but that he thinks that he,
Starnes, had confused in his own mind at that time the decision the R .C .M .P.
had taken about not reporting Operation Ham to the Minister with what they
had reported to the Minister on Operation Bricole .
14. Over a year later, on May 27, 1977, a meeting was held, attended by Mr .
Fox (who had succeeded Mr . Allmand), Mr . Claude Morin (Mr . Fox's
Executive Assistant), Mr . Goyer, Commissioner Higgitt, Mr . Starnes, Mr.
Tassé, Commissioner Nadon and Deputy Commissioner Simmonds . At that
meeting, according to notes of the meeting prepared by Mr . Tassé, Mr . Starnes
left the impression, through nodding his head, that Mr . Goyer had been
advised in 1972 about R .C .M .P . participation in Operation Bricole . Mr . Tassé
testified that after the meeting he asked Mr . Dare who had told him that Mr .
Starnes did not place the full facts before Mr . Goyer in 1972, and that Mr .
Dare told him that it was Mr . Starnes himself. Mr . Tassé told us that he then
asked Mr . Dare to speak to Mr . Starnes again, to find out whether the
information provided to Mr . Allmand was in accordance with the conversation
that Mr . Dare and Mr . Starnes had in 1976 . Mr . Tassé stated that Mr . Dare
reported back to him that he had spoken to Mr . Starnes again and that Mr .
Starnes agreed that what was said in the letter to Mr . Allmand accurately
represented what he, Mr . Starnes, had said in the 1976 conversation, but that
in 1977 he had a different memory about the matter and that he believed it
possible that he, Starnes, had mentioned to Mr . Goyer the participation of the
R .C .M .P . in Operation Bricole .
15 . Mr . Allmand succeeded Mr . Goyer as Solicitor General on November 27,
1972 . He testified thât he did not learn about Operation Bricole in any way
until it was revealed by former Constable Robert Samson at the latter's trial in
March 1976 .
16 . Mr . Dare succeeded Mr . Starnes as Director General on May 1, 1973 .
Mr . Nadon succeeded Mr . Higgitt as Commissioner on January 1, 1974 . On
August 19, 1974, the Security Service prepared a``Damage Report" with
respect to Constable Samson, who had been arrested in connection with a
bombing in Montreal . The Damage Report was a summary and analysis of the
extent to which Constable Samson was aware of various activities and operations of the Security Service .
373
�17 . Mr . Dare became aware of Operation Bricole in August 1974 when that
Damage Report was submitted to him by the Deputy Director General
(Operations), Assistant Commissioner Howard Draper . Mr . Dare submitted
the Damage Report to Commissioner Nadon, accompanied by a memorandum
dated August 20, 1974 . The Damage Report simply stated, in referring to
Operation Bricole, that it "was a PUMA operation at the A .P .L .Q ., that took
place without the knowledge or permission of Headquarters" . It did not provide
any details about the break-in and removal of documents . It further stated :
"All original documents were destroyed . .." . Mr . Dare's memorandum to
Commissioner Nadon elaborated slightly on the operation :
The "G" Ops . PUMA operation is a delicate one since this Headquarters
had no knowledge or authorization which involved our co-operation with
the MCP. In this case Cst . Samson was deeply involved . It is reported that
all'documents were destroyed . There remains, however, the fact that our
member was deeply involved with the MCP and should he choose to cause
an exposé it would seem that the Force would be open to charges of poor
supervision in the delicate security field . Some negotiation and review with
the MCP should be undertaken to determine what scenarios, if any, should
be planned .
18 . Commissioner Nadon testified that although he recalls being briefed on
the Damage Report, he does not recall discussing any of the details of
Operation Bricole in 1974 and that he did not read the Damage Report at that
time, although he may have skimmed through Mr . Dare's memorandum . He
said that if he had known the details of the operation in 1974 he would have
ordered an investigation . He said that he did not relate this item in Mr . Dare's
memorandum to the incident mentioned in the 1972 letter from the A .P .L .Q .,
which he had handled at the time as Acting Commissioner .
19 . Mr. Dare testified that he came to the conclusion in 1974 that Operation
Bricole had been legal and that he came to that conclusion without seeking any
legal advice . From his memorandum to Commissioner Nadon it is clear that he
was aware of the difficult position the Force would be in if the operation were
exposed, because "charges of poor supervision" might be levelled against the
Force . When he became aware of Operation Bricole, he did not inform the
Solicitor General, Mr . Allmand, about it because he was satisfied that Mr .
Starnes had dealt with the matter "in his own way, period", not because he
then considered it was not illegal . He "didn't think it was [his] responsibility to
review a clear decision that had been made by [his] predecessor", although he
did not agree with Mr . Starnes', "decision not to advise the Solicitor General of
that matter" .
Conclusions
20 . On the evidence before us, we conclude that before March 16, 1976, no
member of the R .C .M .P . reported to anyone in the government, either at the
ministerial or at the official level, about the R .C .M .P . participation in Opera-,
tion Bricole and the subsequent examination and destruction of the documents
which had been removed during the operation . Mr . Goyer and Mr. Tassé say
that they do not recall being advised about R .C .M .P . participation in th e
374
�operation when the recommendation of the R .C .M .P . not to reply to the letter
from the A .P .L .Q ., M .D .P .P .Q ., and 1°' mai was being discussed with Commissioner Higgitt and Mr . Starnes on either November 3 or November 6, 1972 .
They would surely recollect such a significant matter if they had been given
such information . Neither Mr . Higgitt nor Mr . Starnes remembers specifically
having advised Mr . Goyer about R .C .M .P . participation . They simply rely on
their "logic" which leads them to the conclusion that they must have told Mr .
Goyer . To refute that "logic" there is not only the recollection of Mr . Goyer
and Mr . Tassé, but there is also Mr . Starnes' statement to Mr . Dare in March
1976 that he had not informed Mr . Goyer about R .C .M .P . participation, and
there are Commissioner Higgitt's notes of the November 3 and November 6,
1972 meetings, which make no mention of the operation .
21 . Mr . Goyer testified that the advice not to reply to the A .P .L .Q .,
M .D .P .P .Q ., and 1° , mai letter, constituted for him a representation by the
R .C .M .P . that the facts in the A .P .L .Q . letter were false . He admits that he
was not sympathetic to the A .P .L .Q . and says he thought that the recommendation not to reply to the letter was perfect ("C'est parfait") . Clearly, with
such a frame of mind he would have had no inclination to enquire further of
the R .C .M .P . about the matter . We note that Mr . Goyer adopted this attitude
in spite of the seriousness of the allegation and the fact that the advice given to
him did not mention whether or not the R .C .M .P . were involved . Mr . Starnes
desired not to place the Minister in what he called an "untenable position" . His
ability to accomplish that was, in effect, ( if unintentionally) made possible by
the attitude of Mr . Goyer, who apparently hâd no desire to pursue the matter .
22 . Nevertheless, we find the conduct of some of the members of the
R .C .M .P . totally unacceptable . In 1972 Mr . Starnes and Commissioner Higgitt withheld relevant information from Mr . Goyer . . It was incumbent upon
them to provide him with all the facts relating to Operation Bricole as soon as
they became aware of them . That would have been so even without the letter
from the A :P .L .Q ., M .D .P .P .Q ., and 1°, mai . But once the matter was raised in
that letter, they compounded their wrong by allowing the Minister to be
deceived into believing that there was no involvement of the R .C .M .P . They
chose to cover up an illegal operation . This was misguided and wrong .
23 . We do not agree with Mr . Dare's interpretation of his responsibilities in
this matter, and we feel that his conduct was improper in the circumstances .
He was clearly aware of the seriousness of the matter, as evidenced by the
August 19, 1974, Damage Report and his accompanying memorandum to Mr .
Nadon . It is not acceptable for any senior government employee to refrain
from raising a matter with a responsible Minister merely because his predecessor chose to handle it in a certain fashion . To accept Mr . Dare's reasoning
would be tantamount to saying that no wrongdoing which is discovered by an
incumbent should be revealed by him because his predecessor chose to cover it
up . At the very least, Mr . Dare should have urged upon Commissioner Nadon
that the matter be brought to the attention of Mr . Allmand immediately . We
believe that in the light of the reporting relationships that then existed it would
have been appropriate for Mr . Dare to raise the matter directly with Mr .
Allmand after first advising Commissioner Nadon of his intention to do so . '
375
�24. We accept Mr . Nadon's evidence that his note on the Cameron letter "Best answer may be we are unaware" - may have been made by him after
consultation with the Criminal Operations side of the Force and prior to the
letter being referred to the Security Service . The note, however, does not make
that clear . Nevertheless, such a note from Mr . Nadon, who was then the
Acting Commissioner, may well have governed the decisions of those subsequently involved in making the recommendation to the Minister . Unfortunately, Mr . Parent's health prevented him from testifying before us, so we do not
know to what extent he was knowledgeable about the recommendation in the
memorandum which went out over his name to Mr . Cameron .
25. We also accept Commissioner Nadon's testimony that when Operation
Bricole came up in the Samson Damage Report he did not relate it to the letter
from the A .P.L .Q ., M .D.P .P .Q ., and 1°' mai letter in 1972 . We find this
position 'to be consistent with his total lack of knowledge and experience with
regard to the Security Service prior to his appointment as Commissioner on
January 1, 1974. He pointed out that the Samson Damage Report does not
refer to any illegalities or irregularities with respect to Operation Bricole . It is
therefore difficult to see how he would have been alerted to the necessity of
bringing the matter to the attention of the Minister, in the absence of some
further briefing to that effect by Mr . Dare . Indeed, he said that he has no
recollection of ever having seen the Damage Report, itself, and we have no
reason to question that . He said that, had he known the details of the operation
in 1974 or even had he seen the Damage Report, he would have called for an
investigation .
B . REPORTING OPERATION BRICOLE AFTER PUBLIC
DISCLOSUR E
(i) The history from March 1976 to May 1977
26 . According to an R .C .M .P . internal memorandum, on August 15, 1974,
during the course of the police investigation into a bombing in which he was
involved, Constable Samson "hinted" to two members of the R .C .M .P . "that if
his mother and his friends did not. obtain better treatment from the Montreal
City Police Investigators, he would hold the Force responsible and would bring
the Force and all those in it tumbling down" . As a consequence, the Damage
Report of August 19, 1974, was prepared . In March 1976, during a voir dire at
his trial arising out of the bombing incident, former Constable Samson
mentioned Operation Bricole, and senior officers of the R .C .M .P . then realized
that sooner or later the matter would become public knowledge . A comprehensive report was prepared, dated March 15, 1976, and submitted to Mr . Dare .
On March 16, 1976, Mr. Dare met with Messrs . Tassé and Bourne and gave
them a copy of that report . Mr . Tassé immediately phoned the Deputy
Attorney General of Quebec to ask him if he was aware of the matter, and the
latter confirmed that he was . On the same day Mr . Tassé advised the Assistant
Deputy Attorney General of Canada of his conversation with the Deputy
Attorney General of Quebec . Immediately following that meeting, R .C .M .P.
376
�representatives met with Mr . Allmand and- informed him about Operation
Bricole.
27 . Mr . Tassé testified that on March 17 he told Mr . P .M . Pitfield, the Clerk
of the Privy Council, about Operation Bricole . On the afternoon of the same
day he and Mr . Pitfield met with Prime Minister Trudeau to inform him . Mr .
Tassé told us that he attended three subsequent . meetings with the Prime
Minister during March and April 1976, at which Messrs . Allmand, Nadon,
and Dare were present and at one of which the Honourable Ron Basford (the
Minister of Justice), Mr . D .S . Thorson (the Deputy Minister of Justice) and
Mr . Pitfield were present . On April 7, 1976, a copy of the R .C .M .P . report on
Operation Bricole was delivered to Mr. Allmand under cover of a memorandum from Mr . Dare . Mr . Tassé testified that in the weeks following March 16,
assurances were given on at least two occasions by Commissioner Nadon and
Mr . Dare, in the presence of the Prime Minister and Mr . Allmand, that
Operation Bricole was an activity which was exceptional and isolated . Mr .
Tassé explained that he understood from those assurances that the activities of
the R .C .M .P . were conducted within the constraints imposed by the law, that
Operation Bricole was a kind of an aberration which must be treated as such,
and that as far as all of the other activities were concerned everything . was
under control . He told us that he understood that Messrs . Nadon and Dâre
were in a position to assure the government that the R .C .M .P . operated legally
and that there were not any situations where illegal operations were institutionalized . He said he understood that that did not mean to say that there would
not be cases where policemen, through overzealousness, lack of judgmenvor
dishonesty, might carry out criminal or illegal acts . According to Mr . Tassé,
Messrs . Dare and Nadon entered one reservation, which was that before the
Protection of Privacy Act came into effect in 1974 there were intrusions made
for the purpose of carrying out electronic eavesdropping . Mr . Tassé added that
those to whom this reservation was expressed were already aware of such
intrusions .
28 . On April 23, 1976, Commissioner Nadon wrote to Mr . Allmand, enclosing a`Proposed Statement for Use by the Minister' . In the letter he said :
On the advice of the present Director General of the Security Service, I am
prepared to assure you, without equivocation, that there is no precedent for
a search and seizure operation by the Security Service in Montreal, acting
alone or in concert with other Police Forces, and there has been no
repetition .
He concluded the letter by saying :
My assurance that there has been no previous case of its kind and that such
action has not been repeated by the Security Service in Montreal, will, I
trust, assist you in disposing of this isolated incident to the satisfaction of
the Government and the House .
In the draft proposed statement the following sentence is found :
This is the only incident wherein the R .C .M .P . Security Service has,
without the benefit of a search warrant, engaged in a search and seizure
operation, alone or in concert with members of other police agencies .
377
�Commissioner Nadon testified that, as far as he was concerned, the assurances
given by him in the letter applied to all of Canada, not just to Montreal, and
also that it applied to the criminal investigation side of the Force as well as to
the Security Service . Mr . Dare told us that he participated in the drafting of
that letter and that he agrees with it . Mr . Dare said that he supposes he has to
make an exception with respect to paragraph 5 which reads " . . .the operation
was clearly contrary to the rule of law, the very basis on which this Force is
founded", because he did not consider Operation Bricole to be illegal . Commissioner Nadon said that the letter of April 23, 1976, to Mr . Allmand, had been
prepared by Mr . Dare and that he read it over with Mr . Dare before signing it .
29 . Mr . Tassé testified that, because of the assurances given in 1976 that
Operation Bricole was an activity that was exceptional and isolated, it was
decided in that year not to create a commission of inquiry . Mr . Allmand told
us that at that time consideration was given to setting up a commission to
investigate, but that after discussions with the Government of Quebec it was
agreed to permit the Government of Quebec to investigate the matter as an
alleged offence .
30 . On May 18, 1976, in response to a question, Mr . Allmand advised the
House of Commons that he had met with the Solicitor General of Quebec who
had " . . .asked if he could not deal directly with the R .C .M .P . to determine
whether something illegal had taken place and whether further action should
be taken" . Mr . Allmand said that he had " . . .asked the R .C .M .P. to cooperate fully with the Law Enforcement Officers and the Minister in Quebec",
and that the Solicitor General of Quebec would " . .. be taking action following
the completion of his investigation" .
31 . On August 16, 1976, Commissioner Nadon sent a memorandum to Mr .
Dare, advising that he had reviewed the "Bricole" file and noted that the
investigation in the case was far from complete . By memorandum dated
August 25, 1976, Mr . Dare replied to Commissioner Nadon, advising that they
had " . . . agreed to let the Quebec authorities pursue their investigation into a
matter which is within its prime jurisdiction, the Criminal Code" . In the
memorandum Mr . Dare said that in his judgment this would leave Commissioner Nadon completely free to take whatever action he deemed appropriate
after the Province of Quebec had made known its decisions . He added that
" . .. to cover much the same ground by way of an internal investigation could
be misinterpreted by those same Quebec authorities, perhaps especially the
matter of interviewing of necessity members of other police forces" . Commissioner Nadon was satisfied with Mr . Dare's reasoning and did not pursue the
matter further .
32 . On September 14, 1976, Mr . Fox was named Solicitor General . He
testified that he had heard about the A .P .L .Q . incident in the House of
Commons before . he . became Solicitor General and that after he became
Solicitor General it was mentioned to him briefly, he thought in September
1976, at which time it was in the hands of the Attorney General of Quebec . In
December 1976 Messrs . Nadon, Dare and Tassé attended a meeting with Mr .
Fox at Which Mr . Fox was completely briefed about Operation Bricole . Mr.
378
�Tassé told us that at that briefing the assurances about R .C .M .P . activities
given previously to Mr . Allmand were repeated to Mr . Fox . Mr . Fox testified
that in December 1976 it was reported to him that there would be a
pré-enquête in Montreal which would begin in January 1977 . He said that at
the beginning of January 1977 the Judge conducting the pré-enquête had
requested the R .C .M .P . to produce certain documents . Mr . Fox examined the
documents from the R .C .M .P. files which it was proposed to submit to the
Judge. He told us that, before he looked at those documents, Mr . Tassé had
given him documents to examine from the departmental file on Operation
Bricole, and that he had been astonished by what he read .
33 . On January 25, 1977, at a regular weekly meeting that Mr . Fox held with
the R .C .M .P . the Operation Bricole question was discussed . Mr . Fox told us
that at that meeting he indicated his astonishment at reading the documents
and asked whether it was the usual practice to do things like that . According to
Mr . Fox, he was told clearly that it was the only case to their knowledge of
illegal activities, that it was an isolated case, that the matter had been
examined a year earlier by Mr . Allmand and that Mr . Allmand had also been
assured that it was an isolated case .
34 . Mr . Fox told us that at the meeting of January 25, 1977, he expressed to
Commissioner Nadon his disquiet at Mr . Starnes' reaction upon being made
aware of the operation on October 10, 1972, i .e . Mr . Starnes believed that he,
Starnes, should have been advised in advance of the operation but did not
express concern about the operation itself as a matter of principle . According
to Mr . Fox, he also expressed his disquiet at the general reaction of the
R .C .M .P. in recommending to Mr . Goyer that he not reply to the letter from
the three organizations, and at the fact that one month later, when a new
Minister, Mr . Allmand, had entered the picture, the affair had not been
brought to his attention .
35. Mr . Fox told us that while the January 25 meeting dealt specifically with
Operation Bricole, general assurances were given that the only case of illegal
activity to the knowledge of the R .C .M .P . members present was Operation
Bricole . He testified that the assurances he received went far beyond those
given in Commissioner Nadon's letter of April 23, 1976, to Mr . Allmand (see
excerpts quoted earlier) . According to Mr . Fox, his own question was more
general, the assurances that he received were much more general, and those
general assurances were that the only case of illegal activity was Operation
Bricole .
36. Commissioner Nadon testified that at the January 25 meeting Mr . Fox
asked him whether he had knowledge of illegalities, other than the A .P .LQ .
incident, and he assured Mr . Fox that from his, Nadon's, experience and
knowledge he did not know of any others . He told us that in testifying before us
he was just guessing as to what took place at the meeting when this matter was
discussed . He said that Mr . Fox possibly asked him whether there were any
similar circumstances and he probably looked around the table to see if any of
the Deputies had anything to say and when they did not say anything, he
assured Mr. Fox there were no others . Commissioner Nadon testified that Mr .
379
�Fox probably asked him "Are there any other incidents like this or similar to
this?" and that he assured Mr . Fox there were not . He explained that he did
not necessarily mean another break-in of a news agency, but rather, "Any
illegality - something that would be illegal . Search and seizure without
warrant, et cetera, or whatever it was" . He interpreted Mr . Fox's question as
referring to any other matter that was illegal that might have been done by a
member of the Force and he regarded the assurance he gave as a categorical
assurance that nothing illegal, other than the A .P .L .Q . incident, had been done
by any member of the Force. He said he was satisfied that that was so because
the Deputy Commissioners at the meeting would have spoken up if they had
thought that he was leading the Minister astray, or would at least have brought
it to his, Nadon's, attention . He said he was confident that the Deputy
Commissioners would have brought to his attention any knowledge they had of
any other cases of illegality . He told us that the main concerns at the January
25 meeting were the A .P.L .Q . incident and the practices employed during that
operation, and that Mr . Fox wanted some assurances that the R .C .M .P . had
policies and instructions in place that prohibited members of the Force from
carrying out any illegal act during such operations .
37 . Following the meeting of January 25, 1977, Mr . Fox asked Mr. Tassé to
prepare a letter for his signature, asking the R .C .M .P . for written assurances
confirming what they had told him verbally . In that letter Mr . Fox pointed out
that at the meeting Commissioner Nadon had assured him that the activities of
the Security Service were carried out within the law and that members of the
Security Service had received precise directions on the subject from the
Director General in May 1975 . He asked Commissioner Nadon to confirm that
that was the case not only for the Security Service but for the R .C .M .P. as a
whole in all its operations .
38 . Mr . Fox testified that at the time he read the Operation Bricole documents he decided that he would raise the question again with the Prime
Minister . He said that at the January 25 meeting he told Mr . Nadon of his
intention to see the Prime Minister and that he no doubt asked Mr . Nadon to
give him his recommendations . Mr. Fox stated that he thinks that is why
Commissioner Nadon wrote to him so quickly after the meeting with proposals
as to alternatives which could be followed . By letter dated January 27, received
in Mr . Tassé's office January 31, 1977, Commissioner Nadon wrote to Mr . Fox
outlining a number of options open to the Minister "to meet the demands for
the release of Security Service information into the public domain" .
39 . Mr . Fox met with the Prime Minister on January 29, at which time,
according to Mr. Fox, they discussed the possibility of creating a commission
of inquiry to deal with Operation Bricole . Mr . Fox told us that they decided it
would be preferable to await the unfolding of events before the courts in
Montreal and then to consider the question in detail .
40 . Mr. Fox testified that his chief concern was to satisfy himself that
Operation Bricole was unique and not part of a system, that it was not
something which was accepted by and acceptable to the R .C .M .P. and its
senior inanagement . He . said that the other thing which preoccupied him,
380
I
�which he had always taken for granted in relation to police forces, was that it
was incumbent on the Commissioner or the Director General to bring to the
attention of the Minister, in a clear and unequivocal fashion, all activity which
might be illegal . He said he found it very surprising that Mr . Allmand had not
been informed of Operation Bricole although Mr . Allmand had become
Solicitor . General only a few weeks after Headquarters had learned of the
operation .
41 . As a result of the pré-enquête, three police officers, one from each of the
R .C .M .P ., the Quebec Police Force and the Montreal Police, had been
charged . When the trial of the three police officers took place in Montreal
there was more publicity in the news media and there were questions in the
House of Commons . For a considerable period of time the government had
undertaken, through Mr . Allmand, to make as complete a statement as
possible in the House of Commons on the matter . No such statement had been
made by the time Mr . Allmand was transferred to another Ministry . Mr . Fox
had promised to make a statement in the Housé of Commons as soon as
judicial proceedings against the three policemen were finished . Guilty pleas
were entered on May 26, and the court set June 9 as the date for representations on sentencing . In order to prepare the statement for Mr . Fox, a meeting
took place on May 27, 1977, at which Messrs . Fox, Goyer, Tassé, Higgitt,
Nadon, Simmonds, Starnes, Dare and Morin were present . This is the meeting
we discussed earlier .
42 . Mr . Tassé testified that the purpose of the meeting was to try to
determine what was known about Operation Bricole and to organize the
material in such a way that Mr . Fox could refer to it easily during an
appearance which he had to make before the Parliamentary Committee
considering his estimates . Mr . Tassé said the meeting was also the first step
towards the preparation of the statement which Mr . Fox had to make in the
House . Mr . Fox told us that the object of the meeting was to assist him to
prepare the statement for the House and to relate all the facts concerning
Operation Bricole, and particularly at what time the R .C .M .P . in Ottawa had
become aware of the operation and when the R .C .M .P . had or had not told the
Minister of the day about it . Commissioner Simmonds testified that the
purpose of the meeting was to determine how much the Minister had been
advised and not whether or not the incumbent Minister was going to issue a
press release . According to Commissioner Simmonds, the real gist of the
meeting was that this group of people got together to reconstruct events and to
try to determine who had told what to whom . He said that he was (as Deputy
Commissioner, which was then his rank) simply an observer because he did not
know any of the circumstances at the time . Mr . Higgitt testified that his
recollection is that something preliminary was being done at the meeting to
prepare Mr . Fox to deliver a statement in the House of Commons .
43. Mr . Fox asked Mr. Tassé to take notes at the May 27 meeting and to
prepare a draft statement following it . Mr. Tassé and Mr . Bourne prepared a
draft dated May 31, 1977 . Mr . Tassé sent the draft statement to Commissioner
Nadon on the same day with .,a note saying that, he hoped to have the
Commissioner's and Mr . Dare's çomments the following morning . Mr . Tass é
381
�told us that he does not recall receiving a written reply from anyone but that he
believes that he had conversations with Commissioner Nadon, though not with
Mr . Dare, in which there were several minor suggestions, the nature of which
he does not remember. He said that there were no major comments .
44. On June 9, the sentencing of the three policemen was deferred until June
16 . Between the entry of the guilty pleas on May 26 and the sentencing on
June 16, 1977, Chief Superintendent Cobb, the Security Service Area Commander in Quebec, who was the R .C .M .P . member who had been charged, was
suspended . During that period Superintendent Henri Robichaud was the
Acting Area Commander .
(ii)
Allegations of Messrs . McCleery and Brune t
45 . Sometime in May 1977 Messrs . Donald McCleery and Gilles Brunet
asked Mr . Fox's office for an appointment with Mr . Fox so that they could
review with him the circumstances of their dismissal from the Force in 1973 .
Mr . Fox decided that Mr . Tassé, rather than he, should meet with them . Mr .
Robichaud testified that he had obtained information that "the Minister had
invited Mr . McCleery to Ottawa to meet with him" and that on May 31, 1977,
he discussed that information by telephone with Assistant Commissioner
Sexsmith, the Deputy Director General (Operations) . Mr . Robichaud told us
that his interest in the matter was that there was a considerable amount of
publicity at the time and he was wondering what other publicity would follow
from the meeting . Mr . Robichaud testified that after talking to Mr . Sexsmith
on the telephone, he spoke to Staff Sergeant Gilbert Albert, a member of the
Security Service in Montreal, and asked Mr . Albert whether he, Albert, could
meet with Mr. McCleery to see "what Mr . McCleery was up to those days" .
46. Mr . Albert met Mr . McCleery at lunch on May 31, 1977 . Afterward Mr .
Albert went to Mr . Robichaud's office and gave him a verbal report . Mr .
Robichaud then arranged a meeting with Mr . Sexsmith for that same evening,
in Ottawa, to consider the matter . Mr . Robichaud met with Mr . Sexsmith and
Superintendent Nowlan, and discussed with them what he had heard from Mr .
Albert. While still in Ottawa, Mr . Robichaud dictated a memorandum to file
setting out what Mr . Albert had told him . Mr. Robichaud testified that he did
not recall "rereading" the memorandum and that he returned to Montreal
without having received a copy of it, that the typist started typing it as soon as
it was dictated and that he left before a copy was available . He said that the
memorandum was to be given to Mr. Sexsmith and that he was told that the
report would be sent to both Mr . Dare and Commissioner Nadon . He said the
conclusion reached at the meeting on May 31, 1977, was that the Security
Service was in difficulty because of the nature of the allegations .
47 . After receiving Mr . Albert's report on May 31, Mr . Robichaud had
sufficient information relating to an alleged kidnapping to be able to find â file
number at R .C .M .P . Central Registry in Montreal relating to the case of one
Chamard . (We discuss the case of Mr . Chamard in Part VI, Chapter 5 .) He
says he went to Central Registry, got the file out and saw the newspaper
clipping about the press conference which Mr . Chamard had held in 1972, an d
382
�just took the file number down . Following his return to Montreal from Ottawa,
late in the evening of May 31, 1977, Mr . Robichaud asked Mr . Albert to meet
with Mr . McCleery again .
48. According to Mr . Robichaud, before the first meeting between Mr .
.
Albert and Mr . McCleery, his " . . concern was what Mr . McCleery was going
to tell the Solicitor General", not because it was going to be told to the
Solicitor General, but rather, " . . . what operations he was going to bring up or
in what form . . ." . He told us that if he were successful in obtaining information through sending Mr . Albert to talk to Mr . McCleery his intention was to
give it to Mr . Sexsmith and that he had no idea what Mr . Sexsmith would do
with it . He said his concern on May 31, shared by Mr . Sexsmith, was that Mr .
McCleery would make public the allegations that he was recounting to Mr .
Albert, and disclose other operational matters in one way or another that
would cause them concern . Mr . Robichaud acknowledged that from December
1973, when Mr . McCleery was discharged from the Force, until May 1977,
Mr . McCleery had not disclosed any matters with respect to operations
compromising to the R .C .M .P ., nor had anything happened in that time to
justify the fear that Mr . McCleery would leak information to the news media .
49 . Mr . Robichaud testified that he thought that the Solicitor General was
going to be informed of the facts about the various matters for the simple
reason that he, Robichaud, had passed them on to his superior officer who had
no choice but to pass them on further and to cause them to be looked into . He
told us that it was his impression that the results of the investigation into what
was raised in his memorandum, or something about the allegations, would be
brought to the Solicitor General's attention .
50 . Commissioner Nadon and .Mr . Dare were made aware of the contents of
Mr . Robichaud's memorandum on June 1, 1977 . Mr . Sexsmith said that he
saw the Robichaud memorandum on June 1 and that he discussed with Mr .
Dare whether there should be,an internal investigation . Mr . Sexsmith - who
in June 1977 was the Deputy Director General (Operations) of the Security
Service - testified that the Security Service was interested in knowing why
Mr . McCleery wanted to see Mr . Fox because they (the Security Service )
I . . were concerned Mr . McCleery . would reveal [their] Cathedral Operations . . and other operations such as surreptitious entries" . He acknowledgéd
.
.
. . that the Force had meant never to let the Solicitor General . . know o f
practices or operations that were not authorized or provided for by law" . He
said that " . . the Security Service kept certain operational things from the
.
.
Solicitor General" . According to Mr . Sexsmith " . . the Security Service was
not going to volunteer information concerning improper activities" and did not
.
want the Solicitor General " . . to become aware of these practices" because if
.
he were aware of them he would be put " . . in an impossible position" . As a
.
Minister of the Crown he could not " . . live with knowledge which indicated
that an organization he was primarily responsible for was committing illegalities or improprieties or wrongdoings, or whatever you want to call them" .
However, Mr . Sexsmith asserted that no effort was made to prevent Mr .
McCleery from doing what he was going to do .
t
383
�51 . Commissioner Nadon told us that after Mr . Dare came to see him on
June 1, and informed him that he, Dare, had received information from his
Montreal office that there had been other irregularities, he immediately
appointed Superintendent Nowlan and Inspector Pothier to investigate and
confirm or deny these irregularities and set out his actions in a memorandum,
dated June 1, to Mr . Dare .
52 . In his memorandum of May 31, Superintendent Robichaud wrote :
When Albert questioned him [Mr . McCleery] as to what he meant by other
incidents, he stated that he was referring to the dirty tricks department
(DTD) that involved Inspector Hugo, Inspector Blier and Bernard Dubuc
who, according to McCleery, would have been responsible for a kidnapping
that was never identified as such but if it had been, they would have all
gone to jail . In addition, there was an F .L .Q . hideout near Sherbrooke that
burned and again he alleges that some of these members were involved .
Thirdly, he mentioned that his own summer cottage in the Laurentians had
been used by the Force to store dynamite .
He also wrote :
However, that the counter-measures group was comprised of the 3 people
he mentions as well as Cst . Rick Daigle who, if memory serves me right,
was a close associate of Don McCleery's .
( On June 1, Mr . Albert met Mr . McCleery again . Our report as to that second
meeting is found in Part V, Chapter 5, of this Report . )
Both Mr . Nadon and Mr . Dare saw the Robichaud memorandum . Mr .
Simmonds testified that he never saw Mr . Nadon's memorandum to Mr . Dare
but that he was aware, on June 2 or June 7, that Superintendent Nowlan had
been appointed . Mr . Simmonds testified that shortly after the appointment of
Mr . Nowlan, he, Simmonds, was generally aware of the nature of the allegations of burning of a building and some acquisition of dynamite under
conditions that might amount to theft .
53 . Mr . Sexsmith told us that it was a natural assumption on his part that
Mr . Nadon would have informed Mr . Fox, Mr . Tassé or Mr . Bourne that he
had appointed an investigating team to investigate certain allegations that had
been made . He says that, had he been replacing the Director General in one of
the meetings with the Minister, he probably would have seen this as an
important development that should have been conveyed to Messrs . Fox, Bourne
or Tassé .
54 . On the afternoon of June 6, 1977, Messrs . Tassé and Landry met with
Messrs . McCleery and Brunet . According to Mr . Tassé's evidence, the
ex-members complained about having been unjustly treated by the Commissioner and said that because of an affidavit filed under section 41 of the
Federal Court Act they had had to stop their lawsuit against the government
and the Commissioner but that if one got to the bottom of things one would
realize that they had been unjustly treated . Mr . Tassé told us that Mr .
McCleery and Mr . Brunet sta tèd that the A .P .L .Q . incident was not the first
time that the Solicitor General had been badly informed and that there had
been other more serious acts committed by members of the R .C .M .P . whil e
384
�they were members . Mr . Tassé said that they would not give details as to times,
persons and events and that what they said was very general . Mr . Tassé
testified that one of the reasons they advanced for not giving details was the
Official Secrets Act and that he and Mr . Landry told them that it was very
doubtful whether the Official Secrets Act applied .
55 . Mr . McCleery testified that the reason they went to meet with Mr . Tassé
and Mr . Landry was to discuss their own dismissal, and not for any other
reason . On the other hand, he also said in his testimony that their going to
Ottawa had nothing to do with their discharge from the Force ; it had
"everything to do with lying and fabrication and innuendo" . He reconciled
these two statements by explaining that his purpose in wanting to see Mr . Fox
was to tell him or senior representatives of his office that the Force was lying to
him just as it had lied to Mr . McCleery with respect to his discharge . His
evidence was that the purpose of the meetings on June 6 and June 23 was to
obtain a hearing with respect to his discharge and that he cannot recall if they
discussed the incidents in the first meeting or whether it all came out when
Messrs . Landry and Handfield went to Montreal for the second meeting . At
the meeting on June 6, according to Mr . McCleery, Mr . Brunet mentioned the
burning of a cottage but there was no detailed explanation because he,
McCleery, would not explain it . According to Mr . McCleery, Mr . Tassé was
probably not told on June 6 that the mail was being opened, and that was
probably mentioned at the second meeting . Yet, Mr . McCleery then testified
that he "guessed" that the matter of mail opening would have had to be
mentioned on the 6th, otherwise Mr . Landry and Mr . Handfield would not
have come to see them for the second meeting . On further reflection, Mr .
McCleery told us that he knew that the mail issue was mentioned on June 6 as
an example .
56. Mr . Brunet testified that Mr . McCleery told him he had arranged a
meeting with the Solicitor General's office to discuss the circumstances of their
dismissal and Mr . McCleery asked him to accompany him for support . He told
us that the purpose of the meeting was to explain the circumstances of their
dismissal to the Solicitor General in an attempt to get a proper hearing . He
testified that they decided, in order to attempt to influence the Solicitor
General to believe their story or to grant them a hearing, to point out to him
that statements had been made in recent weeks in the press concerning illegal
acts by the R .C .M .P ., and in particular, statements that the A .P .L .Q . case was
an isolated case, which were not the truth . They agreed that they would not go
into any specifics but that they would cite some general headings and suggest
to the persons with whom they met that those persons conduct their own
internal inquiries, and that, if they were not successful in uncovering the truth,
maybe he and Mr . McCleery would be willing to provide further information
at later meetings . One of the first things that they wanted to determine was
whether or not the Solicitor General's Department actually believed that the
A .P .L .Q . incident was an isolated one . Mr . Brunet admitted that he is a little
confused between what was said at the first meeting on June 6 and what was
said at the second meeting on June 23 . He did say there were more details
given at the second meeting than at the first . He said that at the June .6
385
�meeting they started off by telling Messrs . Tassé and Landry that breaking and
entering was a weekly occurrence in the R .C .M .P ., and that when Mr . Landry
said that they were aware it was necessary to break into premises to put in
technical installations he, Brunet, told them that breaking and entering took
place rather frequently for the purpose of gathering evidence or gathering
information that might be useful, without any intention of putting in a
technical installation. As a descriptive phrase in discussing such incidents he
told us that he does not think he made a distinction between "breaking and
entering" and "theft of documents" and that he would have used either phrase .
He said that at the June 6 meeting he thinks he mentioned the subject of arson
but did not think he mentioned the cottage on that occasion .
57 . Mr. Brunet told us that the only purpose of the June 6 meeting, as far as
he and McCleery were concerned, was to discuss their case and the circumstances of their dismissal, and the rest of it was absolutely incidental . He said
that the only reason they mentioned wrongdoings was that once they were
convinced that those with whom they were meeting really believed what the
R .C .M .P . was telling them about the A .P .L .Q. case being an isolated one, they
would show them that in fact there were any number of incidents of illegal acts
being committed . If they could convince the officials of that, then Messrs .
McCleery and Brunet hoped that the officials might be ready to accept that the
R .C .M .P . was lying when referring to their case .
58 . In a memorandum to file dated June 7, 1977 (not filed with us as an
exhibit), Mr . Landry noted his recollection of the June 6, meeting with Messrs .
McCleery and Brunet . In that memorandum he said that Messrs . McCleery
and Brunet had submitted that they had been unjustly treated on their
dismissal, that they had been harassed by certain members of the R .C .M .P .
since their dismissal, that in their case the Solicitor General and the Commissioner had not been informed of all the relevant facts, that this was not the first
time that the Solicitor General had been misled by the R .C .M .P ., and that the
R .C .M.P. only told the Solicitor General what it pleased them to tell . The
memorandum (in French) continued by recording that Messrs . McCleery and
Brunet indicated that much more serious acts had taken place while they were
members, including :
- participation and assistance to the C.I .A . in offensive activities in
Canada ;
- numerous thefts of documents ;
- even arson (a cottage) .
They suggest that many discontented members can provoke scandals
by confiding information in their possession to the parliamentary
opposition .
[our translation ]
Mr . Landry noted that they did not wish their revelations to be seen as
blackmail, that they stated that they had not disclosed any information to
anyone else, and that they were giving the examples to convince Messrs .
Landry and Tassé that the R .C .M .P . hid from the Solicitor General things that
it ought to reveal . Mr . Landry said in his memorandum that Mr . Tassé had
386
�asked for details of the alleged illegal acts but Messrs . McCleery and Brunet
had declined to give any, but they had, however, left the impression that they
would be willing to give more information at a later meeting .
59 . Immediately after leaving the meeting with Messrs . McCleery and
Brunet, Mr . Tassé went to the regular meeting, at the Solicitor General's
office, between Mr . Fox and the R .C .M .P . Both Commissioner Nadon and Mr .
Dare were among those present . Mr . Tassé made an oral report as to the
meeting which he had just attended along the lines of a letter which he
subsequently wrote on June 9, 1977, to Commissioner Nadon . An excerpt from
that letter, in the English translation filed with us reads :
During our meeting with the Solicitor General, I mentioned that Messrs .
Brunet and McCleery had referred to the A .P .L .Q . incident by indicating
that, when they were with the Force, the RCMP had conducted much more
serious operations than this . Without giving specific details, Messrs .
McCleery and Brunet did mention, among others :
- assistance to the C .I .A . in espionage activities detrimental to Canada
(prior to 1973) ;
- espionage activities for business purposes in a case involving the Federal
Department of Commerce (Trade and Commerce (?) Tr .) (May 1964) ;
- arson (involving a cottage) about 1972 or 1973 ;
- numerous thefts of documents .
Messrs . McCleery and Brunet refused to elaborate further, but it is
possible however that we may obtain more specific details concerning these
statements at the meeting scheduled between the aforementioned parties
and Attorney Landry .
60 . Mr . Tassé told us that he indicated the general areas in which the
allegations had been made and what little success they had had in getting
details . Commissioner Nadon testified that at the meeting on June 6, 1977, he
asked Mr . Tassé what the alleged improprieties were and Mr . Tassé listed
three, four or five improprieties . Mr . Nadon testified that he, Nadon, then said :
This is exactly the same information that we have received - that I
received on the lst of June and I now already have Supt . Nowlan and Mr .
Pothier down in Montreal investigating this ; but we would appreciate any
further information you have on these, because we have difficulty in
identifying some of the irregularities that are indicated .
Mr . Nadon said that he spoke to Mr . Tassé about the Robichaud memorandum, told Mr . Tassé that they had similar information coming from Montreal,
and that he mentioned the various items or areas that had been brought to his
attention by the Robichaud memorandum . He testified that it was obvious at
the meeting on June 6, after Mr . Tassé related what Mr. McCleery and Mr .
Brunet had told him, that it was the same information he, Nadon, had received
on June 1 .
61 . Mr . Nadon told us that there is nothing_,in the R .C .M .P . files to indicate
that Mr . Fox was informed of the setting up of the Nowlan/Pothier investigation team, or that anybody in the Department of the Solicitor General wa s
387
�informed of it . Nor have R .C .M .P . research and that of our staff turned up any
documentary evidence that any such information was communicated to the
Solicitor General or his staff.
62 . Commissioner Nadon told us that usually, on days before meetings with
the Solicitor General, someone from the Commissioner's office would phone
the Solicitor General's office and provide subjects that the R .C .M .P. wanted to
discuss . He says there is no reference on the agenda for the meetings of June 6
or June 14 to an intended discussion of the Nowlan/Pothier investigation team .
63. The evidence of Mr . Tassé and Mr . Fox is contrary to that of Mr . Nadon .
Mr . Tassé testified that at the meeting of June 6 no one mentioned the
existence of the Robichaud memorandum and that he became aware of it only
in the autumn of 1979, that at the June 6 meeting no one from the R .C .M .P .
informed him that members of the R .C .M .P . had met prior to June 6 with
Messrs . McCleery and Brunet, and that at no time during that meeting did the
Commissioner or anyone else from the R .C .M .P . indicate that they had
received other allegations or that they were aware of the allegations that he
had just told them about . Mr . Tassé told us that the R .C .M .P . appeared to be
surprised to hear the report that he gave them concerning the meeting with
Messrs . McCleery and Brunet, that they did not seem to understand what
Messrs . McCleery and Brunet were talking about and said that the burning of
a cottage meant nothing to them, but that they would investigate in Montreal
to see if there were some basis for the allegation . He added that the R .C .M .P .
members present left the impression that what Messrs . McCleery and Brunet
were doing had the appearance of blackmail . Mr . Tassé said that he had no
recollection of anyone saying that an investigation was already under way, and
that it was not until November 1977 that he learned that an investigation had
begun before June 6 .
64 . The testimony of Mr . Fox was that on June 6 it was his officials who were
advising the R .C .M .P . of information which was at that time still very vague
and uncertain and which seemed to be without foundation . He testified that the
R .C .M .P . did not communicate their own more detailed information . Mr . Fox
said that at the meeting Mr . Tassé reported at length on the request of Messrs .
McCleery and Brunet to have their dismissal file re-examined and recounted
that the major part of his meeting with them had dealt with the question of
their dismissal which they found unjustifiable after all the work they had done
for the Force . He said that Mr. Tassé reported that Messrs . McCleery and
Brunet had indicated that Mr . Fox had not been completely informed about
their dismissal file and that there were other activities to their knowledge
which Mr . Fox had also not been informed about, and that he, Tassé, had
questioned them on those subjects . Mr . Fox told us that the general reaction of
all those present at the meeting of June 6, including the R .C .M .P . officers, was
that this had all the appearances of being blackmail by Messrs . McCleery and
Brunet, and that under the guise of getting their file opened they said that
there were all sorts of things that were not proper which had been committed
by members of the R .C .M .P . Mr . Fox testified that Mr . Tassé asked members
of the R .C .M .P . present, "Does any of this ring a bell?" and the general repl y
388
�was "no", and that his own reaction, after seeing the reaction of the R .C .M .P .
and Mr . Tassé, was that this was an attempt at blackmail . He told us that he
said to Mr . Tassé that as far as he was concerned there was no question of
allowing any .blackmail and that, if Messrs . McCleery and Brunet had anything to tell them, they should be forced to say it . Mr . Fox said that he asked
Mr . Tassé to have Mr. Landry contact Messrs . McCleery and Brunet to enjoin
them to meet again and get to the bottom of the allegations to determine
whether they were valid . Mr . Fox said that the four items mentioned in Mr .
Tassé's letter of June 9 to Commissioner Nadon were the matters which had
been raised at the meeting on June 6 . Mr . Fox testified that he asked
Commissioner Nadon to look through the files in Montreal to see if any
elements of proof or facts could be found which would indicate that the
innuendoes had some basis in fact .
65 . According to Mr . Fox, he has no recollection of the R .C .M .P . members
present indicating that they were aware of any allegations by Messrs .
McCleery and Brunet . Mr . Fox testified that he was not aware of the
Robichaud memorandum or its contents, and that no one from the R .C .M .P.
indicated that someone had been appointed to investigate allegations by
Messrs . McCleery and Brunet or that an investigation had begun .
66. Mr . Simmonds, who was also present at the meeting on June 6, testified
that he recalls Mr . Tassé reporting in very general terms on some of the things
he had learned as a result of discussion with Messrs . McCleery and Brunet . He
said that the June 6 meeting first brought to light some of the incidents which
would have caused the Commissioner to initiate an investigation . He testified
that he does not recall Mr . Nadon saying that the R .C .M .P . had already heard
this type of allegation, nor does he recall having been informed that what Mr .
Nowlan was investigating was allegations of improper behaviour that had been
communicated by Mr . Robichaud . He said he does not have any recollection
about having been told by any of his colleagues, either going to the meeting or
after the meeting, that they were already aware of that type of allegation .
According to Mr . Simmonds, at the meeting there was an air of concern,
perhaps even a bit of an air of disbelief, because it was pretty hard to believe
that some of the things that were being referred to could have occurred . He
added that there was an absolute concern to get to the bottom of it and find out
the facts, but that there was a good deal of scepticism about whether or not the
facts were as described . He said that he was alarmed at what he was hearing,
and concerned, and he recognized the necessity to get to the bottom of it and
very quickly . He said he does not know whether Mr . Nadon reported at that
meeting that he had taken steps to examine those allegations .
67 . Mr . Fox testified that after the meeting Mr . Tassé came to his office and
he thinks that Mr .'Tassé's reaction at that time was that the allegations were
without foundation, that they were hare-brained and related to the desire of
Messrs . McCleery and Brunet to have their dismissal files reopened .
68. Mr . Tassé told us that it was in the days following June 6, in conversation
with Commissioner Nadon or someone else in the R .C .M .P ., that he learne d
389
�for the first time that Superintendent Nowlan was in Montreal for the
investigation .
(iii)
The recording of the Tassé/Sexsmith telephone conversatio n
69 . Assistant Commissioner Sexsmith testified that he was "curious" as to
what Messrs . Nowlan and Pothier "were discovering in Montreal" and "desperately wanted to know whether the allegations were based in fact or not" . On
Mr . Sexsmith's initiative, Superintendent Nowlan was reporting to him internally on the progress of the investigation . Mr . Sexsmith said that he assumed
that Mr. Nowlan and Mr . Pothier knew that he "did not have any direct
function in relation to the investigation per se" . In their report of July 12,
1977, to Mr. Dare and Assistant Commissioner Quintal, Superintendent
Nowlan and Inspector Pothier wrote " . . .it was also agreed that Assistant
Commissioner M .S . Sexsmith, Deputy Director General (Operations) would
serve as a daily contact, if need be, for progress outlines and for logistics as
related to the investigation in general" . Mr . Sexsmith said that he accepts that
statement in their report as being an accurate statement and that he did not
receive daily reports, but saw Mr . Nowlan sometimes when the latter returned
to Ottawa, often on a Friday afternoon, when Mr . Nowlan would tell him in
general terms how things were going .
70. Mr . Dare told Mr . Sexsmith about the meeting that Mr . Tassé had had
with Messrs . McCleery and Brunet on June 6 and what Mr . Tassé had
reported about that meeting . Mr . Sexsmith testified that the allegation that the
Security Service had committed commercial espionage in 1964 "was most
intriguing" to him and that he was "most curious" to know the details . On
June 9, Mr . Sexsmith telephoned Mr . Tassé, for the purpose, he told us, of
obtaining full details of that particular allegation . Mr. Sexsmith testified that
he does not recall having seen the draft of Mr . Fox's statement dated May 31,
1977, which was sent by Mr . Tassé to Commissioner Nadon, nor, he said, does
he recall ever having had any discussion either with Mr . Nadon or Mr . Dare as
to the accuracy of that draft statement . He told us that he recalls that the draft
statement was placed before the R .C .M .P., and that Messrs . Nadon and Dare
were involved, but he does not recall either of them inquiring of him as to the
accuracy of the text .
71 . Mr . Sexsmith taped his telephone conversation of June 9, 1977, with Mr .
Tassé . He testified that he taped that conversation for hi s
. . . own edification and the edification of the people that were going to have
to do the research and attempt to tie in a particular operational file with a
particular allegation, if the allegation had any substance of truth .
He told us that he phoned Mr . Tassé to get the details from him concerning the
allegation of commercial espionage because he knew that, if that had occurred
there would be a record of it at Headquarters . Mr . Tassé testified that Mr .
Sexsmith did not tell him that the conversation was being recorded, that he did
not know that it was being recorded, that Mr . Sexsmith did not tell him after
the conversation that it had been recorded and that he was informed only muc h
390
�later, without specifying precisely when . Mr. Tassé told us that if Mr . Sexsmith
had asked his permission to record the telephone conversation he does not know
whether or not he would have given it . He said he thinks it was inappropriate
for Mr . Sexsmith to record without telling him and he considers it is unethical
to record, either by stenographic notes or on tape, spontaneous conversations
that one has with others.
'
72 . Mr . Sexsmith told us that, within hours of having recorded the telephone
conversation, he had it transcribed by his secretary, Mrs . Rita Baker . He said
he did not show the transcript to Mr . Dare or Commissioner Nadon and that
he gave it to either Superintendent Venner or Superintendent Barr .
73 . Mr . Tassé told us that he recalls specifically mentioning to Mr . Sexsmith,
during the telephone conversation, that an important aspect of the statement
which Mr . Fox proposed to make to the House was that the A .P .L .Q . incident
was an isolated incident, that there were allegations, although vague, which
had been made by Mr . McCleery and Mr . Brunet, and that it was important
that the R .C .M .P . get the information and advise the Minister's office whether
or not there was any foundation for the accusations . Mr . Tassé said that he
thinks it was clear in everybody's mind that the statement by Mr . Fox had,:tq
deal with the A .P.L .Q . but that in making the statement he must also make thé
point that the R .C .M .P . was determined to operate, and would operate, within
the confines of the law and that the A .P .L .Q . incident was an aberration .
74 . Mr . Tassé added that at no time in the telephone conversation with Mr .
Sexsmith did Mr . Sexsmith indicate that he had, or might receive, information
which would indicate that there was some foundation to the allegations or that
there were other allegations .
75 . The transcription of the telephone conversation, typed by Mr . Sexsmith's
secretary, purports, on page 7, to reproduce the conversation as it related to the
statement to be made by the Minister . Following is a reproduction of page 7, in
its entirety . (The line numbers in the right hand margin have been added by us
for ease of reference .)
391
�EXHIBIT MC-15 1
-7-
R .T. I heard that Nowlan was in Montreal . Was he there t o
discuss with the Montreal people the kind of accusations [line 3]
or allegations that McCleery&Brunet had made . Have yo u
received a report ?
M .S . No he hasn't even got started really yet . He's still in
Montreal, yes .
R .T . Would it be possible for me to see your report on that?
M .S . When we get it sure but my God it will be some time
Roger I expect .
R . T. Well, I hope there would be a preliminary report before
the Minister makes the statement in the House because [line 12]
everyone may be a bit on the spot - I think you have seen [line 13]
the statement we're workingo ând they are strong statements [line 14]
that this wasn't an - the APLQ - wasn't an isolated incident [line 15]
and if right after making the statement they start talkin g
about other things, I think many people will be in trouble .
So as soon as he comes back perhaps we could just have a
[line 17]
progressive report or some kind of indication as to what [line 19]
he has found and whether there seems to be any basis for [line 20]
this .
M .S . Roger, one more thing . In Toronto, if your read the Citizen
last night or the Globe and Mail this morning, they'r e
making noises about suspicion that the RCMP committed a [line 24]
breaking and entering of the James, Lewis and Samuels [line 25]
Publishing Co .
R .T . It was mentioned by Oberle last week .
392
�An analysis of the transcription, prepared for us by the Centre of Forensic
Sciences of the Province of Ontario, discloses the following corrections in
typing made to page 7 :
line
3 - The first letter `s' in the word "accusations" was originally
typed as the letter T .
line 12- The Ietter `t' in the word "the" was originally typed as the
letter T . The letter `e' has an erasure, however, the original
typewritten letter cannot be deciphered . The letter `o' in the
word "House" was originally typed as a capital letter V .
line 13 - The letter 'e' was at one time typed to the right of the word
"spot" .
line 14 - The letter `k' in the word "working" was originally typed as a
the letter `i' as the letter `k', the letter `n' as the letter `i'
and the letter `g' as the letter `n' . The letter `g' was at one time
typed between the words "working and" . The letter `y' in the
word "they" shows an erasure, however, the original typewritten letter cannot be deciphered . The letter `e' was at one time
typed between the words "they are" .
line /5 - The letter `w' in the word "wasn't" was originally typed as the
letter `t' and the letter `a' as the letter T . The letter `s' shows
an erasure, however, the original typewritten letter cannot be
deciphered .
line 17 - The letter 'g' in the word "things" was originally typed as the
letter T .
line 19 - The letter `g' in the word "progressive" was originally typed as
the letter 'r .
line 20 - The letters `a' and `n' in the word "and" were originally typed
as the letters `w' and `h' .
line 24 - The letter 'a' in the word "making" was originally typed as the
letter V .
line 25 - The letter `J' in the word "James" was originally typed as a
small letter 'j' . The letter 'a' in the word "Samuels" was
originally typed as the letter `m' .
Numerous corrections of a similar nature had been made on other pages . It is
apparent from the forensic report that the typist had considerable difficulty in
transcribing the tape recording . It will also be observed that, if the transcription was accurate, Mr . Tassé told Mr . Sexsmith that the statement being
prepared would say that the A .P.L .Q . was not an isolated incident . This again, on the assumption that the transcription was accurate - would raise a
question as to the statement as it was finally delivered by Mr. Fox in the House
of Commons on June 17, when he said that the A .P .L .Q . incident was isolated .
We shall examine this issue when we reach our conclusions .
76 . Mr . Tassé said that he assumed that Mr . Sexsmith was aware that in the
statement to be made by the Minister there was strong wording to the effect
that the A .P.L .Q . incident was an exceptional and isolated one . Mr . Tassé
testified that at no time, during the months preceding this telephone conversa393
�tion with Mr . Sexsmith, did he, Tassé, participate in any way in the preparation of a draft statement, to be used by Mr . Fox in the House of Commons,
which said that the A .P .L .Q . incident was not an isolated incident .
77 . Mr . Sexsmith told us that although Mr . Tassé said, during the telephone
conversation, that he, Sexsmith, had seen the statement they were working on,
he did not recall having seen it and did not know anything about it . Mr .
Sexsmith said that when Mr . Tassé referred to the speech that Mr . Fox was
going to make in June it obviously didn't mean anything to him, Sexsmith,
because he didn't comment on it at all . He told us that he has no recollection of
having any "input" or discussion with Mr . Fox or Mr . Dare or Commissioner
Nadon or the Head of the Policy Planning and Coordination Branch (Superintendent Barr) concerning the statement of Mr . Fox subsequently made on June
17 in the House of Commons .
78. Mr . Sexsmith testified that he knew on June 13 that Mr . Fox was
preparing a statement for the House, because on that day he saw an English
translation of the June 9 letter from Mr . Tassé to Commissioner Nadon which
said that Mr . Tassé and his people were working on a statement .
79 . An endorsement, containing Mr . Dare's initials, on the face of the
transcript of the telephone conversation indicates that Mr . Dare saw the
transcript on June 9, the day that it was recorded and transcribed . Yet Mr .
Dare told us that he was not aware that Mr. Sexsmith proposed to tape his
conversation with Mr . Tassé and became aware of the taping only long after
the event, indeed, since the time of the creation of this Commission . Mr .
Nadon testified that he was informed by Mr . Dare in June 1977 that there had
been a conversation between Messrs . Tassé and Sexsmith but that he was not
informed that it had been taped . He said that previous testimony given by him,
to the effect that he had read the transcript before he left the Force, was
inaccurate, and that he first learned of the taping of the conversation when he
was preparing for the hearings, some considerable time after he left the Force .
(iv)
Mr . Fox's statement of June 17, 1977, in the House of Commons
80. On June 14 Mr . Tassé forwarded to Commissioner Nadon a further draft
of the proposed statement to be made by Mr . Fox, and asked for his and Mr .
Dare's comments at the earliest possible time .
81 . The draft statement of June 14, 1977, contained the following comments :
The Hon . Warren Allmand undertook in the days immediately following
March 16, 1976, to discuss the whole matter with the Prime Minister . The
Government seriously considered the creation of a Royal Commission of
Inquiry at that time . The Government received, however, repeated and
unequivocal assurances from the R .C .M .P . that the A .P.L .Q . incident was
exceptional and isolated and that the directives of the R .C .M .P . to its
members clearly require that all of their actions take place within the law .
And later on in the draft is found the following :
In the event doubts persist, I repeat, what I said earlier : an illegal entry into
any premises, whatever the intention or purpose, is completely unacceptabl e
394
�to me and to the government and is not, under any circumstances, to be
tolerated . The commitment to this view is one that is shared by the
Commissioner of the R .C .M .P. and by the Director General of the Security
Service and will be the basis upon which any allegations of illegal conduct,
either on the part of members of the R .C .M .P ., whether of the Security
Service or those involved in regular police activities, will be viewed .
And still later :
In addition, I trust that my statement today will have dispelled all possible
doubt concerning our commitment to ensure that the operations of the
R .C .M .P . take place within the constraints of the law . In addition, the
Commissioner of the R .C .M .P . and the Director General of the Security
Service fully recognize the need to bring to my attention, clearly and
unequivocally, any breach, on the part of their members, of the clear
directives of the R .C .M .P . in that regard .
82. Mr . Tassé said that at least a couple of times in the course of his
conversations with Commissioner Nadon about the draft statement he asked
about the progress of the investigations in Montreal and was told that theré
was no progress, for one reason or another, and therefore there was nothing to
report .
83. Commissioner Nadon testified that he found the draft statement of June
14 to be factually correct . He said that he recalls reading the sentence in the
June 14 draft which says "The Government received, however, repeated and
unequivocal assurances from the R .C .M .P . that the A.P .L .Q . incident was
exceptional and isolated and that the directives of the R .C .M .P . to its members
clearly require that all of their actions take place within the law ." Mr . Nadon
considéred that this is what the R .C .M .P. had told the government prior to
June 14 by correspondence and otherwise .
84 . Mr . Tassé told us that in his opinion it was clear that the senior officers of
the R .C .M .P . should immediately have told hiin if they had been aware of any
foundation to the allegations made by Messrs . McCleery and Brunet . He told
us that, if the part of Mr . Fox's proposed statement which referred to the
exceptional and isolated character of the A .P .L .Q . incident was inaccurate, it
should, under such circumstances, have been brought to their attention
immediately by the R .C .M .P . The assurances had been given to them over the
course of the years, according to Mr . Tassé, and he took it for granted that, if
the assurances had been given, it was because the R .C .M .P . were in a position
to give them . Mr . Tassé told us that the assurance that was given in his
presence was that, as far as the senior officers of the R .C .M .P . were concerned,
and as far as R .C .M .P. policy was concerned, members were supposed to live
within the law and had been doing so and that anyone who did not live within
the law was subject to be disciplined in the ordinary course . .
85. Mr . Fox testified that there were no reservations in the assurance that
had been given to him that there were no other illegal activities and he was
convinced when those assurances were given . to him that, if there were other
cases within the knowledge of the R .C .M .P ., they would be brought to his
attention ., He said that between May 31 and June 17 there was a series o f
395
�versions of the statement prepared which were always put to the R .C .M .P . for
comment to ensure the accuracy and truth of the facts . He told us that during
those weeks he and his officials were assured by the R .C .M .P . that the
statements in question were accurate and that there was absolutely nothing
communicated to him during the period from June 6 to June 21 that would
have led him to believe that there was any foundation for the matters raised by
Messrs . McCleery and Brunet .
86. Mr . Tassé said that at no time before June 17 was it indicated to him that
the investigation by the R .C .M .P . seemed to reveal things which were troubling . He testified that between June 6 and June 29, 1977, he did not receive
from anyone in the R .C .M .P . additional information or reports relative to the
incidents or irregularities alleged by Messrs . McCleery and Brunet, or with
respect to other allegations concerning members of the R .C .M .P .
87 . On June 16, in response to a question in the House of Commons, Mr . Fox
advised the House that the statement that he intended to make the following
day would cover only the A .P .L .Q . matter and not other incidents raised in the
House . On June 17, 1977, Mr . Fox made the statement in the House of
Commons .
88 . Mr . Fox testified that the undertaking which had been given to Parliament was to examine and make a statement in Parliament about the A .P .L .Q .
incident and that the statement dealt with all matters relating to the A .P .L .Q .
file . Mr . Tassé said that the statement was limited to the A .P.L .Q . affair, and
that Mr . Fox did not wish to paint a complete picture of all that had gone on
and all the accusations which had been made at that time against the R .C .M .P .
Mr . Tassé added that what they wished to show by the statement was that
illegalities within the R .C .M .P . were not tolerated and that, when they were
discovered, measures were taken before tribunals or otherwise, and that it was
not the practice of the R .C .M .P . to conduct operations which were contrary to
the law and to have, in effect, institutionalized illegalities . Mr . Tassé explained
that if an overzealous police officer or security officer burned a barn, that was
not necessarily inconsistent with the statement that Mr . Fox had made in the
House of Commons, provided that when an act like that was brought to the
attention of officers or responsible members of the R .C .M .P ., appropriate
actions were taken at the time and the authorities responsible for the administration of justice in the province were advised of the matter .
89. Mr . Fox's statement of June 17, 1977, repeats almost word for word the
June 14 draft statement previoûsly cited . Mr . Fox told us that he still believes
that the June 17 statement was correct at that time because, he said, the
A .P .L .Q . matter " . . . was the only incident that had been confirmed to our
knowledge : . . it was the only incident that we had" . [our translation ]
90 . Commissioner Nadon testified that, at the time he made the statement in
the House Mr . Fox was aware of the other allegations that were being
investigated, so he, Nadon, did not have to bring them to Mr . Fox's attention .
Mr . Nadon said that he saw the statement of June 17 as being an accurate
statement of the development of the A .P .L .Q . affair . However, he said that on
June 17, he would not have given repeated and unequivocal assurances that th e
396
�A .P.L .Q . incident was exceptional and isolated and that he would have added
to the statement that, because an investigation was on at the time, there were
matters that had to be confirmed or denied . He said he did not make such an
addition to the statement because Mr . Fox was already aware of the investigation . Mr . Nadon said that he brought to the attention of the Minister, clearly
and unequivocally, any breach by members of the clear directives of the
R .C .M .P .
91 . Mr . Tassé told us that in the context of the events from May 31 to Juné
17, 1977, there is no doubt in his mind that the Robichaud memorandum
should have been brought to his attention, as it would have been essential to
enable him to advise the Minister . He added that the Robichaud memorandum
disclosed facts which seemed at that time to confirm the presence of institutional irregularities, which was something Messrs. McCleery and Brunet had
not disclosed to Mr . Tassé and, he said, the memorandum would have resulted
in a completely different statement being prepared for delivery by Mr . Fox
because it was not made by someone who had been fired from the Force for
cause but by a member making a report to Headquarters . He indicated that in
the Robichaud report " . . . one begins to see, without it having been established
to the point that one could say there were criminal acts in the sense that a
tribunal would so find, there were details which would have thrown a completely different light on the whole situation" . [our translation ]
(v) Events subsequent to June 17, 197 7
92 . On June 21 Mr . Fox met members of the R .C .M .P . The agenda included
both a proposed meeting between Mr . Landry and Messrs . McCleery and
.Brunet and the Province of Quebec's inquiry with respect to the A .P .L .Q .
matter . Since Commissioner Nadon and Deputy Commissioner Simmonds
were both in the Atlantic Provinces at the time, they were not at the meeting,
Mr . Fox testified that at that June 21 meeting there was no further information from the R .C .M .P . with respect to the allegations passed on to them on
June 6 and that once again the R .C .M .P . members present raised the problem
that the information which they had was so vague and imprecise .that they had
no way of going through the files to determine during what period, or in what
area things might have occurred . According to Mr . Fox, the R .C .M .P . said
that they needed more information in order to come up with dates, places and
times and that they needed a little more information as to the people involved
before they could investigate properly the iriformation provided by Messrs .
McCleery and Brunet on June 6 .
93 . On June 23 Messrs . Landry and Handfield met with Messrs . McCleery
and Brunet in Montreal and by memorandum dated June 24, 1977, reported
the results to Mr . Tassé . Mr . Fox received a copy of it that same day, and Mr .
Tassé gave a copy the following Monday, June 27, to Commissioner Nadon .
94 . According to Mr . Fox, on June 27 or 28 he met with the Prime Minister
to advise him of the developments . Mr . Fox said that the report of June 24 rid
. him of any idea he may have had of blackmail by Messrs . McCleery and
Brunet .
397
�95 . Some time during the trip of Commissioner Nadon and Deputy Comissioner Simmonds to the Atlantic Provinces, between June 19 and June 24,
Commissioner Nadon received a telephone call from Mr . Dare. Immediately
following the call, according to Mr . Simmonds, Mr . Nadon told him that the
R .C .M .P . had discovered a dirty tricks department, G4, and that they did not
know the extent of its activities but that`the investigation had confirmed some
of the things that had been reported to the Deputy Minister . Mr . Simmonds
told us that Mr . Nadon expressed great surprise and alarm at what he had
been told . Mr . Simmonds said that he believes that the information received by
Mr . Nadon in that telephone call came from the early work of Superintendent
Nowlan's investigation, and that Superintendent Nowlan had confirmed some
facts to Mr . Dare who had then telephoned to Mr . Nadon .
96 . Commissioner Nadon testified that he does not know whether he had
received any preliminary or interim reports before June 14 with respect to the
Nowlan/Pothier investigation, and that he does not know whether, as of June
19, R .C .M .P . Headquarters had received any preliminary report . He said that
an interim report was submitted by Messrs . Nowlan and Pothier on June 21,
1977 . He added that he cannot say for certain that any information about the
work of Messrs . Nowlan and Pothier was communicated to anyone in the
Solicitor General's Department .
97 . Commissioner Nadon stated that on June 29 Assistant Commissioner
Quintal reported verbally to him, confirming that some of the irregularities
that had been alleged had in fact occurred ; prior to this briefing he had had
other briefings by telex and advice from Mr . Dare with respect to the
investigations .
98 . Mr . Fox said that he met with R .C .M .P . officers on June 29 and at that
meeting Commissioner Nadon told him that he could now verify that the
preliminary investigations showed that the allegations were well founded
concerning a burning, a theft of dynamite and problems of recruitment of
sources . Mr. Fox said this was the first time he heard talk of theft of dynamite,
or allegations concerning recruitment of sources . On June 29, Commissioner
Nadon wrote to Mr . Fox requesting that a commission of inquiry be appointed .
99 . On July 6, 1977, Mr . Fox made a statement in the House of Commons
which included the following :
Since making my statement in the House concerning the APLQ incident,
allegations have been made that members of the RCMP, and more particularly members of the Security Service, have, on other occasions, been
involved in unlawful action in the discharge of their duties . The APLQ
incident, according to those who made the allegations, was not of an
isolated and exceptional character as I had reported in my statement of
June 17 .
1
These allegations received our immediate attention . At my request, the
Deputy Solicitor General of Canada and the Assistant Attorney General,
criminal law, personally met with some of the individuals who made these
allegations . In addition, I asked the Commissioner of the RCMP to
undertake the investigations which were,warranted . He later informed me,
after having made preliminary inquiries, that some of these allegations
might well have some basis in fact .
398
�(vi)
Knowledge of the Ministers, senior government officials and senior
members of the R .C.M .P.
100 . We have already set out in Part III of this Report the extent to which
Mr . Allmand, Mr . Fox and Mr . Tassé did or did not have knowledge of the
various illegal practices of the R .C .M .P . However, it is now necessary to
summarize that information in order to assess the extent, if any, to which they
were deceived by the assurances of the R .C .M .P .
101 . We have also set out, in Part III a detailed examination of the knowledge
of Commissioner Nadon and Mr . Dare with respect to those same practices .
Because they were the persons giving the assurances, it is also necessary to
summarize their knowledge to arrive at a determination as to deception .
Mr . Allman d
102. In March and April 1976 the only activities of the R .C .M .P., about
which Mr . Allmand was aware, that give rise to questions of legality were
surreptitious entries for the purpose of observing or photographing documents .
Mr . Allmand believed, however, that such entries were legal . He was also
aware of surreptitious entries for the purpose of installing electronic eavesdrop .ping devices and had been told, specifically, that such entries were legal . At
that time Mr . Tassé's state of knowledge was the same as Mr . Allmand's . By
letter dated June 9, 1976, from Mr . Cullen to Mr . Allmand, both Mr . Allmand
and Mr . Tassé became aware that the R .C .M .P . obtained information from the
Department of National Revenue for purposes other than the enforcement of
the provisions of the Income Tax Act and also became aware that this was
contrary to the confidentiality provisions of the Income Tax Act . Neither Mr .
Allmand nor Mr . Tassé was aware of any instance of such violations .
Mr . Fox
103 . On June 17, 1977, Mr . Fox was aware of surreptitious entries for the
purpose of installing electronic interception devices . He believed that such
entries were legal pursuant to the provisions of the Protection of Privâcy Act
and relied on a legal opinion of the Department of Justice to that effect . Mr .
Fox had also received an opinion to the effect that the words "interception of
communications" in the Official Secrets Act could apply to written communications as well as oral communications . Mr . Tassé's knowledge on this subject
at this time was the same as that of Mr . Fox .
,
Mr. Nadon
104 . We have had a great deal of difficulty in assessing the knowledge of Mr .
Nadon, who, as Commissioner, was the principal spokesman for the Force . In
1976 he had been a member of the R .C .M .P . for 35 years, during which he had
worked his way from the bottom of the organization to the top . He says he
knew nothing about mail-opening except to the extent that it involved postal
officials and that it was, he assumed, legal . Yet the evidence is clear that, for
years, both the C .I .B and the Security Service had been opening mail illegally,
and in the Security Service an official code word, Cathedral "C", had bee n
399
�given to the practice . We have no doubt that Mr . Nadon was aware of the code
word, Cathedral, prior to 1976, probably at least as early as August 1974 when
he reviewed the Samson Damage Report with Mr . Dare . There is no evidence
that Mr . Nadon made any effort to find out what Cathedral operations
involved .
105. Mr . Nadon was aware of the practice, on both the C .I .B . and Security
Service side, by which members while on private premises observed documents,
and made notes of, or photocopied, the documents . He was, however, not aware
of this being done on the C .I .B . side during entry into premises "illegally", by
which he appears to mean without the consent of a person entitled to give
consent or without a search warrant, and his evidence with respect to the
Security Service side is ambiguous at best . Once again, he was clearly aware,
at least as early as 1974, of the Security Service code word for such entries
without warrant (PUMA), but appears not to have been interested in pursuing
the matter .
106 . With respect to access by the Force to income tax information, to be
used for purposes unrelated to enforcement of the Income Tax Act, the only
knowledge that Mr . Nadon had about such access was with respect to
biographical data, and he considered it to be a question of legal interpretation
as to whether such data was included in the proscription of the statute against
disclosure .
107 . Although Mr. Nadon says that he did not become aware of Operation
HAM until after he left the Force, we have concluded that at least some
aspects of it were brought to his attention at the time that he discussed the
Samson Damage Report with Mr . Dare . We accept Mr . Nadon's evidence that
he probably did not read that report . We have no doubt from Mr . Nadon's
evidence that Operation HAM, which is mentioned in that Damage Report,
was discussed with him by Mr . Dare in August 1974, although we cannot say
to what extent the details, or even the code name, were given to him . Whatever
the extent of his knowledge, Mr . Nadon did not choose to inquire further .
108 . We conclude that in March and April 1976 Mr . Nadon could, based on
what he knew personally, provide the general assurances that he did at that
time . But that is not to say that it was proper, under the circumstances, to give
those assurances . We shall deal with this question in the conclusions to this
chapter .
Mr . Dare
109. Mr . Dare also gave general assurances . His assurances are even more
significant since he was speaking on behalf of the Security Service and it
should have been clear to him at that time, even if it was not clear to others
outside the Force, that Mr . Nadon appeared to be almost totally unaware of
techniques used or operations carried out by the Security Service .
110. Late in 1973 or in early 1974, Mr . Dare was briefed about Cathedral A,
B and C operations and was advised that these operations had been suspended
on June 23, 1973 . He did not know, at that time, of any particular Cathedral 400
�"C" (mail opening) operation that had been carried out and he first became
aware of a specific operation in June 1976 . In the Samson Damage Report,
which he received from his Deputy Director General (Operations) in August
1974, he was clearly made aware that "mail intercepts" were occurring .
Although when he himself used the word "intercept" in relation to mail he
meant "open", he apparently did not inquire further of his Deputy Director
General (Operations) as to what the latter meant in this regard in the Damage
Report .
111 . Mr . Dare was aware, from some time shortly after becoming Directôr
General on May 1, 1973, that the Security Service conducted surreptitioûs
searches of premises, without warrants . In his opinion such searches betweén
May 1, 1973, and June 30, 1974, were illegal and, after the Privacy Act came
into effect on July 1, 1974, such searches, which were then, as far as he knew,
always conducted in conjunction with an oral communication warrant granted
under the new legislation, were legal . It is not clear from his testimony whether
his opinion as to the illegality of the searches prior to July 1, 1974, was an
opinion that he held between May 1, 1973, and June 30, 1974, or whether it
was an opinion arrived at later .
112 . Mr . Dare was aware from 1974 that the Security Service was obtaining
income tax information from the Department of National Revenue for purposes totally unrelated to enforcement of the Income Tax Act . He did not
consider such conduct to be illegal, although he did not direct his mind to the
question of legality .
113 . Mr . Dare knew about Operation HAM as early as August 1974 . He
testified that he did not consider it to be illegal, and that he did not consider,it
to be a seizure because the tapes were returned . This is impossible to reconcile
with his evidence that he considered surreptitious entries to search, prior to .
July 1, 1974, to be illegal .
Conclusions
(a) As to misleading generall y
114 . Our concern, here, is the extent to which the senior R .C .M .P . officers,
who dealt directly with the Solicitors General in 1976 and 1977, misled them .
On March 16, 1976, the participation of the R .C .M .P. in Operation Bricole
was first brought to the attention of Mr . Allmand and Mr . Tassé by the
R .C .M .P . In March and April 1976 both Commissioner Nadon and Mr . Dare
gave specific assurances to Prime Minister Trudeau, Mr . Allmand, Mr . Tassé
and Mr . Pitfield that Operation Bricole was an exceptional and isolated
incident . The only reservation they expressed was with respect to surreptitious
entries for the purpose of carrying out electronic eavesdropping .
115 . In Mr . Nadon's letter of April 23, 1976, to Mr . Allmand and in the
proposed statement for use by the Minister which was attached to it, are found
the following statements previously cited :
4 . On the advice of the present Director General of the Security Service, I
am prepared to assure you, without equivocation, that there is no preceden t
401
�for a search and seizure operation by the Security Service in Montreal,
acting alone or in concert with other Police Forces, and there has been no
repetition .
10 . My assurance that there has been no previous case of its kind and that
such action has not been repeated by the Security Service in Montreal, will,
I trust, assist you in disposing of this isolated incident to the satisfaction of
the Government and the House .
and,
This is the only incident wherein the RCMP Security Service has, without
the benefit of a search warrant, engaged in a search and seizure operation,
alone or in concert with members of other policy agencies .
This letter and draft statement were prepared by the Security Service,
approved by Mr . Dare and submitted by him to Commissioner Nadon for
signature . It is true that the assurances in those two documents are not general
in nature . The letter speaks specifically of "a search and seizure operation by
the Security Service in Montreal" and of "no previous case of its kind" and
still further "that such action has not been repeated by the Security Service in
Montreal" . The draft statement is slightly broader in that it talks of Operation
Bricole being "the only incident wherein the R .C .M .P. Security Service has,
without the benefit of a search warrant, engaged in a search and seizure
operation", thus not limiting the matter geographically to Montreal . We are
convinced, based on the evidence of Messrs . Allmand and Tassé, that the
assurances sought and given verbally in March and April 1976 were of a
general nature to the effect that there were no R .C .M .P . activities which,
although illegal, had been authorized or condoned by the Force, and that such
assurances were not limited by the type of language found in the letter and
draft statement . We accept Mr . Tassé's evidence that the only reservation
expressed by the R .C .M .P . was with respect to surreptitious entries to install
electronic eavesdropping devices prior to the coming into force of the Protection of Privacy Act in 1974 . We are satisfied that the assurances given by the
R .C .M .P . were made by Commissioner Nadon and Mr . Dare . It is clear that
the assurances given by the R .C .M .P . were the principal factor which motivated the government not to set up a Commission of Inquiry in 1976 . It is
therefore important to determine the extent to which both those giving the
assurances and those to whom they were being given knew that such assurances
were not accurate .
116 . Having regard to what he knew in March and April 1976 we are of the
opinion that Mr . Dare either intentionally or negligently misled both the
Solicitor General and the Prime Minister and thus permitted the government
to adopt a course of action which it undoubtedly would not have followed had
he not so misled them . Whether he uttered the assurances himself or remained
silent while Commissioner Nadon made them, the effect is the same . He
allowed general assurances to be given that there were not, and had not been,
other activities of the R .C .M .P . which were illegal and had been authorized by
the Force . He knew there had been a practice of surreptitious entries between
May 1, 1973, and June 10, 1974, which, according to his testimony, h e
402
�considered to be illegal . He knew about Operation HAM and told us that he
had considered it not to be illegal, and that he also considered that Operation
Bricole was not illegal, yet he approved the draft letter of April 23, 1976, sent
by Commissioner Nadon to Mr . Allmand, which stated : "The operation was
clearly contrary to the rule of law, the very basis on which this Force is
founded" . He should have candidly discussed all these matters with Commissioner Nadon, and if Commissioner Nadon had not then revealed them to the
Solicitor General and the Prime Minister, Mr . Dare ought to have done so
himself . We consider that there is no justification whatsoever for this course of
conduct on his part .
117 . We turn now to 1977 . In January 1977, the same general assurances
were given to the new Solicitor General, Mr . Fox, as had been given in 1976 to
both his predecessor, Mr . Allmand, and to the Prime Minister . The assurances
were again given by Commissioner Nadon and Mr . Dare . By this time two
things had occurred which changed the picture slightly . First, in July 1976,
Mr . Dare had been informed by Assistant Commissioner Sexsmith of a specific
mail-opening operation which had been going on in the Ottawa area, and that
it had been terminated . Thus, Mr . Dare was now aware not only that there had
been a mail opening policy but also that there had been an operation . Second,
in June 1976, the Minister of National Revenue, Mr . Cullen, had informed the
Solicitor General, Mr . Allmand, by letter, that there were "technical" violations of the Income Tax Act "when tax information is provided to the Force for
purposes other than those of the Income Tax Act" . Commissioner Nadon saw
that letter .
118. In the present context we place little significance on the reference, in
Mr . Cullen's letter, to "technical" violations . It was clear that amendments to
the Act were being proposed by the Department of National Revenue and Mr .
Allmand was aware of that fact . Commissioner Nadon and Mr . Dare could
reasonably infer that, upon assuming the Solicitor General's portfolio, Mr . Fox
had been apprised by his Deputy Minister, Mr . Tassé, of the situation . We
have no evidence as to whether or not that, in fact, happened .
119 . Following the meeting on January 25, 1977, at which the assurances
were given to Mr . Fox, the latter met with the Prime Minister, at which time
the appointment of a Commission of Inquirÿwas once again discussed and
rejected . There was still nothing of consequence that had been placed before
the Ministers except Operation Bricole .
120. We consider that Mr . Dare was duty bound to bring to the attention of
Commissioner Nadon and Mr . Allmand the knowledge which he had received
about the mail-opening operation in Ottawa . At the time that the assurances
were being given to Mr . Fox that there were no other illegalities, Mr . Dare also
ought to have brought to Mr . Fox's attention his knowledge about Operation
HAM, surreptitiôùs entries and the provision of income tax information to the
Security Service . Again, we can find no justification for his conduct at that
time .
121 . , There was no relevant change in the factual information that Commissioner Nadon had between April 1976 and January 1977 and we do not fin d
403
�that he intentionally deceived Mr . Fox in giving the general assurances that he
did . However, with respect to the general assurances given in both 1976 and
1977 we think that he was derelict in his duty in not having pursued some
matters, the significance of which should have sprung out at him . Had he done
so, he would not have been in the position of misleading two Solicitors General
and the Prime Minister and, through them, the House of Commons and the
people of Canada . There can be no excuse for his not having inquired into
Cathedral Operations, PUMA Operations, and Operation HAM . These were
all brought to his attention, whether in the form of a code word or otherwise, at
least as early as his discussions with Mr . Dare on the Samson Damage Report .
As Commissioner of the R .C .M .P . it was his duty to know what the policies of
both the Security Service and the C .I .B . sides of the Force were, and to make
appropriate inquiries about matters with which he was not familiar . It was
improper conduct on his part to give assurances to his Ministers and the Prime
Minister when he had turned a blind eye to what was occurring in the Security
Service .
122. On May 31, 1977, Mr . Tassé sent to Commissioner Nadon the draft of
Mr . Fox's intended statement to the House of Commons . The draft statement
contained the following comments :
I want to emphasize, in no uncertain terms, that entry of premises without
lawful authorization, whatever the intent or purpose, is not acceptable to
me and the government and cannot, under any circumstances, be condoned .
I can assure Honourable members that this position is shared by the
Commissioner of the R .C .M .P . and the Director General of the Security
Service and that any allegations of unlawful action on the part of members
of the Force, whether on the security side or the criminal side of the Force,
will be vigorously pursued .
In a democratic society like Canada, it is essential that those charged with
the enforcement of our laws and the protection of fundamental freedom
have the full support of Canadians . Such a support, in turn, can only result
from the trust Canadians have that police forces operate within the limits of
the laws in the discharge of their responsibilities . I hope that my comments
today will have convinced you, Mr . Speaker and Honourable members, as
well as Canadians, at large, that the A .P .L .Q . operation was indeed an
exceptional and unique affair, indeed an unfortunate affair . I trust that any
doubt that may have arisen as to our determination as a government, or the
R .C.M .P . determination, to abide by the rule of law will have been
dispelled .
~
123 .
May 31, 1977, Superintendent Robichaud prepared a memorandum
6n
setting out the matters that Mr . McCleery had said he might disclose to the
Solicitor General . Those matters were :
(a) a " . .
.dirty tricks department ( DTD) that involved Inspector Hugo,
Inspector Blier and Bernard Dubuc who . .. would have been responsible for a kidnapping . . ." .
(b) " .
.. an FLQ hideout near Sherbrooke that burned and again he alleges
that some of those members were involved" .
(c) " . . . his own summer cottage in the Laurentians had been used by the
Force to store dynamite" .
404
�(d) " . . the Force has been responsible for Securex losing a number of
.
contracts and that they keep harassing them" .
In the memorandum Mr . Robichaud added the following :
(a) "Insofar as the dirty tricks department, I believe this was the countermeasures taken by "G" Section in certain . instances at that time and
the alleged kidnapping would have been a disruptive source recruiting
attempt made on one Andre Chamard, [File number]" .
(b) "the counter-measures group was comprised of the 3 people he mentions as well as Cst . Rick Daigle who, if memory serves me right, was a
close associate of Don McCleery's" .
(c) "The alleged kidnapping would have taken place about June 8th, 1972
at a time when McCleery would have been in "G" Section . "
On June 1, 1977, Commissioner Nadon and Mr . Dare saw this memorandum .
Commissioner Nadon immediately appointed two investigators to look into
what Mr . McCleery had alleged .
124 . On June 6, 1977, Messrs . Tassé and Landry met with Messrs . McCleery
and Brunet . At that meeting Messrs . McCleery and Brunet made some generâl
allegations of serious misconduct on the part of the R .C .M .P . Mr . Landry
noted those allegations in part as :
- participation and assistance to the C .I .A . in offensive activities in
Canada ;
- numerous thefts of documents ;
- even arson (a cottage) .
[our translation ]
Mr . Tassé noted them in a letter to Mr . Nadon as :
- assistance to the C .I .A . in espionage activities detrimental to Canada
(prior to 1973) ;
I
- espionage activities for business purposes in a case involving the Federal
Department of Commerce (Trade and Commerce (?) Tr .) (May 1964) ;
- arson (involving a cottage) about 1972 or 1973 ;
- numerous thefts of documents .
[English translation, Ex . MC-149 . ]
125 . On June 6, 1977, immediately following that meeting, Mr . Tassé
attended a meeting at which those present included Mr . Fox, Commissioner
Nadon and Mr . Dare, and he told them what Messrs . McCleery and Brunet
had alleged . We are convinced by the evidence of Mr . Fox, Mr . Tassé and Mr .
Simmonds ( then Deputy Commissioner) that no member of the R .C .M .P .
present at that meeting gave any inkling to Mr . Fox or Mr . Tassé that an
investigation of allegations by Messrs . McCleery and Brunet was already in
progress, or even that the R .C .M .P . had knowledge of any such allegations . We
note that at least one allegation, that relating to the burning of a building, is
common to both the Robichaud memorandum and what was conveyed by Mr .
Tassé,to the meeting . We also note that there were more details of this incident
already in the possession of the R .C .M .P . than had been conveyed by Messrs .
405
�McCleery and Brunet to Mr . Tassé and relayed by him to the meeting . We are
also convinced that at the meeting the R .C .M .P . officers present left the
impression with Mr. Fox and Mr . Tassé that this was the first they had heard
of any such allegations, that they were surprised by them and that it was likely
that Messrs . McCleery and Brunet were simply attempting blackmail to obtain
a reversal of their dismissal . We do not accept Commissioner Nadon's evidence
that he told Mr . Tassé, at the meeting, about the information that he already
had through the Robichaud memorandum and that he had appointed investigators to look into the allegations .
126. Had Commissioner Nadon and Mr . Dare advised Mr . Fox and Mr .
Tassé about the allegations which were already under investigation, Mr . Fox
and Mr . Tassé might have, and probably would have, taken a totally different
position as to what ought to be done . The allegations in the Robichaud
memorandum are much more precise and capable of investigation than those
made by Messrs . McCleery and Brunet on June 6, 1977, and thus, if they had
been known to Mr . Fox and Mr . Tassé, would have given rise to much more
suspicion that there might have been some substance to them . Commissioner
Nadon and Mr . Dare, however, allowed Mr . Fox and Mr . Tassé to continue in
their ignorance of the existence and contents of the Robichaud memorandum
after June 6, while consideration was being given to further drafts of the
statement to be made by Mr . Fox, and even after the statement had been made
by him on June 17, 1977 . They allowed Mr . Fox to take a position and to make
statements which he clearly would not have made had they made him aware of
all the facts in their possession . Commissioner Nadon's evidence that Mr . Fox's
statement was factually correct is spurious, and shows a measured contempt
for the concept of ministerial responsibility and accountability . Mr . Nadon
knew that the intention of the statement was to assure the House of Commons
and the Canadian public that Operation Bricole was "exceptional and isolated"
and that the R .C.M .P . had not engaged in any other illegal activities, and he
also knew that he had under investigation some serious allegations in which
names and, geographical locations had been given . We believe that both Mr .
Nadon and Mr . Dare intentionally deceived Mr . Fox by withholding information from him and that the purpose of such deceit was to attempt to save face
for the Force . This conduct was both misguided in motive, and wrong .
(b) The Tassé/Sexsmith telephone conversatio n
127 . We now wish to comment on the telephone conversation of June 9, 1977,
between Assistant Commissioner Sexsmith and Mr . Tassé . That telephone
conversation was initiated by Assistant Commissioner Sexsmith and was
tape-recorded by him without the consent or knowledge of Mr . Tassé. There is,
of course, nothing illegal in recording a telephone conversation to which one is
a party . Nevertheless, under the circumstances we think that Mr . Sexsmith's
conduct was unacceptable conduct by a member of the R .C .M .P . in his
dealings with a government official . We cannot think of anything more
calculated to destroy the conditions of trust which must exist between the
senior management of the R .C .M .P . and senior officials in the government,
than this type of conduct . There is more than a touch of irony in the words of a
406
!
�written communication, dated January 6, 1976, from Mr . Sexsmith to the
R .C .M .P . Liaison Officer in Washington, in which Mr . Sexsmith was explaining the reasons for the termination of Warren Hart as a source of the
R .C .M .P . Mr . Sexsmith said, among other things :
The very fact that he [Hart] would surreptitiously tape an interview he held
with the Solicitor General attests to his scruples .
128 . As far as the transcript of the tape recording is concerned, we are
satisfied that the statement attributed to Mr . Tassé on page 7 of the transcript
does not accurately reflect what he said . The part in question reads :
R .T . Well, I hoped there would be a preliminary report before the Minister makes the
statement in the House because everyone may be a bit on the spot - I think you
have seen the statement we're working on and they are strong statements that this
wasn't an - the APLQ - wasn't an isolated incident and if right after making
the statement they start talking about other things, I think many people will be in
trouble .
This leaves the impression that Mr . Tassé said that the draft statement being
prepared for delivery by Mr . Fox contained a statement that Operation Bricole
was not an isolated incident . There are a number of reasons for our conclusion
that the transcript is inaccurate . First, there is Mr . Tassé's sworn testimony
that no draft of the statement ever said that Operation Bricole was not an
isolated incident . We have no reason whatever to doubt the evidence of this
public servant . There is no evidence that suggests that after the preparation of
the draft in May, which contained words to the opposite effect, something had
occurred which would have caused the draft to be amended on this point .
Second, the forensic analysis of the transcript, performed on our behalf by an
independent body, discloses that the typist had a great deal of difficulty in
transcribing the tape, and not only with respect to page 7 . The evidence is
clear that whoever typed the transcript, whether it was Mr . Sexsmith's
secretary, Mrs . Baker, or someone else, was not someone trained to transcribe
recorded telephone conversations . It is easy to speculate how an error could
have been made . The words "they are" in the sixth line of the portion quoted
above could have been "their's are" - the analysis performed on our behalf
shows that the typist had difficulty with the words "they are" in that line .
Alternatively, the two words "wasn't an" where they appear in line seven could
have been "was an" . Whatever the error, we are convinced that one has been
made because, without some such correction, it is clear that what Mr . Tassé is
quoted as saying makes no sense .
C . POSTCRIP T
129 . We now examine one allegation and one factual situation that are
related to each other in terms of certain facts and therefore must be considered
together . The first is that before October 6, 1972, a federal Cabinet Minister
urged that the A .P .L .Q . be destroyed, even by illegal means . Logically,
perhaps, this allegation should be discussed as part of our report on Operation
Bricole itself (Part VI, Chapter 9) . However, 'as the second of these tw o
407
�matters must be reported on in the present chapter, and the two are so
intertwined, we have decided that they should both be reported on here . The
second matter is a meeting which was held on September 10, 1973 (eleven
months after Operation Bricole), the notes of which might on their face justify
the inference that Ministers present were then made aware that the R .C .M .P .
had engaged in a "break and entry" of the A .P.L .Q . office in October 1972 . If
that were so, of course, it would be very pertinent to the present chapter's
examination of whether the R .C .M .P . reported Operation Bricole to the
Solicitor General and officials of the government . As will be seen, we conclude
that the allegation that before October 6, 1972, a federal Cabinet Minister
urged that the A .P .L .Q . be destroyed, even by illegal means, is unfounded, and
that, at the meeting of September 10, 1973, the R .C .M .P . did not disclose that
it had engaged in a "break and entry" .
(i) An allegation that a Cabinet Minister urged before October 6, 1972 that
the A .P.L .Q. be destroyed, even by illegal means .
130. We now examine an allegation concerning which we heard all testimony
in camera because we considered that the lengthy investigation conducted by
our counsel had already raised substantial doubt about the accuracy of the
allegation, and we felt that it would be grossly unfair to those impugned by the
allegation if, after the initial sensation the allegation would create, it proved
unfounded . If our conclusion on the evidence were that the allegation was
well-founded, the testimony could be read by all, beyond such detail as we
might insert in our Report, and our reasons might be judged against the
testimony as published .
131 . We initiated this investigation after one of us, on February 8, 1980,
during the course of reviewing another Security Service file at R .C .M .P .
Headquarters, came across memoranda made in September 1977 of a meeting
between an R .C .M .P . officer and a person whom we shall refer to herein as
"the public servant", and of a further short meeting between them several days
later .
132 . The in camera testimony was heard on October 8 and 28, November 20
and December 4, 1980, and is found in Volumes C109, C112, C 115 and C117 .
133 . In the first of these memoranda, the public servant was reported to have
made a serious allegation to a senior officer of the Security Service on a social
occasion in September 1977 . As then reported by that officer, it was that he
had in his possession some Unemployment Insurance Commission (U .I .C .) files
relating to suspicions of fraud by members of the A .P .L .Q . against the U .I .C .
The report of the conversation then stated that, according to the public servant,
the files reflected a Cabinet meeting where no minutes were to be kept on the
subject of conversation, and that three officials from the U .I .C . "were at a
cabinet meeting with Mr. Starnes and Howard Draper" . The report then
continued (still referring to what the public servant said) :
The point of discussion at the Cabinet meetings was the extensive
frauds by groups like the APLQ . According to [the public servant], five
Quebec Ministers were involved and he named Mr . Marchand, Marc
Lalonde, Mr . Pelletier, Jean-Pierre Goyer and the Prime Minister . He sai d
408
�that what had surfaced were the fraudulent employment lists these groups
were drawing funds against. He said that from what he had read on these
files, Mr . Lalonde is alleged to have told the Director General and Mr .
Draper that he didn't care how things were handled, the groups must be
destroyed, implying by any means even outside legal bounds . The way [the
public servant] put it, it would appear that C/Siipt . Don Cobb may be
carrying the can in order to protect politicians like Mr . Lalonde.
134 . When we discovered the existence of this allegation, by coming across it
in a Security Service file in February 1980, we instructed counsel to investigate
it thoroughly . During that investigation the public servant repeated his allegation in a statutory declaration . At the conclusion of the investigation we
decided that the matter should be the subject of testimony, and we also decided
that the testimony should be heard in camera .
135 . We heard the testimony of the public servant . He has no personal
knowledge of the matter . As he had by the time of his appearance retired from
the public service, he no longer was in possession of any relevant documents .
Neither he nor anyone else could produce any minutes or notes of any kind of
such a meeting held before Operation Bricole was carried out on October 6-7,
1972 . It will be noted that, on the face of what the public servant said the files
disclosed, there was an evident inaccuracy in that at that time Mr . Lalonde was
not a Minister nor even a Member of Parliament . However, that error alone
would have been insignificant, if the rest of the report were correct . If the
report were generally accurate, there was a documentary record of serious
involvement by those Ministers . said to have been present, in that, unless Mr .
Lalonde's instructions were repudiated by them, they might be taken to have
tacitly authorized even illegal action to disrupt the A .P .L .Q .
136 . We are completely and unreservedly satisfied that there is no truth
whatsoever to this allegation, for the following reasons :
(a) In his testimony, the public servant gave the following crucial answer :
Q . Do you recall from your reading of the memorandum whether it
attributed specific remarks to any individual person ?
A . Yes . The notes indicated, what I took from the notes was that Marc
Lalonde had indicated in very forceful and strong words that the police
were to do what was ever necessary to obtain the necessary evidence
and to break up this organization .
(Vol . C109, p. 14074 . )
Earlier, in the statutory declaration which he gave us, he said, to the same
effect :
The typed text of the notes of the meeting recorded that the R .C .M .P .
members briefed the Cabinet members on the results of the investigation
into U .I .C . frauds, which results were disclosed by the messages in the
envelope . The typed text then recorded Mr . Lalonde as having told the
R .C .M .P. members, in the most forceful terms, to take whatever steps were
necessary in order to destroy the A .P .L .Q. and the other groups reportedly
responsible for the frauds .
409
�He testified that the memorandum was dated October 1972 (Vol . C109, p .
14073) . He told us that he read the memorandum on two occasions. He stated
that he had not told the senior R .C.M .P . officer that, according to the notes,
Mr. Lalonde said he did not care how things were handled and that the groups
including the A .P.L .Q . must be destroyed . He further told us that he did not
tell the senior R .C .M .P . officer that the notes conveyed that Mr . Lalonde was
implying that this should be done by any means, even outside legal bounds .
According to him ,
I only indicated to him [the senior RCMP officer] that there were names of
Cabinet Ministers that had been briefed, and up to this point in time
[September 1977] this information had not come forward, and i felt this
was information that would be helpful to the police ; that these Cabinet
Ministers had received such a briefing .
(Vol .
C 109, pp.
14245-6 . )
The testimony of the public servant is contrary to that of the R .C .M .P . officer
and contrary to the contents of the memorandum the R .C .M .P . officer
prepared in September 1977 . We believe the R .C .M .P . officer's testimony and
his memorandum to be the correct version of what the public servant said .
(b) The public servant, in the statutory declaration which he gave us in April
1980, almost six months before he testified, stated as follows :
8 . 1 did not read the full text of the handwritten notes of the meeting . The
typed text seemed to be a transcript of the handwritten notes . That typed
text was about two and one half pages in length . I read all of that typed text
while Mr. Williams was present .
However, when testifying he claimed that he read both the handwritten and the
typed notes to compare them, sentence by sentence (Vol . C109, pp . 14126,
14155 . )
(c) The public servant testified that a memorandum he wrote on August 11,
1977, to his Deputy Minister, that referred to a meeting attended by members
of the U .I .C . with federal Quebec Ministers and R .C .M .P . members (but did
not refer to anything in the nature of instructions to destroy the A .P .L .Q . or
even give the date of the meeting) was written "approximately six or seven
months" after representatives of our Commission of Inquiry first "came to our
Department, to explain that they would like certain documents related to the
inquiry that the Commission was making" . As we were appointed in July 1977,
and had no legal counsel or investigative staff who could make any inquiries
until October 1977, it is clear that the public servant was completély in error
on this point .
(d) The public servant testified that, when he spoke about this matter to the
senior R .C .M .P . officer, he did so at the latter's office, and that it was the only
matter discussed . The senior R .C .M .P . officer testified that this was only one
of a number of matters the public servant discussed at a luncheon the two men
had together at a restaurant . His contemporaneous memorandum of the
luncheon is to the same effect . We unhesitatingly prefer the evidence of the
R .C .M .P . officer to that of the public servant . The R .C .M .P . officer's memo410
�randum, the entirety of which we have read, is a long account of the public
servant's views on a number of matters, and could not, we feel certain, have
been invented .
(e) Mr . Hugh Williams, who in 1977 was head of the Special Investigation
Division of the Canada Employment and Immigration Commission (successor
to the U .I .C .), denied that the files he gave the public servant in 1977 referred
to a meeting in 1972 . We have no reason to disbelieve Mr . Williams .
(f) There is an explanation which enables us to accept that the public servant's
understanding of the content of the documents he had read is not completely
faulty, and that he is simply mistaken as to important details . There was indeed
a meeting of some Ministers concerning frauds against the U .I .C . across
Canada, and the discussion included a reference to the A .P .L .Q . The Ministers
were concerned that there be prosecutions of offenders . At the time of our
hearings we had read handwritten notes, made, we believe, by an employee of
the U .I .C ., of a "Briefing to Cabinet" on September 10, 1973 (i .e . eleven
months after the Bricole operation) . The notes indicate that Mr . Lalonde who by this time was Minister of National Health and Welfare - was present,
and opposite his name, for some reason, the notes show "(P .M .)" . The
Chairman was shown, not as the Prime Minister, but as the Honourable
Robert Andras . The notes show that the R .C .M .P . members present were
Assistant Commissioner Draper, Assistant Commissioner Nadon and Inspector
Jensen . The notes indicate that Assistant Commissioner Draper spoké of the
A .P .L .Q . The notes state, opposite the name of Mr . Lalonde : ."fûll scale
investigation or intervention regardless will be good for the goal - offensive
rather than defensive" . Some months after our hearings into this matter had
ended and we had been satisfied that the public servant's evidence was nôt
credible, the Privy Council office advised us that it had discovered a"Memorandum for File" which had not been stored with normal Cabinet documents .
With it had been discovered handwritten notes by a Cabinet secretary . Both
documents refer to the same meeting on September 10, 1973, and record the
presence of the same persons, as did the notes produced from U .I .C . files . The
cumulative effect of this documentation satisfies us that there was a meeting on
September 10, 1973, and that it was this meeting about which the public
servant had read .
137. Of course it does not follow necessarily, from the fact that there was a
meeting attended by Cabinet Ministers, R .C .M .P . officers and U .I .C . officials
in September 1973, that there was no such meeting in October 1972 . It was
because the latter did not follow irresistibly from the former that we held our
hearings . The result of hearing the public servant testify was that we do not
accept his evidence as accurate, not merely because there was the meeting in
1973 which was so similar to that which he claimed occurred in October 1972,
but also because of the considerable inconsistencies in his own testimony and
statements . By the time his testimony was completed, we had concluded that
the allegation he had made to the R .C .M .P . officer, which resulted in our
counsel and ourselves conducting an exhaustive inquiry into the matter, was
completely unfounded .
411
�138 . Nevertheless, in case some witness who was said by the public servant to
have been recorded as having been present at the meeting supposedly held in
1972 might indeed support the . public servant's allegation, we heard the
testimony of Mr . Starnes, Mr . Draper, the most senior U .I .C . official said to
have been present, the U .I .C. official said to have been the author of the
memorandum, and the Honourable Marc Lalonde . Mr . Starnes says that he
knows nothing of the allegation ; and, of course, if the only meeting was that
held in September 1973, Mr . Starnes would know nothing of that meeting as
by then he had left the Security Service . Mr . Draper testified that he
remembered no such meeting in 1972 but that he did attend the meeting in
1973 and at that time discussed the A .P.L .Q . The U .I .C . official, Jean-Marc
Legros, was said by the public servant to have been at the meeting in 1972 as
Director of the Special Investigation Division of the U .I .C . He told us that he
was given that title in September 1972, but that the Division was not organized
until January or February 1973 and he was not really involved with the
Division until then . Consequently, he says, it was impossible for him to have
been at a meeting on the subject of frauds on the U .I .C . in September or
October 1972 . He does remember the meeting of September 1973 . The man
who the public servant said had been the author of the memorandum concerning the 1972 meeting was Robert Bambrick . He denies ever having been
present at a meeting of Cabinet Ministers . He does recall Mr . Legros telling
him of such a meeting in 1973, the purpose of which was to make the Ministers
aware of the use of U .I .C . funds by certain subversive or activist groups . Mr .
Lalondp told us that he certainly was at no meeting between the beginning of
September 1972 and the end of November 1972 attended by the Prime
Minister and representatives of the U .I .C . and R .C .M .P . concerning the
A .P .L .Q . He also says that he has no memory of any such meeting before
September 1972 .
139. We also heard testimony by Mr . John G . Palmer, who has been a
security officer with the Canada Employment and Immigration Commission
since 1974 . He told us that some time in the middle of 1977 the public servant
told him that he had come across information that he, Mr . Palmer, assumed
referred to a time preceding the A .P .L .Q . "event" in 1972, because the public
servant told him that "the Honourable Marc Lalonde" had said, in relation to
the A .P .L .Q . "Go after the (obscenity)" . The public servant's former secretary
also testified that in August 1977 the public servant told her that there had
been a meeting of U .I .C . officials, R .C .M .P . and Ministers and that there had
been a decision to follow through with a break-in at the A .P .L .Q . There is little
doubt, then, that the public servant was fundamentally consistent in 1977 and
1980 . That does not mean that his understanding of what he had read was
consistently correct . Indeed, it should be noted that Mr . Palmer testified that
the public servant told him that Mr . Dare had been one of the participants in
the meeting. This is quite inconsistent with the public servant's testimony that,
according to the document he read, Mr . Starnes had been present . Further, we
note that Mr . Dare did not join the R .C .M .P . Security Service until 1973, and
there is no reason known to us why he would have attended a meeting on that
subject in 1972 .
412
�140 . It was not until we were well into our hearings into this allegation that
we learned that the essentials of this allegation hâd been published in an article
in the Sunday Sun (Toronto) on October 7, 1979 . We had believed that the
allegation was not in the public domain, yet we had decided nonetheless to
investigate it fully . The result of our investigation is that we find that the
allegation is unfounded . We have reached that conclusion not so much by
relying upon the evidence of such persons as Mr . Lalonde and Mr . Starnes,
who might be thought to have reason to deny the allegation even if it were true,
as by concluding that the evidence of the public servant is not to be accepted on
the grounds we have stated .
141 . Finally, we wish to record our regret that the R .C .M .P . did not bring
this allegation to our attention . The allegation was known at a high level from
September 1977 . We realize that it was not taken seriously . Nevertheless, it
should have been made known to us . If it had been, we could have investigated
it by asking the public servant, who did not leave his position until 1979, to
produce the document which in September 1977 he had claimed to have in his
possession .
(ii) Were Ministers advised on September 10, 1973, that the R .C .M .P . had
participated in a break-in at the A .P .L .Q . office ?
142. In March 1981 the Privy Council Office advised us that it had discovered minutes of the meeting held on September 10, 1973, to which
reference has been made in the previous section of this chapter, as well as
"ancillary documents" . The "ancillary documents" were, we discovered, handwritten notes by a member of the staff of the Privy Council Office at that
meeting . We found that these notes recorded that Deputy Commissioner
Nadon, who was then Deputy Commissioner (Criminal Operations), spoke of
the R .C .M .P .'s investigations of frauds against the Unemployment Insurance
Commission . The notes then recorded the following :
Our crml fraud squad Mtl bring to early concln : will exam all evidc
under Crim Code and UIC act : some areas dific: need records to carry out :
some not available before Oct 72 : (break & entry )
- most info from delic sources :
- cannot use for ct purps : must go out (in?) invest, maybe search cos,
indivl will be some publicit y
We interpret this as saying :
Our commercial fraud squad Montreal bring to early conclusion : will
examine all evidence under Criminal Code and Unemployment Insurance
Commission Act : some areas difficult : need records to carry out : some not
available before October 1972 : (break and entry )
- most information from delicate sources :
- cannot use for court purposes : must go out (in?) [and] investigate
maybe search companies [and] individuals will be some publicity
143 . When we read this we realized that the notes might be construed as
evidence that on September 10, 1973, Deputy Commissioner Nadon disclosed .
413
�to those at the meeting that in October 1972 the R .C .M .P. had taken the
A .P .L .Q .'s records in a break and enter . We thereupon immediately instructed
our counsel to review once more the files of the R .C .M .P ., both on the criminal
investigations and Security Service sides, to determine whether there was any
documentation that might assist us in determining whether Mr . Nadon had
made such a disclosure . If necessary we were prepared to call witnesses once
again, even though Mr . Nadon had already testified that in 1973 he was
unaware of Operation Bricole .
144 . Upon his further review of R .C .M .P . files, our counsel did find two
documents that support the conclusion that the C .I .B ., in the weeks preceding
the meeting of September 10, 1973, remained unaware that the R .C .M .P . had
been involved in the break-in at the offices of the A .P .L .Q . Thus, on August
24, 1973, "C" Division in Montreal, in a message to Headquarters in Ottawa,
advised of the creation of a task force consisting of R .C .M .P . and U .I .C .
personnel, and then continued :
Original information received from H .Q . gave us seven names of persons
who were receiving benefits and who apparently were working at APLQ .
We are restricted in historical research to no further back than the 7 Oct 72
the reason for this being that in the evening of the 6 to 7 Oct 72 a break-in
occurred at the offices of the APLQ at which time all records and
documents were allegedly stolen . Proof in court will require documentary
evidence from APLQ and therefore prior to above date it is not available .
The message then gave information about seven individuals, based on U .I .C .
data, and discussed the manner in which investigation might be undertaken,
including searches at the offices of the A .P .L .Q . and of individuals. The second
document consists of a typewritten statement entitled "Agence de Presse Libre
du Québec (APLQ)" . This quite obviously was the presentation made by Mr .
Nadon to the meeting of September 10, 1973 . This is demonstrated by its
opening language and by the remarkable similarity between its contents and
the notes made by the Privy Council Office staff member at the meeting . The
document begins as follows :
As a representative of the Criminal Operations side of the Royal
Canadian Mounted Police, I wish to outline briefly for your benefit the
nature of this Force's involvement in the investigation of Agence de Presse
Libre du Québec, and its employees as it relates to certain irregularities
associated with the obtention of U .I .C . benefits, the present standing of the
investigation and our contemplated future course of action .
Our involvement was dictated by an official request for investigative
assistance, dated July 19th, 1973, from the Special Investigation Committee, of the Unemployment Insurance Commission .
It then gave information about the same seven individuals and about investigations under way concerning certain Local Initiative Projects in the Province of
Quebec believed unrelated to the A .P .L .Q . The briefing document's striking
similarity to the P .C .O . staff member's notes, quoted early, will be observed in
the following excerpt :
After consultations with our colleagues in the Unemployment Insurance Commission, we have established a "task force" in Montreal to cop e
414
�with this specific U .I .C . investigation . This force is composed of representatives from U .I .C . regional office in Montreal and members of our Commercial Fraud Section in that city . Objective, of course, is to work in unison
with a view to bringing the investigation to an early successful conclusion .
All transactions and allegations will be examined carefully both in terms of
the provisions of the Criminal Code and U .I .C . Act .
I must clarify that our enquiry will be restricted, to a degree historically, in that the offices of A .P.L .Q . suffered a break-in during the night of
October 6/7, 1972, resulting in the loss of accounting records . Documentary evidence is a must to establish any fraudulent obtention and we will
therefore be restricted to the period following October 6th .
At this moment we are substantiating certain basic information in
order to gain appropriate and adequate grounds for the obtention of search
warrants under the Criminal Code . As you appreciate we cannot disclose
our sources because of their delicate nature . We must support this evidence
and information through other means . The acquisition of A .P .L .Q . accounting records is a must if we are to confirm or deny the allegations made .
145 . From the contents of these documents it is plain to us that what was said
by the R .C .M .P . at the meeting of September 10, 1973 was not in reference to
the participation of the R .C .M .P . in the break-in in 1972 . It was clearly in
reference to a break-in which the C .I .B . and Mr . Nadon assumed was carried
out by persons who were not members of the R .C .M .P . Because this is the
inescapable conclusion on the basis of the documentation, we have decided that
no testimony is required .
Comments of Commissioner Gilber t
146. I did not participate in the examination of the matters dealt with in the
Postscript nor in the conclusions reached with respect to them . My reasons for
not doing so are set out in a Record of Decision of the Commissioners dated
September 9, 1980, which reads :
Commissioner Gilbert advised his fellow Commissioners that after
examining the summaries of the investigations carried out by Commission
Counsel in connection with the allegations made by [name of the public
servant] respecting Operation Bricole, he had decided that he would not
participate further in deliberations or hearings or decisions of the Commission with respect to the matter . He said that he had arrived at this decision
because of his friendship for Marc Lalonde whose conduct would be subject
to examination during the course of further Commission investigations and
hearings on the matter . The Chairman and Commissioner Rickerd advised
Commissioner Gilbert that they understood the reasons for his decision and
agreed with that decision . It was agreed that the Chairman would announce
Commissioner Gilbert's decision at the first formal proceedings relating to
the subject .
415
��CHAPTER 5
AN ALLEGATION THAT AN ATTEMPT WAS
MADE TO PREVEN T
FACTS FROM BEING DISCLOSED TO THE
SOLICITOR GENERA L
AND TO PERSUADE A MEMBER TO BE
UNTRUTHFU L
INTRODUCTION
1 . In this chapter we examine two events, separated by five months and
distinct as to the issues they raise, yet related in terms of subject matter . The
first consists of the circumstances in which Staff Sergeant Gilbert Albert, of
the Security Service in Montreal, had conversations with former Staff Sergeant
Donald R . McCleery on May 31 and June 1, 1977 . The issues are whether Mr .
Albert attempted on June 1 to persuade Mr . McCleery not to divulge facts to
the Solicitor General's representative, whether Superintendent Henri Robichaud ordered Mr . Albert to do so, and whether Superintendent Robichaud
received instructions from any of his superiors to do so . An incidental matter in
regard to the meetings of May 31 and June 1 is whether Mr . Albert made
written reports of those meetings earlier than the written statement he gave to
Superintendent Nowlan's internal investigation on June 16, 1977 .
2 . The second event occurred on November 8, 1977, when Superintendent
Archibald Barr, an Officer in Charge of the R .C .M .P .'s Task Force which was
concerned with liaison between the R .C .M .P . and our Commission of Inquiry,
met Staff Sergeant Albert in Ottawa . In regard to this occurrence, the first
issue is whether Superintendent Barr ordered or asked Staff Sergeant Albert to
change an account, which he had given in a statement in an internal inquiry in
June 1977, of what Superintendent Robichaud had expected him to do vis-à-vis
Mr . McCleery on June 1 . The second issue is whether, if he did not order or
ask Staff Sergeant Albert to do so, he nevertheless used words which, led Staff
Sergeant Albert to believe that it would be best for him to do so, and whether
that was intended by Superintendent Barr . The third issue is whether, if
Superintendent Barr did order or ask Staff Sergeant Albert to do so, one or
more of Superintendent Barr's superiors ordered or suggested to Superintendent Barr that he should try to get Staff Sergeant Albert to change his story .
The fourth issue is whether Superintendent Barr carried out the expectations of
the lawyers for the Government of Canada and this Commission who two days
earlier had identified the facts, as stated in Mr . Albert's written statement of
June 16, 1977, that they thought required clarification .
417
1
�3 . Public hearings were held by us concerning these matters on June 25 and
27, July 16 and September 8, 1980 . That evidence appears in Vols . 189, 190,
191, 194 and 198 . In response to notices given pursuant to section 13 of the
Inquiries Act, representations by and on behalf of some of the persons involved,
including further testimony by some of them, were heard by us-in private on
March 11, April 1 and 15, 1981 (Vols . C120, C128 and C131) .
STATEMENT OF FACTS
4 . On May 31, 1977, Staff Sergeant Gilbert Albert was a member of the
Security Service, stationed in Montreal . He had been a member of the
R .C .M .P. for 24 years . His immediate superior at that time was Inspector
Ferraris . Superintendent Henri Robichaud was the Acting Area Commander
of the Quebec Area Command of the Security Service .
5 . Mr . McCleery had been dismissed from the R .C .M .P. in 1973, after 25
years of service . The stated reason for his dismissal was his failure to obey an
order that he not associate socially with a particular individual who was a
subject of concern to the R .C .M ;P . Mr . Robichaud told us that some time after
Mr . McCleery's dismissal, and many months before May 1977, on the instructions of the Commanding Officer of "C" Division of the R .C .M .P . he,
Robichaud, had instructed all members of the Security Service in Montreal
that they were not to associate with Mr . McCleery and if they did meet with
Mr . McCleery and any questions were asked they were to report it . He said he
does not remember whether the requirement was to report in writing (Vol . 190,
pp. 27931-7) . Mr . Albert told us that he had received those instructions, which
were a formal order, and the members were told in those instructions that if
they had a chance encounter or an arranged meeting with Mr . McCleery they
were to report to their immediate superior or another superior officer (Vol .
191, pp . 28187-9) . He said he had been advised even before that general
meeting that he was forbidden to have any association with Mr . McCleery . Mr .
Albert testified that after Mr . McCleery's dismissal he saw Mr . McCleery a
maximum of 10 times and submitted reports in the majority of cases (Vol . 190,
p. 28191) . Messrs . McCleery and Albert were friends, and had worked
together in Montreal from 1954 until Mr . McCleery's dismissal, except for two
occasions when Mr . Albert was posted outside Montreal (Vol . 189, pp .
27723-4) . Mr . Albert retired from the R .C .M .P . on July 4, 1978, and at the
time of giving his testimony was an associate of Mr . McCleery in a private
security agency .
May 31, 197 7
6. On May 31, 1977, Mr . Robichaud learned from a source of the Security
Service that Mr . McCleery intended to meet with the Solicitor General (Ex .
M-112 for identification) . Mr . Robichaud testified that he then asked Mr .
Albert to arrange a meeting with Mr . McCleery but that this was not an order
and that Mr . Albert could have declined but did not do so . Mr . Robichaud said
that such a meeting would be attended by Mr . Albert in the exercise of his
duty (Vol . 190, pp . 27938-9 ; Vol . 191, p . 28184) . Mr . Albert testified that Mr .
418
�Robichaud told him that he, Robichaud, had been informed by a source that
Mr . McCleery intended to reveal to the Solicitor General certain things
committed by the R .C .M .P ., and that it was in the interest of the Security
Service to get more information on that . Mr . Albert told us that he does not
believe that Mr . Robichaud told him that there was a meeting planned with the
Solicitor General (Vol . 191, pp . 28185-6) . Mr . Robichaud testified that he does
not believe that he informed Mr . Albert about Mr . McCleery planning to go to
see the Solicitor General . In a memorandum prepared later that same day,
May 31, 1977, Mr . Robichaud stated " . . .Albert was not aware of the information, that McCleery was planning to see someone from the Solicitor General's
office" (Ex . M-112 for identification) .
7 . Mr . Albert arranged a meeting with Mr . McCleery for lunch on May 31,
1977, and advised Mr . Robichaud accordingly (Vol . 191, p ; 28187) . As
arranged, Mr . Albert met Mr . McCleery that day . Mr . Albert testified that he
had not seen Mr . McCleery for a long time prior to May 31, 1977, because of
the order not to see him (Vol . 198, p . 29221) . He told us that the purpose of
the meeting was to determine Mr . McCleery's intentions in view of his
impending meeting with the Solicitor General . He said that it was Mr .
McCleery who told him that he was going to see the Solicitor General and that
he, McCleery, was going to advise the Solicitor General that he, the Solicitor
General, was being lied to, as in Mr . McCleery's own case (Vol . 191, pp .
28192-3) . He said that it was not Mr . McCleery's intention to divulge matters
to the public, but only to the office of the Solicitor General (Vol . 191, pp .
28217-8) . Mr . Albert told us that at thé meeting he and Mr . McCleery talked
about certain operations and that although Mr . McCleery did not say so hé,
Albert, concluded that Mr . McCleery intended to mention those operations to
the Solicitor General or to the person whom he was going to meet (Vol . 191, p .
28194) . Mr . Robichaud testified that after the meeting Mr . Albert reported to
him verbally, that he, Robichaud, was satisfied with the verbal report, and,
that Mr . Albert did not prepare a written report, although he acknowledged
that the rule was to report if "they [the ex-members] asked for something"
(Vol . 190, pp . 27932, 27937, 27942-3) . According to Mr . Albert, he reported
to Mr . Robichaud, and Mr . Albert believes that he submitted a written report
which he believes he would have addressed to Mr . Ferraris (Vol . 191, pp .
28211, 28217) . Mr . Robichaud could not recall whether reports about meetings with the ex-members were to be in writing (Vol . 190, p . 27937), but Mr .
Albert testified that the rule was to report in writing (Vol . 191, p . 28228) . Mr .
Albert also said that he considered that in meeting with Mr . McCleery he was
on duty, under orders (Vol . 191, p . 28213) .
8 . Mr . Robichaud testified that he arranged a meeting with Assistant Commissioner Sexsmith, the Deputy Director General (Operations) in Ottawa for
approximately 7 :00 p .m . on May 31, solely for the purpose of discussing Mr .
Albert's meeting with Mr . McCleery . He travelled to Ottawa for the meeting
and met with Mr . Sexsmith that evening as arranged (Vol . 190, pp . 27944-5) .
According to Mr . Sexsmith, it had been some time prior to May 31, 1977 that
Mr . Robichaud first indicated to him that Mr . McCleery and Mr . .Brunet, or
one of them, were preparing to make allegations . Mr . Sexsmith . said that h e
419
�had previous knowledge that Messrs . McCleery and Brunet were attempting to
see the Solicitor General (Vol . 190, p . 28048) . Mr . Sexsmith also testified that
he assumes that Mr . McCleery had knowledge of such things as Cathedral
(mail check operations) and surreptitious entries, and that he had a great deal
of knowledge about operations of the Security Service generally . Mr . Sexsmith
told us that he was concerned that Mr . McCleery would disclose such matters
to the Solicitor General .
Q . . . . are you stating today openly and unequivocally that the Force had
meant never to let the Solicitor General, whoever he was, know of
practices or operations that were not authorized or provided for by law?
A . Yes, sir .
He added :
I would have thought that after all this time your Commission has been
sitting, it would have become rather obvious that the Security Service kept
certain operational things from the Solicitor General .
He told us that the reason he did not want the Solicitor General to become
aware of the practices was because "it would put the Solicitor General in an
impossible situation" . He said that "as a Minister of the Crown" the Solicitor
General could not "live with knowledge which indicated that an organization
that he [the Solicitor General] was primarily responsible for was committing
illegalities or improprieties or wrongdoings" (Vol . 190, pp . 28051, 28053-4,
28058, 28065) .
9 . Mr . Robichaud said that at the May 31 meeting with Mr . Sexsmith he,
Robichaud, related to Mr . Sexsmith the report that Mr . Albert had given to
him verbally (Vol . 190, p . 27945) . According to Mr . Robichaud, Superintendent Nowlan was at the meeting, and those present concluded that the Security
Service was in difficulty because of the nature of the allegations Mr . McCleery
intended to make . Mr . Robichaud testified that he volunteered to get any other
details or information he could from Mr . McCleery and that he indicated that
he would ask Mr . Albert to see Mr . McCleery again and get more information .
He said that Mr . Sexsmith and Mr . Nowlan did not veto that suggestion . He
later told us that he does not recall specifically that he mentioned to Mr .
Sexsmith and Mr . Nowlan that he would ask Mr . Albert to see Mr . McCleery
again (Vol . 190, pp . 27949-60) . However, in Mr . Barr's memorandum of
November 8, 1977, he recorded that Mr . Robichaud, in discussing the matter
with him that day, told him that, after receiving Mr . Albert's report on May 31
of his meeting that day with Mr . McCleery, Mr . Robichaud
came to Ottawa that evening and spoke with the D .D .G . (Ops) [Mr .
Sexsmith] and it was agreed that on the strength of information obtained
up to that point that a second meeting should take place for the purpose of
further clarifying these allegations and if possible determining McCleery's
course of action . Supt . Robichaud said that it was never considered nor
decided that we should in any way attempt to influence McCleery's course
of action but that the purpose of the meetings was simply to gather
information .
10 . Mr . Robichaud told us that he was concerned that Mr . McCleery might
take something to someone else besides the Solicitor General, and that hi s
420
�concern on May 31, 1977, was that Mr . McCleery would make public the
allegations that he was recounting to Mr . Albert as well as other operational
matters he, McCleery, was aware of (Vol . 191, p . 28107) . Mr . Robichaud
acknowledged that from the time of Mr . McCleery's discharge in December
1973 until May 1977 Mr . McCleery had not, to his knowledge, disclosed any
matters with respect to operations which could be compromising to the
R .C .M .P . or the Security Service . He said that nothing concrete had happened
during that time to justify the fear that Mr . McCleéry would leak information
to the news media such as that which he now intended to communicate to the
Solicitor General (Vol . 191, pp . 28109, 28147-8 ; Vol . 190, p . 28026) . Mr .
Robichaud told us, that prior to Mr . McCleery's leaving the Security Service,
Mr . McCleery had told him thât he was going to destroy the Security Service .
He said it was not a matter of concern to him to know what Mr . McCleery was
going to tell the Solicitor General, but on the other hand, puzzlingly, Mr .
Robichaud stated that he was interested in knowing what operations Mr .
McCleery was going to bring up or in what form (Vol . 190, p. 28034) .
11 . Mr . Robichaud said that after the meeting with Messrs . Sexsmith and
Nowlan he dictated a memorandum to file (M-112 for identification) . He said
he does not recall reading the memorandum and that he returned to Montreal
without having a copy of it (Vol . 190, pp . 27946-7) . He told us that it was his
impression that the results of the investigation of everything in his memorandum would be brought to the attention of the Solicitor General if it were we11
founded . He also testified that he never showed that memorandum to Mr .
Albert and that he does not recollect conveying to Mr . Albert the details of
that memorandum to enable Mr . Albert to cross-check the accuracy of it (Vol .
191, pp . 28167, 28178) .
12 . Mr . Sexsmith testified, in regard to the meeting with Mr . Robichaud on
May 31, that he cannot recall giving any instructions to Mr . Robichaud on how
to handle the matter . He told us that he does not recall any specific discussion
about Mr . Albert getting in touch with Mr . McCleery to try to get more
information or specifically telling Mr . Robichaud that they would be interested
in having more information . He agreed that he would "assume that Mr . Albert
would be encouraged by Mr . Robichaud to pursue the matter and attempt to
complete the information or gather more information" and that that would all
be "in the line of duty" . Mr . Sexsmith does not "think [he] would have to draw
any pictures for Robichaud . . ." (Vol .. 190, pp . 28084-7) . However, a different
version is reported by Mr . Barr in his memorandum dated November 8, 1977
(Ex. M-159) . There he stated as follows :
The D .D .G . (Ops) [Mr . Sexsmith], when asked for his recollections of his
instructions to Supt . Robichaud on the evening of May 31st and specifically
in relation to the second meeting with McCleery, stated that this meeting
was agreed upon to solicit additional information on McCleery's
allegations .
June 1, 197 7
13 . Mr . Robichaud returned to Montreal on the evening of May 31, 1977 . On
June 1, 1977, Mr . Albert was called to Mr . Robichaud's office and was, Mr .
421
�Albert testified, asked to try to see Mr . McCleery again and obtain more
information on Mr . McCleery's intentions about going to see the Solicitor
General and at the same time to try to dissuade Mr . McCleery from divulging
the facts that he knew . Mr . Albert acknowledged to us that it was also in his
own personal interest not to have the facts divulged because he was implicated
in certain of the operations of which Mr . McCleery knew . Mr . Albert testified
that in the discussion he had with Mr . Robichaud the point was made that it
was not only the R .C .M .P . itself, but also other individual members of the
R .C .M .P ., who would be involved . He told us that there was again a discussion
that he should try to dissuade Mr. McCleery from communicating information
to the Solicitor General ; that the reason that he was to see Mr . McCleery the
second time was to try to convince him not to divulge things that he knew to
the Solicitor General ; and, that he has no doubt that that was the reason fôr his
meeting with Mr . Robichaud (Vol . 191, pp. 28218-21) . According to Mr .
Albert, at the time of his meeting with Mr . Robichaud he did not know that
the latter had gone to Headquarters in Ottawa the previous evening to report
on the first conversation Mr . Albert had had with Mr. McCleery . Later, Mr.
Albert told us that when Mr . Robichaud called him into his office on June 1,
1977, the reason that he was to go back to see Mr . McCleery was not to obtain
further or additional information because they had already obtained the
information on May 31, 1977 . He said that his recollection is that he was not
directly ordered as such - that is, not given a written order - to persuade
Mr . McCleery not to divulge the information to the Solicitor General, but as
he understood it that was understood by himself and Mr . Robichaud tobe the
reason for his going to see Mr . McCleery a second time (Vol . 198, pp .
29222-4) . Mr . Albert also told us later that he personally had nothing to gain
or lose in trying to convince Mr : McCleery not to talk to the Solicitor General
(Vol . 198, p . 29231) .
14 . We turn now to Mr . Robichaud's account of what occurred at the
meeting between himself and Mr . Albert on June 1 : He asked Mr . Albert to
meet again with Mr . McCleery . He imagines that they had a discussion as to
what information Mr . Albert should seek but he cannot recollect it . To the best
of his recollection he asked Mr . Albert to find out if there were any other
incidents that Mr. McCleery was going to expose but he did not give Mr .
Albert "an indication that he was to talk to Mr . McCleery in such a way as to
try to dissuade him from seeing the Minister or representatives" of the
Minister . He does not recall having instructed Mr . Albert, or having indicated
in any way to him, that he should attempt to dissuade Mr . McCleery from
talking to representatives of the Solicitor General (Vol . 190, pp . 27961-2) .
(Later, more positively, Mr . Robichaud said that he "most certainly did not
instruct him to prevent McCleery from going to the Minister", p . 28022 .)
Whatever information he obtained through sending Mr . Albert to talk to Mr .
McCleery he intended to give to Mr . Sexsmith, but he had no idea what Mr .
Sexsmith would do with it (Vol . 190, pp. 28022-36) . In meeting with Mr.
McCleery on June 1, Mr . Albert was acting in the line of duty . In order to have
the meetings of May 31, and June 1, with Mr . McCleery, Mr . Albert had to be
authorized by him to attend such meetings (Vol . 190, pp . 27954, 27961-2,
28022) .
422
�15 . On June 1, Mr . Albert phoned Mr . McCleery and arranged a tennis
match for that day, and they accordingly played the tennis match and had
lunch together . Mr . Albert recorded his expenses for the tennis match and the
lunch in his diary and thinks that he must have been reimbursed by the
Security Service (Vol . 191, pp . 28222-3) . At that meeting of June 1, 1977, he
told us, he tried to convince Mr . McCleery not to go to Ottawa . He testified
that he has no precise recollection whether the incidents mentioned the
previous day were discussed again but they may have been . He told us he
would very much have liked to have succeeded in convincing Mr . McCleery not
to go to see the Solicitor General and that following the meeting he wrote in his
diary "meeting not too encouraging" (Vol . 191, pp . 28224-5) . Mr . Albert
testified that at the first meeting, on May 31, the purpose had been to try to
find out what revelations Mr . McCleery intended to make to the Solicitor
General or his officials, and his intention at the June 1 meeting was to dissuade
Mr . McCleery (Vol . 191, p . 28280) .
16 . Mr . McCleery testified that at the June 1 meeting with Mr . Albert there
is no doubt he discussed his proposed visit to the Solicitor General's office, and
that Mr . Albert was probably trying to dissuade him from going . However, Mr .
McCleery noted that Mr . Albert had been doing that ever since he, McCleery,
had been discharged . He told us that every time he tried to take his case to
Federal Court, Mr . Albert would ask him why he wanted to do that becausé
everybody knew that Mr . McCleery had not done anything . According to Mr .
McCleery, Mr . Albert's recurring theme was "What do you want to push this
thing for?", and the same theme was present at the June 1 meeting . At the
meetings of May 31 and June 1 Mr . McCleery did not have the impression that
Mr . Albert was pressing him to drop his going to Ottawa any more than he
always did (Vol . 189, pp . 27729-32) . Mr . McCleery stated that he does not
recall telling Mr . Albert at those meetings examples of things that he might
possibly use to substantiate his concern about the Minister being lied to . He
told us that he does recall reminiscing at lunch with Mr . Albert and laughing
about the A .P .L .Q . being an isolated case, and that each of them was recalling
things that he knew about matters about which no one [else] knew anything
(Vol . 189, pp . 27734-6) . He testified that Mr . Albert did not tell him not to go
and talk to Mr . Tassé or not to go and talk to someone in Ottawa, and that M t .
Albert's position was just generally "drop your - trying to get reinstated" .
According to Mr . McCleery, Mr . Albert did not say that like an official
representative of the Force, and he always presumed that Mr . Albert was
speaking on his own behalf ( Vol . 189, pp . 27788-9) .
17 . Mr. Sexsmith testified that the Security Service did not mean to prevent
Mr . McCleery from seeing the Solicitor General and from telling him whatever
he was going to tell him . Mr . Sexsmith stated that he was aware that Mr .
Albert was personally concerned about what Mr . McCleery was going to do
but that he is not aware of any efforts by anybody after May 31, 1977, to
change Mr . McCleery's direction (Vol . 190, pp . 28055, 28090) . He told us that
he does not think that he "was ever under any illusion that [Mr . McCleery]
would not pursue his stated aim" of meeting the Minister (Vol . 190, p. 28091) .
423
�Reports by Mr . Albert
18 . Mr . Albert testified that he is positive that he had made a written
statement to Mr . Robichaud in relation to the meetings of May 31 and June 1
(Vol . 190, p . 27917) . He also said that he made a written report which he
believes he would have addressed to Mr . Ferraris (Vol . 191, p . 28217) . He told
us that he does not think that these meetings were exceptions to what he
understood was the rule requiring written reports of such meetings (Vol . 191,
p . 28228) .
19 . Mr . Robichaud testified that he presumes that Mr . Albert reported
(verbally) to him after the June 1 meeting and that he imagines that he
conveyed the information received to Ottawa and the fact that Mr . Albert had
had a second meeting with Mr . McCleery (Vol . 190, pp . 27978-80) . He told us
that he did not receive a written report from Mr . Albert with respect to the
June 1 meeting, nor a report at a later date of the May 31 meeting, nor did he
receive a memorandum from Mr . Albert relating to his meetings with Mr .
McCleery . He said it was the usual practice that when someone was sent out
on a mission he would report in writing and file some information, but that he
may have told Mr . Albert not to bother to file a written report because he,
Robichaud, had all the facts . He said, however, that he does not recollect the
line of discussion . He said he would be surprised if Mr . Albert had made a
written report to some other officer without advising him and that he is not
aware of any other written report. We have not seen any written report by Mr .
Albert ; the R .C .M .P . have advised us that they have not found any such
reports .
20 . At the beginning of June Superintendent Nowlan was instructed by
Commissioner Nadon to conduct an internal investigation into the allegations
being made by Mr . McCleery . In the course of this investigation, he called in
Mr . Albert on June 16 . Mr . Albert testified that at Mr . Nowlan's request he
prepared a written report concerning his meetings with Mr . McCleery . He said
he retained a copy of that report (Vol . 191, pp . 28233-6 ; Ex . M-158) . He said
that he believes that when he made the June 16 report he referred to the two
reports which he asserts he had earlier given in writing . He further said that his
memory may be wrong but he believes when he made the June 16 report he
was aided by two reports that he had already made (Vol . 191, pp . 28238-9) . In
the statement he gave Mr . Nowlan, Mr. Albert stated as follows :
5 . My second meeting with McCleery was on Wednesday June I st, 1977
when I called him and invited him to a game of tennis at the St . Laurent
Tennis Club on Jules Poitras St ., Ville St . Laurent . The reason for this
meeting, of which Supt . Robichaud was aware, was to convince McCleery
not to pursue his intention to divulge whatever he knew of incidents that
occurred during his service because he would lose the respect of his ex
confreres and discredit them for things that they believed were right in the
fight against Terrorism (the F .L .Q .) . His determination was still very
evident and I believe not even the Pope could have convinced him to change
his mind.
November 8, 197 7
21 . Supt . Barr joined the R .C .M .P. in 1953 and has served in the Security
Service since 1955 . Upon the creation of this Commission of Inquiry in Jul y
424
�1977, he was appointed to head the Security Service component of the
R .C .M .P . Task Force set up to liaise with us and our staff . That Task Force
also had a C .I .B . component . The Co-ordinator of the Task Force in 1977 was
Assistant Commissioner Quintal who, in that position, represented the Commissioner's office . Superintendent Barr served as Head of the Security Service
'
Task Force until November 1978 .
22 . Mr . Barr testified that on November 6, 1977, he was called to a meeting
at R .C .M .P . Headquarters at which those present were Mr . Quintal, Superin=
tendent D .K . Wilson (also of the Task Force), and Mr . Nuss and Mr . Lutfy
(government counsel) and Mr . Howard (Chief counsel for the Commission) .
Mr . Barr told us that it was at that meeting that he first directed his attention
to Mr . Albert's statement of June 16, 1977 (Ex . M-158), which had formed
part of the "Quintal-Nowlan Report", produced during the summer as a result
of the internal investigation . At the meeting concern was raised, probably by
Mr . Nuss or perhaps by Mr . Lutfy, particularly about the contents of
paragraph 5 of the statement (quoted above) . The concern that was expressed,
according to Mr. Barr, was that, if paragraph 5 remained as it was, it implied
an obstruction of justice in the spring of 1977 (Vol . 194, pp . 28497-9) . Mr .
Barr told us that the part of the paragraph especially singled out as being of
concern was " . . .the part that suggests that the reason for this meeting of
which Supt . Robichaud was aware was to convince Mr . McCleery not to
pursue his intention to divulge whatever he knew" . He said that it was agreed
that "we would approach the individuals involved and determine whether or
not the reading of that paragraph as it came through was the way it appeared
to be" (Vol . 194, p . 28501) . He said he came away from the November 6
meeting with a consensus as to what had to be done and it was then necessary
to confirm that through the Director General of the Security Service, Mr .
Dare . Mr . Barr testified that he was then given instructions to approach the
individuals involved and solicit their comments and to report on it, and that he
probably received those instructions as a result of a discussion between Mr .
Quintal and Mr . Dare, based on his briefing of Mr . Dare as to what the issue
was . However, he is not sure what discussions Mr . Dare had with either Mr .
Quintal or the Commissioner's office, if at all . He told us that he thought his
instructions came from Mr . Dare (Vol . 194, pp . 28503-7) .
23 . The lawyers who were present at the meeting of November 6 have agreed
on the following statement :
On November ]st, 1977, Joseph R. Nuss, Q.C . and Allan Lutfy, both
counsel to the Solicitor General, in the presence of then Assistant Commissioner Raymond Quintal, had seen, among other documents, the document
which is now Exhibit M-158 .
On November 5, 1977, Messrs . Nuss and Lutfy, when they were going
through the Quintal-Nowlan Report at RCMP Headquarters in Ottawa,
noted that Tab 46 (now Exhibit M-158) contained the following text :
"My second meeting with McCleery was on Wednesday June lst, 1977
when I called him and invited him to a game of tennis at the St . Laurent
Tennis Club on July Poitras St ., Ville St . Laurent . The reason for this
meeting, of which Supt . Robichaud was aware, was to convince McCleer y
425
�not to pursue his intention to divulge whatever he knew of incidents that
occurred during his service because he would lose the respect of his ex
confreres and discredit them for things that they believed were right in the
fight against terrorism (the F .L .Q .) . His determination was still very
evident and I believe not even the Pope could have convinced him to
change his mind . "
Messrs . Nuss and Lutfy became interested in that text since it seemed to
indicate a possible attempt a) to prevent the representative of the Solicitor
General from learning certain allegations and b) to persuade McCleery not
to divulge criminal acts . They drew the attention of Assistant Commissioner R . Quintal to this document on the same day and indicated that they
intended to raise this question with J .F . Howard, Q .C ., Chief Counsel to
the Commission .
This was done at a meeting held on the next day, November 6, which was
attended by J .R . Nuss, Q .C ., A . Lutfy, J .F . Howard, Q.C ., Assistant
Commissioner R . Quintal, Superintendent D .K . Wilson and Superintendent
A .M . Barr .
During the discussion, the RCMP expressed a desire to clarify this question
through an interview with Staff Sergeant J .L .G . Albert and Superintendent
H . Robichaud . J .F . Howard, Q .C . accepted this suggestion provided that
the result be communicated to him . J .R . Nuss, Q .C . and A . Lutfy agreed to
this manner of proceeding .
At no time during the discussion of November 5 between J .R . Nuss, Q .C .,
A . Lutfy and Assistant Commissioner R . Quintal, nor during the meeting of
'November 6, was there any question of other declarations or reports by or
from Albert other than M-158 .
(Ex. UC-84 . )
24 . Mr . Barr explained to us how he viewed the task he carried away from
the meeting of November 6, as follows . He was given the responsibility of
interviewing three people about a paragraph in a single statement andseeking
clarification of that paragraph, and that this is what he did (Vol . 194, p .
28545) . His notes with respect to that meeting state "Annex 46, paragraph 5,
check who knew about approach to McCleery", and written beside it is "okay"
and underneath entered later is "memo written 8-11" . The memo referred to is
his memorandum of November 8, 1977 (Ex . M-159 ; Vol . 194, p . 28568) . As he
recalls it "the approach to be followed from the 6th of November was (a)
check who knew about the approach to McCleery, but also that the responsibility of interviewing these people would be left to us in the Task Force as
opposed to establishing an investigation" (Vol . 194, p . 28569) . It seemed to
him, knowing how the system operates, and having experienced it in other
quarters, that a discussion would have taken place between himself and Mr .
Quintal to the effect that there was a problem and how they were to deal with
it ; that the two options were to conduct a formal investigation which was liable
to get them nowhere or to try the route that they did which was for the Task
Force to get the information by talking to the Security Service people (Vol .
194, pp . 28625-6) . It had been agreed upon as policy that the Task Force were
not investigators, they were researchers and that the reason for that was that,
while the Task Force were doing their utmost to uncover the material that
related to the issues the Commission would look at, it was clear to them that i f
426
�they were seen by members of the Security Service as investigators or an
inquisitorial body people would simply not talk to them (Vol . 194, p . 28502) .
He was not acting as an investigator . The information could have provided the
basis for an investigation had it been decided to do so (Vol . 194, p . 28627) . The
Task Force were under very firm instructions that if, in any discussions with
anyone in the course of their research, they came across anything that had the
slightest hint of criminality they were to cease their discussions and their
research and turn the matter over to Mr . Quintal, who would then order an
investigator to go in and take a statement . As he understood his assignment, it
was to get the comments of the individuals involved in the framework of the
research approach, putting down comments as accurately as he could and
submitting them to senior management in order that a further decision could
be taken on how to proceed . That is what he did (Vol . 194, p . 28503) . He spoke
to the three persons involved, recorded as accurately as he could their observations on the particular paragraph and submitted it to the Director General
(Vol . 194, p . 28512) .
25 . On Monday, November 7, Mr . Barr telephoned Mr . Robichaud in
Montreal and asked him to come to Ottawa and to bring Mr . Albert with him .
Mr . Robichaud phoned Mr . Albert at home on the evening of November 7, but
he was not at home at the time . Mr . Albert returned the call that same
evening, at which time Mr . Robichaud told him that he had to go to Ottawa
the next day and that he should meet Mr . Robichaud at a shopping centre in
Montreal at 6 :30 the following morning . Mr. Albert testified that Mr . Robichaud did not tell him why he had to go to Ottawa and he had no idea why he
was going . However, Mr . Robichaud told us that he told Mr . Albert that he
had to go to Ottawa because Mr . Barr had asked . Mr . Robichaud testified that
Mr . Barr told him in the telephone conversation that the purpose of the
meeting was to clear up some discrepancy, but that Mr . Barr did not seem to
want to discuss it and just asked whether he could be in Ottawa and bring Mr .
Albert with him (Vol . 190, pp . 27999-28000 ; Vol . 191, p. 28242) . Mr . Barr
said that he does not think he indicated to Mr . Robichaud why he wanted to
see him and Mr . Albert and that he thinks they were just told that at
Headquarters they wanted to talk to them about something which was going on
in the Task Force (Vol . 194, pp . 28513-4) . Mr . Barr said that there was no
doubt anywhere that this was something that had to be resolved rather quickly
and that that would be the basis upon which it was put to Mr . Robichaud (Vol .
194, p . - 28515) .
26. Mr . Robichaud met Mr . Albert the next morning as arranged, and they
drove to Ottawa . Mr . Albert testified that he was not told why they had been
summoned to Headquarters (Vol . 191, p . 28279) .
27. Mr . Barr testified that in preparation for the meetings he did not obtain
any other document, report, statement or note in relation to the meetings
between Mr . Albert and Mr . Robichaud and that "to [his] knowledge" Mr .
Sexsmith did not give him a background explanation as to why the meeting had
occurred and why it had taken place on June 1(Vol . 194, p . 28517) . Mr . Barr
told us that he does not recall, before Mr . Robichaud arrived, having obtained
from Mr . Robichaud or from anybody else information in relation to th e
427
�meetings that Mr . Albert had with Mr . McCleery, and that he undertook no
preparation for the meetings with the people involved other than by getting a
copy of the June 16 statement (Vol . 194, pp . 28518-9) . He said that he has no
recollection of having seen the memo for file dated May 31, 1977, prepared by
Mr . Robichaud (Ex . M-112 for identification) and that the information in that
memo was not given to him before or at the meeting of November 8, 1977
(Vol . 194, pp . 28522-3) .
28. Mr . Barr testified that his recollection is that on November 8, he first
spoke to Mr . Robichaud while Mr . Albert waited outside and he then spoke to
Mr . Albert after Mr . Robichaud had left . Mr. Robichaud said he does not
recall having been present when questions were asked of Mr . Albert and that
he cannot recall whether Mr . Albert was present when Mr . Barr asked
questions of him, Mr . Robichaud (Vol . 194, p . 28525 ; Vol . 190, p . 28004) . Mr .
Albert said that he and Mr . Robichaud went to Mr . Barr's office, they talked
for several minutes, Mr . Barr explained to them what it was about, Mr .
Robichaud withdrew, and he stayed with Mr . Barr at which time Mr . Barr
questioned him (Vol . 191, p . 28246) .
29 . We turn now to what Mr . Robichaud told Mr . Barr that November 8 .
According to Mr . Barr, Mr . Robichaud said to him in effect, "I did not order
him to go see McCleery to get him to keep his mouth shut" but Mr . Robichaud
acknowledged that Mr . Albert may have understood him to have said that . In
other words, Mr . Barr testified that Mr . Robichaud, although quite clear in his
own mind as to whether he had given an order to Mr . Albert to go see Mr .
McCleery to get him to keep his mouth shut, felt that Mr . Albert may have his
own recollection of that (Vol . 198, pp . 29081-84) . Mr . Barr told us that he
cannot recall whether Mr . Robichaud indicated to him, on November 8, that
Mr. Albert had tried to persuade Mr . McCleery not to go to see the Solicitor
General at the time that he met with him the second time (Vol . 198, p . 29100) .
30 . Mr . Albert's testimony as to what occurred between him and Mr . Barr is
as follows : The meeting lasted from three-quarters of an hour to one hour (Vol .
191, p . 28286) . Mr . Barr told him that they had received legal advice or a legal
opinion from the Solicitor General's office or the Justice Minister, he does not
know which one, "to the effect that if his statement were to remain exactly the
way he had written it the Force would be subject to legal action or criminal
action for intervening with the law or something like that" (Vol . 191, pp .
28249-50) .
Q. Once he had made that comment did he request you to do anything? .
A . Well he asked of me to change that paragraph, and he asked my
permission whether I would agree to change it and I said yes .
(Vol . 191, p . 28250 . )
And again :
I was asked to change the report . [our translation]
(Vol . 191, p . 28272 . )
He did not have a gun pointed at his head when the request was made and he
was free to do it or not . When he was asked and it was explained to him, he
was agreeable to the change, to avoid problems . He was not forced and his ar m
428
�was not twisted to get him to do it . He felt it was logical or reasonable in the
context of the times to avoid even more problems than those they already had
(Vol . 191, pp . 28249-5 1) . Mr . Barr did not influence him in any way nor did he
try to persuade him by threats or in any other way . Mr . Barr took the trouble,
however, to explain to him the problems which would be caused to the
R .C .M .P . if his statement remained as it was and he read between the lines
what Mr . Barr was saying to him (Vol . 198, pp . 29245-6) . He felt he was
caught between his duty to tell the truth and his duty to be loyal to the Force
and he opted for loyalty to the Force (Vol . 191, p . 28258) . He is not sure which
report he was asked to change, whether that of May 31, June 1, or June 16 and
he was not shown the date . There were several reports that he had submitted
where he mentioned having received an order from Mr . Robichaud to meet Mr .
McCleery and convince him not to divulge the facts that he knew (Vol . 191,
pp . 28271) . Mr . Albert said that he thought that it was the statement that he
had given after the June 1 meeting with Mr . McCleery that was discussed with
Mr . Barr, but that he has been told that it was the June 16 statement and he
accepts that (Vol . 198, p . 29247) . He was asked to change a report and then
there was another paragraph which was added to the effect that he told Mr .
Barr that he considered Mr . McCleery a friend and that as far as he was
concerned Mr . McCleery was an honest man (Vol . 191, p . 28272) . Mr . Barr
told him that he was going to re-do the statement and would recall him . Then
Mr . Albert went to .the Security Service offices in the Headquarters building .
Mr . Barr called him later in the afternoon and indicated to him the statement
that he should sign . Mr . Barr read the statement but Mr . Albert himself did
not read it . He signed it at the bottom and left . Mr . Barr dictated the
correction to his secretary, in front of Mr . Albert (so Mr . Albert believes), and
that he was called back and shown the text and the corrections were read to
him . He said that it was a three-page report and that he read in the report the
paragraph concerning the fact that he was a friend of Mr . McCleery and
considered him an honest man and that he saw that before signing (Vol . 191,
pp . 28272-5) . (Here we pause to note that no such signed report has been
produced by the R .C .M .P ., and that what the R .C .M .P . did produce was
Superintendent Barr's memorandum (Ex . M-159), which consists of two pages,
the second of which, we observe, was typed on a different typewriter than the
first page .) Mr . Albert's conscience was not troubled by the request to change
his report . The R .C .M .P . sensed that it was in difficulty and he felt an
obligation or duty to change the report . When he was told that the R .C .M .P .
was in difficulty he believed it was his duty to see things differently and
therefore he changed his declaration voluntarily without anyone, including Mr .
Barr, influencing him in any way or putting words in his mouth . He did it
voluntarily, believing sincerely that he could help the R .C .M .P., and also at the
same time, by changing the declaration, it would rid the Force of some
problems . His loyalty to the Force superseded his personal interests, as far as
he was concerned, but as he did not have any interest in saying one thing or
another, there was no conflict of interest between him and the R .C .M .P . (Vol .
191, pp . 28277-8, 28329-30) .
31 . Mr . Albert testified that paragraph 5 of his statement of June 16, 1977
(Ex . M-158) where he said, " . .. the reason for this meeting, of which Supt :
429
�Robichaud was aware, was to convince Mr . McCleery not to pursue his
intention to divulge whatever he knew of various incidents" meant that Mr .
Robichaud was aware of both the meeting and of the reason for the meeting .
He told us that the contents of paragraph 5 were true and that the version in
Mr . Barr's memorandum (Ex . M-159) at page 2, where it is said that Mr .
Albert went to see Mr . McCleery on June 1 to try to get additional information
on what he was going to tell the Solicitor General, is not true . He said that Ex .
M-159 is false (Vol . 198, pp . 29220, 29234, 29237) . He told us that he does not
recall whether the document that Mr . Barr read to him was Ex . M-159, and
that he thought the document he signed had three pages while M-159 has only
two, but he acknowledged that the document could be M-159 (Vol . .198, pp .
29242-3) .
32 . Mr . Barr's evidence as to what transpired is as follows : He has no way of
knowing whether Mr . Robichaud knew in advance or had some expectation as
to why he had been called to Ottawa and his recollection is that he had
explained it to Mr . Robichaud . Once Mr . Robichaud knew what the issue was
he was quite aware of why the concern was there and was quite intense about
the matter and his desire to see it resolved (Vol . 194, pp . 28525-32) . Mr .
Robichaud did not explain to him that he had had a meeting on May 31, nor
can he remember Mr . Robichaud having said that he could complete the issue
by giving him documents like the memo of May 31, 1977, or any other
document (Vol . 194, p. 28537) . He did not offer Mr . Robichaud the opportunity of reading what he, Barr, wrote and Mr . Robichaud laid out how he felt
about the issue and that was it (Vol . 194, p . 28536) . He did not show Mr .
Robichaud his memorandum afterward . He does not think that Mr . Albert
knew what the purpose of the meeting was and for that reason he thinks Mr .
Albert was "somewhat nervous" . He pointed out to Mr . Albert the statement
that was of concern, indicated to him that, on the basis of the statement in its
then existing form, concern had been expressed by government lawyers that
"there had been a tampering with the process of justice" . He thought that Mr .
Albert realized that "if the statement stood" Mr . Robichaud was involved, and
that Mr . Albert was "very upset" . He told Mr . Albert that he had been asked
to speak to him to seek clarification of what he meant when he wrote the
particular sentence or sentences . He indicated to Mr . Albert there was concern
about the paragraph and asked him whether "the meaning that appeared to
jump out at those who read it" was what he, Albert, "was trying to get across",
and, "if not, what was his meaning" (Vol . 194, pp . 28552-8, 28572) . Mr .
Albert was "very tense" and "very troubled" because, in Mr . Barr's perception,
Mr . Albert was a man who was in the midst of a very real human dilemma ;
and it was a dilemma that came about as a result of a conflict between his
responsibility to an organization he was employed with, and an obligation of a
personal friendship of some twenty-four years . Mr . Albert opened up the
dilemma quite clearly to him and he, Mr. Barr, made it quite clear to Mr .
Albert that he would endeavour to articulate as clearly as he could in the
memo that he had to prepare the position that Mr . Albert found himself i n
such a way that there would be no obscurity, there would be no misunderstanding about his motives ; and that hopefully, he could go away feeling a
430
�little better ; that, at least, the record was straight on his dealings with Don
McCleery and his personal relationship with him .
He did not at any time use words that could lead Mr . Albert to understand that
he wanted Mr . Albert to change his statement . He did not indicate to Mr .
Albert that there was a complete change of his statement by the words "he was
not given an order to attempt to influence McCleery's course of action, but was
asked to meet with him to gain additional information or allegations" . The
memorandum that Mr . Barr wrote was an "attempt to clarify the meaning of
paragraph 5, not to change paragraph 5" . Had the statement been changed
then his understanding of the procedure would have been that someone would
have taken a new statement from Mr . Albert . He did not and "to [his]
knowledge" no one else did and therefore he did not regard Mr . Albert's
statement as having been "changed" (Vol . 194, pp . 28605-6) . Mr . Albert,
having "become aware of the implications of what he had written", then "went
on to elaborate what he really meant", and "it came out that it was really the
meeting he [Robichaud] was aware of" (Vol . 198, pp . 29098-9) - in other
words, he was not aware of "the reason" for the meeting . The question of the
state of knowledge of Mr . Robichaud was not discussed with Mr . Albert on
November 8, and the only question that was discussed with Mr . Albert was
whether Mr . Robichaud had given him an order . In an attempt to make sure
that the process was as fair as it could be, and because his English was better
than Mr . Albert's, he agreed to draft a paragraph which he hoped would
"encapsulate" Mr . Albert's concerns in such a way that Mr . Albert would feel
comfortable that they were recorded . He invited Mr . Albert back to his office
to see that this was done and to let him see what was going on the record . For
that reason, when a paragraph was drafted, Mr . Albert came back and read it .
He has no recollection of Mr . Albert having signed it nor of having asked him
to sign it . He just showed Mr . Albert paragraph number 4 on page 2 of Ex .
M-159 (Vol . 194, pp . 28573-7) . He asked Mr . Albert if he wanted to explain
what he really meant by the words used in paragraph 5 of Ex . M-158, and
paragraph 4 of his report (Ex . M-159) is Mr . Albert's explanation, as given to
him by Mr. Albert . Mr . Albert was not before him under duress an d
There was certainly no request from me, or intention on my part, for Mr .
Albert to change his statement .
(Vol . 194, p. 28581 . )
Mr . Barr could not answer with any accuracy whether Mr . Albert indicated to
him that he had been ordered to see Mr . McCleery on a couple of occasions
and that this occasion was one of them, nor does Mr . Barr know whether they
discussed whether Mr . Albert had gone to see Mr . McCleery at Mr . Robichaud's request (Vol . 194, p . 28578) . He does not believe Mr . Albert said he
made a mistake . He thinks Mr . Albert's "feeling was that perhaps because of
the language, there was a misunderstanding, and a misinterpretation of what
he [Albert] meant, and that one could only understand what he meant, if he
was able to unfold [the] feelings" that he, Mr . Barr, had earlier described to us
(Vol . 194, p . 28579) . He does not recall Mr . Albert telling him that documents
had been filed with his superiors or that he had documents back in Montreal .
No documents were produced or discussed other than paragraph 5 of the Jun e
431
�16 statement (Vol . 194, pp . 28559-60) . To Mr . Barr's recollection, Mr . Albert
did not request any changes, corrections or additions and he thinks that he was
quite pleased with paragraph 4 of Ex . M-159 . Mr . Barr did not ask Mr . Albert
to sign the memorandum . The contents of the paragraph were somewhat of a
relief to Mr . Albert and Mr . Albert was rather pleased to see that it had come
out the way it had and therefore there was no question of asking him to initial
a draft or anything else (Vol . 194, pp . 28598-28602) .
33. Mr . Barr said that his recollection is that as soon as Mr . Albert left his
office he dictated paragraphs one, two, three and four of his memo (Ex .
M-159) and he then went up and saw Mr . Sexsmith and paragraph five was
added after he saw Mr . Sexsmith . He said that pages one and two of his
memorandum appear to have been typed with two different typewriters and he
has no explanation for that fact (Vol . 194, pp . 28585(b), 28603-4) .
34. Mr . Barr testified that Mr . Sexsmith became aware that he, Mr . Barr,
was going to look into paragraph 5 of Mr . Albert's statement either because he,
Barr, told him or because the Director General told him, or both . He told us
that the question of who should be talked to would have been something
discussed between himself, Mr . Quintal and Mr . Dare probably the morning of
November 7 . He said that it was well known within the Task Force that
anything dealing with the relationship that existed between Messrs . Albert and
McCleery involved two key people, Messrs . Robichaud and Sexsmith, and that
if you were "going to look at who could have been involved in the conspiracy to
direct or suppress the comments of Mr . McCleery, it had to include Henry
Robichaud and Murray Sexsmith" (Vol . 198, pp . 29041-7) . He said that when
he met with Mr . Sexsmith, Mr . Sexsmith knew full well what the issue was
(Vol . 194, p . 28590) . He said that Mr . Sexsmith was greatly concerned by
what the paragraph suggested .
35. Mr . Barr testified that he did not discuss with Mr . Robichaud, or Mr .
Sexsmith, or Mr . Albert whether Mr. Robichaud was aware that Mr . Albert
intended to try to persuade Mr . McCleery, for whatever reason, not to go to
the Solicitor General . As far as Mr . Barr was concerned, that was not the issue
- the issue was whether or not Mr . Albert was ordered to do so (Vol . 198, p.
29205) . He said that anything that Mr . Albert did on his own initiative causing
a potential legal problem would have to have been dealt with by the investigative side or the "Quintal side" of the Brunet/McCleery investigations (Vol .
198, p. 29179) .
CONCLUSIONS
The meeting between Superintendent Robichaud and Staff Sergeant Albert on
June 1, 197 7
36 . We conclude that Superintendent Robichaud did not actually order Staff
Sergeant Albert to try to dissuade Mr . McCleery from divulging facts to the
representatives of the Solicitor General . Mr . Albert himself did not claim that
any such order had been given . However, we accept Mr . Albert's evidence,
which was not denied by Superintendent Robichaud, that the two men di d
432
�discuss the undesirability of Mr . McCleery divulging facts to the Solicitor
General's representatives . We think that when, fifteen days later, Mr . Albert
gave his written statement, his memory of what had occurred was fresh and he
had no reason to misstate the facts . What he said'in that statement was, we
think, without ambiguity ; we think that the words "The reason for this
meeting, of which Supt . Robichaud was aware, was to convince McCleery not
.
to pursue his intention to divulge whatever he knew . ." meant not only that
Superintendent Robichaud was aware of the meeting but also that he was
aware that Mr . Albert intended to try to dissuade Mr. McCleery . Mr .
Robichaud did not have to give Mr . Albert an order to try to dissuade Mr .
McCleery . Mr. Albert could reasonably draw an inference, from the request
that he see Mr. McCleery again, and the discussion about the undesirability of
Mr . McCleery divulging facts, that Superintendent Robichaud would not be
displeased if Mr . Albert were to be successful in dissuading Mr . McCleery . We
think that it was unacceptable that Mr . Robichaud permitted Mr . Albert to go
off to meet Mr . McCleery again, knowing that Mr . Albert intended to try to
dissuade Mr . McCleery, without instructing him that he was not to make such
an attempt . His failure to give such instructions cannot be distinguished in its
effect from giving an order to Mr . Albert to try to dissuade Mr . McCleery .
37 . Did Mr . Sexsmith have anything to do with what Mr . Robichaud did?
We think that it is plain from Mr . Sexsmith's own candid evidence that when
he met Mr . Robichaud on the evening of May 31 the concern was not with the
possibility that Mr . McCleery would go to the press, nor with getting more
details about what Mr . McCleery might divulge to the Solicitor General's
representatives, but with whether Mr . McCleery might still not divulge any
facts to them . While Mr . Sexsmith did deny to us that he and others had
"meant to somehow prevent McCleery from seeing the Solicitor General and
prevent McCleery from telling him whatever he was going to tell him" (Vol .
190, p . 28055), we are satisfied, on the basis of Mr . Robichaud's evidence, that
on the evening of May 31 he and Mr . Sexsmith did discuss having Mr. Albert
go back to see Mr . McCleery a second time, and that Mr . Sexsmith at least
went along with that plan . Mr . Sexsmith's own memory of that meeting, as
testified to by him, is, at best, slight, and his denial lacks persuasiveness in
consequence . Mr . Sexsmith admits that h e
.was aware that Albert was personally concerned about what McCleery was
going to do .
(Vol . 190, p. 28090 . )
We conclude, on a balance of probabilities, that, knowing that Mr . Albert
wanted to dissuade Mr . McCleery, Mr . Robichaud and Mr . Sexsmith discussed
the matter and decided to send Mr . Albert to see Mr . McCleery a second time,
knowing full well that, unless forbidden to do so, Mr . Albert would attempt to
dissuade Mr . McCleery .
38 . We consider that it was unacceptable for Mr . Albert to attempt to
dissuade Mr . McCleery from divulging facts to the Solicitor General, and for
Mr . Robichaud and Mr . Sexsmith, in effect, to give him tacit encouragement
to do so. If a former member of the R .C .M .P . believes that he has information
about the R .C .M .P ., of which the Solicitor General should be made aware, it i s
433
�undesirable for members of the R .C .M .P . to attempt to discourage or prevent
him from doing so.
39. We do not conclude that it is a fact that Mr . Albert prepared written
reports of his meetings of May 31 and June 1 with Mr . McCleery . While Mr .
Albert expressed himself as being "positive" that he did so in regard to those
meetings, our impression of his evidence as a whole is that he is reconstructing
his memory based on what he says was the rule that written reports of meetings
with the ex-members were to be submitted . He does not say that these cases
were no exception to that rule . He says only that he does not "think" that they
were exceptions to the rule, and that he "believes" that when he prepared his
written report on June 16 he used the two earlier reports as references "That is the idea I have of it", he said (Vol . 191, p. 28238) . We think that this
evidence is insufficient upon which a conclusion can be reached that he made
written reports of the meetings of May 31 and June 1, other than the one he
prepared on June 16, and that therefore it is not surprising that the R .C .M .P .
could not locate any such reports .
The interview on November 8, 1977, of Staff Sergeant Albert by Superintendent Barr
40. On January 25, 1980, Mr . Albert was interviewed by a member of our
investigative staff . This interview was part of the normal method of inquiring
into complaints made by persons to us about the conduct of members of the
R .C .M .P . Mr . Albert had lodged a complaint with us concerning a matter that
he thought had occurred after he left the Force in 1978 and joined the private
security firm of which Messrs . McCleery and Brunet were members . In the
interview Mr . Albert referred to the discussion he had had on June 1, 1977,
with Superintendent Robichaud, in which, he stated, Superintendent Robichaud had "discussed" with him that he was to see Mr . McCleery a second
time and to "try to persuade" the latter not to see a representative of the
Solicitor General . Mr . Albert even referred to the possibility that certain
persons might interpret what Superintendent Robichaud had said rather as a
request than as an order . When testifying, Mr . Albert suggested that what he
said to our investigator constituted an allusion to the events of November 1977
involving himself and Superintendent Barr (Vol . C120, p . 15567) . We can
detect no such reference in what he said to .our investigator . In any event, Mr .
Albert himself finally told us that, when he met our investigator, he did not
intend to refer to "the Barr matter" (Vol . C120, pp . 15566-7) . Mr . Albert's
failure;to mention to our investigator what in June 1980 he testified to us had
occurred is, to us, the first indicator that Mr . Albert's testimony is not accurate
as to whether Mr . Barr, on November 8, 1977, asked him to change the report
he had made on June 16, 1977 .
41 . The second such indicator is found in the letter which his counsel, wrote
to us on May 2, 1980 . We must quote the letter in part :
Some time ago, I learned that immediately subsequent to a telephone
çall which Mr . McCleery had with the office of the Solicitor General in
which he indicated that "the APLQ incident" was not "an isolated incident" (as the then Solicitor General had implied) and agreed to meet wit h
434
�the then Deputy Solicitor General to elaborate on this, an active attempt
was made by a senior officer of the RCMP in Montreal through a more
junior officer, to ascertain what information McCleery would reveal . Subsequent to the report of this officer, following a meeting with McCleery, the
said officer received an order to again meet with McCleery and this time
dissuade him from divulging this information to the office of the Solicitor
General .
Written reports of these two meetings were filed by the said officer .
I believe this is significant since on June 6, 1977 when the Deputy
Solicitor General first advised the Solicitor General of the substance of the
information which inter-alia McCleery had communicated to him that
same day, the Solicitor General was attending a meeting with then Commissioner Nadon and General Dare . Both Nadon and Dare expressed
surprise at what McCleery had just divulged and suggested that his motives
were less than honourable . As at that date and in fact since the very latter
part of May, the RCMP were not only aware of what McCleery would
eventually disclose to the office of the Solicitor General and his motives in
so doing but had actively attempted to dissuade him from disclosing this
information to the office of the Solicitor General .
Subsequent to McCleery's meeting in Ottawa on June 6, 1977, the
internal RCMP report of this attempt to dissuade McCleery was destroyed
by a Superintendent of the RCMP who directed that another report, which
did not refer to "instructions to dissuade McCleery", be substituted : the
reason given by the Superintendent was that this original report would be
"compromising" to the RCMP if a Commission of Inquiry were ever
established and this document came to light .
The last paragraph quoted brought to our attention for the first time the
possibility that some then unspecified Superintendent had destroyed Mr .
Albert's report of the attempt to dissuade Mr . McCleery and substituted
another report . When we received Mr . Campeau's letter we considered this
allegation to be a most serious one, for, if true, it appeared to be an attempt on
the part of someone in the R .C .M .P . to alter the R .C .M .P .'s internal records
and thus perhaps to mislead us. It was in part because of this paragraph that
we scheduled hearings in June 1980 and subpoenaed Mr . Albert . (Another
reason was to inquire into the first allegation, that Mr . Albert had been
ordered to attempt to dissuade Mr . McCleery from disclosing facts to the
Solicitor General . )
42 . It was only when Mr . Albert was recalled to testify on March 11, 1981
that we realized that the last words of the paragraph were of special significance when we came to assess the credibility of Mr . Albert's serious allegation
against Superintendent Barr . It will be observed that the letter states that the
reason given by "the Superintendent" wa s
that this original report would be "compromising" to the RCMP if a
Commission of Inquiry were ever established and this document came to
light .
This is of vital importance, for here Mr . Albert's counsel states this as the
reason given by the Superintendent for destroying the report by Mr . Albert
and for issuing the "direction" that another report be substituted . Mr. Alber t
435
�admitted that he had given this information to Mr . Campeau . The "reason", if
it had been stated by Superintendent Barr, was such that it could have been
given only before the creation of a Commission of Inquiry . This Commission of
Inquiry was established on July 6, 1977 . Therefore, if that "reason" was stated
by Superintendent Barr, the incident between him and Mr . Albert must have
occurred before July 6, 1977 . In fact, however, we know it occurred in
November 1977 . Putting the problem created by this sentence of the letter
another way : we know that Mr . Albert met Superintendent Barr in November
1977 . Assuming that when Mr . Albert told Mr . Campeau what had been said
and done by Superintendent Barr, he had his dates wrong, it nevertheless
remains the case that he appears to have stated to Mr . Campeau that
Superintendent Barr gave a certain reason for what was being done . That
reason is so nonsensical that it could not have been given . Nor, we note, did
Mr . Albert state in hisotestimony that Superintendent Barr had given that
reason .
43 . The third such indicator is found in Mr . Albert's testimony that he raised
the allegation against Superintendent Barr for the first time when he told Mr .
Campeau . That must have been on March 13, 1980, for Mr . Campeau's
statement of account for services rendered shows that it was on that date that
he met Mr . Albert . Why did he tell Mr . Campeau then? He did so, he says,
"Sur le coup de la colère" ("in a fit of temper") . He says that he was
"tellement vexé" ("so annoyed") by the matter concerning which he had
lodged a complaint with the Commission that he embarked upon a discussion
with Mr . Campeau and mentioned his meeting with Superintendent Barr (Vol .
C120, p . 15562) .
44. For these reasons we disbelieve Mr . Albert's testimony that Superintendent Barr in November 1977 asked him to change a report that he had
previously made as to what Superintendent Robichaud had said to him . Rather
than conclude that Mr . Albert intentionally gave false testimony as to what
Superintendent Barr said to him, we think that the anger that from January
1980 to this day has been entertained by Mr . Albert toward the R .C .M .P . for
having, as he thinks, conducted surveillance upon him, has clouded his memory
as to what occurred between himself and Superintendent Barr . Furthermore we
accept the testimony under oath of Superintendent Barr tha t
There was certainly no request from me, or intention on my part, for Mr .
Albert to change his statement . Nor did I have a mandate to change his
sta(ement . His statement stood as it is . His statement still stands as it is,
and it is, as far as I know, the only statement on the records . All we have is
a memo that makes some comment on one paragraph in response to
questions raised .
We think that Superintendent Barr did open his meeting with Mr . Albert by
referring to the concern that had been expressed at the meeting with several
counsel, and that this may have led Mr . Albert to think that he was expected to
alter his story as to what Superintendent Robichaud had said to him . With
hindsight, it would have been preferable for Superintendent Barr not to have
mentioned what the concern was and simply to have asked Mr . Albert once
again to state what it was Superintendent Robichaud had said . The manner o f
436
�raising the subject was such that Superintendent Barr should have realized that
it might cause Mr . Albert to be concerned, not about the truth, but about
protecting the Force . As Superintendent Barr told us ,
The force is seen by people as being almost a family, and if you feel you are
about to betray the family, it is a very difficult thing to do . . . When you
have to balance the loyalty that you have to the members of the family, to
the loyalty of the family itself . I would submit it is a very, very difficult
position for anyone to be in .
(Vol . 194, p . 28584 . )
As Superintendent Barr was aware that members such as Mr . Albert have such
strong feelings of loyalty, it should not have come as a surprise to him that the
manner of raising the subject would, as he admits, be likely to cause Mr .
Albert to have concern as to whether Mr . Robichaud could be involved in a
criminal investigation (Vol . C194, p . 28585) . Nor should he have been
surprised that Mr . Albert did, as Superintendent Barr himself sensed, become
"considerably emotional about the dilemma he obviously felt he was in" (Vol .
194, p . 28583) .
45. Although Superintendent Barr's method of opening the subject was
unwise, when viewed with the perspective of hindsight and by the application of
a standard of perfection, that is a far cry from concluding that he intended to
cause Mr . Albert to mis-state the facts and be untruthful . We do not believe
that he said anything to Mr . Albert with the intention of ordering, or even
asking or expecting, Mr . Albert to falsify his account of what had occurred .
We do not fault Mr . Barr in any respect, not even as to the degree of wisdom
he used, for at the time we are satisfied that the pressures of time that were
upon him in November 1977 were very great . Moreover, we do not conclude
that Mr . Albert was lying when he made his allegation to us about Superintendent Barr . Rather, we believe that the emotions evoked by his anger at
being, as he thought, the object of surveillance in January 1980, clouded his
judgment when, later in 1980, he testified before us as to whether Superintend=
ent Barr had, on November 8, 1977, expected him to change his account of the
facts .
46 . As we have concluded that Superintendent Barr did not intend to direct
or persuade Mr . Albert to alter his version of what had occurred between him
and Superintendent Robichaud, it follows that we do not think that Superintendent Barr received any instructions or suggestions from any of his spperiors
that he should try to get Mr . Albert to change his story . There is no evidence of
any such conspiracy by members of the senior management of the Security
Service or the R.C .M .P ., and the likelihood of any such conspiracy is rendered
nugatory by the fact that no written statement was taken from Mr . Albert, so
that, in terms of written statements, Mr . Albert's statement of June 16, 1977,
remained unaltered .
47 . We, like Commissioner Gilbert, consider that Superintendent Barr's
memorandum on its face discloses that he failed to inquire into whether, even if
Superintendent Robichaud did not order or ask Staff Sergeant Albert to try to
prevent or persuade Mr . McCleery from divulging facts to the Solicitor
General's representative, nevertheless Superintendent Robichaud "was aware "
437
�(to use Mr . Albert's own words on June 16) of "the reason for the meeting" i .e . that Mr . Albert intended to try to persuade Mr . McCleery, and did nothing
to prevent Mr . Albert from making that attempt . However, we draw no
inference whatsoever from the failure of Superintendent Barr to inquire into
that issue . Superintendent Barr's memorandum answered the questions put,
but went no further .
Minority Report of Commissioner Gilber t
48 . 1 am satisfied that during the meeting between Mr . Robichaud and Mr .
Albert on June 1, 1977, prior to Mr . Albert's meeting with Mr . McCleery,
there was a discussion about Mr . Albert trying to dissuade Mr . McCleery from
going to see the Solicitor General or his representatives . I accept Mr . Albert's
evidence that such a discussion occurred . I believe that it was clearly understood between Mr . Robichaud and Mr . Albert that Mr . Albert should meet
immediately with Mr . McCleery with that purpose in mind since it is acknowledged by both Mr . Robichaud and Mr . Albert that the latter was on duty when
he saw Mr . McCleery on June 1 . 1 am satisfied that Mr . Robichaud ordered, or
instructed or asked Mr . Albert to carry out that mission . To me, whatever the
verb used, the relationship was one of a superior speaking to a subordinate . I
am satisfied that Mr . Robichaud ordered Mr . Albert to carry out that mission,
in the sense of a superior speaking to an inferior . I have no doubt that Mr .
Albert was more than willing to meet again with his old friend, Mr . McCleery,
and once again to try to convince him to stop pursuing his goal of obtaining
redress for his dismissal from the Force, but Mr . Albert was adamant that on
this occasion he was not doing it on his own initiative .
49 . Mr . McCleery's evidence was clear that Mr . Albert persistently tried . to
get him to drop his efforts to seek redress and that on June 1, 1977, he noticed
no difference in Mr . Albert's treatment of the matter . To him, Mr . McCleery,
Mr . Albert was counselling him in the same way as he had on previous
occasions .
50 . I consider that my conclusion in this regard is consistent with the words
used by Mr . Albert in his report of June 16, 1977, when he says :
The reason for this meeting, of which Supt . ROBICHAUD was aware, was
to convince McCLEERY not to pursue his intention to divulge whatever he
knew of incidents that occurred during his service because he would lose the
respect of his ex-confrères and discredit them for things they believed were
right in the fight against Terrorism (the F.L .Q .) .
I am also fortified in my conclusion by Mr . Albert's notes in his diary, made
following the meeting, in which he says : "meeting not too encouraging" . If his
mission had simply been to get more information, those words would not have
been appropriate; either he would have had the information or not . But if his
mission was to dissuade Mr . McCleery, then the words are appropriate to
describe his lack of success . I cannot accept Mr . Robichaud's evidence that he
was simply seeking more information as to Mr . McCleery's intentions . He did
not point to a single additional piece of evidence obtained by Mr. Albert on
June 1, 1977, nor to his having reported any such additional evidence to Mr .
Sexsmith . That is not conclusive, of course, but I consider it significant .
438
�51 . Counsel for the Government of Canada were rightly concerned when, on
November 6, 1977, they read the relevant sentence in Mr . Albert's report of
June 16, 1977, and attributed to it the possible meaning which they did . It was
clearly improper for the Force, or a member of the Force, to attempt to
dissuade Mr . McCleery from going to see the representatives of the Solicitor
General . The Force, itself, had an obligation to bring the matters raised by Mr .
McCleery to the attention of the Solicitor General .
52 . While there is no conclusive proof that Mr . Robichaud's conduct on June
I st resulted from instructions received from his superiors, it can be inferred
that Mr . Sexsmith and Mr . Nowlan were aware in advance of the intended
second meeting between Mr . Albert and Mr . McCleery . This was discussed on
the evening of May 31, when Mr . Robichaud drove to Ottawa to report on
what had been learned by Mr . Albert at his May 31 meeting with Mr .
McCleery . Mr . Robichaud recorded the information in the memo for file (Ex .
M-112) . It would be highly illogical that a second meeting would then be
planned without a single word being uttered as to the purpose to be achieved .
In this respect the report prepared by Mr . Barr (Ex . M-159) on November 8,
1977, which I shall discuss shortly, is a direct illustration of the involvement of
Mr . Sexsmith in the meeting of June 1 . It states :
The D .D .G . (Ops) when asked for his recollections of his instructions to
Supt . Robichaud on the evening of May 31st, and specifically in relation to
the second meeting with McCleery, stated that this meeting was agreed
upon to solicit additional information on McCleery's allegations . (My
emphasis . )
53 . This statement, which Mr . Sexsmith obviously volunteered to Mr . Barr
on November 8, 1977, contrasts with his testimony before our Commission .
When he was asked about his participation in the idea of having Mr . Albert
meet Mr . McCleery once more, i .e . on June 1 ; he answered :
A . I don't recall any specific discussion in that regard .
(Vol . 190, p . 28085 . )
Mr . Sexsmith was obviously wrong when he so testified and I accept his
statement to Mr . Barr in November 1977, when his memory was likely to be
fresher .
54 . But there remains the enigma as to what the reason was for the meeting
of June 1st between Mr . Albert and Mr . McCleery . One thing is certain, Mr .
Albert did not -initiate this meeting . As I have concluded, the meeting was
planned by Mr . Robichaud with the cooperation of Mr . Albert, who told us
frankly that he would have liked the plan to succeed (Vol . 191, p . 28225) .
55. On the whole, I conclude that the meeting of June 1 between Mr . Albert
and Mr .' McCleery was discussed between Mr . Robichaud and Mr . Sexsmith
and for that reason the true purpose of the meeting must also have been
discussed . I am satisfied that the real purpose of that meeting was to try to
persuade Mr . McCleery not to tell the Solicitor General about the wrongdoings
of the R .C .M .P. The conclusion that Mr . Sexsmith was involved in both the
planning and the purpose of the June 1 meeting is reinforced by three facts
which put together show Mr . Sexsmith's state of mind at that time .
439
�56 . The first of these facts is Mr . Sexsmith's candid admission to us that "he
would have thought that after all this time your commission has been sitting, it
would have become rather obvious that the Security Service kept certain
operational things from the Solicitor General" (Vol . 191, p . 28058) . The least
that can be inferred from that statement is that Mr . Sexsmith was certainly
prepared in his own mind to hide things from the minister .
57 . The second fact which supports the conclusion is that throughout the
period of preparation of a statement to be made by the Honourable Francis
Fox, in the House of Commons, which focussed on the A .P .L .Q . matter as an
isolated incident, the senior echelon of the Force failed to disclose to Mr . Fox
the memorandum made by Mr . Robichaud which contained many revelations .
58. Thirdly, it is significant in this chronology of events that Mr . Sexsmith
was concerned to know exactly what information had been given to the
Minister or his deputy . For example, on June 9 he placed a call to Mr . Tassé in
an effort to find out what was known by the Minister .
59. For me, those facts put together argue persuasively that Mr . Sexsmith
(and other officers of the Force) not only tried to keep the Minister in
ignorance of its wrongdoings but tried to find out how much the Minister knew
after Messrs . McCleery and Brunet had met Messrs . Tassé and Landry on
June 6 . These facts also demonstrate forcibly that the attempt to have Mr .
Albert dissuade Mr . McCleery from speaking to the Solicitor General was an
objective of top priority . Mr . Sexsmith's involvement in the three factual
situations prevents me from accepting that he had no knowledge of a second
meeting between Mr . Albert and Mr . McCleery and of its purpose. Furthermore, I am not prepared to accept Mr . Sexsmith's testimony on this matter
because he denied to us any involvement in the June 1 meeting, while he clearly
had stated to Mr . Barr that the purpose agreed upon for that meeting was to
try to elicit more information about Mr. McCleery's allegations .
60. There is no evidence that Mr . Nowlan participated in this episode, even
though he was present at the meeting between Mr . Sexsmith and Mr .
Robichaud on May 31, 1977 .
61 . On the whole my conclusion as to the facts and comments on the conduct
of the participants are as follows .
62 . On May 31, in the evening, Mr . Robichaud discussed with Mr . Sexsmith
the necessity of asking Mr . Albert to meet Mr . McCleery again, obviously for
the purpose of trying to dissuade him from telling the Solicitor General about
the wrongdoings of the R .C .M .P. In this regard the conduct of Messrs .
Sexsmith and Robichaud is unacceptable .
63. On June 1, in the morning, Mr . Robichaud called Mr . Albert into his
office and asked him to meet again with Mr . McCleery, obviously to try to
dissuade him from speaking to the Solicitor General . In this regard the conduct
of Mr . Robichaud is unacceptable .
64. On June 1, at lunch time, Mr . Albert met Mr . McCleery and tried to
convince Mr . McCleery not to talk to the Solicitor General . In this regard the
conduct of Mr . Albert is unacceptable .
440
�65. It is my view that the conduct of Messrs . Sexsmith and Robichaud is
subject to much greater censure . They were senior officers : at the time
respectively Deputy Director General (Operations) and Acting Area Commander of the Security Service in the Province of Quebec . Whether or not they
initiated the proposal that on June 1, 1977, Mr . 'Albert should attempt to
dissuade Mr . McCleery does not conclude the matter . In my opinion their
conduct was tantamount to an effort, through Mr . Albert, to try to dissuade
Mr . McCleery . But even if I am wrong in that view, I am satisfied that they in
the end knew, or ought to have known, what the course was that Mr . Albert
intended to pursue or had pursued . They should have ordered Mr . Albert not to
do so and having found out about it after the fact, the matter should have been
taken to the Director General at least .
66. I have no doubt that when Mr . Albert met with Mr . McCleery on June 1,
1977, he was doing so at least with the direct authorization of Mr . Robichaud
and with the agreement of Mr . Sexsmith and that Mr . Robichaud and Mr .
Sexsmith understood the significance of what Mr . Albert was going to do . The
conduct of Mr . Robichaud and Mr . Sexsmith was highly improper and was, in
my opinion, motivated by an attempt to cover up wrongdoings of the Security
Service . It was therefore unacceptable .
67 . There is an additional aspect of this event which must be looked into . It
has to do with the question whether Mr . Albert produced written reports after
his meetings with Mr . McCleery on May 31 and on June 1, 1977, and what
happened to those reports . On this point, the evidence is once again
contradictory .
68. On one hand, Mr . Robichaud says emphatically that he did not receive a
written report from Mr . Albert . On the other hand, Mr . Robichaud says that
the requirement was to produce a report in writing if "they asked for
something" (Vol . 190, p . 27932) . Whatever these words of Mr . Robichaud may
mean, it is logical to conclude that given the gravity of the situation and the
fact that Mr . Robichaud made a report in writing when he reported in Ottawa
on the evening of May 31, Mr . Albert is likely to have been expected to report
in writing on his two meetings with Mr . McCleery .
69. This point is elucidated to my satisfaction when I read the testimony of
Mr . Albert . Indeed Mr . Albert said that the rule was to report in writing (Vol .
191, p . 28228) and, to the best of his recollection, he did report in writing after
each of his meetings which he attended on a duty basis . Mr . Albert was
fortified by his recollection that when he produced a report for Mr . Nowlan on
June 16 he was assisted by the two other reports which he had prepared (Vol .
191, pp . 28238-9) . Mr . Albert is candid enough to state openly that he
remembers also meeting privately with Mr . McCleery on June 14 at the
Elmhurst Dairy and after that meeting he did not submit a report, because he
had not met him on duty at the request of his superior (Vol . 191, p . 28231) .
70 . Whilethose reports were addressed to Mr . Ferraris, I nevertheless believe
that Mr . Robichaud saw them . In any event, Mr . Robichaud knew their
content, since he was the one to whom Mr . Albert reported the outcome of
each of his meetings with Mr . McCleery . Furthermore, without accusin g
441
�anyone of misconduct, as nobody could be identified in that respect, the reports
of Mr . Albert could not be found . This is appalling, and I can say no more .
One logical observation though is that the two reports in question would
unquestionably shed light on the purpose of the meetings between Mr . Albert
and Mr . McCleery, had they been produced .
71 . I now turn to the review of this matter as it was revived in November
1977 . The problem then arose under circumstances well described in the
memorandum (Ex . UC-84), the contents of which I fully accept. It reads :
On November I st, 1977, Joseph R . Nuss, Q .C . and Allan Lutfy, both
counsel to the Solicitor General, in the presence of then Assistant Commissioner Raymond Quintal, had seen, among other documents, the document
which is now Exhibit M-158 .
On November 5, 1977, Messrs . Nuss and Lutfy, when they were going
through the Quintal-Nowlan Report at RCMP Headquarters in Ottawa,
noted that Tab 46 (now Exhibit M-158) contained the following text :
"My second meeting with McCleery was on Wednesday June 1st, 1977
when I called him and invited him to a game of tennis at the St . Laurent
Tennis Club on Jules Poitras St ., Ville St . Laurent . The reason for this
meeting, of which Supt . Robichaud was aware, was to convince McCleery
not to pursue his intention to divulge whatever he knew of incidents that
occurred during his service because he would lose the respect of his ex
confreres and discredit them for things that they believed were right in the
fight against terrorism (the F .L .Q .) . His determination was still very
evident and I believe not even the Pope could have convinced him to
change his mind ."
Messrs . Nuss and Lutfy became interested in that text since it seemed to
indicate a possible attempt a) to prevent the representative of the Solicitor
General from learning certain allegations and b) to persuade McCleery not
to divulge criminal acts . They drew the attention of Assistant Commissioner Quintal to this document on the same day and indicated that they
intended to raise this question with J .F . Howard, Q .C ., Chief Counsel to
the Commission .
This was done at a meeting held on the next day, November 6, which was
attended by J .R . Nuss, Q .C ., A . Lutfy, J .F . Howard, Q .C ., Assistant
Commissioner Quintal, Superintendent D .K . Wilson and Superintendent
A .M . Barr .
During the discussion, the RCMP expressed a desire to clarify this question
through an interview with Staff Sergeant Albert and Superintendent Robichaud . Mr . Howard, accepted this suggestion provided that the result be
communicated to him . Mr . Nuss and Mr . Lutfy agreed to this manner of
proceeding .
72. That there was need for clarification after Mr . Albert made the statement
to Mr . Nowlan is clear . Mr. Albert's statement, as worded, raised an issue
which the government counsel had rightly perceived . Was there on the part of
Mr . Albert an intention to prevent the Solicitor General from learning certain
allegations and if so, to what extent were Mr . Robichaud and higher echelons
involved? To answer these questions required explanations from Mr . Albert o n
442
�points which his statement (Ex . M-158) did not cover . In addition there was a
need to clarify the meaning of one phrase used in the statement .
73. Let us look first at omissions which needed to be corrected to insure a
clarification of the issue . When I read carefully paragraph 5 of Exhibit M-158,
it is striking that the statement made by Mr . Albert to Mr . Nowlan on June
16, 1977, does not specifically say whether he, Mr . Albert, had spoken to Mr .
McCleery along the lines of the stated purpose of the meeting . This point,
needless to say, called for some clarification . Mr . Barr testified that :
the relevancy was whether or not Mr . McCleery had been counselled not to
speak out . Beyond that everything else was, you know, was incidental, i f
you like .
(Vol . 194, p. 28539 . )
With respect, I cannot accept that that was the only relevant point . First, it
was extremely important to ascertain what Mr . Albert had spoken to Mr .
McCleery about, a point which his statement of June 16, 1977, did not make .
Second, it was crucial to ascertain whether Mr . Albert had been ordered or
instructed or asked or permitted by Mr . Robichaud to speak to Mr . McCleery.
Third, if the second point was answered in the affirmative, what exactly was
Mr . Albert asked or instructed to tell Mr . McCleery . Finally, it was equally
important to find out whether Mr . Albert had informed Mr . Robichaud, after
the meeting of June 1, as to what had been said by Mr . McCleery . In my
opinion it was essential to cover these four omissions to appreciate correctly the
magnitude of the problem and to be able to judge the conduct` of the
participants .
74 . In addition, there is no doubt that paragraph 5 of Exhibit M-158 needed
to be clarified on another very important issue . This need arises out of the
ambiguous wording . The phrase reads :
The reason for this meeting, of which Supt . Robichaud was aware, was to
convince McCleery not to pursue his intention to divulge whatever he knew
of incidents that occurred during his service . . .
As one cannot fail to observe, the ambiguity has to do with the words "The
reason for this meeting, of which Supt . Robichaud was aware" . Was Supt .
Robichaud aware of the fact of the meeting, or was he aware of the purpose of
the meeting or was he aware of both the fact of the meeting and the purpose o f
it?
75 . According to Mr . Barr's testimony, this meeting with Mr . Albert produced clarification of this very issue in that it brought out that it was really the
"meeting" that Mr . Robichaud was aware of, not the "reason" for the meeting .
However, in his report (Ex . M-159), covering this portion of the meeting, Mr .
Barr wrote :
S/Sgt . Albert, when asked to comment on his previous statement, confirmed that he was not given any order to attempt to influence McCleery's
course of action but was asked to meet with McCleery to gain additional
information on allegations .
This report states clearly that Mr . Robichaud was aware of both the meeting
and the reason for the meeting . However, it is immediately apparent that ,
443
�according to this document, the "reason" for the meeting is not the same as
that set out by Mr . Albert in para . 5 of Ex . M-158, i .e . "to convince McCleery
not to pursue his intention to divulge", but rather, "to gain additional
information on allegations" .
76. Mr . Barr did not tell Mr . Albert that this was not only a clarification but
a radical change of his previous statement . His testimony on this point is as
follows :
Q . Did you indicate that to him, that there was a complete change ?
A . No,
I did not, sir . If he takes that impression, then there is a
misunderstanding . The memo I wrote, as indicated, was a memo in an
attempt to clarify the meaning of paragraph 5, not to change paragraph
5 . Paragraph 5, as I was concerned (sic), and as far as I was concerned,
and as far as I am concerned now, in his statement, stands as his
statement of June 16th . Had that statement been changed, then my
understanding of the procedure would have been that someone would
have taken a new statement from him . I didn't . And to my knowledge,
no one else did .
Therefore,
his statement was not changed .
(My
emphâsis .)
(Vol . 194, pp . 28605-6 .)
However, when this line of questioning is pursued to the limit by Commission
counsel, here is what Mr . Barr says :
Q . But just reading the first few lines of paragraph 4, sir, would you not
recognize that this is a complete change from his statement of the 16th
of June, 1977 .
A . Yes, obviously it is . But if you read it the way it was intended to convey
his - as I understood, his meaning was that the misunderstanding of
his statement was possibly in the wording . And that's all that was being
recorded : that in his view, his paragraph 5 of June 16 could have been
understood because of the wording that he used . (My emphasis . )
(Vol . 194, p . 28606 . )
And then, the paragraph goes from there .
77 . In my opinion, Mr . Albert did, on November 8, change his statement of
June 16, and that change was as to the reason for the meeting . The purpôse of
the meeting on November 8 was purported to be to determine whether or not
Mr . Robichaud was aware of the "reason" for the meeting between Mr . Albert
and Mr . McCleery on June 1, 1977 . The end result of the meetings between
Mr . Barr and Messrs . Robichaud and Albert on November 8 was that Mr .
Robichaud was aware of the reason for the June 1 meeting but that the reason
for that meeting, previously stated by Mr . Albert (Ex . M-158) was now
changed (Ex . M-159) . Mr. Albert says that the reason contained in Exhibit
M-159 is false (Vol . 198, p . 29237) . I believe that .
78. To accomplish this mission, Mr . Barr had a very simple thing to do . He
should have called in Mr. Robichaud and Mr . Albert and asked them to
elucidate the ambiguity by simply showing them the different meanings that
could be attributed to the ambiguous phrase . Mr . Barr could then have
requested Mr . Robichaud and Mr . Albert to submit a short report to clarify
444
�the issue, making sure that Mr . Robichaud did it in his own words, distinctly
and without the knowledge of what Mr . Albert was himself going to write .
Then Mr . Barr could have gone to Mr . Sexsmith and requested him to do the
same thing . This is not what did take place . Instead, Mr . Barr told Mr . Albert
that some government lawyers had looked at his statement and considered that
if certain of the language remained as written the Force could be in serious
trouble for obstruction of justice . He pointed out to Mr . Albert the offending
words and how they had been interpreted by the lawyers . He then asked Mr .
Albert if the lawyers' interpretation was accurate . Faced with this, Mr . Albert
said that he felt compelled to change his statement .
79. I have no doubt that the way in which the interview was structured,
tended to lead Mr . Albert inexorably to the conclusion that if he did not
change his statement he would be acting disloyally towards the Force and
placing it and Mr . Robichaud in a difficult position . An interview conducted in
that fashion is totally unacceptable . I am surprised at the testimony of Mr .
Barr who recognized first that "the relevancy was whether or not Mr .
McCleery had been counselled not to speak out" (Vol . 194, p . 28539) and
subsequently answered Commission counsel as follows :
Q . Did he (Albert) indicate to you, sir that he had gone there at Mr .
Robichaud's request? Or did you know that ?
A . I don't know whether we discussed it in those terms . I do not think that
was necessarily relevant . (My emphasis .)
(Vol . 194, p. 28578 . )
80. For me nothing could be more relevant if it is true that Mr . Barr, as he
says, was trying to determine whether or not Mr . McCleery had been counselled not to speak out .
81 . 1 have concluded that Mr . Barr's attitude was tantamount to asking Mr .
Albert whether he wanted to change his statement and in these circumstances I
can see how it was not relevant to discuss with Mr . Albert whether or not Mr .
Robichaud had requested him to go to the meeting .
82 . One word has to be said as to the manner in which Mr . Albert's new
statement was taken . According to Mr . Barr, he wrote, himself, the change in
the statement and then read it to Mr . Albert . Mr . Barr said that he did not give
Mr . Albert an opportunity to read it and to sign it should he find it in
conformity with his own thinking . Fortunately, Mr . Albert says that he saw the
text that Mr . Barr prepared in lieu of a corrected statement, which he
remembers to be a three-page statement, and that he read it and then signed it .
Mr . Barr would have acted in an abnormal manner if he had not done all that
Mr . Albert said he did, for it is a matter of very common practice to have one
sign a statement, the purpose of which is to correct a previous statement, also
signed . I think that this sequence took place in the manner described by Mr .
Albert . But then the question arises as to where the three-page statement is
that Mr . Albert said he had signed . This document has not been produced .
83 . Sometime in January 1980, Mr . Albert came to see one of our investigators to make an allegation about his being victimized by the Force . Specifical445
�ly, Mr . Albert complained of the fact that the Force had put him under
surveillance - a situation which made him extremely angry at the Force .
There is no doubt that, those being the circumstances when Mr . Albert decided
to tell this Commission about the November 8, 1977, meeting with Mr . Barr
and the request to change his version, there was a degree of retaliation on the
part of Mr . Albert . But I do not think that he who retaliates is necessarily lying
for that very reason . I believe that Mr . Albert was somehow inspired by
vengeance when he revealed things to our investigator, but this would not, in
my opinion, cloud his memory or justify a conclusion that what he was saying
was necessarily wrong .
84 . In reaching my conclusions, I must stress that I am not depending on a
choice between the version of Mr . Barr and that of Mr . Albert, but rather, on
an overall appreciation of what both Mr . Barr and Mr . Albert have said . Mr .
Albert's testimony is, in my opinion, confirmed in many ways by that of Mr .
Barr .
85. On the whole I therefore conclude :
(a) On November 6 the several legal counsel agreed to a clarification task to
be accomplished, provided the result be communicated to Mr . Howard . I
conclude that such result was not communicated to Mr . Howard. In this
regard, the conduct of Mr . Barr and Mr . Quintal is not acceptable .
(b) The clarification was about Mr . Robichaud's awareness : was he aware of
the fact of the meeting of June 1 or of the purpose of the meeting, or both .
As to the purpose, Exhibit M-158 leaves no room for doubt, nor need for
clarification .
(c) Mr . Barr opened the meeting with Mr . Albert by pointing out to him the
problem the Force was facing if paragraph 5 of the statement (Ex . M-158)
were to remain as it was .
(d) Mr . Barr asked Mr . Albert whether he minded changing his statement . It
was a request, not an order . In this regard Mr . Barr's conduct was
unacceptable .
(e) Mr . Barr reminded Mr . Albert of his duty of loyalty to the Force . In this
regard Mr . Barr's conduct was unacceptable .
(f) Mr . Barr did not discuss with Mr . Albert whether Mr . Robichaud had
requested him to go and see Mr . McCleery . Mr . Barr did not see it as
relevant . In this regard Mr . Barr was acting in a careless manner .
(g) Mr . Albert responded favourably to Mr . Barr's request to change his
statement and therefore changed it . The whole exercise between Mr .
Albert and Mr . Barr was not one of clarification, but one of discussing
whether Mr . Albert was ready to change paragraph 5 of Exhibit M-158 . In
this regard, the conduct of Mr . Barr and Mr . Albert was unacceptable . At
the end of the interview, what we have is a new version from Mr . Albert,
which confirms that Mr . Albert was asked to change his statement of June
16, 1977 .
446
�(h) Mr . Barr wrote the new statement . Mr . Albert signed a three-page
document . Mr . Barr read the statement . This document has not be
produced .
(i) The June 16 statement of Mr . Albert (Ex . M-158) is true, and Mr . Albert
meant by that statement that Mr . Robichaud was aware of both the fact of
the meeting of June 1 and of the purpose of that meeting . Exhibit M-159
does not represent the truth as it refers to Mr . Robichaud and Mr . Albert .
(j) If in conducting himself, both in what he did and how he did it, Mr . Barr
was executing instructions which he got from Mr . Dare and Mr . Quintal,
the latter . two are equally to be blamed . However, I have no evidence that
that was the case .
(k) Even if Mr . Albert was affected by anger when he saw our investigator in
January 1980, his November 16 statement to Mr . Nowlan (Ex . M-158)
shows that he had told Mr . Nowlan that Mr . Robichaud was aware of the
June 1 meeting and/or its purpose .
(1) When he met Mr . Barr on November 8, 1977, Mr . Albert changed his
version . The question is whether he changed it on his own or at the request
of Mr . Barr . On the whole, I conclude that Mr . Albert changed his version
at the request of Mr . Barr . The conduct of both of them was not
acceptable .
447
��PART V I
SPECIFIC CASES REFERRED FOR POSSIBLE
PROSECUTION AND DISCIPLINARY ACTIO N
INTRODUCTION
1 . In each of the incidents described in the chapters of this Part there has
been activity by a member or members of the R .C .M .P . which constitutes, in
our opinion, conduct which is either clearly illegal or which may likely be
illegal . In Part I of this Report - the General Introduction - we repeated
what we said in our Second Report as to how we define the phrase "not
authorized or provided for by law" found in our terms of reference . We there
set out various characteristics of what might be described as conduct "not
authorized or provided for by law" . Included in our definition were acts which
were (a) offences under the Criminal Code or under other federal or provincial
statutes, (b) civil wrongs, (c) beyond the statutory authority of the R .C .M .P.
or (d) not authorized by normal procedures within the R .C .M .P . We also
pointed out that we did not intend to ignore the "moral and ethical implications" of conduct .
2 . The chapters which have been included in this Part are reported on
separately from those in Parts IV and V on the basis that the chapters in this
Part involve conduct by members of the R .C .M .P . which might be offences
under the Criminal Code or under other federal or provincial statutes, exclusive of the disciplinary sections of the R .C .M .P . Act (the latter are found in
Part V) . Thus, although the conduct may concurrently fall within categories
(b), (c) or (d) set out in the preceding paragraph, it is because the conduct may
be within category (a) that our Report on it is included in this Part .
449
��NOTE BY THE COMMISSIONERS
August 5, 198 1
1 . The reasons for our recommending a delay in publication of our Report as
to situations which may possibly lead to criminal proceedings are stated in Part
VIII, paras . 1-8 . Those reasons apply to most of the chapters in Part VI, which
the Government has decided not to publish at this time, as we recommended .
They are entitled as follows :
Human Sources - Security Servic e
Specific cases of Access to and Use of Confidential Information Held by
the Federal Government (Department of National Revenue)
Attempts to Recruit Human Sources
The Minerve Communiqué
Burning of a Barn
Removal of Dynamite
Operation Bricole
Operation Ham
Checkmate
2. However, our reasons for a delay in publication were intended to apply
only to specific situations concerning which we heard evidence or to which we
have reported on the basis of an examination of R .C .M .P . files . There are three
chapters of Part VI whiçh do not report on specific situations . Therefore our
reasoning does not apply to them . They are entitled as follows :
Specific Surreptitious Entry Case s
Specific cases of Access to and Use of Confidential Information Held by
the Federal Government (Other than D .N .R . )
Specific Mail Check Case s
These chapters are being published now .
3. Furthermore, our recent review of Chapter 11, entitled Matters Concerning and Undercover Operative, Warren Hart has reminded us that only some of
the twelve specific topics reported on in that chapter give rise to the possibility
of prosecution of a member of the R .C .M .P . Therefore the rationale for a delay
in publication pertains only to the parts of the chapter reporting on those
topics . The remainder of the chapter is being published now :
4 . In addition there are some chapters that deal with events that have not so
far been in the public domain . They are of a nature that, in our view, they
should be dealt with in accordance with the procedures recommended by us in
our Second Report, Part V, Chapter 8, paras . 31-38 . It is possible that the
result of the application of that procedure will be that the Attorney General o f
451
�Canada or the Attorney General of a province may decide that it would not be
in the public interest to prosecute, or to make known any facts whatsoever . If
such should be the case, it would obviously be undesirable that publication of
any facts in this Report should prejudice such a decision . We shall say only
that the facts as they are known to us relate entirely to the conduct of members
of the R .C .M .P . and not in any way to that of senior officials of the
government outside the R .C .M .P . or to that of Ministers of the Crown .
452
�CHAPTER 1
HUMAN SOURCES - SECURITY SERVIC E
[This chapter is not being published at this time . See the Commissioners' note
which follows the Introduction to Part VI . ]
453
��CHAPTER 2
SPECIFIC SURREPTITIOUS ENTRY CASE S
INTRODUCTION
1 . During the course of our investigations and hearings a number of specific
cases have been brought to our attention which involve either the surreptitious
entry by members of the R .C .M .P . into premises occupied by someone else or
the surreptitious interference by members of the Force with chattels owned by
someone else . In this Part of our Report we discuss separately several of these
cases . Such reports are found in Chapter 9 (Operation Bricole), Chapter 10
(Operation Ham), Chapter 7 (burning of a barn), and Chapter 8 (removal of
dynamite)* .
2 . In our Second Report, in Part III, Chapter 2, we discussed in considerable
detail the evidence we had received with respect to the extent and prevalence of
these practices . We also discussed in that chapter the various legal issues which
arise with respect to the practices . We will not repeat here that discussion of
the legal issues ; rather, we shall briefly summarize some of the facts contained
in the Second Report on this subject and make recommendations as to the
procedure which we consider ought to be followed with respect to the facts
reported by us .
3. From a large volume of cases containing the potential for a finding of
activity "not authorized or provided for by law", we selected six as to which we
received detailed evidence, i .e ., those mentioned above as having been reported
on separately . With respect to the remainder we have obtained from the
R .C .M .P . factual information ranging from details of dates, names and places
in some cases to purely statistical information in others . Under those circumstances we recommend a procedure which ought to be followed with respect to
further investigations .
4 . In Reasons for Decision rendered by us on May 22, 1980, which are
reproduced in full as Appendix "H" to our Second Report, we discussed
circumstances in which " . . .the conduct concerning what [we] may report
cannot, as described by the Commission, give rise to any criminal or disciplinary proceedings against any individual" . We then described situations in
which that might occur, of which four are applicable to the discussion of
specific surreptitious entry cases which follows, as well as to the discussions o f
* Those chapters are not being published at this time, for the reasons given in Part VIII
relating to the Commissioners' Report as to specific situations that may give rise to
prosecutions .
455
�specific cases of access to confidential government . information and specific
mail check cases which are contained in Chapters 3 and 4 of this Part . Those
four are where :
(i) the Commission's evidence is as to the general nature and purpose
of the activities but the Commission does not have any evidence of
the names of participants or the particulars of any specific
instances . There are a number of investigative techniques, the use
of which by members of the R .C .M .P. may not have been authorized or provided for by law, which have been investigated by the
Commission as to the "extent and prevalence" of the use of the
technique without the Commission having obtained evidence of the
particular cases in which over the years or decades the technique
was used, or, consequently, of the identity of the individuals
involved, whether members of the R .C .M .P . or not . To have done
so in regard to the use of these techniques would frequently have
been impossible, since no records were kept, or, if kept, records
would no longer be available. Moreover, to try to reconstruct the
individual situations would have required a much larger investigative and legal staff and would inevitably prove to be an exercis in e
futility ;
(ii) the Commission's evidence is as to a general practice or system and
the names of some participants but not all of them, and as to which
even if the Commission has the names of some participants it does
not have the particulars of any specific case so that the Commission
is in no sense considering any specific "offence" ;
(iii) the Commission's evidence is as to specific acts in a specific case
but not the names of the participants, or at least not all of them,
and as to which none of the participants has given evidence ;
(iv) the Commission has detailed evidence of the specific acts in a
specific case, the names of all or some of the participants, and,
perhaps, but not necessarily, evidence as to exactly what all the
participants did and the activities cannot be said to be a transgression of the Criminal Code or other statute law or of the law of tort
or delict, or a major service offence under Section 25 of the
R .C .M .P . Act . Nevertheless, if they occurred, they may be, in the
opinion of the Commission, conduct which is "not authorized by
law" in the sense that it is beyond the duties of a member so to
conduct himself: i .e ., if such conduct is not within the phrase "such
security and intelligence services as may be required by the Minister" (quoting section 44(e) of the Regulations) .
5. In dealing with the cases and the statistics, we consider it helpful first to
make a distinction between the C .I .B . side of the Force and the Security
Service, and then in the case of each of them to make a further differentiation
between cases involving electronic surveillance and those which can be
described as intelligence probes . With respect to intelligence probes, we do not
propose to make a further division between those cases which solelyinvolve
entry into premises, and those which involve interference with chattels .
456
�A . C .I .B .
(a) Surreptitious entries related to electronic surveillance
Summary of fact s
6 . Statistics provided to us by the R .C .M .P . show that for the period from
1963 to the coming into force of the Protection of Privacy Act on July 1, 1974,
there were 3,419 installations of electronic listening devices . Those installations
involved 1,118 entries . There is no indication how many of those entries were
into buildings and how many into other places, such as automobiles . Nor is
there any indication as to how many of the entries were made with the consent
of a person entitled to give consent, such as consent by the manager of a hotel
prior to occupation of a hotel room by the target .
7. For the period from July 1, 1974, to the end of 1979, the statistics on
electronic surveillance are available through the Annual Reports tabled by the
Solicitor General in Parliament and the Annual Reports tabled by the provincial attorneys general in their respective legislatures . However, those reports,
while indicating the number of authorizations granted, do not contain statistics
as to entries effected in carrying out the authorizations . Also, the reports filed
by the provincial attorneys general cover all the applications by them with
respect to all the police forces under their jurisdiction, without distinction
between the R .C .M .P. and the other police forces .
8 . For the reasons set out in Part III, Chapter 2, of our Second Report, we
are satisfied that in all cases of surreptitious entry, without the consent of a
person entitled to give such consent, for the purpose of installing, maintaining
or removing an electronic listening device, a trespass occurred . That is so
whether or not the entry took place pursuant to an authorization granted under
the Protection of Privacy Act . We are further satisfied that prior to July 1,
1974, all such entries for the purpose of installing microphones took place
pursuant to a policy of the Force . In Part III, Chapter 1 of this Third Report,
we discussed the responsibility of those who formulated the policies .
Conclusions
9. We noted in our Second Report that the entries subsequent to July 1 ;
1974, were made pursuant to a legal opinion obtained from the Department of
Justice . We do not fault either those formulating the policy or those carrying it
out for any conduct which was in accord with legal advice from that source .
We do not consider it appropriate that any action of a disciplinary or legal
nature be brought by the government or the R .C .M .P . against any member of
the Force who participated in the planning or execution of either an entry into
premises or an interference with goods and chattels for the purpose of
installing, maintaining or removing an electronic listening device, pursuant to
such opinion . In Part X, Chapter 5, of our Second Report we recommended
legislative amendments to clarify the legal position with respect to entries for
the purpose of conducting electronic surveillance .
10 . Although there may be cases in which those planning and participating in
surreptitious entries took steps beyond what was reasonable for the installation ,
457
�maintenance and removal of the listening device, no such cases have come to
our attention . In our view, the Attorney General of Canada, using the
personnel of the Department of Justice, should review all the files in the
possession of the R .C .M .P . which relate to such entries with a view to
determining whether any such unreasonable conduct occurred . If, after such a
review, the Attorney General of Canada considers that in any case the conduct
discloses evidence of commission of an offence under the Criminal Code, that
case should be referred to the appropriate provincial attorney general .
(b) Intelligence Probes
Summary offacts
11 . In Part III, Chapter 2, of our Second Report we discussed the difficulties
we experienced in obtaining information relating to intelligence probes in
criminal investigations . In response to questions sent to divisions of the Force,
for the purpose of compiling evidence to be presented to us, it was disclosed
that the following intelligence probes occurred :
"D" Division ( Manitoba) 2
"E" Division (British Columbia) 402
"F" Division ( Saskatchewan) 1
"K" Division (Alberta)
9
In our Second Report we pointed out the anomaly of there being no intelligence probes reported from Ontario or Quebec . We also noted that no records
were kept in any of the divisions and that all information provided was
volunteered from the memory of members .
12 . We analyzed the reasons for the huge discrepancy in the figures from
British Columbia, and the explanations provided in the subsequent report
prepared by the Deputy Attorney General of that Province for his Attorney
General . The British Columbia Department of the Attorney General conducted
an investigation of the 402 cases reported for that province . The Deputy
Attorney General then recommended that there be no prosecutions of those
involved in the entries, even in four cases in which chattels had been surreptitiously removed . The Attorney General concurred with that recommendation .
Conclusions
13 . We consider that in the cases reported from Manitoba, Saskatchewan and
Alberta, the files should be made available to the respective attorneys general
of those provinces for investigation and disposition as each considers appropriate . In all of the cases reported, including those from British Columbia, we
think that the Commissioner of the R .C .M .P . should examine the facts to
determine whether the conduct of the members involved was unreasonable,
having regard to Force policy at the time, with a view to determining whether
disciplinary action ought to be taken against the members .
458
�B . SECURITY SERVIC E
(a) Surreptitious entries related to electronic surveillance
Summary ôf facts
14 . The statistics provided to us by the R .C .M .P . Security Service in relation
to electronic eavesdropping do not enable us to determine the extent to which
surreptitious entries were necessary to carry out that eavesdropping . We were
told in evidence that from 1971 to February 1978 there had been 580
installations by the Security Service, 223 of long-term listening devices and 357
of short-term devices, but that the number of entries with respect to those
installations could not be determined . The only evidence before us was that the
R .C .M .P . files disclosed that with regard to the 223 long-term devices there
had been 55 instances of entry . Some of those entries may not have constituted
trespass because the consent of a person entitled to give such consent may have
been obtained .
15 . Since the coming into force of the Protection of Privacy Act on July 1,
1974, a warrant from the Solicitor General has been required for electronic
eavesdropping by the Security Service . The Security Service has detailed
records of all electronic surveillance installations both before and after July 1,
1974 . The Annual Reports tabled by the Solicitor General in Parliament,
pursuant to section 16(5) of the Official Secrets Act, disclose the number of
warrants issued as follows :
1974 - 339
1975 -465
1976 - 517
1977 - 471
1978 - 392
1979 - 29 9
As we pointed out in our Second Report, those annual figures are somewhat
misleading because they include renewals from the previous year .
Conclusions
16. As with surreptitious entries in connection with electronic eavesdropping
on the criminal investigation side, we consider that both before and after July
1, 1974, any entries effected without the consent of a person entitled to give
consent constituted trespass, and any interference with chattels constituted a
trespass to chattels . Again, it is our opinion that no action should be taken by
the government or the R .C .M .P . against any of the persons planning or
participating in such entries, by reason only of the trespassory aspects . We take
this position because, prior to July 1, 1974, all such entries were effected
pursuant to R .C .M .P . policy, and subsequent to July 1, 1974, pursuant to
authorization by the Solicitor General of Canada who fully expected such
entries to take place in the case of microphone installations . Moreover, the
R .C .M .P . knew that the view of the Department of Justice, expressed when the
legislation was being prepared, was that such entries were lawful even without
express provisions in the legislation, by virtue of section 26(2) of the Interpre459
�tation Act . In our Second Report, we disagreed with that view, but it remains a
fact that all concerned acted upon that advice and should not be faulted for
having done so . In Part V, Chapter 4, of our Second Report we recommended
legislative amendments to clarify the legal position with respect to entries for
the purpose of conducting electronic su rv eillance .
17. We think that the Department of Justice should examine all available
files of the Security Service which contain details of such entries with a view to
determining whether there was any conduct on the part of the participants
which went beyond what was reasonably necessary to install, maintain and
remove the electronic devices . If, in the opinion of the Attorney General of
Canada, any such conduct constituted a criminal offence, we recommend that
he proceed in accordance with the system which, in Part V, Chapter 8 of our
Second Report, we recommended be established on an interim basis, pending
federal-provincial discussions on the matter . In addition, if any unnecessary or
unreasonable damage was inflicted on the property of any person, we recommend that the person be compensated by the Government of Canada for any
such damage, as set out in Part V, Chapter 4, of our Second Report .
(b) Intelligence Probes
Summary offacts
18 . The Security Service provided us with the details of 47 entries, relating to
34 targets . Two of the entries were not what are commonly referred to as
intelligence probes ; rather, they were preparatory to the installation of an
electronic listening device . Two of the cases have been reported on separately
in this Part but are not being published at this time. One aspect of a third case
has been reported on separately in Part IV . It concerns the destruction of an
article . We have provided to the Clerk of the Privy Council, on behalf of the
Governor in Council, the details of the 47 entries as they were given to us by
the R .C .M .P . We have also identified for the Clerk which of the cases were
those described in our Second Report .
Conclusions
19. It is our view that details of all these Security Service intelligence probes
should be provided to the Attorney General of Canada who, using the
personnel of the Department of Justice, should investigate them with a view to
determining whether there is evidence that any criminal offences may have
been committed . If, in his opinion, there is any such evidence we recommend
that he proceed in accordance with the system which, in Part V, Chapter 8 of
our Second Report, we recommended be established on an interim basis,
pending federal-provincial discussions on the matter .
C . GENERAL CONCLUSION S
20 . We have concluded that with respect to all surreptitious entries by both
the C .I .B . and the Security Service, no action should be taken by the
government or the R .C .M .P . against those planning or participating in such
surreptitious entries merely by reason of the trespassory nature of the activity .
We have come to this conclusion because such entries were conducted as a par t
460
�of Force policy and we do not consider it appropriate that any disciplinary or
legal action be taken by the government or the R .C .M .P ., against a member of
the Force carrying out Force policy, for unlawful activity amounting only to a
civil wrong . Earlier in this Report we expressed our views as to the responsibility of those who formulated the policies on behalf of the Force . In our Second
Report we stated categorically that it is not acceptable for a member of a
police force or of a security intelligence agency to-consider that what he is
doing is not unlawful merely because it involves the commission of a civil
wrong . Every member of the Force and the security intelligence agency must
be made aware of that immediately . We do not consider that in the future any
such conduct should be excused .
21 . However, we consider that any conduct by a member, whether on the
C .I .B . side or the Security Service side, which went beyond what was reasonably necessary to accomplish Force policy should be examined by the Commissioner of the R .C .M .P. to determine whether disciplinary action should be
brought against that member, and by the Attorney General of Canada to
determine whether what the member did might have constituted an offence . If
the Attorney General of Canada concludes that there is evidence of the
commission of an offence we recommend thât hé proceed in the way we set out
in Part V, Chapter 8 of our Second Report .
461
��CHAPTER 3
SPECIFIC CASES OF ACCESS T O
AND USE OF CONFIDENTIAL INFORMATION
HELD BY THE FEDERAL GOVERNMEN T
A . DEPARTMENT OF NATIONAL REVENU E
[This section of this chapter, consisting of paragraphs 1 to 8, is not being
published at this time, pending the disposition of possible legal proceedings . ]
B . UNEMPLOYMENT INSURANCE COMMISSIO N
Introductio n
9 . The policies and practices of the C .I .B . and the Security Service in
obtaining access to data held by the Unemployment Insurance Commission
(U .I .C .) and the extent and prevalence of the practice, were set out in Chapters
5 and 6 of Part III of our Second Report . Public and in camera hearings were
held on this topic .
10 . As was the case with access to Department of National Revenue data, the
arrangements made with the U .I .C . by the C .I .B . and the Security Service
were separate and distinct . We shall deal with the summary of facts separately
but our conclusions will relate to both the C.I .B . and the security Service.
(a) C .I .B .
Summary of jacts
11 . All of the evidence that we received relating to the C .I .B . was statistical
except to the extent that we were told the names of certain police forces and
government agencies, both domestic and foreign, on whose behalf the C .I .B .
had obtained information from the U .I .C . The names of those Forces and
agencies are set out in Part III, Chapter 5, of our Second Report, as is the
statistical data . That data discloses that from 1974 to April 1978 there were
1,623 requests from the C .I .B . for information . Many of those requests
concerned offences related to the unemployment insurance programme,
although the evidence before us did not disclose the precise number .
463
�(b) Security Service
Summary offacts
12. The only evidence we heard as to specific cases involving the release of
information to the Security Service by the U .I .C. was with respect to requests
which had been made by Security Service Headquarters from the summer of
1973 to June 1978 . During that period there were 1,337 such requests . There
was no evidence as to how many of those requests resulted in a transfer of
information .
(c) Conclusions and recommendations
13 . In our Second Report we concluded tha t
. . .throughout the three decades since 1946, the R .C .M .P . has obtained
information from the staff of the U .I .C . by means which . . .have violated
the confidentiality provisions of the legislation .
14 . We recommend that the relevant evidence in the transcripts of hearings
and the exhibits filed be referred to the Attorney General of Canada and that
he have the Department of Justice conduct such investigations, including
review of the appropriate R .C .M .P . files, as he considers necessary to obtain
details of the incidents . Upon completion of such investigation, the Attorney
General of Canada should determine whether or not, in all the circumstances,
charges should be brought against the persons involved .
C . DEPARTMENT OF INDUSTRY,
TRADE AND COMMERCE :
THE INDUSTRIAL RESEARCH AND
DEVELOPMENT INCENTIVES AC T
Introductio n
15. We heard no testimony with respect to this subject but there was filed
with us an exhibit (Ex . N-1) containing a number of documents with respect to
this relationship . We discussed the relevant portions of those documents in our
Second Report, Part III, Chapter 5 . What follows is also from documents
found in that exhibit .
Summary offacts
16 . The only case of which we are aware, in which the R .C .M .P . obtained
access to information in the files of the Department of Industry, Trade and
Commerce, where such information had been obtained by that department
under the Industrial Research and Development Incentives Act, was described
briefly in Part III, Chapter 5, of our Second Report . It occurred in 1974 .
Conclusions and recommendations
17 . We recommend that Exhibit N-1 be referred to the Attorney General of
Canada and that he have the Department of Justice conduct such investigation ,
464
�including review of the appropriate R .C .M .P. files, as he considers necessary to
obtain the details of the one incident described in the documents contained in
that exhibit . Upon completion of such investigation, the Attorney General of
Canada should determine whether or not, in all the circumstances, charges
should be brought against the persons involved .
D . DEPARTMENT OF NATIONAL HEALTH AND
WELFARE :
FAMILY ALLOWANCES AND OLD AGE SECURIT Y
Introduction
18. Again, with respect to this Department, all of the evidence is documentary and is found in Exhibit N-1 .
Summary of facts
19 . The documents in N-1 disclose that information was given to the C .I .B .
by personnel in the Department of National Health and Welfare, apparently in
contravention of the Acts and regulations governing family allowances, old age
security and old age assistance . No statistical data was provided to us .
However, as indicated in Part III, Chapter 5 of our Second Report :
.
.. four cases were reported in which approaches were made by the Force
to the Family Allowances Division other than in regard to the administration of the Family Allowances Act .
(i) In an investigation of the abduction of a seven-year-old child, the
approach was made to determine whether a new application had
been made for family allowance in regard to the abducted child .
The Department advised that no new application had been made .
(The mere disclosure that an application had or had not been made
would not be prohibited) .
(ii) In 1970 co-operation was received in regard to a murder investigation . No further details were given .
(iii) A contact was made with the local office in an investigation under
the Immigration Act . Nô further details were given .
(iv) A request was made in a fraud investigation . It does not appear
that any information was given out, the disclosure of which would
be prohibited .
Conclusions and recommendations
20 . We recommend that Exhibit N-1 be referred to the Attorney General of
Canada, as well as the relevant parts of our Second Report, and that he have
the Department of Justice conduct such investigations, including review of the
appropriate R .C.M .P . files, as he considers necessary to obtain details. of the
incidents reported to us . Upon completion of such investigation, the Attorney
General of Canada should determine whether or not, in all the circumstances,
charges should be brought against the persons involved .
465
��CHAPTER 4
SPECIFIC MAIL CHECK CASE S
INTRODUCTION
1 . In Part III, Chapter 4, of our Second Report we set out . both the extent
and prevalence of mail check operations on the C .I .B . and Security Service side
and the legal issues involved in relation to such mail check operations . In
discussing the extent and prevalence of the practices, we considered the
Security Service and the C .I .B . separately . We shall make the same division
here .
2 . Evidence with respect to mail check cases was received by us in public and
in camera in 1977 and 1978 .
3 . As the number of incidents of mail check operations, as disclosed to us by
the R .C .M .P., exceed 1,000 for the period of 1970-77 alone, the focus of our
inquiry into this practice was on its "extent and prevalence", not on the details
of individual cases . Several specific cases were described to us in oral testimony, by way of examples of the circumstances in which the technique was used .
Even in those cases time did not permit us to hear all of the relevant evidence .
A . SECURITY SERVIC E
Summary of facts
4 . The Security Service had three categories of mail check operations, under
the code words Cathedral A, Cathedral B and Cathedral C . The categories
were described in a Security Service memorandum (Ex . B-16) as follows :
Cathedral "A" - routine name or address check [recording in longhand
information from the outside of envelopes] .
Cathedral "B" - intercept (photograph or otherwise scrutinize by investigator) but do NOT open [the outside of envelopes was photographed]
Cathedral "C" - intercept and attempt content
examinatio n
5. The information provided to us by the Security Service disclosed that froin
November 1970 to the end of December 1977 there were 91 completed mail
check operations, of which six were Cathedral A cases, 19 were Cathedral B
cases and 66 were Cathedral C cases . Details as to the province in which each
operation took place, the identification of the target, the date of the operation
and the Security Service file number are all contained in a summary of the
cases filed with us as Exhibit BC-3 . Further details were provided to us by th e
467
�Security Service on all these operations and we have given the Clerk of the
Privy Council, on behalf of the Governor in Council, those additional details .
In addition, details of one case, the Omura case, are found in Volumes 8, 18
and 23 of the transcripts of our hearings .
Conclusions and recommendations
6. For reasons which are given in our Second Report, we are satisfied that, in
each instance in which mail was opened by the Security Service, an offence
may have been committed under section 58 of the Post Office Act . Similarly,
for reasons given in that Report, in each of the Cathedral A and B cases it is
less clear whether there was an offence pursuant to section 58 of the Post
Office Act . In this latter regard we said in Part III, Chapter 4, of our Second
Report, the following :
(a) Examining the exterior of an envelope (what the Security Service has
called Cathedral 'A') might be unlawful if the length of time it is taken out
of the mail stream results in its being "detained" or "delayed" . Even if that
were not so on the facts of most situations, it might be argued that a civil
wrong is committed by interfering in the ownership of the article of mail,
but this is doubtful . On balance, we do not believe that this investigative
practice, if it does not involve removing the article from the mail stream for
any significant length of time, can be said to be an activity "not authorized
or provided for by law" . This is particularly our view if the article of mail
remains at all times in the control of a postal employee . Our view is the
same as that of the Director of the Legal Service Branch of the Post Office,
given in December 1977 . . .
(b) The same remarks apply to photographing the exterior of an envelope
(what the Security Service has called Cathedral 'B') .
7 . We recommend that all the cases summarized in Exhibit BC-3 be referred
to the Attorney General of Canada who should have members of the Department of Justice conduct such an . investigation as he considers necessary,
including a review of the R .C .M .P . files with respect to those cases . Upon
completion of the investigation the Attorney General of Canada should determine, in each case, whether a prosecution is warranted under all the
circumstances .
B . C .I .B .
Summary offact s
8 . The criminal investigations side of the Force did not use a code name for
mail check operations . It conducted operations similar to those which were
carried out by the Security Service under the code names Cathedral A, B and
C . In addition, the C .I .B . undertook controlled delivery of the mail, a system
whereby the delivery to the addressee was made either by a member of the
R .C .M .P ., posing as a postal employee, or by a postal employee delivering it at
a time pre-arranged with the R .C .M .P .
9. The statistics provided to us with respect to mail check operations for the
years 1970-1977 disclosed that there were 954 mail check operations, of whic h
468
�799 involved the opening of pieces of mail . However, these figures cannot be
relied upon because of differences in interpretation, by those reporting at the
division level, of the definition of "letter", "first class mail", "post letter" and
"delivered" .
Conclusions and recommendations
10. In the testimony before us on this subject, some details were given with
respect to six operations . With regard to these six cases, we recommend that
the evidence and the R .C .M .P . files with respect to them be referred to the
Attorney General of Canada who should have members of the Department of
Justice conduct such an investigation as he considers necessary . Upon completion of the investigation the Attorney General of Canada should determine, in
each case, whether a prosecution ought to be launched against the persons
involved .
11 . We also recommend that the Attorney General of Canada should examine the foregoing statistics provided to us and the R .C .M .P . files upon which
they are based and determine whether prosecutions ought to be launched .
C . GENERAL CONCLUSION S
12 . The volume of cases of mail check operations on the Security Se rvice and
C .I .B . side of the Force is overwhelming . We have discussed them only in the
light of possible violations of the Post Office Act . In each case there may also
have been a trespass to the item of mail interfered with . We do not make light
of that and in our opinion it ought to be brought home very clearly to members
of the R .C .M .P . and of the security intelligence agency that such an interference with other persons' property constitutes a trespass and is therefore
unlawful . However, because mail check operations were clearly a policy of the
Force, we do not consider that those who planned and participated in specific
cases should be punished by virtue only of the trespass involved .
469
��CHAPTER 5
ATTEMPTS TO RECRUIT HUMAN SOURCE S
[This chapter is not being published at this time . See the Commissioners' note
which follows the Introduction to Part VI . ]
471
��CHAPTER 6
THE MINERVE COMMUNIQU É
[This chapter is not being published at this time . See the Commissioners' note
which follows the Introduction to Part VI . ]
473
��CHAPTER 7
BURNING OF A BAR N
[This chapter is not being published at this time . See the Commissioners' note
which follows the Introduction to Part VI . ]
475
��CHAPTER 8
REMOVAL OF DYNAMIT E
[This chapter is not being published at this time . See the Commissioners' note
which follows the Introduction to Part VI . ]
477
��CHAPTER 9
OPERATION BRICOL E
[This chapter is not being published at this time . See the Commissioners' note
which follows the Introduction to Part VI . J
479
��CHAPTER 1 0
OPERATION HA M
[This chapter is not being published at this time . See the Commissioners' note
which follows the Introduction to Part VI . ]
481
��CHAPTER 1 1
MATTERS CONCERNING AN UNDERCOVER
OPERATIVE, WARREN HAR T
INTRODUCTION
1 . Here we examine certain matters that arise from our inquiry into the use
of Mr . Warren Hart as an undercover operative of the Security Service from
1971 to 1975 .
2 . Testimony was heard during public hearings held in 1980 on January 8, 9,
10, 15, 16 and 17, and April 22, 23, 24, 29 and 30 . It is found in Volumes 143,
144, 145, 150, 151, 152, 178, 179, 180, 181 and 182 . Testimony in camera was
heard on April 30, 1980, and is found in Volume C92 . In addition representations were made to us pursuant to notices given under section 13 of the
Inquiries Act (Vols . C126 and C131) .
3 . Mr . Hart testified publicly before us, and we refer publicly to him in this
Report, because his identity as a previous undercover operative of the
R .C .M .P . had been disclosed by himself on television and admitted in the
House of Commons and to the press by the Solicitor General, after Mr . Hart's
own disclosure .
4. We inquired in depth into Mr . Hart's complaints, and other matters about
which he did not complain but which were incidents in his career with the
R .C .M .P . Certain issues he raised might not in themselves have merited the
time devoted to hearings, but we considered others to be of substantial
importance, either in themselves or as illustrations of policy problems .
5 . One of the matters relating to Mr . Hart, his presence at a meeting held in
December 1974 between the Honourable Warren Allmand and Roosevelt
Douglas, is reported- on in Part IV, Chapter 7 . Another matter was his
allegation made publicly that a murder had been committed . We interviewed
Mr . Hart as to the extent of his knowledge of this matter and we immediately
made a Special Report to the Governor in Council recommending that it be
referred to the Attorney General of Ontario .
Summary offact s
6 . In April 1971, at the request of the United States Department of Justice,
Mr . Hart met Sergeant I .D . Brown of the R .C .M .P . in Washington, D .C . Mr .
Hart understôod from a member of the Department of Justice that the
R .C .M .P . needed someone with expertise in infiltrating black radical organiza483
�tions . After Sergeant Brown consulted with R .C .M .P . Headquarters in Ottawa,
the decision was made that Mr . Hart would go to Canada to work at a salary
of $900 a month plus $100 a month to cover the expenses of a monthly visit to
his family in Baltimore . There was no discussion about the payment of
Canadian income tax . Mr . Hart entered Cânada and went to Toronto where he
again met Sergeant Brown, who told him that his target was Roosevelt Douglas
and that he was to attend black meetings to obtain information covering the
future plans of black extremists . Mr. Douglas was then in jail but when he was
released Mr . Hart became, in Mr . Hart's own words, "his chauffeur, his
bodyguard and his confidant" . His R .C .M .P . "handlers", who gave him
instructions and debriefed him regularly, were Sergeant Brown and Constable
Laird . Four or five months after his arrival Mr . Hart first met Inspector James
S. Worrell, who, he understood, was the officer in charge of matters involving
himself. In fact, it appears that Inspector Worrell, who was in Toronto, was at
the time not really .in charge, for Sergeant Brown was receiving instructions
from Headquarters in Ottawa .
7. Later Mr . Hart's salary was increased to $1300 a month . This occurred
because Mr . Hart had returned to Baltimore in 1972, having decided not to
continue to work for the R .C .M .P . Messrs . Brown and Laird went to see him
there and offered him the increase together with insurance coverage and fringe
benefits, as a result of which Mr . Hart agreed to resume his work in Canada .
8 . What was the R .C .M .P.'s assessment of Mr . Hart's services? Chief
Superintendent Begalki confirmed in testimony that in February 1973, he
recorded that Mr . Hart was "sharp and intelligent" and_that Mr . Begalki
considered that the not inconsiderable faith Mr . Hart had in his own abilities
made it possible to survive in a very dangerous milieu . As of 1973 Sergeant
Plummer, who succeeded Sergeant Brown as Mr . Hart's principal handler,
considered that Mr . Hart was performing his job well . As late as the fall of
1975 Sergeant Plummer thought so highly of Mr . Hart's usefulness that he
wanted Mr . Hart to accompany Mr . Douglas on a trip across Canada .
Inspector Worrell testified that Mr . Hart performed excellent work for the
R .C .M .P . at times and that at other times his conduct was a matter of concern,
but that generally speaking his efforts were quite good, especially in 1972 and
early 1973 . Inspector Worrell testified that he formed the opinion that Mr .
Hart was "a sand lot thug", "an egomaniac", and a man whose ego was
"giant-sized" ; this opinion was based on reports he received, as Inspector
Worrell did not deal with Mr . Hart personally .
9 . We turn now to a discussion of the following specific issues :
(a) The arrest and deportation of Mr . Hart in December 1971 ;
(b) The entry of Mr . Hart into Canada initially, and his return to Canada
after his deportation ;
(c) Surreptitious entry and reading mail ;
(d) The cache of firearms ;
(e) Kenora ;
(f) Mr. Hart's contacts with native people in British Columbia ;
484
�(g) Taping of a meeting of the N .D .P . provincial caucus in British
Columbia ;
(h) Mr. Hart's presence when Roosevelt Douglas met John Rodriguez,
M .P . ;
(i) Mr. Hart's associations with the underworld ;
(j) The border incidents ;
(k) The decision to terminate Mr . Hart's employment ;
(1) The termination of Mr . Hart's employment ;
(m) Was Mr. Hart offered permanent employment ?
Specific issues
(a) The arrest and deportation of Mr . Hart in December 197 1
10 . In December 1971, the R .C .M .P . decided, with Mr . Hart's concurrence,
to have Mr . Douglas and Mr . Hart arrested, jailed and deported under the
Immigration Act . It was intended that Mr . Hart would return to Canada a few
weeks later, and he did in fact return in January 1972 to resume his work for
the R .C .M .P .
11 . According to Mr . Hart, he understood that the purpose of the plan to
deport Mr . Douglas and himself was to enhance Mr . Hart's "cover" and to
increase his credibility among black radicals . However, Security Service documentation at the time and the testimony of R .C .M .P . witnesses establish that
there was a more urgent reason . Sergeant Brown testified that the plan to
arrest Mr . Douglas and Mr . Hart was developed in order to defuse a plot to
place a bomb at Sir George Williams University and to kill two professors
there . In order to defuse the plot and "pull" Mr . Hart out of the situation it
was decided that it was necessary to have him arrested and deported .
12 . Sergeant Brown told us that the instructions given to Mr . Hart were that
he was to admit to the arresting R .C .M .P . officers that he had overstayed his
visiting privileges and had been a member of the Black Panther Party in the
United States . Sergeant Brown says that he instructed Mr . Hart to be
co-operative with the Immigration officer and admit that he had overstayed
and had been a member of the Black Panther Party, but that there was no
instruction given to admit to a criminal record . Sergeant Brown stated that
Inspector Begalki authorized him to have Mr . Hart admit that he had been
illegally in Canada as a visitor . It was not expected that Mr . Hart would
disclose to the Immigration officer conducting the inquiry that he had come
into Canada to work for the R .C .M .P . That would have been quite contrary to
the willingness of the Force to admit the identity of a source . Sergeant Brown
testified that he expected that if Mr . Hart were asked whether he had been
employed in Canada, he would not tell the truth .
13 . Pursuant to the plan previously described, Mr . Hart and Mr. Douglas
were arrested on December 8, 1971, in Toronto . According to Mr . Hart,
Sergeant Brown told him that there would be an Immigration Inquiry, and that
he was to tell the inquiry officer about his background and his arrest record,
and that he "was a subversive in Canada" and make himself appear to be a s
485
�bad as possible . Mr . Hart testified that the record of arrests which he disclosed
to the inquiry officer had in fact been the result of his being arrested during
demonstrations in which, to maintain his cover while he was an undercover
agent with the F .B .I ., he had participated . Mr. Hart told the inquiry officer
that he had been convicted of assault and battery and possession of a firearm,
but he claimed to us that he had not in fact been so convicted . He told us that
he had told the inquiry officer that he had been convicted in order to make
himself look bad so as to ensure his deportation . He also admitted to the
inquiry officer that he had come to Canada to stay, even though he had entered
Canada as a visitor . As a result he was ordered deported, and was driven to the
international border . By that time he had spent five days in custody . He was
ordered deported on the ground that, contrary to section 18(1)(e)(vi) of the
Act, he had entered Canada as a non-immigrant and remained, said the order,
"after ceasing to be a non-immigrant and to be in the particular class in which
you were admitted as a non-immigrant" .
14. Mr . Hart understood that the inquiry officer did not know of his
arrangements with the R .C .M .P . and was being misled, but that a senior
officer in the Immigration Department knew what was going on . Chief
Superintendent Begalki testified that, to the best of his recollection, Immigration officials were aware of the plan, but that he does not know whether the
inquiry officer knew of it . Mr . Begalki told us that he expected that the inquiry
officer would . know all the facts, including Mr . Hart's association with the
R .C .M .P . Mr . Begalki stated that the senior Immigration official with whom
he discussed the matter led him to believe that he "would communicate on a
parallel line with his people" . Mr. Begalki also told us that he believes that the
senior Immigration official felt that the facts of the deportation procedure
would be communicated upward in the Department and that the Minister
would "remove the order" .
15. The senior Immigration official did not testify on this matter but was
interviewed by our counsel . He stated that he was fully briefed by the
R .C .M .P. in late November or early December 1971 as to the past and
proposed activities of Mr. Hart for the R .C .M .P . He knew of the plan to deport
Mr . Hart and Mr . Douglas . The plan was not documented, but the need to
defuse the plans to kill two university members by deporting Mr . Douglas and
Mr . Hart was explained in detail on December 3, 1971, by Assistant Commissioner Parent in a letter to the senior Immigration official . That official said
that he is fairly certain that the inquiry officer was briefed before the
Immigration hearing . The inquiry officer was interviewed by our counsel after
all our hearings and stated firmly that he did not know of Mr . Hart's
involvement with the R .C .M .P . or of the plan to have Mr . Hart deported . He
said that he first knew of Mr . Hart's involvement with the R .C .M .P . only
recently when this matter appeared in the press . We have no reason to doubt
his statement .
16. According to a memorandum dated February 24, 1978, from the Deputy
Minister to the Minister of Manpower and Immigration, the senior Immigration officia l
recalls that the proposed line of action was discussed and agreed to with
Senior Management and the Minister, the Honourable Otto Lang .
486
�However, there is absolutely no other documentary evidence that supports that
statement and we do not accept it .
17. From our counsel's interview with the senior Immigration official it would
appear that that official was generally aware that the R .C .M .P . were party to
the practice of having foreigners present in Canada on security intelligence
work from time to time, even though the R .C .M .P . did not advise Immigration
every time Mr . Hart entered Canada .
18 . According to a memorandum from the Deputy Minister of Manpower
and Immigration to his Minister, dated February 21, 1978, Superintendent
Chisholm and Chief Superintendent Begalk i
advised officials of this Department that Hart was providing information to
the RCMP on Roosevelt Douglas and other black extremists in Canad a
and that one of the two Immigration Department officials so advised
recalls that early in 1972 John Starnes, Director General, Security Service,
did in fact brief the ADM Immigration who later briefed the Deputy
Minister and Minister .
In another memorandum dated February 24, 1978, the Deputy Minister
advised the Minister that, according to the same senior official, Mr . Starnes'
visit to the Immigration Commission followed the receipt in May 1972 of Mr .
Hart's application for temporary admission to Canada to study 'at Atkinson
College in Toronto . The memorandum continued :
As far as [the senior official] can recall, Mr . Starnes requested that our
Commission refrain from taking enforcement action against Mr . Hart for
"at least two weeks" as he was engaged in a number of sensitive and
important matters .
19 . On November 5, 1976, the Director General, Recruitment and Selection
Branch, Canada Immigration Division, wrote to Mr . Hart as follows :
I have been asked to reply to your letter of October 3, 1976, referred
from the office of the Prime Minister, concerning your desire to be
admitted to Canada for permanent residence .
I have noted with interest the contents of your letter . On reviewing our
file, however, I note that you were deported from Canada on December 9,
1971, and at that time you admitted to a conviction in the United States in
1953 for assault and battery . As assault and battery is considered a crime
involving moral turpitude, it places you within a statutory prohibited class,
paragraph 5(d) of the Immigration Act .
In view of the above, I am sorry to have to tell you that your admission
to Canada either as an immigrant or non-immigrant (visitor) is prohibited
and we are, therefore, unable to accede to your request .
(Ex . Q-1 I . )
Mr . Hart denies that he was in fact ever convicted of such an offence .
Conclusion
20 . We raise no legal issues in regard to this episode . Our purpose in
narrating it is to establish as clearly as possible what occurred, as this has a
bearing on Mr . Hart's immigration status .
487
�(b) The entry of Mr . Hart into Canada initially, and his return to Canada
after his deportatio n
[This section, consisting of paragraphs 21 to 24, is not being published at this
time, pending possible legal proceedings against a member of the R .C .M .P . ]
(c) Surreptitious entry and reading mai l
25 . Mr . Hart told us that on one occasion he entered a friend's apartment
without his knowledge in order to obtain access to some mail which the friend
had received . [The balance of our Report on this matter, consisting of the
remainder of paragraph 25 and paragraph 26, is not being published at this
time, for reasons, given in Part VIII, relating to the possibility of prosecution of
a member or members of the RCMP . ]
(d) The cache of firearm s
[This section of this chapter, consisting of paragraphs 27 to 34, is not being
published, pending possible legal proceedings against members of the
R .C .M .P . ]
(e) Kenor a
35 . Mr . Hart accompanied Mr . Douglas to Kenora, Ontario in 1974 when
Anicinabe Park at Kenora was occupied by some Indians and the Security
Service thought that an attempt was being made to associate the native Indian
cause with the Black cause . In his testimony Mr . Hart denied having given
instruction to the native people on the manufacture of bombs, although he said
that the general idea of bombs was discussed . He said that he met "several
so-called Indian leaders" at Kenora and was introduced as "the General, the
one who could instruct them in the expertise of weaponry and demolition", and
that he "learned of a cache of weapons that had been brought into Kenora for
the next uprising that they were going to have" . He denied having given any
advice in Kenora as to how to fabricate bombs . He denied having, at Kenora or
anywhere else in Canada, supplied anyone with weapons, or having counselled
anyone as to how to procure bombs, grenades or other explosives .
36. Mr . Hart testified that he does not recognize the name Donald R .
Colborne of Thunder Bay . Mr . Colborne is a lawyer in that city . In January
1979, Mr . Colborne made a statutory declaration in which he stated that on or
about June 30, 1975, he met a man who was accompanying Roosevelt Douglas .
From the facts given by Mr . Colborne it is evident that the man, whom he
knew as "the General", was Mr . Hart . According to Mr . Colborne, the man
"several times stated that he intended to steal weapons from persons in
Thunder Bay", and "Boxes of grenades and other military-style weapons were
referred to" . Mr . Colborne says that the man "tried to incorporate me into his
plan by enquiring if I would provide a safe place to cache the weapons after
they had been stolen" . Mr . Colborne says that he "declined to do so" . Mr .
Colborne says also that he does not know whether or not any weapons were
actually stolen by "the General" . We did not call Mr . Colborne as a witness .
We assumed that if he were to testify, he would say what he said in hi s
488
�statutory declaration . We did ask Mr . Hart about Mr . Colborne's allegations .
Mr . Hart denied having indicated in Thunder Bay that he intended to steal
weapons or explosives, or having asked about a safe place to hide explosive
devices or weapons in Thunder Bay .
37. Sergeant Plummer confirmed that Mr . Hart's instructions were that, in
order to "get next to" the targets, he was, with the R .C .M .P .'s approval, to
claim to be an expert in demolition and weaponry .
Conclusio n
38 . Neither in the testimony nor in our review of the R .C .M .P. files concerning Mr . Hart is there any basis to question Mr . Hart's account of the events .
Even if Mr . Colborne's allegations are accurate, Mr . Hart's words and conduct
would not amount to offences .
(f) Mr . Hart's contacts with native people in British Columbi a
39. Mr . Hart acknowledges that, while accompanying Roosevelt Douglas to
Vancouver, British Columbia, he met one Gary Cristall . Mr. Cristall swore an
affidavit in November 1978 in which he stated that he met Mr . Hart, whom he
knew as "Clay Hart" and "the General", in the spring of 1975, and that in
August 1975 he travelled with Mr . Hart and Roosevelt Douglas, in Mr . Hart's
automobile, from Vancouver to the Mount Currie Indian Reserve . There, he
said, during discussions with "several native persons, including Mount Currie
band members and members of the American Indian Movement (A .I .M .)
concerning fishing and hunting rights and land claims", Mr. Hart "claimed
that he had American military experience as a paratrooper and that he was an
expert in explosives" . Mr. Cristall stated that Mr . Hart said h e
could provide unlimited supplies of high quality military equipment, including AK-47 automatic rifles, dynamite and plastic explosive s
and that h e
volunteered to train the native people that he met at Mount Currie in the
use of dynamite and other types of explosives .
We did not call Mr . Cristall as a witness . He was interviewed by one of our
investigators and we reviewed the transcript of the interview . We also read a
short chapter from a book by Richard Fidler, "R .C .M .P . : The Real Subversives", which Mr . Cristall told our investigator was based on his experience
with Mr . Hart. From all this it was clear that Mr . Cristall, if called to testify,
would not be able to go beyond what he stated in his affidavit . Mr . Hart
testified that, while he had_met Mr . Cristall, the latter was not at the Mount
Currie Indian Reserve when Mr . Hart and Mr . Douglas were there . The
contradiction between the two is of no importance to the issue whether Mr .
Hart, as an agent of the R .C .M .P ., did anything that was unlawful . Assuming
everything in Mr . Cristall's affidavit to be true, there is nothing unlawful in
what he alleges Mr . Hart said at the Reserve . It thus becomes immaterial
whether Mr. Hart was accurate or not when, in his testimony, he told us that
he did not meet Mr. Cristall at the Mount Currie Indian Reserve .
489
�40 . At the Reserve Mr . Hart discussed training Indian people at two proposed campsites, but the camps were not set up . Mr . Hart said that they did
not have the time to have any discussion about weapons and denied that he told
any Indians that he could provide unlimited supplies of high quality military
equipment, including AK-47 automatic rifles, dynamite and plastic explosives .
According to Mr . Hart, during this western trip Corporal McMorran debriefed
him in Regina and Sergeant Plummer met him in Vancouver . Sergeant
Plummer, however, denied that he travelled at all in connection with that trip
of Mr . Hart .
Conclusio n
41 . Neither in the testimony nor in what is alleged in the affidavits is there
any indication that Mr . Hart committed an offence or that there was any
conduct by the R .C .M .P. members that is open to criticism .
(g) Taping of a meeting of the N .D .P . provincial caucus
Columbi a
in British
42 . Mr . Hart testified that Sergeant Plummer and Corporal McMorran knew
in advance that Mr . Hart would be attending a meeting between Mr . Douglas
and members of the British Columbia provincial caucus of the New Democratic Party .
43. Mr . Plummer stated that he has no memory of a recording of such a
meeting but remembers that the meeting was reported on . In later testimony he
said that he possibly did know, in advance, of the proposed meeting . He said
that if he had known in advance that Mr . Hart was going to be present at such
a meeting he, Plummer, would have had "no compunction" about Mr . Hart
being present . He left any ethical questions arising from tape recording
Ministers and political parties to his superiors .
44. Mr . McMorran testified that Mr . Hart recorded the meeting openly, with
a standard tape recorder on the table, and that it was simply a tape of the
speech made by Mr . Douglas . Mr . McMorran confirmed that he was aware in
advance that Mr . Hart was going to attend the meeting . It was Mr . McMorran's understanding that the meeting would not be private .
Conclusio n
45. There is no evidence that Mr . Hart committed any offence. Moreover, the
evidence indicates that the recording was made openly . We consider that there
is nothing in his conduct or that of members of the R .C .M .P . that is open to
criticism .
(h) Mr . Hart's presence when Roosevelt Douglas met John Rodriguez,
M .P .
46 . Mr . Hart says that Sergeant Brown knew in advance that Mr . Hart was
going to be present at a meeting between Mr . Douglas and Mr . John
Rodriguez, a Member of Parliament .
490
�47 . Sergeant Plummer, who was Mr . Hart's handler from the summer of
1973 until November 1975, testified that he did not authorize a taping of a
conversation between Mr . Douglas and Mr . Rodriguez . He remembers only
seeing the name of Mr . Rodriguez in a report .
J
48 . Corporal McMorran was one of Mr . Hart's handlers from November 22,
1974, to the end of 1975 . He testified that he does not recall whether Mr . Hart
reported having taped Mr . Rodriguez, and he testified that he was positive that
Mr . Hart did not give any such tape to him . However, Mr . McMorran did
know in advance that Mr . Hart was going to be driving Mr . Douglas and Mr .
Rodriguez . Mr . McMorran testified that he believes that Mr . Hart indicated
that there was nothing noteworthy to report .
49 . Mr . Hart testified that the recording was made with apparatus that was
built into his car . But Mr . McMorran testified that the meeting with Mr .
Rodriguez took place in 1975 and that there was no recording equipment in the
car Mr . Hart had during that year.
Conclusion
50 . No offence was committed because Mr . Hart must be considered to have
been a party to the conversation, and his consent to the taping prevented it
from being unlawful . However, we note that he was present at the meeting
between Mr . Douglas and a Member of Parliament without the Solicitor
General being notified, even after the event, that an R .C .M .P . undercover
source had been present and had reported to the R .C .M .P . on the meeting . As
with the meeting between Mr . Douglas and Mr . Allmand (the more so in the
latter case because Mr . Allmand was the Minister who reported to Parliament
concerning the R .C .M .P .), we consider it unacceptable that members of the
R .C .M .P . should allow that to happen .
(i) Mr . Hart's associations with the underworl d
51 . Mr . Hart necessarily developed a"cover" story to explain the fact that he
had money . As he had met an underworld figure while in jail in Toronto
awaiting deportation, Mr . Hart testified that his R .C .M .P. handlers decided
that he should develop an apparent connection with the underworld . Mr . Hart
claimed to have reported to his R .C .M .P. handlers all the requests that
underworld figures put to him . He told us that he did not carry out these
requests, and that his handlers instructed him not to participate in anything
that was unlawful . Mr. Hart asserted that his R .C .M .P . handlers knew of his
use of his association with criminal elements as a cover, and that his handlers
did not tell him to cease such association or, that he was not following
instructions .
52 . Sergeant Brown testified that Mr . Hart was never involved in criminal
activities, and that Mr . Brown had authorized Mr . Hart's association with the
criminal whom he had met while in jail in order to promote Mr . Hart's "cover"
by. developing an apparent explanation for Mr . Hart's income . Corporal Laird,
who backed up Sergeant Brown as Mr . Hart's handler from December 197 1
491
�until July 1973, told us that he knew of no criminal activities of Mr . Hart other
than the border incident (if, we might add, it is in any way criminal) .
53. On one occasion, after a mail robbery in Toronto, radicals turned over
some cheques to him, and he gave them to Mr . McMorran . He was criticized
by the R .C .M .P . for having received the cheques. A similar incident occurred
with regard to stolen credit cards, and he was again criticized for receiving
them . His handlers did not want to run the risk of having to expose Mr . Hart's
true identity by his being called as a witness in any criminal prosecution .
54 . Chief Superintendent Begalki testified that at a meeting in Ottawa in
February 1973 he told Mr . Hart in detail that he "must refrain from getting
involved with criminal intelligence and that if he followed these instructions
and guidelines that employment would probably be much longer than if he got
involved in any criminal intelligence collection with prosecutions following et
cetera" .
55 . Mr . McMorran testified that, other than the border incidents and the
matters of the stolen cheques and credit cards which Mr . Hart received and
turned over to his handlers, he knew of no "other" criminal activity in which
Mr . Hart was involved . Mr . Brown testified that Mr . Hart had a particular
dislike for drugs, and therefore he expressed doubt that Mr . Hart would ever
become involved with illicit drug traffic unless as a pretext for a job he was
working on .
56 . Inspector Worrell acknowledged that Mr . Hart's cover, to provide an
apparent explanation for his income, was his association with Mafia types .
However, Inspector Worrell told us that he thought that Mr . Hart "at times
expanded beyond the cover role unnecessarily" . As of March 1974 Inspector
Worrell felt that Mr. Hart had co-operated in regard to his instructions to keep
the criminals at arm's length . Then Mr . Hart was reprimanded for having
received the stolen cheques although he had been told to "stay clear and stay
away", but Inspector Worrell acknowledged that the reprimand was given
simply because he had become involved ; there was no suggestion that Mr . Hart
was involved for personal reasons or motives, but rather his object was to bring
them to his handlers .
57 . Inspector Worrell told us that he had had the feeling that Mr . Hart was
not playing square with the R .C .M .P. at all times . However, as Mr . Hart was
handled by Headquarters and was not under Mr . Worrell's control in Toronto,
Mr . Worrell did not have "the contact" . Mr . Worrell said his attitude was
based on instinct and not on facts . He testified that he began to have these
feelings in or about 1973 - "some time around the cheque incident or the
Italian crossing" . (We note that the "Italian crossing" - the border incident
- was in May 1973 ; the cheque incident was in January 1975) .
58 . Mr . Hart's aggressiveness about reporting intelligence concerning criminal activities - a characteristic that, as we have observed, concerned his
handlers because it made his exposure more possible - was evidenced by a
September 25, 1974 memorandum for file, by Sergeant Plummer (Ex . Q-23) .
It recorded that another Canadian police force had been receiving crimina l
492
�information from Mr . Hart, without his expecting remuneration, for a period
of five months, and that the officer of the other police force reported that Mr .
Hart
claimed to be extremely frustrated in the manner in which we treat criminal
info . that he comes across in the course of his security service duties and
expressed a genuine interest in helping to rid the city of the undesirable
element .
A brief prepared for us by the R .C .M .P. on April 18, 1978, stated :
It had been established that Hart was a most difficult source to handle
and failed to follow direction and accept guidance . It was agreed that Hart
should claim to have criminal associations, to account for his life style, but
it was never intended that he should cultivate them . Hart was repeatedly
told not to become involved in any criminal activity, instructions he chose to
ignore . Hart did associate with the criminal element, and on at least four
occasions, reported to his handlers criminal matters, none of which resulted
in criminal prosecutions .
Efforts were made to use this intelligence for criminal prosecution purposes,
but this was never possible, as Hart became too close to the activity and
would have been exposed if prosecution had been initiated . All handlers of
Hart identified that he could not be relied upon and was frequently
becoming involved in activities he was told not to become involved in, and
was not always truthful .
This paragraph, we think, captures the essence of what was evidently felt by
Security Service officers such as Inspector Worrell and Assistant Commissioner Sexsmith . We have no doubt that they were genuinely concerned and
exasperated by Mr . Hart's apparently unrepentant willingness to collect criminal intelligence and thus run the risk of his identity being exposed . We believe
that their concern in this regard was an honest and genuine one, and we refrain
from passing judgment on whether they were right or not .
59. We do not, however, agree that the testimony before us, and the files we
have examined, support the following statement in the foregoing brief : "Hart
was repeatedly told not to become involved in any criminal activity, instructions he chose to ignore" . If that statement implies that he committed crimes, it
is an inference which is not supported by the evidence .
60. We also disagree with the brief's statement that "Hart did associate with
the criminal element" . That statement appears to imply that such "association" was contrary to instructions and that all he was supposed to have done
was to "claim to have criminal associations . . but it was never intended that
.
he should cultivate them" . (our emphasis) . He was permitted to "associate"
with such people, and his doing so was not contrary to instructions .
Conclusion
61 . We are satisfied by the testimony and our review of the R .C .M .P . files
that Mr. Hart's association with underworld figures was generally approved of
by his R .C .M .P . handlers as a suitable "cover" for his otherwise inexplicable
station in life . It is evident that from the beginning, or at least from 197 2
493
�onward, at .least one R .C .M .P . officer (Inspector Worrell) disapproved of the
cover, and that, at least toward the end of Mr . Hart's association with the
Force, Inspector Worrell was joined by others in being displeased by some of
Mr . Hart's activities arising from this association . However, we are satisfied
that their concern was not that he might be performing criminal acts, but that
his coming into possession of evidence of crimes committed by others and his
desire to deliver the evidence to the R .C .M .P . risked his true identity and thus
his usefulness to the Security Service .
62 . As we have indicated, we do not find any facts at all that show that Mr .
Hart committed any offence in regard to these associations .
(j) The border incidents
63 . One of the requests Mr . Hart received from his underworld acquaintances
was to smuggle an underworld figure across the border into the United States .
The resulting events occurred on May 18, 1973 . Mr . Hart told us that, before
driving the person to the border, he tried to contact his R .C .M .P . handlers, but
without success . Therefore, he stated, he wrote a note on a piece of stationery
which said, in effect, that he had a man in the trunk of his car . The note, which
was later produced as an Exhibit (Ex . Q-26), bore the words : "Please let me
speak to someone in charge" and "I have a man in the trunk" . He then drove
to a point near the border at Niagara Falls and the man got into the trunk .
When Mr . Hart reached the border he passed the note to an American official
and told him to read it . The official then opened the trunk and discovered the
passenger . During questioning, Mr . Hart asked the American officials to
telephone Sergeant Brown in Toronto . They did, and the result was that Mr .
Hart was freed and returned to Toronto.
64 . Mr . Hart's account of this matter is verified by independent documentary
evidence, consisting of a report of an investigation conducted within the
Immigration and Naturalization Service of the United States Department of
Justice . No reference was made to this document at the time of our hearings
into this matter because, although we had access to it, we did not have
permission from the United States agency in question to refer to it . The
R .C .M .P . have, since our last hearings into the matter, communicated to us
that "the American authorities have now declassified the material", subject to
certain deletions, and "have requested that the report be restricted to in
camera hearings" . From this we infer that the American authorities have no
objection to our quoting from the report in our Report to the Governor in
Council but that they would have objection to its publication . Consequently we
would quote from it if there were any need to do so, but not for publication .
However, we think that it is not necessary to quote from the report, and that it
is sufficient to state our conclusion, namely, that Mr . Hart's account is
corroborated by the report in all material respects .
65 . In a memorandum dated March 3, 1978, the Deputy Minister of Manpower and Immigration gave advice to his Minister as to whether Mr. Hart
"had been engaged in smuggling aliens (in particular, a Mr . Juan Ferdinando
Melito) across the Canadian/U .S . border", that being a question which ha d
494
�been put to the Solicitor General in the House of Commons on February 27,
1978 . The memorandum recorded that two letters had been sent to Mr . Blais
on February 28 and 29, based on file review . The memorandum then recorded
that the Acting Director of the Intelligence Division of the Immigration
Commission had been informed by the R .C .M .P . tha t
- On May 18, 1973, Hart attempted to smuggle Melito into the U .S .A . at
Niagara Falls . Melito had been secreted in the trunk of Hart's
automobile .
- U .S . Immigration officials discovered Melito in Hart's automobile . A
"fuss" ensued until Hart was able to make telephone contact with his
"handlers" . The U .S . authorities then permitted Hart to proceed ;
Melito was turned back to the Canadian side .
This information was, of course, wrong and thoroughly misleading . We do not
know whether the Chief Superintendent who provided the information knew
the true facts, or whether he accepted as true what some other member of the
R .C .M .P. had told him . It was equally misleading to state, in an AideMémoire that accompanied one of the letters to Mr . Blais that "source
attempted to smuggle an illegal alien into the U .S . in May 1973" as "support"
for the "contention" that he "may well have been involved with the criminal
element in Toronto for personal gain" .
66 . The memorandum also recorded that the Chief Superintendent "indicated that Hart had smuggled an Italian National, one Attilio Agostino, into the
U .S .A . from Canada in 1971" . The information in the R .C .M .P .'s file shows
that too is a misleading statement . The file shows that on August 2, 1973,
Sergeant Plummer reported to Headquarters on this matter (Ex . Q-23) . He
reported an interview with Mr . Hart, conducted by American officials, and he
referred to a "brief" that the R .C .M .P . had received from an American agency
(which we have read) . His conclusion at that time, which in our view is
supported by the American "brief ', was that Mr . Hart's account was factual .
The story told by Mr . Hart, essentially, was that he had carried Agostino
across the border to the U .S .A . at Windsor in March 1971, but that this had
been . done with the full knowledge and approval of United States ofBciâls at
the border, who hoped thereby to further an important investigation into
narcotics . However, it . is not possible for us to be unequivocal about this
matter, for the information from the American agency which is on the
R .C .M .P . file is based on a report made before the conclusion of the investigation by the American authorities .
Conclusio n
67 . We are satisfied that Mr . Hart did not "attempt to smuggle an alien"
into the United States in May 1973, and that the evidence on the R .C .M .P . file
tends to support Mr . Hart's contention that what he did in 1971 was not
"smuggling" because it was done in co-operation with an American agency .
(k) The decision to terminate Mr . Hart's employmen t
68 . On October 31, 1975, the decision to terminate Mr . Hart's employment
was made at a meeting of Inspector Begalki, Inspector Mumby, Inspecto r
495
�Worrell and Assistant Commissioner Sexsmith . Sergeant Plummer, who was
Mr . Hart's handler from the summer of 1973 until the termination, said that
the three major reasons for the termination were probably the border incident,
the Allmand incident and the cheque incident . But a written report made in
1975 by Corporal Payette, reviewing the history of the relationship of Mr . Hart
and the Security Service, did not refer to the Allmand incident as a consideration in deciding to dismiss Mr . Hart . Inspector Worrell testified that the
Allmand incident was not one of the reasons for the decision to terminate .
Sergeant Plummer testified that he was called to account for the Allmand
matter and had to chastise Mr . Hart, but then retracted that evidence . He did,
however, record in January 1975 that he had reprimanded Mr . Hart concerning the cheque incident .
69 . Sergeant McMorran testified that in September 1975 the Department of
Immigration discovered the illegal presence of Mr. Hart in Canada and on
September 11 notified Sergeant McMorran, who in turn notified Headquarters . As a result, Mr . Sexsmith instructed that Mr . Hart leave Canada
voluntarily in order to avoid arrest ; a decision would then be taken as to what
should be done .
70 . Inspector Worrell explained that one reason for the termination related to
Mr . Hart's abiding by directions given by his handlers . He said that a notion
developed at Headquarters that when Mr . Hart was out of the country, activity
by targets seemed to quieten down, and the people at Headquarters wondered
"whether this was a sort of self-perpetuating thing that we were in" . A second
reason given by Inspector Worrell for the termination was that there was
pressure from the Department of Immigration . According to Inspector Worrell, it was this that finally caused the decision to be made . The risks involved if
Mr . Hart were arrested and the arrest became public were a matter of concern .
71 . Chief Superintendent Begalki acknowledged that one of the reasons for
reviewing Mr . Hart's status in the fall of 1975 was pressure on the R .C.M .P .
from .the Department of Immigration . There was an immediate risk that Mr .
Hart would be arrested . He acknowledged that this was the principal concern .
Other concerns were "the backdrop of the threat to which this man was
targetted" - "there was a decline in activity" ; "the problems that he was
creating for his handlers to keep him out of criminal activities ; the number of
times they would have to intercede with the local police or other agencies ; the
whole question of whether he saw the threat down the road as requiring the
employment of this man" . In addition, according to Mr . Begalki, Assistant
Commissioner Sexsmith stated that Mr . Hart's conduct in surreptitiously
taping an interview with the Solicitor General "attests to his scruples" . While
Officer in Charge in Toronto, Mr . Sexsmith had argued against the employment of Mr. Hart, but this employment was supported by Assistant Commissioner Draper, Mr . Sexsmith's superior in Ottawa at the time . Mr . Sexsmith
succeeded Mr . Draper in 1975 and was then in a position to implement the
views which he had maintained about the use of Mr . Hart .
72 . Confirmation of the importance of the interest expressed by Immigration
officials in Mr . Hart, in provoking a review of whether his employment shoul d
496
�be continued, is found in Immigration files : a memorandum in the Immigration
file, dated August 19, 1975, recorded that a Departmental intelligence officer
in Toronto had been asked a few days earlier for information concerning
Warren Hart . An Immigration intelligence officer in Winnipeg had reported
on Mr . Hart's visit with Mr . Douglas to Winnipeg . The August 19 memorandum stated that Mr . Hart "had been the subject of a USINS report of June 9,
1975 in which he was described as having a criminal background and potentially dangerous" . We have read the United States Immigration and Naturalization Service report of June 9, 1975 . It reported that a "reliable source" had
reported that Mr . Hart
is engaged in smuggling Italian nationals into the U .S . from Canada . He
allegedly conceals the aliens in the trunk of a Cadillac sedan with Maryland
license ASN-510. Hart has been reported to be a member of the BLACK
LIBERATION ARMY who is wanted in the U .S . for criminal offenses .
Because of his affiliations and his possible criminal background, he should
be considered dangerous .
We know how erroneous this report was, and we note that the Canadian
Immigration file contains a note that the Toronto intelligence officer had
contacted the F .B .I . and been advised that they had no record'of any
outstanding warrants .
73 . The August 19 memorandum also stated that the departmental intelligence officer in Toronto had learned "that HART was a paid informer, in the
employ of the R .C .M .P . and probably one or two U .S . police organizations" . It
then stated that on August 18 "it was learned that Hart had been ordered
deported from Canada on 9/12/1971 and was thus illegally in Canada", and it
continued : "R .C .M .P . sources in Toronto indicated most strongly that no
.
Immigration action be taken against Hart . ." . The memorandum noted "the
seriousness of the case (i .e . - it is a case of great potential embarrassment for
the Department and the Minister)" and that the Acting Director General of
the Immigration Division had directed an Immigration officia l
to contact the R .C .M .P . in Toronto in order to impress upon them the
necessity for initiating discussions between the R .C .M .P . and this Department at the highest level regarding Hart . If the R .C .M .P . in Toronto were
not willing to proceed in this matter [the official] was instructed to begin to
proceed to take normal enforcement action against Hart, i .e . arrest Hart
under the provisions of Immigration Act and proceed with deportation
action .
Conclusion
74 . There was no impropriety on the part of any member of the R .C .M .P . in
regard to the process by which the decision was taken to terminate Mr . Hart's
employment .
(l) The termination of Mr . Hart's employmen t
75. In the autumn of 1975 senior R .C .M .P . officers were considering whether
Mr . Hart's services should be retained or terminated . Finally the decision was
made to terminate . Inspector Worrell met Mr . Hart and advised him of the
497
�decision . Mr. Hart testified that Mr . Worrell paid him $6,000 cash as
severance pay . He stated that he deposited the $6,000 in his bank account .
There is a receipt that is dated November 13, 1975, for $7,930, signed by Mr .
Hart (Ex . Q-16), but he says that he does not recall having signed it . (Mr.
Hart denies that he met Mr . Worrell on November 13, 1975 . In this he is
clearly incorrect) . Nor, he says, does he recall having been presented with a
receipt for that amount to be signed . Mr . Hart was alone with Mr . Worrell at
the time . Mr . Hart denies having been paid that amount . Yet, Sergeant
McMorran testified that Mr . Hart told him that Mr . Worrell had paid him
$7,930, and Mr . Worrell testified that he paid him $7,930 .
76 . Mr . Hart says that on four or five occasions at the most during his years
with the R .C .M .P . he signed blank receipts upon request . This, he understood,
was to enable a correction to be made in regard to a receipt previously signed
for the wrong amount . Such blank receipts were in the same form as Ex . Q-16 .
77 . When Mr . Hart returned to the United States he was unemployed for 18
months.
78 . Sergeant Plummer testified that on December 16, 1975, the date Mr .
Hart finally left Canada, he paid Mr . Hart another $1,668 .00 and had Mr .
Hart sign a receipt (Ex . Q-20) . The money was to enable Mr . Hart to
terminate his lease on an apartment in Toronto . Sergeant McMorran testified
to the same effect . In addition he said that some other member of the
R .C .M .P . had ascertained that it was not necessary for Mr . Hart to pay six
months' rent, yet their superiors authorized the money to be paid to Mr . Hart
to avoid further argument . This appears, from a reading of the file, to be
correct .
Conclusion
79 . We accept the evidence of Inspector Worrell as to the amount he paid to
Mr . Hart . We do so despite the evidence to the contrary given by Mr . Hart . In
this we are governed to a large extent by the existence of a receipt for the full
amount signed by Mr . Hart . We have reached this conclusion with some
difficulty in the light of Mr . Hart's testimony that, on occasion, he signed
blank receipts .
80. We have already noted Inspector Worrell's instinctive attitude toward
Mr . Hart . Similarly, Mr . Worrell stated that when he was in the course of
terminating Mr . Hart's services on November 13, 1975, Mr . Hart told him
that the deportation in December 1971 had been arranged because of operational needs, but Mr . Worrell, evidently unaware of the facts which support
that proposition, thought that Mr . Hart was "possibly embellishing" the truth .
We mention this only to illustrate that Mr . Worrell was not really familiar
with the facts concerning Mr . Hart .
(m) Was Mr . Hart offered permanent employment ?
81 . According to Mr . Hart, in 1972, when plans were being made for a trip
he was to make to the Caribbean with the authority of the Security Service, he
went to Ottawa and there met Inspector Begalki . According to Mr . Begalk i
498
�and Sergeant Brown, the meeting was in February 1973 . Mr . Begalki
expressed satisfaction with Mr . Hart's work . They discussed the fringe benefits
that had earlier been discussed in Baltimore, and, according to Mr . Hart, Mr .
Begalki stated : "When this is over, we will give you a position as a civilian
employee, with the R .C .M .P." According to Mr . Hart, he would be employed'
as a "coordinator" . Mr . Hart says that Mr . Begalki promised to put a letter on
his file to that effect, an that on subsequent occasions he was assured that that
had been done . In his testimony, Mr . Hart denied that what Mr . Begalki spoke
of was only the possibility of a job with the R .C .M .P . Mr . Hart testified that
Mr . Begalki said that in the letter to be placed on his file "a job offer would be
made, something like a recommendation ; in other words, I was to receive a job
upon the termination of that type of employment" . He says he equated such a
recommendation with an offer .
82 . In a television interview in January 1978 Mr . Hart asserted that when
Sergeant Brown and Constable Laird came to see him in Baltimore in 1972
there was a promise of "a permament job as a coordinator with the R .C .M .P" .
In cross-examination before us he admitted that that was incorrect .
83. Mr . Begalki confirmed in his testimony that there had been a discussion
with Mr . Hart about long-term employment, pension plans and other matters,
but his filed report indicates that the discussion occurred in Ottawa in
February 1973 . Mr . Begalki testified that the R .C .M .P . "could only cross the
bridge for long-term employment after the first employment had ceased, and
depending on the conditions of the day and his qualifications as they relate to
the vacancies within the Force and the hiring practice of the Force, that the
issue would have to be addressed at that time" . Mr . Begalki said that he was
sure that he told Mr . Hart "that depending on the vacancies within the Force
and the Force's needs, we could then possibly match up his qualifications with
any vacancies" . He said that he would have used the words "civilian member"
but that he does not recall using the term "coordinator" . He said that in the
discussion Mr . Hart indicated that he wanted some security because his family
situation was producing stress . Mr . Begalki stated that he "certainly made it
clear that the problems he raised would have to be carefully studied" .
84 . Mr . Brown, who retired from the R .C .M .P . in 1976, testified that he was
present at the time of Mr . Begalki's discussion with Mr . Hart and that Mr .
Hart was not promised a permanent position, although there was discussion
about fringe benefits such as medical assistance and the payment of life
insurance premiums . Mr . Brown testified that to the best of his recollection
"Mr . Hart was advised by Mr . Begalki that there were positions available for
security in the R .C .M .P . for civilian members from time to time, as approved
by the Commissioner, and that sort of a rhetoric conversation" . According to
Mr . Brown, no offer of employment was made .
Conclusio n
85. We accept the evidence of Chief Superintendent Begalki and ex-Sergeant
Brown . It is supported by advice we have seen in R .C .M .P . Security Service
policy files concerning the undesirability of holding out prospects of permanent
499
�employment to sources, although we realize that there can be no certainty that
that was always followed . We are aware that the Security Service have had
some difficulty with this question and we suspect that on occasion language has
been used which would make the prospect of long-term employment appear to
be at least within the realm of possibility . However, it is so improbable that
such a capable and knowledgeable member of the Security Service as Mr .
Begalki would make such a promise or offer as Mr . Hart alleged, that we
. cannot accept Mr . Hart's allegation that it was . In any event, even Mr . Hart
acknowledged that a "recommendation" was spoken of . We think that Mr .
Hart was allowing himself to be misled if he treated language that spoke of a
recommendation as if it were a promise or offer of long-term employment .
A general commen t
86 . There is one further matter upon which we shall comment . Mr . Hart may
at some time wish to return to Canada either as a visitor or as a landed
immigrant . If he should seek to do so, we invite the immigration authorities to
take into account what we have said in this chapter . Our impression, based on
reading the Force's files, is that within the R .C .M .P . there is a bias against Mr .
Hart, resulting from his having spoken out publicly, and this may be the cause
for what we perceive as a degree of unfairness in reports to the Solicitor
General . We believe that a fair reading of Mr . Hart's R .C .M .P. file justifies
the conclusion that he is not a criminal ; that if he was convicted many years
ago for assault, the insignificant amount of the reported fine is some indication
that the matter was of slight degree ; that he came to Canada at the request of
the R .C .M .P . ; that while in Canada for over four years he performed laudable
service for the people of Canada . If he had shortcomings in regard to any of the
specific matters we have discussed, those should be measured in conjunction
with the value of the services he rendered .
500
�CHAPTER 1 2
CHECKMAT E
[This chapter is not being published at this time . See the Commissioners' note
which follows the Introduction to Part VI .]
1
501
��PART VI I
EXECUTIVE POWERS IN REGARD TO
PROSECUTION S
A . OBSERVATIONS CONCERNING THE DECISION TO
PROSECUTE OR NOT TO PROSECUT E
1 . It is not within our jurisdiction to advise the federal Attorney General or
provincial attorneys general whether, in any particular situation, there should
or should not be a prosecution, because that is a matter solely within the
discretion of attorneys general . On the other hand, we do consider it appropriate to refer to factors that may emerge from the evidence before us, and to the
principles that bear on the exercise of prosecutorial discretion . We shall refer
to those principles for the benefit of the general reader .
2 . The same principles may also be pertinent to our conclusions as to whether
those R.C .M .P . members involved in particular acts, quite apart from prosecution, should be disciplined or even criticized in any way . There again, however,
we emphasize that the discretion whether or not to initiate disciplinary
proceedings rests entirely within the R .C .M .P ., and it is not within our te rms of
reference to recommend discipline in particular .cases . Before enumerating the
principles involved, however, two points should be made .
3 . The first is that as a general principle no man is above the law . When the
persons concerned are police officers this principle requires particular attention . In Regina v . Ormerod' Mr. Justice Laskin ( who was then a member of
the Ontario Court of Appeal) said :
In principle, the recognition of "public duty" to excuse breach of the
criminal law by a policeman would involve a drastic departure from
constitutional precepts that do not recognize official immunity, unless
statute so prescribes : see Roncarelli v . Duplessis .2 How far such immunity
exists in the exercise of discretionary power not to prosecute is unknown to
me ; but even if it be considerable, the fact that it does not reside in a settled
rule is a safeguard . Legal immunity from prosecution for breaches of the
law by the very persons charged with a public duty of enforcement would
subvert that public duty . The matter is, in my view, more grave in relation
to the criminal law than it is in any consideration of immunity from civil
liability where policemen may incur it while in the discharge of their
official duties . I may mention here a suggestion that has been made to
relieve them of personal civil liability but to make or leave their employer s
'[ 1969] 2 OR . 230, at 244 .
2[1959] S .C .R . 121, 16 D .L .R . (2d) 689 .
503
�liable : see Mathes and Jones, Toward a "Scope of Official Duty" Immunity
for Police Officers in Damage Actions.' There is no similar doctrinal basis
for excusing personal criminal liability .
The Criminal Code presently prescribes justification for policemen and
others in a number of respects where they are proceeding to enforce the
law, as, for example, by arresting offenders . This is designed as an aid to
enforcement, and presumes that the enforcing officers are not themselves
participating in the criminal activity that they are seeking to curb. Recognition of "legal lawlessness" is, however, something far different . It does not
represent a value that fits into our system of criminal law ; it would not
amount simply to "setting a thief to catch a thief" because, whatever be the
disaste for agents provocateurs, it would mean the abandonment of legal
control over them which, as the cases show, has been exercised from time to
time .
.
. .
4 . In a statement made in the House of Commons on March 17, 1978, on the
application of the Official Secrets Act, the Minister of Justice, the Honourable
Ron Basford, said :
Mr . Speaker, the second principle is that every citizen is subject to the law .
One of the pillars of our system of government, dating back three centuries,
is that neither the King nor any other person, be he a member of this
House, a member of the government, a member of the press, or someone
possessed of title or position, is above the law . The law should apply to all,
equally . He who breaks it must bear the consequences . °
The Honourable Roy McMurtry, Attorney General of Ontario, speaking in the
Legislature of Ontario on February 28, 1978, expressed the view that the
authorities "must be scrupulous to treat all members of the community equally
without any regard to their position" . He also said :
The holders of public offices will receive the same treatment under the law
as the ordinary citizen, even though the consequences may be more
injurious . s
5 . The second point is that in a federal country such as Canada, when the
actions of a national police force are under consideration, there is a need to
strive for consistency in the approach to prosecution from one jurisdiction to
another . If the act of a certain individual is being considered with a view to
possible prosecution, and if his act was performed as part of the implementation across Canada of a centralized policy of the Force, fairness would require
that in all provinces like cases be treated alike, so far as decisions to prosecute
or not to prosecute are concerned . Consequently, in such cases some degree of
consultation among attorneys general may be desirable .
6. , A third introductory point that we must mention is that in deciding
whéther to prosecute, as the Attorney General of Canada, the Honourable Ron
Basford, said in 1978, "there must be excluded any consideration based upon
narrow, partisan views, or based upon the political consequences" to the
attorney general or to others . He continued :
' (1965) 53 Geo. L .J . 889 .
° Canada, House of Commons, Debates, March 17, 1978 .
5 Legislature of Ontario Debates, 2nd session, 31st Parliament, No . 3, pp . 50-2 .
504
�In arriving at a decision on such a sensitive issue as this, the Attorney
General is entitled to seek information and advice from others but in no
way is he directed by his colleagues in the government or by parliament
itself . That is not to say that the Attorney General is not accountable to
parliament for his decisions, which he obviously is . 6
As Sir Hartley Shawcross has said, in order that an attorney general may
.
"acquaint himself with all the relevant facts", including "any . . consideration
,
affecting public policy"
. . . he may, although I do not think he is obliged to, consult with any of his
colleagues in the government, and indeed, as Lord Simon once said, he would
in some cases be a fool if he did not . On the other hand, the assistance of his
colleagues is confined to informing him of particular considerations which
might affect his own decision, and does not consist, and must not consist, in
telling him what the decision ought to be . The responsibility for the
eventual decision rests with the Attorney-General, and he is not to be put,
and is not put, under pressure by his colleagues in the matter . Nor, of
course, can the Attorney-General shift his responsibility for making the
decision on to the shoulders of his colleagues . If political considerations
which in the broad sense that I have indicated affect government in the
abstract arise it is the Attorney-General, applying his judicial mind, who
has to be the sole judge of those considerations . '
Principles relating to the exercise of prosecutorial discretio n
7 . It is not our intention to review all relevant principles in depth . We intend
only to refer in detail to certain principles that have a particular bearing on the
kinds of factual situations that we have reported on .
(a) The first question that must be answered when a prosecuting authority is
deciding whether or not to prosecute is whether evidence is available of the
commission of an offence and there appears to be a reasonable prospect of
a conviction . Consideration must be given to whether there are any
insuperable or fatal defects to the case as a result of such legal issues as
absence of jurisdiction, the expiry of a time limitation, or the inadmissibility of evidence . The prosecuting authority will consider what weight is
likely to be given by the jury or judge to the evidence that is presented, and
what likelihood there is that the evidence, upon being weighted, will be
held to prove guilt . The prosecuting authority will be well aware that guilt
must be proved beyond a reasonable doubt, not by a mere preponderance
of evidence . If there are open issues of fact or law consideration must be
given to whether they will probably be resolved in favour of the prosecution . This first consideration has been stated as follows :
If the prosecutor exercising his discretion impartially concludes. . . that
there is only the most tenuous foundation for the charge, it is surel y
6 Canada, House of Commons, Debates, March 17, 1978 .
' As quoted by J .U .J . Edwards, The Law Officers of the Crown (1964), p . 223 .
505
�preferable to halt the prosecution at this pre-trial stage and not subject
either the accused or the victim to the ordeal of a public trial . '
Another Crown counsel has written tha t
To commence a prosecution or permit it to continue in the face of [the
requirements of the law that the accused must be proved guilty "beyond a
reasonable doubt"], where the evidence forthcoming is not such as is
calculated to attain this standard, would be an abuse of discretion . It
would amount to the launching of a "fishing expedition" in the hope that
sufficient evidence would somehow turn up during the course of the trial .
Such a procedure could not be held to meet the test of the principles which
underlie the Bill of Rights .9
In many of the factual situations as to which we have reported in this
Report, the evidence that has been available to us would or might not be
available as part of the case for the prosecution . Frequently the evidence
before us as to the conduct of a member of the R .C .M .P . has been from
his own mouth, but he has testified under the protection of section 5 of the
Canada Evidence Act, and that testimony could not be used against him in
court if he were prosecuted . Yet other evidence may be available to
establish what his conduct was . In other situations witnesses before us
have had no real memory of events of some years ago and the evidence
before us is based on written communications and written records made at
the time . In such cases the evidentiary rules relating to hearsay would
apply in court although they did not apply to our proceedings . We mention
these merely as illustrations of difficulties that may be encountered by a
prosecuting authority in deciding whether there is sufficient evidence
available to make it reasonably probable that the essential facts could be
proved beyond a reasonable doubt .
(b) If the answer to the first question is in the affirmative, i .e . that there is a
reasonable prospect of a conviction, the authorities are unanimous in
recognizing that the prosecutorial authority must still be satisfied that a
prosecution is, in all the circumstances of the case, consistent with the
public interest . As the Attorney General of Ontario, the Honourable Roy
McMurtry, has stated in the speech to which reference has already been
made :
A prosecution is not automatically launched in every case where there is
some evidence to support the laying of criminal charges . Police officers
and the Crown law officers who advise them have broad powers to decide
whether or not to launch a prosecution, taking into account all the
circumstances surrounding the case . .
.
This exercise of judgement was best put by two Attorneys General of
England, Sir John Simon and Sir Hartley Shawcross, both speaking in the
Hôuse of Commons . I quote : "There is no greater nonsense talked abôut
J .U .J . Edwards, Criminal Law and Its Enforcement in a Permissive Society (196970) 12 Crim. L .Q. 417, at p. 427 .
Keith Turner, The Role of Crown Counsel in Canadian Prosecutions (1962), 40 Cdn .
Bar Rev ., p. 448 .
506
�Attorney General's duty than the suggestion that in all cases the Attorney
General ought to prosecute merely because he thinks there is what lawyers
call `a case' . It is not true, and no one who has held the office supposes that
it is ."
Sir Hartley Shawcross supported Sir John Simon's position : "It has
never been the rule in this country . . . that suspected criminal offences must
automatically be the subject of prosecution . . . The public interest . . . is the
dominant consideration . "
Sir Hartley outlined how he directed himself in deciding whether or
not to prosecute in a particular case . I .quote : "The Attorney General may
have to have regard to a wide variety of considerations, all of them leading
to the final question : Would a prosecution be in the public interest ;
including in that phrase, of course, in the interests of justice ?
In the ordinary case . . . one . . . has to review the evidence, to consider
whether the evidence goes beyond mere suspicion and is sufficient to justify
a man being put on trial for a specific criminal offence .
In other cases, wider considerations than that are involved . It is not
always in the public interest to go through the whole process of the criminal
law if, at the end of the day, perhaps because of mitigating circumstances,
perhaps because of what the defendent has already suffered, only a nominal
penalty is likely to be imposed ."
Mr . Speaker, I would stress that not merely is this the law of Canada
as well as England, but that it also reflects very accurately the responsibilities of the Attorney General of Ontario, certainly as I have experienced
them during the last two-and-a-half-years .1 0
(c) Although police officers should be treated the same as other persons in the
application of the same law that is applicable to them and to other persons,
a factor which may in an appropriate case be taken into account in
determining what the public interest is, is illustrated by the sentiments
expressed in Blake v . The Queen, ~ ~ a decision of the Supreme Court of
Prince Edward Island . In that case the appellant, a town Chief of Police,
had committed perjury during the trial of an accused by giving evidence as
if the events he described had been observed by him personally, whereas in
fact they were observed by other persons who were available to give the
evidence if they had been called . At trial he was sentenced to two years
imprisonment . On appeal, the court was unanimous in reducing his sentence to one day of imprisonment and a fine of $1,000 . Mr. Justice M .J .
McQuaid (with whom Mr . Justice Large concurred) said :
He has no criminal record whatsoever and we are satisfied that the
commission of this offence did not stem from any real criminal intent . His
counsel seems to express it quite accurately when he states in his factum :
"The offence committed by the appellant was committed more out of a
misapprehension of the function of a police officer in the criminal justice
system rather than for the reasons normally associated with criminal
behaviour ."
10 Legislature of Ontario Debates, 2nd session, 31st Parliament, No . 3, pp . 50-2 .
" [1978] 4 C .R . (3d) 238 .
507
�The considerations which should guide the court in determining the fitness
of a sentence to be imposed in a criminal matter are set out by our present
Chief Justice in R . v . Muttart [1971], 1 N fld . & P .E.I . R . 404 (C .A .),
where he states at p . 405 :
. . the degree of premeditation involved, the circumstances surrounding
the commission of the offence; the gravity of the crime ; the attitude of the
appellant after the commission of the crime as it served to indicate the
degree of criminality involved ; the previous record of the appellant ; the
age, mode of life, character and personality of the offender ; and the
recommendation of the jury . "
The third member of the P .E .I . Court of Appeal, Mr . Justice C .R .
McQuaid, reluctantly concurred with the reduction of sentence decided
upon by the other two members of the court, but he expressly rejected the
contention of counsel for the Police Chief. He said :
Prior to this occurrence, the appellant had had twenty years of police and
police-related work . This, in my opinion, was no mere misapprehension ; he
knew, or should have known, better .
One can, perhaps, understand though not excuse the perjury of an
accused in his attempt to evade conviction and punishment . On the other
hand, one can neither understand nor excuse the perjury of a police officer
in his attempt to secure the conviction of an accused, regardless of how
convinced that police officer may be personally of the guilt of the accused .
The fundamental duty of any police officer is to respect and protect
the rights of all citizens, and that includes as well the rights of any
individual citizen with respect to whose guilt the officer may be morally
convinced . When we, as a society, and particularly the courts, condone any
deviation from this principle, we are, indeed, in trouble .
Factors such as those discussed in the two judgments just quoted from are
relevant not only at the stage after conviction when the court is deciding
what sentence is appropriate, but also to the exercise of the discretion to
prosecute . On the other hand, some factors, such as motive, are irrelevant
to the determination of criminal responsibility or even the launching of a
prosecution, whereas after conviction they may be relevant to the nature
of the punishment to be imposed, if any .
(d) Another factor which may be taken into account in assessing the public
interest is whether the conduct of the police officer was a matter of choice
on his part or is more aptly characterized as following an official practice
of the police force which had the approval of the senior management of
the force .
(e) Similarly, where the conduct of members of the police force is institutionalized in the sense described in (d), a factor which the public interest may
require to be taken into account, in assessing whether a prosecution should
lie against senior officers who authorized the practice, is whether the
practice had either expressly or by implication received the approval of
government . This issue arises only where the practice in question has been
known to government and the government has taken no steps to put a stop
to the practice . Here, reference should be made to a report of the Unite d
508
�States Department of Justice on January 14, 1977, concerning its investigation and prosecutorial decisions with respect to Central Intelligence
Agency mail opening activities in the United States :
The issue involved in these past programs, in the Department's view,
relates less to personal guilt than to official governmental practices that
extended over two decades .
. .
Duringt .the period in which the mail openings took place, there was no
clear control to ensure that arguably valuable intelligence techniques
would be employed only with careful attention to their legality and their
effects on individual rights . The absence of defined control was perhaps in
part the result of the necessary secrecy, even within the government, that
attends intelligence operations . Whatever its cause, the failure of officials
at the highest levels who were generally aware of these activities (though
they did not participate in them) to clarify the law and establish institutional controls, and their apparent contentment to leave the individuals
operating in this field to proceed according to their best estimates of legal
constraints in a vague and yet vitally important area - all this would
render a prosecution by the government hypocritical . What really stands
indicted as a result of the information which the Department's investigation has disclosed is the operation of the government as an institution :
specifically, its failure to provide adequate guidance to its subordinate
officials, almost consciously leaving them to "take their chances" in what
was an extremely uncertain legal environment .
. . . The failure to convict . . . would hinder the development of the standards that we believe the law now establishes . The Department believes that
the objective of preventing repetition of such activity can better be
achieved by other means .
This passage requires some comment about particular details in it . First,
in our system it is quite erroneous to speak of "prosecution by the
government" ; when an attorney general decides whether or not to prosecute the decision is his, not that of the government, even though he is also
a minister in that government . Thus, for example, if the person against
whom criminal proceedings are contemplated happens to be a Minister of
the Crown or a Deputy Minister, or, for that matter, anyone in the
executive branch of government, it is the duty of the Attorney General to
reach his decision without regard to any embarrassment or prejudice that
his decision to institute proceedings may cause either the individual
concerned or the government of which he happens to be a member .
Consequently, that part of the passage just quoted which speaks of
government "hypocrisy" should be regarded as inapplicable to Canada .
Our second comment on the passage quoted is as follows . Any failure at
the governmental level (and, equally, at the R .C .M .P .'s management
level) to clarify the law and establish institutional controls of activities
known to them should not logically be regarded as having greater weight
in favour of the interests of a member of the R .C .M .P . who might be
charged with an offence, than would a defence of superior orders . If, as we
suggest in our Second Report, Part IV, Chapter 1, "it is doubtful that a
member of the R .C .M .P . would, at least in the absence of sudden violence
or some other emergency, be able to raise successfully a defence o f
509
�superior orders", then it should follow, in logic, that a "superior's"
conduct falling short of an "order" ought to be accorded no greater
weight .
(f) The same report of the United States Department of Justice also identifies
another factor which may be relevant to the public interest in the exercise
of prosecutorial discretion. The report observes tha t
The Department has concluded that a prosecution of the potential defendants for these activities would be unlikely to succeed because of the
unavailability of important evidence and because of the state of the law that
prevailed during the course of the mail openings program . . .
. . . An acquittal would have its own costs -it could create the impression
that these activities are legal, or that juries are unwilling to apply legal
principles rigorously in cases similar to this .
Much of the thrust of the passages we have quoted tends to emphasize those
factors which might militate in favour of non-prosecution or clemency . It
should be borne in mind that public statements by prosecuting authorities such as those we have quoted - as to the manner of exercising prosecutorial
discretion are usually made to explain decisions that have been taken not to
prosecute . It is less easy to find recent public statements by a prosecuting
authority as to his reasons for prosecuting when a prosecution has been
commenced . Consequently, we can offer no counterbalancing quotations, but
remind the reader that, in addition to the factors that favour non-prosecution,
there should be placed in the scales the importance of ensuring that members
of a police force obey the law . It should be borne in mind that peace officers
are already given substantial protection by the law, provided that they stay
within its terms, in the use of such investigative techniques as search, seizure,
arrest, detention, interrogation, physical surveillance and electronic surveillance . If there is evidence that any persons outside the police force, be they
members of the public service or Ministers of the Crown, participated in
offences, the decision whether to prosecute such persons is governed by the
same principles .
B . OBSERVATIONS CONCERNING DISCIPLINARY
PROCEEDING S
8 . It is not our intention to set out exhaustively the considerations which the
Commissioner of the R .C .M .P . might properly take into account in deciding
whether to discipline a member for conduct which we have criticized in this
Report . However, it is appropriate that we draw attention to the observations
of the Director of the F .B .I ., Judge W .H . Webster, in a Report made to the
United ;States Attorney General, Judge Griffin Bell, on December 5, 1978 .
This Report was concerned with the question of whether or not administrative
discipline should be instituted against members of the F .B .I . engaging in illegal
activities during the investigation of the Weather Underground organization .
The Department of Justice had already decided not to prosecute the members
of the F .B .I . arising out of this matter . He said :
510
�Administrative discipline rests upon an independent base from prosecutive action . Its purpose is to assure honest and efficient performance of duty
and to maintain the high standards of the agency . It should have a
therapeutic effect upon the individual disciplined and upon other
employees . To be effective, it should be promptly and impartially administered . It is not a substitute for prosecutive action and in fact may be applied
whether or not preceded by prosecution . For that reason, I have consistently
requested the Department of Justice to exercise its prosecutive discretion in
matters involving F .B .I . employees without regard to what administrative
action, if any, I might conclude to be appropriate .
He set forth the general factors which led to his decision, as follows :
In assessing the disciplinary action proposed to be taken in specific
cases, I have considered a number of factors, including the gravity of the
conduct, whether it was isolated or repeated, whether it contributed to
involvement of others, and whether it was in the nature of negligence or
insubordination . I have considered mitigating circumstances such as the
general climate of the times and whether the agent was performing
reasonably in accordance with superior orders . I have also considered the
agent's previous record, his subsequent record, the level of his responsibility
at the time the conduct occurred, and the extent and quality of his
cooperation during the inquiry .
9. Judge Webster noted that street agents engaged in wiretapping without a
judicial warrant, and in mail openings, along with other activities, under the
supervision of, . or specific authority from, supervisors . This led him to decide
that no disciplinary action was appropriate for 58 street agents . However, he
censured two of the street agents . In one of the cases, the agent, without
previous authorization, searched an apartment through the co-operation of the
building's rental agent . Judge Webster observed :
While his supervisor orally approved his subsequent report of the entry, it is
clear that the agent's intrusive actions were on his own . In order to make
certain that this activity is not repeated, I have censured the agent.
10 . In the other case, the agent, posing as a plumber, was admitted to an
apartment by the building superintendent . Judge Webster recited conflicting
evidence as to whether the agent obtained advance approval from his supervisor to enter, and concluded as follows :
I have determined that appropriate advance approval was not obtained and
the results of this entry were incorrectly reported . In order to make certain
that this activity is not repeated, I have censured this Special Agent .
With regard to the street agents who were not disciplined, Judge Webster
observed tha t
I think it is significant that since 1976, when the Attorney General
guidelines for domestic security investigations went into effect, there has
not been a single incident resulting in a successful claim of constitutional
tort against an F .B .I . agent . Thus, it seems clear to me that to discipline the
street agents at this late date for acts performed under supervision and
.without needed legal guidance from F .B .I . Headquarters and the Department of Justice would wholly lack any therapeutic value either as a persona l
511
�deterrent or as an example to others . It would be counter-productive and
unfair .
Most of the supervisors whose actions he reviewed also escaped his disciplinary
action . He observed that he ha d
. . . generally followed the same policy of not assigning discipline when the
supervisor merely was in the line executing surreptitious investigation
techniques with the knowledge and approval of superior authority .
However, he instituted disciplinary proceedings proposing administrative
action ranging from 30 days suspension without pay, to dismissal, in four cases .
They may be summarized as follows :
(a) a headquarters supervisor who, while serving as a field supervisor, ignored
specific instructions and manual regulations, and authorized and approved
electronic surveillances and mail openings "thereby failing to discharge his
duty to give needed guidance to his subordinates and subverting the
existing procedures which, if followed, should have restrained such conduct" . He also violated existing procedures by approving four surreptitious
entries without obtaining prior authorization from his superiors . Judge
Webster proposed to dismiss this employee .
(b) A headquarters supervisor who "failed to take action on field reports of
unauthorized activities that should readily have been recognizable to him
in cases for which he had responsibility as desk supervisor" . Judge Webster
proposed to dismiss this employee .
(c) A field official who, in an interview with representatives of the F .B .I .'s
planning and inspection division, furnished evasive and inconsistent
answers to questions put to him and thus "failed to co-operate fully in this
inquiry" . Judge Webster proposed to demote this employee .
(d) A field supervisor who "installed and monitored an electronic surveillance
device without specific authority from Headquarters and, upon being
informed that Headquarters would not approve the installation, erased the
tapes without authorization" . Judge Webster describes this as "a serious
but isolated infraction which reflects negligence and confusion rather than
willfulness and concealment" . Judge Webster censured and suspended this
employee for 30 days .
11 . In his Report of December 5, 1978, Judge Webster also said :
Administrative discipline is not a criminal process . The Attorney
General has passed upon the criminal aspects of the activities under
consideration and has concluded that they did not warrant prosecution .
I in turn viewed the conduct more in reference to standards of
discipline and conduct imposed upon employees of the Bureau, breaches of
which are subject to administrative discipline . It is vitally important that
Special Agents comply strictly with these standards and regulations . Procedures are intended to protect the public, the Bureau, and the employee .
This is especially true of activities for which prior higher approval is
required . An agent who ignores the requirement of prior authorization must
be subject to discipline if such rules and regulations are to be effective .
512
�12. We do not think that the tradition in Canadian police forces has been that
administrative discipline has been regarded as wholly distinct from offences
under the criminal law or other statutes . In other words, there is ample
precedent both within the R .C .M .P . and other Canadian police forces, for
disciplinary proceedings to be taken against a member who has escaped
prosecution by the civil authorities or whose trial has resulted in an acquittal .
With respect to the R .C .M .P . it is not unusual that the member will nevertheless be disciplined, for he may be regarded as having committed either a
"major service offence" under section 25 or a "minor service offence" under
section 26 of the R .C .M .P . Act . Section 25 provides .that :
Every member wh o
(o) conducts himself in a scandalous, infamous, disgraceful, profane or
immoral manner . . . is guilty of an offence, to be known as a major
service offence and is liable to trial and punishment as prescribed in
this Part .
Section 26 provides as follows :
Every member who violates or fails to comply with any standing order of
the Commissioner or any regulation made under the authority of Part I is
guilty of an offence, to be known as a minor service offence, and is liable
to trial and punishment as prescribed in this Part .
C . THE AVAILABILITY OF EXECUTIVE RELIEF FROM
PUNISHMENT OTHERWISE THAN BY DECIDING NOT
TO PROSECUT E
13 . Can a pardon be granted before conviction and even before prosecution?
This question received public attention in the United States when President
Gerald Ford pardoned former President Richard Nixon in 1974 . That pardon
was conferred by virtue of Article II, Section 2 of the United States Constitution, which gives the President "power to grant reprieves and pardons for
offences against the United States except in cases of impeachment" . Mr .
Nixon was accorded "a full, free and absolute pardon - for all offences
.
against the United States which he . . has committed or may have committed"
during his years as President . President Ford declared : "The Constitution does
not limit the pardon power to cases of convicted offenders or even indicted
offenders" .1 z
14 . In Canada, the Criminal Code provision for pardon is limited to pardons
after conviction . Section 683(2) states :
The Governor in Council may grant a free pardon or a conditional pardon
to any person who has been convicted of an offence .
However, section 686 of the Criminal Code provides that nothing in this Act in
any manner limits or affects Her Majesty's royal prerogative of mercy . Tw o
1 1 See J .U .J . Edwards, Ministerial Responsibility for National Security, 1979, p. 50 .
513
�positions may be argued for : one, that section 683(2) was intended to be an
exhaustive legislative formulation of the circumstances in which a pardon may
be granted ; the second, that the subsection is "declaratory of one situation but
does not purport to cover all situations in which a free or conditional pardon
may be granted" ." Whatever the meaning of the subsection, the power of the
Governor General of Canada to grant a pardon appears to be limited by his
Letters Patent, in the case of a principal offender, to situations where there has
been a conviction . According to the Letters Patent :
We do further authorize and empower our Governor General . . .to grant to
any offender convicted of any such crime or offence in any Court, or before
any Judge, Justice or Magistrate administering the laws of Canada, a
pardon either free or subject to lawful conditions . . .' "
The Letters Patent, significantly, empower the Governor General to pardon an
accomplice "when any crime has been committed for which the (principal)
offender may be tried" .
15 . The federal Cabinet, in the name of the Governor in Council, has the
power of clemency ,
. . . that is, the issuing of a reprieve or pardon to offenders against the laws
of the Dominion, notably, of course, for criminal offences . This may be
applied to individuals or, a more unusual example, to a group, such as the
general amnesty given to offenders under the Military Service Act after the
First World War .1 5
16 . Proclamations of amnesty for . past offences against the Crown have been
issued by Governor Generals of Canada in 1838 and 1875 as exercises of the
Royal Prerogative .1 6
17 . Whether there is a subsisting power to pardon before conviction in
England is the subject of disagreement among English writers . S .A . de Smith
wrote in 1971 :
It would seem that a pardon may be granted before conviction ; but this
power is never exercised . The line between pardon before conviction and the
unlawful exercise of dispensing power is thin . "
On the other hand, R .F .V . Heuston states without qualification that " . .. the
monarch may pardon any offence against the criminal law whether before or
after conviction" .18 The conclusion of Professor Edwards is tha t
.
.. the general understanding among British constitutional law authorities
is that the practice has fallen into disuse .
" Ibid., p . 50 .
'" Ibid., p . 51 .
's R . MacGregor Dawson, The Government of Canada, Toronto, The University of
Toronto Press, 1952, p . 243 .
16 Edwards, Ministerial Responsibility For National Security, fn . 179A, citing Todd,
Parliamentary Government in the British Colonies, lst ed ., 1880.
"Constitutional and Administrative Law, p . 128 . See also Wade and Phillips, Constitutional and Administrative Law, 9th ed . (A .W . Bradley, ed .) p . 338 .
'8 Essays in Constitutional Law, 2nd ed ., p . 69 .
514
�He expresses the opinion tha t
. .. the* most important objection to any such practice is that it is out of
harmony with modern views as to the propriety of granting dispensation
before the normal process of the criminal law has run its course . "
His view, like that of Professor de Smith, is that the exercise of the prerogative
power of pardon before conviction "evokes echoes of the Stuarts' dispensing
power which was roundly condemned in the Bill of Rights in 1688" .20
" Edwards, Ministerial Responsibility For National Security, p . 52 .
20 Edwards, ibid., p . 53 .
515
��PART VII I
RECOMMENDATIONS CONCERNING
PUBLICATION OF THIS REPOR T
1 . Our conclusion concerning some of the situations that we report on here is
that, on the basis of the evidence before us, there were, or may have been,
violations of the Criminal Code or of other federal or provincial statutes that
provide a penalty upon conviction . These are situations as to which, while in
most cases the evidence is public, counsel made their written and oral representations to the Commission in camera, in response to notices given to their
clients under section 13 of the Inquiries Act . This was done in accordance with
our reasons for decision of May 22, 1980, (reproduced as Appendix H to our
Second Report) . In those reasons we observed tha t
. .. it is possible that we may recommend to the Governor in Council that
our analysis of the legal position in the particular case and our recommendations as to what should be done should not be published until the matter
is finally disposed of by a decision either not to prosecute or launch
disciplinary proceedings, or, if there is a decision to prosecute or launch
disciplinary proceedings, the final disposition of such criminal or disciplinary proceedings .
We invited submissions from counsel with regard to this matter of publication
but received representations from only one counsel, Mr . Yarosky, who acts for
several members of the R .C .M .P .
2 . Having reflected a good deal about this matter, we are of the opinion that
it would be unfair to those concerned to publish our Report at this time, in so
far as it concerns situations which may possibly lead to criminal proceedings .
Commissions of Inquiry are extraordinary inquisitorial procedures that may,
and do, require people to testify, even though, if they were accused in court,
they could not be compelled to do so in the court . That an accused is not
compelled to testify in court is regarded as a fundamental principle of our legal
system . The publication of our Report, and the attendant publicity, might
make it difficult for those against whom we make a report or charge of
misconduct to obtain a fair trial : the trier of fact may read our Report or more likely - press summaries of our Report, or be told (perhaps erroneously)
about what we had said . In the latter two cases the trier of fact is likely to be
unaware of our warning that, as we said in our reasons for decision of May 22,
1980,
Counsel for the Commission have done their utmost to elicit all relevant
evidence, whether favourable or unfavourable to an individual, but there
may be evidence that has not been made known to our counsel and tha t
517
�would be placed before a court of law, either favourable or unfavourable to
the accused, that would result in the facts having a different complexion .
Moreover, some evidence which has been before the Commission might not
be before a court, such as the evidence of an accused person whose evidence
before this Commission, given under the protection of sec . 5 of the Canada
Evidence Act, would not be admissible for the prosecution .
In regard to the latter - the evidence given by a member of the R .C .M .P .
under compulsion by us - we add that the result of the immediate publication
of our Report could be not only that the trier of fact might be aware of the
evidence from press reports of our hearings since December 1977, but his
memory of that evidence might be refreshéd by press reports based on this
Report's summary of the accused's testimony, and coloured yet further by our
expressions of opinion as to the credibility or otherwise of the accused .
3 . In our reasons for decision of May 22, 1980, we drew attention to a
fundamental issue - "whether public commissions of inquiry, which have
become so common in Canada, should be used as an instrument of the
investigation of facts where the government reserves the right to proceed in the
courts against the individuals whose conduct is investigated by the commission" . We pointed out that in England, the Royal Commission on Tribunals of
Inquiry (chaired by Lord Salmon), reporting in 1966, said :
The publicity. . . which such hearings usually attract is so wide and so
overwhelming that it would be virtually impossible for any person against
whom an adverse finding was made to obtain a fair trial afterwards . So far
no such person has even been prosecuted . This again may be justified in the
public interest because Parliament having decided to set up an inquiry
under the Act has already considered whether or not civil or criminal
proceedings would resolve the matter and has decided that they would not .
We commented :
Such consideration does not appear so clearly to be given by the Governments of Canada or of the provinces when they appoint commissions of
inquiry . In England a commission of inquiry, at least if it is to sit in public,
is a mechanism of investigation that should be used only if the decision has
been made not to prosecute the individuals whose conduct the Commission
is bound to investigate if it is to carry out its mandate .
We might have added that the problem is complicated in Canada, for the
federal government, when it appoints a commission of inquiry, has no means of
undertaking that a provincial attorney general will not prosecute .
4 . The risk of prejudicing the right to a fair trial was recognized by one
observer of the Report of an earlier Royal Commission - the TaschereauKellock Commission on Espionage . In a dispatch to the Dominions Secretary
dated August 22, 1946, the British High Commissioner to Canada, Sir
Alexander Clutterbuck, said :
It must be recognized, too, that the Commissioners were placed in a
dilemma by having a dual task thrust upon them . According to their terms
of appointment, their primary duty was to report on who, in the public
service, was involved : but they also had the wider function of investigatin g
518
�the whole espionage system . But this inevitably means that their Report
takes on two self-contradictory qualities - it is not only a commission
appointed to report to Parliament on a general question, but also it
inevitably constituted itself a judicial tribunal, in effect, to try certain
persons of suspected illegal activities, without any actual charge being laid
against them . It is fair to the Commissioners to say that this difficulty was
inherent in the problem and was an insuperable one . But it has led them to
make comments in a public document which cannot fail to be prejudicial to
the individual if and when proper judicial proceedings are taken . In certain
cases, for example, the Commissioners frankly state that the person questioned was furtive and evasive and that they did not accept his answers . '
5 . The English attitude is illustrated by a statement made by the Attorney
General of England, Mr . Samuel Silkin, explaining why it was undesirable to
appoint a tribunal of inquiry :
It is absolutely essential, in the interests of justice, that the trial of a
person charged with a criminal offence should proceed without any taint
being cast on the defendant before the proceedings commence . Indeed, the
task of the police in carrying out their investigation would be made
impossible by a concurrent inquiry into the very same matters . 2
6 . It is outside our terms of reference to make recommendations as to the use
of commissions of inquiry in cases where the right to prosecute after the
commission has published its Report is reserved, unfettered, although we think
that governments at various levels should give careful consideration to this
problem . However, we do feel it to be "necessary and desirable in the public
interest" to comment on, and make recommendations concerning, the 'consequences of this problem in the situations that are before us .
7. Our recommendation is that, out of regard for the public interest in doing
everything that is possible to ensure that members of the R .C .M .P . and others
receive fair trials, our report as to these situations ought not to be made public
either until the appropriate prosecutorial authority has decided not to prosecute, or has decided to prosecute and the judicial proceedings have been finally
concluded .
8 . The samé concern moved His Honour Judge R .P . Kerans, of the District
Court of Alberta (now a member of the Court of Appeal of Alberta), to take a
similar approach in his Report under the Public Inquiries Act of Alberta into
the affairs of the Cosmopolitan Life Assurance .Company . In his Report, Judge
Kerans said :
. . . my comments with respect to possible criminal violations have been
isolated and placed in Appendix E, so that the Government may, if it
decides to make the balance of the report public, readily segregate this
portion of the report and not make it public, at least until after any
prosecutions which may be brought are disposed of .
Quoted in H . Montgomery Hyde, The Atom Bomb Spies, 1980, London, Hamish
Hamilton, and Don Mills, Nelson Canada, p . 78 .
2 United Kingdom, Parliamentary Debates, November 8, 1978, ed . 975 .
519
�It is our understanding that the comments made by Judge Kerans, which were
isolated and placed in Appendix E, entitled "A Memorandum Respecting
Possible Criminal Violations", were not made public, but that criminal prosecutions did ensue and were carried to their conclusion . At some time the
memorandum was made available for inspection by the Legislative Assembly
of Alberta, but it was never made public.
9 . When we delivered our reasons on May 22, 1980, we referred also to the
possibility of disciplinary proceedings . On reflection, we now think that if there
is no real possibility of criminal charges but only a possibility of disciplinary
proceedings, the same reasoning does not apply . In disciplinary matters the
ultimate authority is the Commissioner of the R .C .M .P ., and we think that it
would be unrealistic and unwise to suggest that he not be aware of any part of
our Report ; therefore no rationale justifies postponing publication .
10. It goes without saying that we think that sections of our Report should be
published if our conclusion as to a particular situation is that no one committed
a crime or offence of any kind . In some situations, no doubt, we may come to
that conclusion with regard to certain members of the R .C .M .P. but not to
others . In that case we think that our Report should not be published until
there is either a decision not to prosecute those whose conduct is questioned or
until any proceedings against them are completed, but of course the members
who are exonerated by us should be so informed . We suggest that they might
be wise to refrain from publicizing that fact in case the press should infer that
their colleagues have been the subject of an adverse report by us .
11 . We remind the reader that in the situations we are speaking of, the
evidence is already in the public domain, except certain evidence not made
public because of considerations of national security or the privacy of individuals or other grounds of public interest . We think that those situations in which
we recommend, for the reasons set out above, that publication of this Report be
postponed should nevertheless be listed in our published Report so that
everyone will know that we have reported on them .
12 . We have so 'far been referring to the publication of this Report as it
pertains to the conduct of members of the R .C .M .P ., and in particular as it
tends to implicate them . Inevitably, postponement of publication may mean
that our opinions that exonerate some members, wholly or in regard to certain
aspects of their conduct of some members, will not be published at this time .
However, the members concerned should have a copy of this Report so that our
reasoning may be available to them .
13 . However, there is one area explored in this Report that may be of
assistance to them and that we consider should be published now without
limitation . That is Parts II and III, in which we report on the extent to which
Ministers and public servants participated in, or knew of and tolerated acts or
practices that were not authorized or provided for by law . In none of these
situations do we identify any criminal conduct . Therefore the considerations
that motivate us to recommend postponement of publication of sections of our
Report concerning acts of members of the R .C .M .P . are inapplicable . There is
an additional important consideration . We think that information as to th e
520
�extent to which there was such participation or knowledge should be available
to counsel who act for any members of the R .C .M .P . charged with offences
arising out of the matters upon which we report . For reasons given in detail in
Part IV of our Second Report we do not think that this has any bearing on the
issue of guilt. However, a court, furnished with the information contained in
Parts II and III of this Report, might, on the facts of the case, reach a
conclusion in law different from that which we expressed in Part IV of our
Second Report . Yet, defence counsel will not have the opportunity of laying
before the court the facts found in Parts II and III unless they are published . In
any event we recognize that it may have a bearing on the kind of sentence that
would follow any finding of guilt .
14. Moreover, the matters reported on in Parts II and III may have a bearing
on the exercise of prosecutorial discretion . Therefore those Parts of our Report
should, through publication, be available to counsel exercising the discretion,
and to defence counsel who may wish to attempt to persuade a Crown Attorney
not to prosecute .
15 . It is not realistic to assume that our Report can be made available to
counsel without the contents becoming public . The contents might be referred
to in public by counsel either for the Crown (as, for example, in explaining in
court an application for a stay of proceedings where a private prosecution has
been launched), or by an Attorney General (as, for example, in making a
statement in a legislative body as to why a prosecution has been launched or
has been decided against), or by defence counsel (as, for example, when he
makes representations as to sentence) . If sections of Part II and III are likely to
be referred to in this way, it is preferable that the whole be made public at the
same time .
16. In addition, there is a public interest at stake that extends beyond the
consideration of prosecutions . It would be unfair to the R .C .M .P . as an
institution, and to certain past senior members of the R .C .M .P . if our Second
and Third Reports were published without Parts II and III . The conduct of
these senior members has been the subject of considerable publicity arising
from our hearings . Some of them have testified publicly that the government
- Ministers - knew that the R .C .M .P. were engaged in illegal activity, and
that "the record", if it could be located, would bear out their testimony . In Part
II we make findings that do support their testimony to some degree . Non-publication of Parts II and III would be unfair to those witnesses . Moreover,
non-publication of Part II would make it impossible for us to report in a public
form as to whether the government had knowledge of illegal activity, in a
manner that would be balanced and fair to all concerned .
17 . There are, of course, sections of Part III of this Report that deal with
evidence that is already in the public domain . The facts disclosed in most of
Part II of this Report have, until now, not been in the public domain . We refer
to those sections of Part II that deal with the meetings of the Special
Committee of the Security Panel held on November 27, 1970, and of the
Cabinet Committee on Priorities and Planning held on December 1, 1970 . We
recognize that important policy considerations weigh in favour of guarding th e
521
�confidentiality of the proceedings of Cabinet and of Cabinet committees . In
our reasons for decision dated October 13, 1978, and February 23, 1979,
(reproduced in Appendices F and Z to our Second Report) we . discussed the
governing principle of confidentiality concerning these proceedings . In those
reasons we expressed the view that there would be limits to such confidentiality : that if those present became parties to an offence, the protection of
confidentiality ought not to apply . That situation does not apply here .
18 . Nevertheless, we think it would be unfair to those whose reputations have
been put in issue, and who may be faced with criminal chârges, if our report in
regard to those meetings were withheld from publication .
522
�APPENDIX A
29 June 197 8
STATEMENT BY THE COMMISSION'S CHIEF COUNSEL
REGARDING THE COMMISSION AND ITS
RELATIONSHIPS WITH THE PROVINCIA L
ATTORNEYS GENERA L
1 . 1 hope that I may be forgiven if I adopt the, for me, unusual and
uncomfortable procedure of reading from a prepared text . The subject of the
Commission's relationship with the Provincial Attorneys General is so important that I want to be especially precise in my statements, in particular when I
am expressing the views and policies of the Commission . I will, of course, be
pleased to answer any questions and enter upon a discussion of any concerns of
yours when I have done my reading.
2 . I begin by stating that I am authorized to assure you on behalf of the
Commissioners that from the outset it has been, and is still, their intention to
recognize fully and respect the constitutional responsibilities of the Provincial
Attorneys General .
3 . Some of your officers, with whom I have spoken or had correspondence,
have expressed the view to me that all law enforcement activities within a
province are within the exclusive jurisdiction of the Attorney General of the
province . The Commissioners neither agree nor disagree that this position
represents the current state of the law . They recognize that there are
unresolved issues involved and, like you, await resolution of the cases currently
before the Supreme Court of Canada .
4. We have studied with some care the contracts between the Government of
Canada and the eight "contract provinces" out of a concern to understand the
practical problems, as well as the legal situation, with respect to law enforcement . Subject to your views as they may be expressed to me, at least as a
practical matter, it appears to me in reading the contracts that the Government
of Canada has retained under its control the internal management and the
administration of the Force, and therefore can appropriately authorize the kind
of inquiry set out in the Order-in-Council under which our Commission is
operating .
5 . Having said that, however, I want to emphasize that the Commission has
recognized from the beginning that very serious problems could arise in
determining the correct method of handling information received by it which
could indicate the possibility of criminal or other offences - whether on the
part of members or former members of the R .C .M .P ., or on the part of others .
523
�6 . It is common knowledge that certain specific incidents were referred
directly to the Commission upon its appointment . Others have been added
since by referral and by decision of the Commission, by complaints and by its
own research, as well as by matters brought to its attention through the media .
7 . Basically, the Commission is established to do two things as defined in its
terms of reference . I paraphrase :
I . To investigate and report on the extent and prevalence of any investigative action or other activity of members or former members of the
R .C .M .P . which are not authorized or provided for by law .
2 . Perhaps more important, it is required to make recommendations about
the policies and procedures adopted by the R .C .M .P. in discharging its
responsibility for the security of Canada and upon the adequacy of the
laws of Canada as they apply to this responsibility .
8 . At the time the Commission was appointed, there were already provincial
inquiries involving members of the R .C .M .P. being conducted in Nova Scotia,
New Brunswick, Quebec and Alberta . Since the appointment of the Commission, we have tried to avoid duplication and overlapping .
9 . Perhaps it would be useful if I summarize very briefly the procedures
which have been adopted by the Commission . I shall speak, not of the
allegations of a national concern which have been referred to the Commission
by the federal government, but of those received which are in the nature of
complaints by citizens and others across the country .
10 . When allegations are received, the first consideration is to ascertain the
facts with enough certainty to determine whether the matter comes within the
terms of reference of the Commission . Assuming that the investigation by our
staff establishes that to be the case, the Commission then decides whether the
matter is to be dealt with in some detail and ultimately form the basis of a full
report, including recommendations as to whatever further law enforcement
actions may be considered appropriate ; or, on the other hand, whether in the
circumstances it would be in the best interests of the administration of justice
to recommend at once that the matter should be referred to the appropriate law
enforcement authority . There are obviously going to be cases which fall
between these extremes .
11 . Perhaps some examples would be useful .
12 . The Commission has not begun and, I believe, would not ever begin to
investigate an allegation of what I might call a "fresh" murder . Obviously we
do not have any such allegation but, if we did, it is my understanding that the
Commission would refer it at once to the appropriate Provincial Attorney
General .
13 . At the other end of the scale, one may infer from the record of the
Commission that it intends to deal rather completely with problems arising
from mail check operations and the problems posed by electronic and other
surveillance . These topics have been the subject of much public controversy
here in Canada and èlsewhere, which has been going on over an extended
period of time.
524
�14 . In the case of electronic and 'other surveillance, which we have been
considering under the short description "Surreptitious Entries", clearly we are
looking at a course of conduct which has gone on for a long period prior to July
1, 1974 and subsequently . Some of these activities may have involved surreptitious entry which in turn may have constituted civil trespass, offences under
provincial law, or even some criminal offence (at least on the part of senior
authorizing officers) . However, this procedure has bèen a matter of public
concern and knowledge for some time - certainly sincé the,mid=60s - and a
matter of public record since 1973 .
15 . Under this general topic, obviously there are numerous specific instances,
yet the principal concern of the Commission so far has been that the events
also clearly raise concerns as to what the law is, or should be . It is for this
reason that at the conclusion of the first four days of public hearings into this
topic, so far as it relates to the Criminal Investigation Branch, copies of the
transcripts and the exhibits were sent to each provincial Attorney General in
the hope that the views of the Attorneys General might be secured as to the
issues raised in the evidence .
16 . Having dealt with the foregoing general matters, I should recognize that
certain specific concerns have been communicated to us by some Attorneys
General or their Deputies . These may be summarized, I believe, as follows :
(a) The work of the Commission may amount to an interference with the
function of the Attorney General of a province as the official bearing
the ultimate responsibility for law enforcement in a province . (As
indicated, some Attorneys General have taken the position that this is
their function exclusively . )
(b) The work of the Commission could amount to ân interference with the
due administration of the provincial police force acting (in eight of the
provinces) under contract . There has been some concern expressed in
this area as to criminal investigation and even as to the activities of the
Security Service of the R .C .M .P .
(c) The work of the Commission could amount to meddling in procedures
already established by a province for dealing with complaints regarding
the police in performing their provincial policing services ; and finally,
(d) The work of the Commission's staff, in carrying out any investigation
in the province, might be regarded as improper in that such investigations are properly the function of the Attorney General and his staff .
17. 1 believe it is clear that the matters now being inquired into through the
formal hearings of the Commission do not fall within any of these areas of
complaint . However, among some provincial Attorneys General, some concern
has arisen as to the activities of our investigators in following up upon
complaints received by the Commission from the public . It may be well,
therefore, for me to deal even more precisely with the procedures which have
been adopted by the Commission in this connection .
18 . We have approximately 200 complaint files which have been received
from residents of every province with the exception of Newfoundland . I have a
staff of seven investigators who have been engaged since November in contact-
525
�ing each one of these persons to .ascertain the details of the complaint . When
these details have been secured, my instructions to the investigators are that
the reports are to be forwarded to me . I then prepare summaries and forward
them to the Commissioners who decide what action, if any, is to be taken by
the Commission .
19. I am sure that many of the names of these complainants are well known
to officers in your„departments because a great number of them have been
chronic complainers to those bodies which have been established to listen to
complaints .
20 . We have not yet completed this review . In some cases, in addition to our
investigators discussing the matter with the complainants themselves, we have
checked at R .C .M .P . headquarters to see whether or not there are any files
relating to the complainants . In a very few cases, we have authorized our
investigators to interview the R .C .M .P . officers involved . I must confess that in
one or two cases, particularly at an early stage in the work of the Commission
(and latterly in what might best be described as an excess of zeal or an attempt
to save travelling expenses), my instructions that no R .C .M .P . officers are to
be interviewed until the Commission has reviewed the file have been breached .
This has resulted in my speaking to some of you on the telephone before today,
but I am sure that, in general, the instructions are being carefully observed .
21 . I am sure it will not come as any surprise to you that the Commission has
already closed a number of these files . Some have been closed because the
complainants are obviously mentally disturbed, and some because the complaints have already been fully dealt with, either by provincial courts or by
provincial administrative tribunals set up to deal with such complaints .
22. There may indeed in the end be some of these public complaint files
which the Commission will decide should be the subject of a hearing, but these
have not as yet been identified .
23. It is not the intention of the Commission to substitute itself for provincial
tribunals established to consider and deal with complaints against the police
arising out of their law enforcement activities . However, the Commission is
charged with reporting upon the extent and prevalance of investigative actions
and other activities that are not authorized or provided for by law, and this
gives rise to practical problems .
24. 1 would welcome suggestions from the provincial Attorneys General as to
how this responsibility can be discharged by the Commission without in any
way interfering with the constitutional or legislative jurisdiction of the provincial authorities .
25. In this regard, may I suggest that it would be of great assistance to the
Commission, to me, and to my staff, if each of the provinces could direct an
officer of the Attorney General's staff to send to me an outline, together with
the appropriate statutory references, of the procedures which do exist within
the province to deal with complaints concerning the police arising from their
law enforcement activities .
526
�26. 1 would appreciate yoürviews•as'to the-most practical way to deal with
those few cases in which we may wish to interview offièérs or examine files
which may relate to police procedures in performing provincial police services
as defined in the policing contracts .
27 . It has also occurred to me that, when our review of the complaints has
been completed, we might be able to furnish the appropriatè officer in each of
the offices of the Attorneys General with a statistical summary, indicating the
nature and frequence of the complaints which we have received and the period
of time covered, in order to invite the provincial Attorneys General to provide
the Commission with a comparison between the number of complaints the
Commission has received and the number of complaints,dealt_with by provincial authorities . I would welcome a reaction to this suggestion .
I
I
527
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Commissions of inquiry
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Reports of Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (1979-1981)
Subject
The topic of the resource
Commissions of inquiry
Description
An account of the resource
Commission established in the wake of revelations of wrongdoing and "dirty tricks" by the RCMP Security Service in the aftermath of the October Crisis, 1970. Culminated in recommendations that led to the creation of the Canadian Security Intelligence Service (CSIS)
Source
A related resource from which the described resource is derived
Archived at Library and Archives Canada, <a href="http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/mcdonald1979-81-eng/mcdonald1979-81-eng.htm">here</a>.
Date
A point or period of time associated with an event in the lifecycle of the resource
1981
commission of inquiry
FLQ crisis
RCMP
wrongdoing
-
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PDF Text
Text
RE PO R T
o f t he
R O Y AL COMM I SS ION
O N S E C URI T Y
(Abridged)
�REPORT
of th e
ROYAL COMMISSION
ON SECURIT Y
(Abridged )
PROPERTY OF PROPRIET8 DU
PRIVY CO(JNCIL OFFIC
E
BUREAU DU CONSEIL PRIVt
L IBRARY
BIBLIOTH 8 QU E
June 1969
�© Minister of Supply and Services Canada 197 7
Available by mail fro m
Printing and Publishing
Supply and Services Canada
Ottawa, Canada K 1 A OS9
or through your bookseller .
Price : Canada : $2 .75
Catalogue No . 21-1966-5
ISBN Other countries : S3 .30
Price subject to change without notice .
Ottawa, 1969
Reprinted 1977 .
�Ottawa, September 23rd, 1968 .
TO HIS EXCELLENC Y
THE GOVERNOR GENERAL IN COUNCI L
MAY IT PLEASE YOUR EXCELLENC Y
We, the Commissioners appointed as a Royal, Commission in accordance
with the terms of Order in'-Council P .C . ..1966-2148 of 16th November 1966
to inquire* into and report upon the operation of Canadian secu rity methods
and procedures,
BEG TO -SUBMIT TO . OUR EXCELLENCY
THE _ACCOMPANYING REPOR T
CHAIRMAN
r~+
MEMBER
MEMBE R
Iii
�NOTE
The Report of the Royal Commission on Security as originally
submitted to the Governor in Council in October 1968 included
some material which in this published version has been omitted
or amended in the interest of national security . These changes
are of small significance in the context of the Report as a whole,
and the Royal Commissioners agree' that they do not affect the
substance of the Report or its recommendations .
iv
�CONTENTS
PAGE
Letter of Tran smittal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. . . . . . iii
Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
I INTRODUCTIO N
Terms of Reference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Nature of Inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II SECURITY REQUIREMENTS' AND RESPONSE S
General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Communism and Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Quebec Separatism and Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Canada and Her Allies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Responses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III ORGANIZATION FOR SECURIT Y
Present Canadian Structure
General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Policy-Making and Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Royal Canadian Mounted Police . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Departments of Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .. . . . . . . .
Shortcomings and Alternatives .
Policy-Making and Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Operations and Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Departmental Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
13
14
16
16
18
24
IV SECURITY, PRIVACY AND THE INDIVIDUA L
General Considerations . . . . . . . . . . :•. . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Acquisition of Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reporting of Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Decision Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Review Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
29
33
34
38
V IMMIGRATION AND SECURITY
Present Procedure s
General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Classes of Immigrants . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . .
Security Screening of Immigrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Deportation and Appeal Procedures. . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . .
Comments and Alternatives
Data and Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rejection Criteria . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Applicants in Canada. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Deportation and Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Aliens Registration . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V
45
45
47
49
49
51
53
53
54
�CHAPTER
PAG E
VI CITIZENSHIP, PASSPORTS AND VISIT S
Present Citizenship Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Citizenship and Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Existing Passport Procedures . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . .
Passports and Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certificates of Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchanges of Visits with Communist Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55
56
58
59
61
61
VII SECURITY OF INFORMATION AND PHYSICAL SECURIT Y
Security of Information
General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Documentary Security and Classification Systems . . . . . . . . . . . . . . . . . . . .
Declassification Programmes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .
Handling of Classified Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Official Secrets Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .
Administrative Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Physical Security
65
68
73
74
74
79
Buildings and Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Technical Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Communications Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
VIII EXTERNAL AFFAIRS AND NATIONAL DEFENC E
External Affairs and the Foreign Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . 83
National Defence and the Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Release of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9
IX INDUSTRIAL SECURITY
General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Present Organization . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Shortcomings and Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Personnel Security in Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Training of Company Security Officers . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . : . . . . . 97
Documents, Visits and Classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8
X SOURCES AND TECHNIQUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
XI RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
APPENDICES
"A" COMMISSION AND ORDER IN COUNCIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 7
"B" SELECTED BIBLIOGRAPHIES
Published Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Official Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
"C" ENGLISH AND FRENCH TEXTS OF CANADIAN OFFICIAL
SECRETS ACT (R .S .C . 1952, c. 198) ; EXTRACTS FROM
ENGLISH AND FRENCH TEXTS OF CANADIAN FORCES
REORGANIZATION ACT (S .C . 1966-67, c . 96) . . . . . . . . . . . . . . . . . . . . . . . . 13 2
vi
�I. INTRODUCTIO N
Terms of Referenc e
1 . The Royal Commission's terms of reference . required us "to make
a full and confidential inquiry into the operation of Canadian security methods
and procedures and, having regard to the necessity of maintaining (a) the
security of Canada as a nation ; and (b) the rights and responsibilities of
individual persons, to advise what security methods and procedures are most
effective and how they can best be implemented" . Copies of the Commission
and the Order in Council (P .C . 1966-2148 of 16th November 1966) are
attached as Appendix "A" to this Report .
2 . Interpreted broadly, these terms of reference would have required us
to examine the whole range of problems and procedures concerned with
the security of the state, from defence against armed attack to protection
against crime . However, on the basis of our understanding of the circumstances in which the Commission was established we have interpreted the
phrase "security methods and procedures" more narrowly, and have limited
our inquiry to those procedures concerned with the protection of information
the unauthorized disclosure of which would cause injury to the interests of
Canada or her allies, and the protection of Canada against the activities
of subversive organizations and individuals .
3 . On the . other' hand, a too narrow interpretation of our terms of
reference would have caused us to confine our attention only to methods
and procedures and to remain unconcerned with more general questions of
concept, policy and organization . Defence against threats to security is a duty
and responsibility of a state- comparable in meaning and relevance with
defence against armed attack and insurrection . Security procedures however
may touch closely upon the fundamental freedoms of individuals ; in a
democratic society they must be shown to be necessary and must operate
within the-framework of a scrupulously formulated and consistently enforced
policy . With these considerations in mind we have also examined the general
nature of the threats we face, and the basic concepts and policies which
should guide our security posture, as well as the type of organization most
appropriate for the implementation and monitoring of these policies .
1
�4 . The more precise definition of our areas of concern is a matter of
considerable linguistic and legalistic complexity . However, security procedures
are not necessarily related to the detection and prosecution of illegalities,
where precise legal definitions would be of central importance, but are mainly
concerned with the collection of information and intelligence, with the prevention and detection of leakages of information and with protection against
attempts at subversion . For this reason we have been able to avoid too deep
an involvement in definitional discussion ; the following paragraphs are
merely intended to delimit our areas of interest by means of example and
exclusion .
5 . The state has a clear right and a duty to protect certain informationsome defence information, for example-which must remain secret if danger
to the state is to be avoided . What is perhaps not so evident is that the
state must also in certain circumstances be concerned, in the context of security, with information in the public domain . This is a contentious area . Consider
on the one hand the case of a Canadian resident who passes to an official of
a foreign embassy, not knowing that this official is a member of the intelligence service of the country concerned, a photograph of a Canadian city .
This photograph is unclassified information which could conceivably be used
for purposes prejudicial to the safety of Canada, but it would be difficult
to suggest seriously that a single such act of transmittal should be a matter
of concern to the security authorities . On the other hand, the collection,
collation and communication to a similar official because of ideological
sympathy or for monetary reward of unclassified information about (say)
governmental procedures and personalities, or of information about births
or burials that could be used to establish false identities, are clearly activities
with security implications, whether or not they are judged to be illegal . We
have taken the view that our terms of reference required us to give consideration to the whole range of such activities where the interests of the state are
involved . We have however excluded from consideration the safeguarding
of information which is not of direct concern to the government, and thus,
for example, the general problems posed by industrial espionage in the
private sector .
6 . The area of subversion involves some even more subtle issues, and
the range of activities that may in some circumstances constitute subversion
seems to us to be very wide indeed : overt pressures, clandestine influence,
the calculated creation of fear, doubt and despondency, physical sabotage or
even assassination-all such activities can be considered subversive in certain
circumstances . Subversive activities need not be instigated by foreign governments or ideological organizations ; they need not necessarily be conspiratorial or violent ; they are not always illegal . Again fine lines must be drawn .
Overt lobbying or propaganda campaigns aimed at effecting constitutional
or other changes are part of the democratic process ; they can however be
subversive if their avowed objectives and apparent methods are cloaks for
undemocratic intentions and activities . Political or economic pressures fro m
2
�domestic or foreign sources may be subversive, particularly when they have
secret or concealed facets, or when they include . attempts to influence
government policies by the recruitment or alienation of those within the
government service or by the infiltration of supporters into the service .
7 . We have been unable to trace in any legal or other references or
to devise ourselves any satisfactory simple definition of "subversion" . Perhaps
the most that can usefully be said is that subversive organizations or individuals usually constitute a threat to the fundamental nature of the state or the
stability of society in its broadest sense, and make use of means which the
majority would regard as undemocratic . At this stage we can do no more
than state that we have in our inquiry borne in mind the whole range of such
activities and the application of security procedures to them . We have
however excluded from consideration the threat to stability posed by so-called
"organized" crime, although there are clear analogies between the methods
used for defence against large-scale and international criminal orgnizations
and those used for protection against espionage and subversion .
Nature of Inquiry
8 . Our terms of reference required that our proceedings should be held
in camera, and that we should take "all steps necessary to preserve (a) the
secrecy of sources of security information within Canada ; (b) the privacy
of individuals involved in specific cases which may be examined ; and (c)
the security of information provided to Canada in confidence by other
nations" . We were also required to "follow established security procedures
with regard to . . . the handling of classified information at all stages of the
inquiry" . We decided that formal or quasi-judicial hearings would be inappropriate for the sensitive topics and subjective views we, should find . it
necessary to consider . Accordingly we based our inquiry .upon a series of
informal meetings, without benefit of counsel, with Canadian Ministers . and
ex-Ministers of -the Crown, and officials and ex-officials of the Canadian
Government . In response to advertisements in the national press we received
a number of briefs and submissions from interested organizations and private
individuals, and we held similar informal meetings with representatives of
some of these organizations and with some individuals . In all the Commission
held 175 meetings, and heard some 250 persons . No verbatim records of our
meetings were retained, but memoranda of significant points were prepared .
In addition, of course, the Commission received briefs, submissions and
documentary material from government departments and agencies, and had .
access to relevant governmental files ; some such material was received on
condition that it be returned to the originators . A selected bibliography of
the published material we found relevant is attached as Appendix "B" .
9 . Where the files we saw concerned personnel security, we took the
view that we were investigating an organizational structure and a procedural
system rather than inquiring into the disposition . of given cases, and we
3
�referred to individual cases only as examples of methods and procedures .
We have retained no records of the names of persons who were the subjects
of these cases, or of identifiable details of the cases . Similarly, we have in
our Report avoided providing detailed and specific examples of tactics,
methods, successes or failures in the areas of espionage and subversion .
10 . Members of our staff prepared reports upon the security policies, operations and activities of a number of Canadian government departments, and
upon certain aspects of Canadian and British law relating to security . We
also commissioned the preparation of two legal studies under contract, one
concerned with the United States Federal Loyalty-Security Program, and the
other with the legal status of security procedures in France .
11 . We wish to thank all those who have contributed to this inquiry, and
thus to this Report . Security is a contentious and ambiguous subject, and in
some areas a distasteful one . Our task has been made easier by the ready
cooperation of government officials and others . In particular we are grateful
to the officials of the Royal Canadian Mounted Police (RCMP), the Privy
Council Office and the Department of External Affairs . To our own staff,
we extend special thanks . Their unfailing courtesy and cheerfulness made our
task more pleasant . In particular we would pay tribute to our Secretary, Mr .
Kevin O'Neill, and our Research Director, Mr . Jack Trotman . Their wise
and practical handling of the many sensitive matters that arose during our
inquiry and their devoted interest made a tremendous contribution to our
work . Major Andre Lemieux's -administrative and security arrangements were
efficient and most helpful .
12 . Finally, we have become convinced that effective security arrangements
must have a firm basis in public awareness and understanding, that the level
of parliamentary and public debate on these subjects would be considerably
improved if more information were made available, and that a good deal of
information could in fact be made available without detriment to the public
interest . For these reasons, we feel that the government should make public
as many of the arguments and recommendations contained in this Report as
may in its opinion be revealed without damaging the public interest .
4
�II. SECURITY REQUIREMENTS AND RESPONSE S
General Considerations
13 . The requirement for security procedures is based primarily upon the
state's responsibility to protect its secrets from espionage, its information
from unauthorized disclosure, its institutions from subversion and its policies
from clandestine influence . There has been no period in history when attempts
at activities of these kinds have not been undertaken ; such attempts-successful or unsuccessful-are taking place now, and will undoubtedly continue to
take place in one form or another as long as international relationships are
based upon the existence of nation states . In order to carry out its responsibilities the state must make arrangements to determine the nature and extent of activities of this kind which exist at any given time, and to take such
preventive or defensive measures as may be possible and appropriate .
14 . From detailed estimates that have been made available to us by the
RCMP and other concerned departments of government, it seems clear that
the main current security threats to Canada are posed by international communism and the communist powers, and by some elements of the Quebec
separatist movement . The most important communist activities in Canada are
largely directed from abroad, although domestic adherents of and sympathizers with communism pose considerable problems in themselves ; the separatist
movement is primarily of domestic origin, although there has been some
indication of foreign involvement . Threats (particularly of espionage) from
non-communist countries may exist from time to 'time,'but seem at present
to be of minor importance .. Fascist organizations do not now pose a significant threat, as their power base is non-existent and their activities limited .
Communism and Securit y
15 . Although it is true that we face a more complicated and fragmented
communist world than we did .at the time . of Gouzenko's defection nearly
twenty-five years ago, none of the evidence we have heard . suggests to us that
recent developments have led to any significant changes in the adversary
relationship that continues to exist between the communist powers and the
west in terms of intelligence and subversive operations and security defences .
Canada remains the target of subversive or potentially subversive activities ,
5
�attempts at infiltration and penetration, and espionage operations conducted
by communist countries ; and, in addition, Canada can be used as a base for
operations against other countries, and especially against the United States .
We realize of course that the present fragmentation of the communist world
is such that there is no certainty that the intelligence policies of all these
countries constitute a monolithic whole . We are not concerned however with
detailed political analysis, and in the context of the problems we are considering we think the methods and objectives of these countries are sufficiently
similar to justify our using the admittedly simplistic terms "communism" and
"communist" .
16 . The communist powers conduct espionage and subversive operations
through officials of communist missions, through so-called "illegal residents"
(persons unassociated with official representation and living here illegally,
probably under false identities), through members of the communist parties
in Canada, both overt and underground, through communist sympathizers
of various kinds, and through those who can be compromised, blackmailed
or subverted . The communist intelligence services are supported by large
resources, and their techniques are modern, sophisticated and effective .
17 . Apart from their use of communist adherents and sympathizers in
Canada, it is particularly important to an understanding of security procedures
to realize that there is abundant evidence that the communist powers, in their
search for agents, are prepared to make use of compromise, character weakness and duress . By these means they exploit contacts amongst members of
the Canadian public service at home and abroad, industrial workers and
executives, members of emigre and ethnic groups, university faculty members
and students and those who travel between Canada and communist countries .
The communists have repeatedly demonstrated their ability to recruit support
by playing on all types of human weakness or difficulty .
18 . The forms of communist subversive activity in Canada are varied,
ranging from efforts to develop front organizations to attempts to subvert,
individuals in government, the mass media, the universities, the trade unions,
emigre and ethnic groups and political parties . Such activities are assisted by
the fact that the communists are able to exploit and exaggerate existing
elements of social unrest and dissent concerned with a variety of appealing
causes . Some facets of these operations are worthy .of special mention . First,
activities in universities and trade unions appear at present to be of special
significance . Half the population is under twenty-five and activities in the
universities will have a considerable effect on the national climate of opinion
in future years . As far as the trade union movement is concerned, there is
a long history of attempts by the Communist Party to assume control at local
levels and to take all possible measures to influence national policies ; these
attempts are usually, but not always, frustrated . Secondly, efforts to influence
immigrants from some Western European countries with large communis t
6
�parties have recently increased . Thirdly, certain communist countries which
have emigre groups in Canada have embarked on an extensive programme
to establish liaison with, these communities, a programme in which the intelligence services of the countries concerned appear to be playing an important
role . Fourthly, there has been some resurgence of activity by certain communist front groups ; communist influence also remains significant in a number
of non-communist peace groups, and in "friendship" societies linking Canadians with the communist countries . Fifthly, although the Trotskyist movement in Canada is very small in size ; its militancy and skill give it greater
potential influence than its strength would indicate .
19 . As far as espionage is concerned, we have received enough information
and examined enough case histories to make it clear that in addition to those
activities which have been uncovered, other active operations almost certainly
remain undetected, many of them probably conducted by "illegal residents" .
Military information appears to remain of considerable importance as a target for espionage operations, but there is'some'evidence that the-communist
intelligence services may be placing a somewhat higher priority upon the
acquisition of scientific, technical, economic arid political information, including unclassified information of seeming technical or strategic value . The
importance of Canada as a target for espionage operations should not be
underrated . We hold United States and British classified information, we
participate- in North American air defence arrangements and in the North
Atlantic Treaty- Organization, and our attitudes, policies, capabilities and
intentions are in *themselves of some significance .
20 . There is no evidence to indicate that the general nature and extent of
communist activities in the intelligence field have been significantly affected
by changes in international relationships, by the atmosphere of the detente
or by the communist doctrine of peaceful coexistence . However valuable this
atmosphere may be from many points of view, it is undoubtedly true that
from the specific and limited viewpoint of security the detente has its
dangers . It would appear that periods of detente with communist powers tend
to be accompanied by increased attempts at subversion and penetration . In
present circumstances ; the detente has led to a considerable and rapid expansion in relations between the communist countries and the west, and in our
open societies the communists take advantage of such contacts to improve
their capabilities for espionage espionage and to increase their influence both overtl y
and covertly . At the same time as these opportunities are increasing there
has grown a readiness to believe that the threat to security posed by communism, if it has not actually disappeared, is at least diminished . This has
resulted in a situation in which defensive measures are constrained and
inhibited, and accorded lowered priorities in terms of national attitudes, effort
and resources . It seems to us important to appreciate that in present circumstances security procedures will remain necessary -whatever the changing
state of overt relationships between the communist powers and the west ;
7
�these precautions are in the nature of insurance, and one does not cease to
pay premiums because of good health which may be temporary .
Quebec Separatism and Security
21 . In addition to the requirement for security procedures imposed by the
communist threat, Canada is at present faced with a second and perhaps even
more difficult internal security problem arising from the activities of some
elements of the Quebec separatist movement . Separatism in Quebec, if it
commits no illegalities and appears to seek its ends by legal and democratic
means, must be regarded as a political movement, to be dealt with in a
political rather than a security context . However, if there is any evidence
of an intention to engage in subversive or seditious activities, or if there is
any suggestion of foreign influence, it seems to us inescapable that the federal government has a clear duty to take such security measures as are necessary to protect the integrity of the federation . At the very least it must take
adequate steps to inform itself of any such threats, and to collect full information about the intentions and capabilities of individuals or movements whose
object is to destroy the federation by subversive or seditious methods.
22 . Although the more moderate elements of the Quebec separatist movement have up till now been conducting a largely political campaign, it appears
to us that there is in certain quarters a tendency to resort to activities that
could well be regarded as seditious . What is more, there is no doubt about
communist and Trotskyist interest and involvement in the movement . Both
groups have established "autonomous" Quebec organizations as somewhat
transparent attempts to exploit separatist sentiment ; members of both have
achieved positions of influence in at least some of the separatist groups and
agencies, helped by the often bitter factionalism within the movement itself .
For these reasons alone it seems to us essential that the Canadian security
authorities should pay . close attention to the development of these particular
elements of the separatist movement .
23 . Foreign involvement is more difficult to establish with any certainty .
However, it is clear that certain communist countries have shown a marked
interest in the formation of the Communist Party of Quebec .
Canada and Her Allies
24 . In addition to the normal responsibilities for defence against threats
to internal security which she has in common with all nation states, and
more specifically in present circumstances with all members of the western
alliance, Canada's special relationships with the United States and Britain
impose additional requirements and make Canadian security procedures of
particular importance .
25 . The United States is the leader of the western alliance in terms of military, economic and political power . As a member of this alliance . with special
8
�relationships in many fields and an open frontier with the United States,
Canada has a serious responsibility to ensure that its territory is not used as
a base for the mounting and direction of foreign espionage and subversive
operations against the United States, and that Canada is not a safe haven for
foreign agents, or a route for infiltration into the United States . Quite apart
from membership in the alliance, it is in the Canadian national interest to
assist with the defence of North America against threats to internal security .
26 . There is another area in which Canadian security policies are responsive to the requirements of allies, and to the individual or collective security
regulations of allied countries . Canada receives classified information from
abroad, and especially from the United States and Britain . This classified
information is made available on the understanding that it will receive security
protection similar to that which it would receive in its country of origin ; and
the Canadian government is committed by a number of -agreements to providing such protection, which normally involves specified minimum standards
both of physical protection and of screening for the individuals who will have
access to the material . Undoubtedly, some of this classified information is
supplied because it is in (for example) United States and British interests to
ensure that Canada is informed on certain issues, but in general the continued
flow 'is at least partly dependent upon the apparent adequacy of Canadian
security measures .
27 . The point has been made that it might be of advantage to reduce
the extent of Canadian security precautions by ensuring that the amount of
classified material from allied sources reaching Canada is reduced to a
minimum, and we have given some consideration to the apparent importance
to Canada of this classified information . It is difficult to establish the position
with any precision, but the representations we have received from interested
departments convince us that -the flow is of considerable importance, first,
to Canadian perception of the international scene and of the detailed significance of many issues, and secondly to Canadian policy and decision-making
in a number of specific areas . These areas are mainly concerned with intelligence and security, research and development, foreign and defence and
(perhaps to a slightly lesser extent) economic policy ; in addition the continuance of defence production sharing arrangements between Canada and
the United States is partly dependent on the adequacy of Canadian security
procedures . Further, with regard to the-possibility of reducing the flow, it
has been pointed out that in many areas it is very difficult to be selective :
either Canada receives a mass of material or it receives none . The receipt
of even a minimal flow would require security procedures and precautions
and, in any case, many of these precautions would be necessary for Canadian
national purposes . In general, our position . on this issue is that we do not
think that a decision to reduce the flow of allied classified information should
be taken merely on -the grounds that its receipt demands the maintenance
of more extensive security precautions .
9
�Security Responses
28 . In order to meet the requirements we have outlined, a number of
security methods and procedures have been devised or suggested . The
following paragraphs represent an attempt to create a framework within
which to view the details of these methods and procedures . Before outlining
such a framework, however, we would first reiterate our view that the duty
of the state to protect its secrets from espionage, its information from
unauthorized disclosure, its institutions from subversion and its policies from
clandestine influence is indisputable ; what are matters for dispute are the
organizations and procedures established by the state to meet this responsibility in an area which can touch closely upon the fundamental freedoms
of the individual . Secondly, we would repeat our opinion that security
procedures must not be viewed primarily in the context of the detection
and prosecution of illegalities . They are mainly concerned with the collection
of information, with the prevention of leakage and loss and with ensuring
that compromise is discovered .
29 . In all countries security procedures consist of a range of measures .
First, there are those basic measures which provide for the acquisition of
information by means of active intelligence operations, investigation or
liaison with allies . This information provides the basis for the general assessment of the varying threats, and for the formulation of appropriate policies .
In addition, these measures provide the data against which risks are assessed
and judgments made in individual cases . No security arrangements can be
better than the data on which they are based, and the more complete the
information that is available the more sensible and equitable are policies and
decisions likely to be .
30 . Next, an array of measures is concerned with the control and regulation
of certain actions of individuals . These measures all involve the investigation
and "screening" of personnel with a view to preventing where possible those
who in the judgment of the government may constitute a risk to the security
of the state from entering the state, becoming citizens of the state, entering
public employment or having access to classified information . Procedures
concerned with security screening of personnel may themselves include a
range of activities : the establishment of criteria ; examination of available
records including criminal records ; interviews with the concerned individual ; inquiries concerning an individual ; arrangements for the evaluation
of reports ; arrangements to ensure the consistency of decision-making ;
procedures for review of these decisions ; and procedures for taking action
where individuals are judged to be risks in terms of their probable behaviour .
In more detail, these measures include the following activities :
(a) Control of entry to the national territory, by means of visa control
and arrangements for the security screening of intending immigrants
or visitors or both. Such measures are employed in one form or
another by almost all nations .
10
�(b) Control of the granting of citizenship to other ,than native=born
persons, by means of similar security screening-of applicants . Again
it is normal for nations to employ some such procedures .
(c) Control of passport issuance . Almost all nations take steps to ensure
that passports are -do cumerits of integrity" in the sense that they are
issued 'only to those - who are citizens . 'Some nations issue passports
to all citizens as a right, although exceptions are naturally made in
the cases of such persons as fugitives from justice, those who have
contravened certain laws and those who owe debts to the government .
Other nations . subject applicants for passports to security screening
on the basis of the opinion that possession .of a passport is a privilege
which the state-is entitled to grant or deny. . .
(d) Control of access to public employment . Here again, some nations
insist on a form of security screening for all public employees ; the
results of such a screening are sometimes used in the personnel
selection context to judge suitability as well as to ensure the absence of
any significant security risk .
(e) Control of access to classified information and material . Almost all
nations conduct security screening in one form or another before permitting individuals to have access to classified information.
31 . In addition, a series of measures relates to the classification, safekeeping, handling and transmission of material which requires security
protection, to the provision of appropriate technical and other facilities,
and to procedures to ensure compliance with security regulations . Finally,
_a legal and law enforcement structure is concerned with the adequacy and
enforcement of such laws as relate to various aspects of security defence .
32 . Different elements of this range of measures may receive differing
emphases or priorities in different countries and in different circumstances,
and there is naturally a continuing debate concerning the relative importance
of measures in different parts of the spectrum . Some, for example, consider
immigration security controls of vital importance ; others feel that the number
of persons eventually excluded as a result of these controls is so small as to
call into question their usefulness . Some believe that citizenship should be
an accolade only awarded to those (other than the native born) who can
satisfy rigid security criteria ; others feel that a resident is very little more
of a security threat if he becomes a citizen or less of a threat if he does not .
Some take the view that the basic measures of physical security are of prime
importance ; others argue that it is of first importance to be assured of the
loyalty and reliabiliy of those with access to classified information .
33 . Clearly a proper balance is necessary between these interrelated
measures . If immigration controls are reduced in effectiveness, possibly
access to the public service should be more strictly controlled by ensuring
(for example) that only citizens are so employed . If immigration control s
11
�are strengthened, possibly control of citizenship can be relaxed . The main
strategic decisions in the area of security are concerned with the allocation
of available defensive resources to the elements of the spectrum, and decisions
of this kind must be taken by the government on the basis of estimates of
the threat and judgments of the relative effectiveness and acceptability
of different measures in changing circumstances ; ultimately, we suppose, the
totality of these judgments must in some sense reflect the government's view
of national character, attitudes and aspirations .
34 . The remaining chapters of our Report are concerned with the individual procedures which together make up this spectrum of security defence,
with the organizational problems that arise from them, with their impact on
individuals, with their effectiveness in specific areas and with means by which
they may be improved and rationalized .
12
�III . ORGANIZATION FOR SECURIT Y
Present Canadian Structure
General . Considerations
35 . Our inquiries suggest that the problem of devising an entirely satisfactory and rational security structure is one of extreme difficulty . In the
first place, the government is functionally organized by departments, and
there are obvious problems in superimposing and enforcing consistent standards in a given "service" area across the entire - structure ; the long history
of issues concerned with financial control is sufficient to indicate the magnitude of this problem, which is of especial significance when organizational
structures are decentralized . Also, security is an area which lies on the
boundaries between general administration and professional specialty ; it is
easy-perhaps too easy-to regard security merely as an aspect of departmental administration and on this basis to disregard or evade its importance
and complexities . Further, security structures, like police structures, must be
closely related to the nature and quality of the national societies in which
they operate if they are to . achieve a reasonable measure of public acceptance .
This relationship and this acceptance are perhaps somewhat easier to achieve
in countries with long histories of threats to internal security and traditional
requirements for defensive measures, or in great powers where the risks are
clear and the stakes high .
36 . The present Canadian security structure is diffuse, and consists of a
number of disparate elements, including the Cabinet Committee on Security
and Intelligence, the Security Panel, the Privy Council Office, the Solicitor
General and his Department, the Minister of Justice and the Department of
Justice, and the RCMP . In addition, all departments and agencies of the government have responsibilities for security which vary widely in scope and
importance.
Policy-Making and Coordination
37 . The Cabinet Committee on Security and Intelligence, the Security
Panel, and two members of the staff of the Privy Council Office are all concerned with the formulation of policy, the issuance of directives and regulations and the coordination of Canadian security policy and procedures . The
Cabinet Committee was established in April 1963, and in its security role
deals with important . policy issues referred to it by the Security Panel . On th e
13
�official level, the Security Panel is the senior body, consisting of selected
deputy ministers . It was originally formed in 1946, and was reconstituted in
1963 . Its terms of reference are "to advise on the coordination of the planning, organization and execution of security measures which affect government departments, and to advise on such other security questions as might
be referred to it" . Two officials of the Privy Council Office (an Assistant
Secretary to the Cabinet and a member of the Cabinet Secretariat) together
devote part of their time to providing the central point of reference and
coordination for this committee structure . Theoretically, the first point of
contact for departments and agencies seeking advice on security matters is
this secretariat . Generally problems are dealt with by the officials of the
secretariat themselves, but if necessary the issues can appear on the agenda
of the Security Panel and the Cabinet Committee .
The Royal Canadian Mounted Polic e
38 . The RCMP is the main federal operational and investigative body in
the field of security . The Force assumed this role during World War I because,
as the existing federal police force, it was at that time the natural federal
instrument in this area . There is however no explicit statutory authority for
the security role . Such authority as does exist is derived from certain Sections
of the RCMP Act (S .C . 1959, c . 54) . Section 17(3) of the Act provides
inter alia that "every officer, and every person appointed by the Commissioner
under this Act to be a peace officer, is a peace officer in every part of
Canada and has all the powers, authority, protection and privileges that a
peace officer has by law" . Section 18 of the Act makes it "the duty of members of the force who are peace officers, subject to the orders of the Commissioner ,
(a) to perform all duties that are assigned to peace officers in relation to the
preservation of the peace, the prevention of crime, and of offences against
the laws of Canada and the laws in force in any province in which they
may be employed, and the apprehension of criminals and offenders and
others who may be lawfully taken into custody . . . . . .an d
(b) to perform such other duties and functions as are prescribed by the
Governor in Council or the Commissioner . "
39 . Section 21 of the Act provides that :
"(1) The Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government
of the force and generally for carrying the purposes and provisions of
this Act into effect .
(2) Subject to the provisions of this Act and the regulations made under
subsection (1), the Commissioner may make rules, to be known as
standing orders, . for the organization, training, discipline, efficiency, administration and good government of the force . "
40 . Section 44(e) of the RCMP Regulations and Orders (1960), which
have been proclaimed by the Governor in Council under the Act, provide s
14
�that "in addition to the duties prescribed by the Act, it is the duty of the
force . . . (e) to maintain and operate such security and intelligence services
as may be required by the Minister" . The Commissioner's Standing Orders
include orders relating to security and intelligence activities . Section 1331 of
these Orders outlines the organization of the Directorate of Security and
Intelligence of the RCMP and Section 1366 states the responsibilities of its
Director :
"The Director, Security and Intelligence is responsible for the direction
and correlation of activities in respect to counter-espionage and subversive
activities against the State, for security investigations regarding personnel
employed by the Government and others as required, for co-operation
with Commonwealth countries and foreign nations in matters concerning
the internal security of the State, co-operation with the internal intelligence
organizations, both service and civilian, and for the direction of security
and intelligence investigations generally ."
41 . Additional authority 'for the RCMP's security and intelligence operations is contained in certain instructions and directives issued by the Government, which in effect authorize the RCMP to conduct the investigations necessary for a security screening programme, and in addition make the Force
responsible for various measures concerned with internal security in the event
of a national emergency as, proclaimed under the War Measures Act . In
practice the RCMP is concerned with the following security functions :
(a) all security and security intelligence operations, and "police" operations related to security ;
(b) maintenance and examination of records and field inquiries concerning personnel, but not evaluation of reports, nor decision-making in
individual cases ;
(c) advice concerning departmental security (this function appears to
be somewhat ill-defined) ;
(d) record keeping ;
(e) certain staff functions (membership of interdepartmental committees,
etc .) related to the management and planning of the national security
effort .
These functions are performed by a headquarters Directorate of Security
and Intelligence, which maintains representatives . at RCMP regional headquarters and detachments and at certain locations overseas, and which
operates in close liaison with the -other directorates of the Force . Nearly 60
per cent of the personnel of the security and intelligence directorate (includ.ing all the senior officers, all but three of the branch heads and almost all the
officers responsible for operations or investigation) are Regular Members of
the Force ; the remaining personnel include some special constables employed
on surveillance duties, Civilian Members employed as translators, technicians or researchers and public servants on clerical duties .
15
�42 . Until September 1966 the Minister of Justice, by virtue of the RCMP
Act, was the minister responsible for the RCMP and the minister who
reported to Parliament for the Force . The Government Organization Act
(S .C . 1966-67, c . 25), which came into force in September 1966, transferred
this responsibility to the Solicitor General, under whom a new Department
of the Solicitor General was created . The duties and functions of the Solicitor
General formally "extend to and include all matters over which the Parliament of Canada has jurisdiction, not by law assigned to any other department,
branch or agency of the Government of Canada, relating to (a) reformatories, prisons and penitentiaries ; (b) pardons and remissions ; and (c) the
Royal Canadian Mounted Police" . The Department of Justice is now only concerned with security matters when the Minister is required to rule on the
propriety of prosecutions or to provide legal advice relating to security .
Departments of Governmen t
43 . All departments and agencies of the Canadian Government have a
responsibility to protect the confidentiality that attaches to official material .
In addition, almost all have a requirement for more formal procedures to
protect classified material . For example, at the very least all ministers' offices
and all offices concerned with briefing ministers on Cabinet matters hold
classified documents, and in addition most departments involved in any way
with scientific, sociological, economic or other research require at least occasional access to classified material .
44 . Within this broad framework, however, departmental requirements
vary widely . Some sensitive departments generate and hold large amounts
of classified material, and have special security responsibilities . These include,
for example, the Departments of National Defence, External Affairs and
Defence Production, and the Privy Council Office and Cabinet Secretariat .
Other departments are less sensitive . Such departments as the Department of
Agriculture and the Department of Energy, Mines and Resources generate
and hold smaller amounts of classified material, often in specific branches or
sections, and their personnel generally require less frequent access to such
material . Certain departments and agencies (such as the Department of
National Revenue, the Dominion Bureau of Statistics and the Post Office)
are responsible for the "privacy" of much material they hold ; these departments are often the subject of special statutory provisions concerning
confidentiality .
Shortcomings and Alternatives
Policy-Making and Coordinatio n
45 . In the following sections of this chapter we examine the effectiveness
of the present organization and the alternatives that seem relevant . Because
we shall inevitably be noting certain shortcomings in present arrangements ,
16
�we wish to make it clear that they are not generally due to arbitrary judgment
or lack of care, but rather to difficulties inherent in existing organizational
structures, or to unresolved conflicts on policy .
46 . The policy-making and coordinating organization should in our opinion
perform a number of functions . It should :
(a) provide a machinery whereby security strategy can be devised, policies
and priorities determined, and resources allocated to various
measures ;
(b) be the arbiter of any conflicts between the interests of security on
the one hand, and departmental and other interests on the other ;
(c) be the authority which issues general regulations and procedures to b e
applicable throughout the whole official security environment ; and
which coordinates and enforces the application of these regulations ;
(d) provide the link between the investigative and operational security
service . and government departments, and between this service and
the public ;
(e) be responsible for the operation and administration of any machinery
established to review administrative decisions relating to the security
of personnel . The nature of this machinery is considered in Chapter
IV in relation to the general subject of security and the individual .
47 . At present, the Security Panel and the concerned officers in the Privy
Council Office make an attempt to perform most of these functions, but
they do so without executive authority or adequate resources, and with an
approach which is necessarily permissive rather than compelling . As far as
the formulation and coordination of security policy is concerned, it seems
to us . that under present arrangements the total view of the requirements
of security may . often be obscured by the pressures exerted by individual
departments and the exigencies of their proposed policies . Nor are we
certain that the present structural arrangements ensure that issues and arguments concerned with security are presented to government in an explicit
and undiluted form . Government policies in this vital area should not be
based merely on the recommendations of an interdepartmental committee
on which the professional proponents of security may readily be outnumbered .
48 . The present arrangements for the implementation of decisions and
policies appear in theory to be tidy and effective . Issues are raised, and directives are issued ; the coordinating machinery is consulted and advice is
proffered . It is our opinion, however, that this effectiveness is more apparent
than real . The basis of the Canadian security organization is the principle
that individual ministers, deputy ministers and agency heads are entirely
responsible for the security of their agencies, and this principle is reflected in
the fact that all coordination is entirely permissive . Even Cabinet Directives
relating to security appear to be merely advisory in the sense that only the
most informal arrangements exist for ensuring compliance or consistency in
departments .
17
�49 . We feel that changes need to be made in the central structure if policies
are to be scrupulously formulated and consistently enforced, and if the
security of the state and the rights of individuals are to receive adequate
protection . Our suggestion is that there should be established in the Privy
Council Office a formalized Security Secretariat with adequate status,
resources and staff to formulate security policy and procedures in the context of general governmental policies, and more importantly, with effective
authority to supervise the implementation of government security policies and
regulations and to ensure their consistent application . This Secretariat would
be analogous as an organizational entity to the present Secretariats on Science
and on Bilingualism . It would be headed by a Director responsible to the
Secretary to the Cabinet, and would maintain close links with and be advised
by the Security Service . We think that the Director would require the assistance of at least three full-time officers to perform these functions adequately .
50 . On the level of policy formulation, the Secretariat would make recommendations to the government after consultation through a formal or ad hoc
committee structure with interested departments . These recommendations
would not then be the formal product of the deliberations of an interdepartmental committee, at which some of the requirements of security may not
have been given adequate weight, but would instead be the product of a
specialist secretariat advised by interdepartmental consultation . The Secretariat would also be responsible for the preparation, coordination and enforcement of . government regulations on security . In these functions it would be
advised by a protective security branch of the Security Service . This branch
would conduct security audits but, if it found departments reluctant to rectify
faults, would request assistance from the Secretariat . The Secretariat would
press the security case on deputy ministers through the Secretary to the Cabinet or on ministers through its designated minister .
Operations and Investigation
51 . Naturally, many of the most important issues concerned with organization relate to the federal operational and investigative security service-at
present the Directorate of Security and Intelligence of the RCMP . The RCMP
is basically a unique uniformed para-military police force with many very
important virtues . Its members are carefully selected, highly motivated and
of great integrity . Its recruiting, indoctrination and training policies are generally oriented toward its police function . The Force's personnel policies are
based on recruiting young men between the ages of 19 and 28 as Regular
Members . The training process through which they pass is intended to provide them with the instruction necessary for their police duties and to steep
them in the traditions of the RCMP, which are fundamentally those of a
police force .
52 . At present all the Regular Members of the Directorate of Security and
Intelligence are drawn from personnel recruited and trained under norma l
18
�RCMP procedures, although they are not selected for security employment
until they have had at least three years experience in police duties and have
received special training . There is at present no effective- programme of postuniversity recruiting, even for the more demanding tasks in the Force (which
would, of course, include many duties concerned with security), and in practice a potential recruit who has attended a university is faced with disincentives . Little allowance is made during recruit training and during initial
duties in the Force for possession of a degree .
53 . These policies and practices mean in the first place that the RCMP is
cutting itself off from the whole of that group of potential recruits who attend
a university-in other words and in general terms, from those potential recruits who are likely to possess the most intelligence, initiative and imagination. We do not suggest that a university education is a necessary guarantee of
intelligence or character, but it is quite clear that at present there is a greater
likelihood of finding suitable recruits for complex and sophisticated duties
among those young persons who have attended universities than among those .
who have not . This fact will assume increasing significance as a larger proportion of young people continue their education beyond high . school levels .
Neither would we wish to imply that all the duties that need to be carried
out by a security service demand a high level of sophistication and intelligence . .
We do believe, however, that such attributes are of great importance in an
area of considerable sensitivity which can often require imagination, tact, high
professional standards and complex decision-making. We are reinforced in
this view by the special care taken in other .countries with the recruiting and
training of officers concerned with security duties, and we find it difficult to
believe that officers with the background and training of those in the RCMP
will be able to meet . the increasingly complex challenges in the field of security that are to be expected in the future .
54 : We acknowledge that there is in existence a programme whereby some
suitable members of .the RCMP are sent to university at public expense after
some years in the Force . In . addition, we are informed that plans have recently
been developed to commence a recruiting programme at universities in, 1969 ..
The . commencing salary of these recruits will . be higher than the salary of
those recruited directly from high school and, while recruits from universities
will undergo the same training and indoctrination programme'as high school
recruits, they will be expected to advance more rapidly in the Force if they
demonstrate superior ability. Undoubtedly, both these schemes are or will be
useful measures, although we have some doubt about . the potential for
success of the university recruiting programme under the conditions now
envisaged, but we feel that neither can be a substitute for a regular professional recruitment programme . There are many areas of activity (banks and .
railroads, for example, and some police forces) that have in the past confined
their recruitment to young men with lower levels of education ; almost all
such organizations have been forced by circumstances to . adapt, to the changing patterns of society .
19
�55 . Whatever the merits of the present system as a source of recruits for
police duties, we think it quite wrong that recruiting for a security service
should be tied tightly to a recruiting and training system generally oriented
towards the requirements of a police force . Apart from a similarity in some
investigative techniques, the differences between police and security duties
seem to us to be wide . Police forces are concerned primarily with law enforcement, including post facto investigation, with the collection of evidence, and
with the prosecution of crimes . Security services are primarily engaged in preventive activities and the collection of intelligence . A security organization
will almost inevitably be hindered in its operations by the lack of flexibility
inherent in a police force such as the RCMP . We feel, in short, that the
professional security service officer is quite different from the professional
policeman and that this difference should be reflected in recruiting methods,
in training and career patterns and in organizational structures .
56 . These questions of the characteristics and style of the RCMP as a Force
and the long-term effects of present recruiting policies have been central to
our thinking on the issue of organization . The second factor we have considered touches on a problem of great difficulty : the measurement of the
effectiveness of a security service . For obvious reasons, any direct measurement is almost impossible, especially in ~ the important fields of counterespionage and counter-subversion, and our first point concerning effectiveness is general and subjective . Although the role of the RCMP is admittedly
ill-defined, and recognizing that government policy has been inhibiting, we are
not sure that the RCMP has made a sufficient, or a sufficiently sophisticated,
effort to acquaint the government with the dangers of inaction in certain
fields . We are left with the impression that there has been some reluctance
on their part to take desirable initiatives and some inadequacy in stating the
case for necessary security measures in interdepartmental discussions at the
higher policy-making levels . A specific area in which the effectiveness of the
RCMP does appear to us to be capable of improvement involves personnel
investigations . These seem sometimes to be conducted with a certain lack of
tact and imagination, while reports and briefs to departments are often somewhat stereotyped . We can appreciate the problems of a departmental security
officer forced to make decisions on the . basis of such reports . On the other
hand, it must be stated that very few errors of fact or mistakes have come to
light-most of the apparently contentious cases that have been made public
have arisen from misunderstandings of one kind or another, or have been
the result of improper comment by departmental officials who have stated or
implied to a concerned individual that "security" was the reason for some
administrative action when this was in fact not so .
57 . In addition, we think it probable that the association of the security
function with the police role tends to make the work of the security authorities more difficult . The suggestion has been made (and we tend to agree with
it) that inquiries by ciyilians in connection with the security clearance of personnel would be regarded with more understanding than are inquiries b y
20
�policemen ; in particular it seems quite likely that many of the objections to
investigations on university campuses have stemmed from the fact that these
inquiries are conducted by policemen, rather than from the fact of investigation itself. Furthermore, there is a clear distinction'-between the operational
work of a security service and that of a police foice . ..iA security service will
inevitably be involved in actions that may contravene the spirit if not the
letter of the law, and with clandestine and other activities which may sometimes seem to infringe on individuals' rights ; these are not appropriate police
functions . Neither is it apropriate for a police force to be concerned with
events or actions that are not crimes or suspected crimes, while a security
service is often involved with such matters . Generally, in a period in which
police forces are subject to some hostility, it'would appear unwise either to
add to the police burden by an association with security duties, or to make
security duties more difficult by an association with the police function .
58 . These factors have led us to examine alternatives to the present organizational arrangements . One option we considered was that the Directorate
of Security and Intelligence should become organizationally and operationally
detached from the RCMP to a greater or lesser extent, while remaining under
the nominal administrative aegis of the Force . However, it seems clear to us
that the security service would need to adopt recruiting, training, professional
and operational policies quite different from those of-the rest of the police
corps, its head would have responsibilities to the highest levels of government
quite separate from those of the Commissioner of the RCMP ; and in the
long term the majority of its personnel (including probably its head)
would be civilians and not RCMP officers . Although some such solution as
this has attractions we find it difficult to believe that it . would be organizationally satisfactory or stable . On balance, the best solution seems to us
to be the creation of a new non-police agency to perform the functions
of a security service in Canada . This agency would eventually be quite
separate from the RCMP, although it would, when necessary, operate in close
liaison and cooperation with the RCMP and other police forces . The
organizational and operational detachment of the Directorate of Security and
Intelligence from the RCMP may be a necessary first stage in the process of
development of the new agency .
59 . We are aware that certain arguments have been raised in the past
against the creation of a civilian security agency ; we feel these should be
answered before we consider the details of a new organization . One important
argument is the suggestion that any new civilian service would readily be
penetrated by hostile intelligence services . This is a most serious matter,
for a penetrated security service is not merely ineffective, but is also an active
danger to its own country and to its allies . It is undoubtedly true that the
risk of penetration could be greater in a new organization of the kind we
envisage than in the existing organization, especially as it will be recruiting
at a somewhat unfavourable time ; the prevailing political sentiment of the
nation cannot be said to be generally sympathetic towards . the objectives and21
�activities of a security service . Nevertheless, we feel that the problem of
penetration is soluble as long as the new organization takes rigorous steps
to reduce the risks by very careful recruiting and by, for example, employing
recruits "under report" in less sensitive environments for months or years
until it has become apparent that they are worthy of transfer to more
sensitive areas . In addition, it is clear that a new security service would
initially employ many of the individuals now working in the Directorate of
Security and Intelligence .
60 . A second argument suggests that only the RCMP is spread sufficiently
widely across Canada to constitute an adequate service . However, nearly
half of the population of Canada is already concentrated in 20 metropolitan urban areas, and it is estimated that by 1980 one-third of Canadians
will live in three urban areas and some 60 per cent in about 30 major city
complexes . We realize nevertheless that any civilian security service would
have to place some reliance on the assistance of the RCMP and other police
forces in more remote areas of the country . A third argument arises from
the relationships which the RCMP has built up over the years with security
services and police forces in foreign countries . We have however heard
nothing to suggest that the creation of liaison arrangements between a new
Canadian security service and foreign security services would present insuperable problems . Clearly, these relationships have built into them an
element of trust, and it would take time for the new service to establish
an appropriate environment ; but again the initial stages of development would
be eased by the fact that many of the same individuals would be employed
on these duties .
61 . Finally, there is the question of administrative difficulty . Certainly,
the creation of a new service will pose certain administrative and financial
problems, and these will be exaggerated by the inevitable requirement that
the service should be free of some of the normal controls . It would for example require almost total freedom in the recruiting and discharge of personnel .
There would clearly be some new overheads that are at present not incurred
because of the association of the security service with the RCMP ; on the
other hand we think that certain economies might be introduced in a civilian
organization that are not at present possible . On balance we see no reason
why the new Service should cost more in terms of money and manpower
than the present Directorate of. Security and Intelligence of the RCMP .
62 . It is quite clear that the establishment of a new service will take time,
and that it must be built upon what already exists, especially as there will
be an overriding requirement to ensure that no degradation in effectiveness
takes place during the planning and changeover period . We would visualize
a deliberate and probably lengthy process of change, in the course of which
the head of the new organization would be appointed and allowed to plan
the development of the new agency and its changing relationships with the
RCMP . As we have said, the new organization will have to continue close
liaison and collaboration with the RCMP, as well as with other police forces .
22
�63 . We have considered arrangements that might be appropriate for the
control of the Security Service . Although- the Service must - remain part of
the executive arm of government and must be generally responsive to the
orders of the government, arrangements must be made to provide the Head
of the Service with some independence ; especially in circumstances in which
he may feel that ord'ers (to provide information, for example) may be
inappropriate . This independence must rest on some security of tenue, perhaps
similar to that held by the Governor of the Bank of Canada, and upon clear
and public terms of reference .which include provision for the disclosure of
information at his discretion . We . suggest that ,they should generally include
the following tasks :
(a) to collect, collate and evaluate information or intelligence concerning
espionage and subversion, and to communicate such information in
such manner and to such persons as the Head of the Service considers
to be in the public interest ;
(b) to be responsible for the direction, coordination and implementation
of counter-espionage and counter-subversive operations in Canada ;
(c) to be responsible for security investigations concerning civilian per =
sonnel employed by the Government of Canada, and other persons
as required ;
(d) to be responsible for the inspection of security precautions in departments throughout the Government of Canada and elsewhere as
required, and for the provision of . training and advice for departments of government and other agencies on matters concerned with
security ;
(e) to be responsible for the operation and coordination of all technical
security measures ; ,
( f) to cooperate and liaise as may be necessary with domestic, Commonwealth and foreign police forces and security services .
We would envisage that the new Service would generally be without law
enforcement powers, and would rely upon police cooperation when such
powers were required .
64 . We have also considered in some detail the arrangements by which
the Security Service should report to the government . At present the Director
of Security and Intelligence reports through the Deputy Commissioner
(Operations) to the Commissioner of the RCMP, who in turn reports to the
Solicitor General . In our view the Head of the new Security Service should
certainly have the right of direct access to the Prime Minister when the
occasion arises, although as a practical requirement it is probably desirable
that he should be-responsible at least for day-to-day operations to a Cabinet
Minister other than the Prime Minister.
65 . In addition, because of the concern of Parliament and the public in the
general area of security, we think that an effort should be made to provide
some public reassurance that the activities and operations of the Securit y
23
�Service are not immune from responsible scrutiny apart from that exercised
by the government of the day . We have considered alternative ways of providing this reassurance, including a parliamentary committee and a committee
of senior public servants . We have discarded the first of these possibilities,
partly because we think that the legislature should not be directly involved
in these executive matters, and partly because, if the committee were to
carry out its tasks in a meaningful way, its members would need formal
security clearance . On general grounds we think it inappropriate to subject
private Members of Parliament to these procedures, and in addition we foresee great complications if a Member nominated by a political party were ever
deemed unacceptable on security grounds . We also feel that a committee of
public servants, however senior and distinguished, would not necessarily be
regarded by Parliament or the public as effectively independent of the government of the day .
66 . However, in Chapter N we suggest the creation of a Security Review
Board to deal with the review of certain administrative decisions on personnel
cases . We imagine that the members of this Board would acquire considerable
expertise in the field of security policy, and that they would also command
public respect . We suggest that the terms of reference of this Board should
include provision for receiving and considering annual or semi-annual reports
from the Head of the Security Service, and that the Board should have
authority to draw to the direct attention of the Prime Minister any matters it
considers appropriate . This function would not be inconsistent with the role
of reviewing administrative decisions . We would not suggest however that
the Board should in this role be accessible to the public and thus come to
perform an "Ombudsman-like" function. If a federal Ombudsman or Parliamentary Commissioner eventually came to be appointed, his role in relation
to the general field of security decisions would need separate consideration .
Departmental Securit y
67 . Security organizations within departments vary widely in adequacy .
Standards of security discipline are equally varied and could in many cases
be improved . Generally, the Canadian security system is insistent upon the
individual responsibility of departments and agencies, and the observance of
this principle has clearly led to the present varying standards of departmental
security . One alternative to present arrangements would be a professional
centralized system under the direct control of the Security Service, with officers in each department owing a form of dual allegiance to the department
in question and to the Security Service . In many ways this would approximate
to the situation that now exists throughout the government structure in other
"service" areas-financial control, health and welfare services and printing
services, for example . Although some such system has superficial attractions,
we are inclined to believe that these attractions are illusory . It is probable that
the transfer of total responsibility in such an area as security from departments to an extra-departmental agency would encourage the common ten24
�dency to regard security as a matter apart from the normal business of the
departments and thus a subject of no concern to the general body of departmental staff .
68 . We feel in brief that a general policy of departmental responsibility
is necessary if an adequate standard of security is to be achieved, but there
are a number of prerequisites which must be fulfilled if the system is to operate effectively . In particular each department must prepare security regulations in accordance with its own requirements, and create an effective security
organization, headed by a trained security officer at an adequate level of
seniority within its structure and appropriately related to the rest of the departmental organization . We feel it of special importance that senior departmental officials, and especially deputy ministers and heads of agencies, should
regard it as one of their personal responsibilities to ensure that their departments have effective security organizations and regulations ; security measures
must be seen to have support at the highest departmental levels .
69 . A primary requirement of course is that each department or agency
should have the services of a trained security officer . Security appointments
should not (as is unfortunately sometimes the case) be regarded as positions
for -people without much hope of further advancement . We do not suggest
that all those who take part in departmental security duties can make a full
career in security, but we do feel that a tour of duty as a full-time (or sometimes part-time) departmental security officer should be an accepted part of
the process of development of potential senior public servants .
70 . We have in fact found few departments where security officers and
staffs are adequate in strength, calibre, status or training . We have no firm
views as to the specific place which the security officer and his staff should
hold in the departmental structure, but we are quite clear that he must be
sufficiently senior to have direct access as required to the deputy minister,
and to exert influence over heads of branches or departmental sub-units . We
realize the organizational simplicity of including security amongst the duties
of the senior personnel officer of a department, but we are not sure that this
solution is right, because of the conflicts of interest that are likely to arise .
In many cases we would prefer the security officer of a department to be
outside the departmental line organization and to be in a position to fulfil an
"audit" role within the department . In practice, this would mean that the
security officer would become a security adviser to the deputy minister, and
would carry out his responsibilities from this position .
71 . Many departments of government, some of which are concerned with
classified material, have branches with separate functions and establishments
in many different localities . The head of each branch or out-station should
be personally responsible for the security of his operation or facility, and
will normally need a full or part-time 'security officer on his own staff . These
security officers should be responsible also to the chief departmental security
officer .
25
�72 . Adequate training facilities should be made available for departmental
security staffs by the Security Service and, what is more, departments must
be compelled to take advantage of these facilities . In addition, special courses
or seminars should be held at intervals for senior officers with security responsibilities . Within departments, emphasis should also be placed on a continuous educational programme directed towards ensuring that the general body
of public servants is aware of the need for security measures and that those
concerned with classified material are adequately indoctrinated . We have been
impressed by the success achieved in other countries in educating and indoctrinating public servants in these matters, and we think that a much enlarged
effort is required in Canada .
73 . Further, positive arrangements should be made for expert advice and
information to be readily available to departments, and departments should
be compelled to seek this advice . For example, the protective security branch
of the Security Service might accredit liaison officers to departments or groups
of departments, and we would not rule out the possibility, in particularly
complex or difficult circumstances, that officers of the protective security
branch of the Security Service should be seconded for periods of time to
departmental staffs . This may be especially necessary if occasions arise when
widespread changes or improvements, such as those suggested by this
Report, are being undertaken .
74 . Finally, there should be comprehensive arrangements for extradepartmental inspection, audit and sanctions . We suggest that the protective
security branch of the Security Service, should be responsible for - auditing
the effectiveness and adequacy of security arrangements within departments,
and taking such action as may be necessary and appropriate (either directly,
through the Security Secretariat and the Secretary to the Cabinet, or through
the appropriate minister) in cases where departments have unsatisfactory
security postures or procedures .
75 . We would emphasize that we regard the provision of expert advice
to departments, the inspection and audit of departmental security procedures,
and the training of departmental security officers as matters of urgent importance . As we have suggested, if a new Security Service is established, these
general protective security roles should fall within its terms of reference . In
the meantime, however, we feel that immediate arrangements must be made
for the roles to be performed more effectively . Interim arrangements should
certainly ensure that the Privy Council Office and the Directorate of Security
and Intelligence of the RCMP have clear joint responsibilities in these areas .
Probably the RCMP should assume responsibility for training, inspection
and audit, while the Privy Council Office should assume responsibility for advice and for taking such steps are possible to ensure departmental compliance . Departments must cooperate by seeking advice and, with the assistance of the security authorities, ensuring that effective departmental security
structures and procedures are brought into being.
26
�IV. SECURITY, PRIVACY AND THE INDIVIDUAL
General Considerations
76 . The problem posed by the impact of security procedures on individual
members of society is of course one of the central issues of our inquiry . In
the general area of individual freedoms, concern has been expressed in recent
years over invasions by the state, as well as by private individuals and organizations, of what has come to be .called the "right of privacy" . The range of
apparent problems is broad, and includes such matters as the use of telephone .
interception, electronic intrusion devices, long range cameras and other
sophisticated equipment by police and governmental agencies in the course
of detection and investigation of criminal offences and :security matters ; the
collection and recording of information about individuals and organizations
for the purpose of security "screening" ; the use of such devices as the polygraph and the breathalyzer by the police ; the use of closed circuit television
and eavesdropping devices to supervise employees or to assist with the entrapment of consumers ; the use-of psychological tests and questionnaires by prospective employers, and in schools without parental knowledge or consent ; the
accumulation and storage of personal data -in computers by the state .
77 . Two aspects of this general area of concern seem to us to fall within
our terms . of reference . The first of these-is the use of certain investigative
techniques for the purposes of counter-espionage or counter-subversion
operations and for the acquisition of intelligence ; this we review in Chapter X .,
The second is the investigation of . personnel for the purpose of security'
screening and clearance ; this we deal with below .
78 . We must first state that we consider personnel security and personnel
screening of central importance to an effective security system . Some dependence -may be placed upon physical security measures and upon the enforcement of regulations, but ultimately the reliability and discretion of individuals
is the base upon which all true security must rest . This is especially true now
that advances in technology-the advent of rapid copying equipment and
sophisticated electronic devices, for example-have made it almost impossible to devise effective physical protection against a determined individual
with modern equipment . We think, that all persons, without exception, should
be subjected to the security screening process before being allowed access
to classified material . Those to be screened should include appropriate em-
27
�ployees of Canadian Government departments or agencies, members of the
armed forces and the RCMP, ministerial appointees, members and staffs of
task forces, consultants, university faculty members working on classified
research contracts or handling classified material, persons employed in industry concerned with classified contracts, and so on . The necessary procedures
consist essentially of two parts : first, the acquisition of data about the past
history of an individual ; and secondly, an attempt to forecast the individual's
future performance or reliability on the basis of this data .
79 . We have little sympathy with the more extreme suggestions that inquiries about persons should not be undertaken because of the individual's
"right of privacy", nor with the view that the process of personnel investigation by the State is alien to normal and democratic practice, nor with the
general premises that any individual has a right to employment within the
public service or a right of access to classified information . We think that
all employers-even governments-have a right to be selective in hiring
employees as long as selections are made upon a sound and equitable basis .
What is more, investigation of applicants for employment is a normal practice,
as is investigation for credit or insurance purposes . References are required
or referees are consulted . Many firms make credit bureaux checks of prospective employees, and we understand that some have relationships with
local police departments which enable them to acquire at least negative data .
Many firms "bond" employees, and this involves investigation . Some make
use of psychological tests and interviews in an attempt to assess aptitude . The
general process of data acquisition as a basis for forecasting the future performance or reliability of a prospective employee is widespread, well-understood and generally accepted . The state's procedures only differ in comprehensiveness and formality from those generally employed in one form or
another by responsible employers in the private sector .
80 . Neither does an individual have a right to confidence ; on the contrary,
access to classified information is a privilege which the state has a right and
a duty to restrict . We believe that the real rights of individuals are of a rather
different order. We feel, for example, that persons should be told that they
are to be subjected to inquiries for security clearance, and have a right to
expect that any inquiries made about them should be made by competent
and trained investigators, and that any decisions made about them should
be made carefully, in a consistent and equitable framework, and on the
basis of procedures that are not incompatible with the concepts of natural
justice and with national style and tradition .
81 . On the other hand, in order not to imperil sources of information
adverse decisions must sometimes be taken about individuals without revealing to the person concerned full details of the reasons or the supporting
evidence . It is sometimes necessary to refuse to employ an individual, or to
transfer him or even to discharge him, because after the fullest investigation
doubts about his reliability remain even though nothing may have bee n
28
�proved by legally acceptable standards . Such doubts must be resolved in
favour of the state rather than in favour of the individual, or at least some
greater weight must be attached to the interests of the state than would be
appropriate in legal proceedings . Also, people employed in sensitive environments may in certain circumstances be subject to unusual regulations concerned perhaps with search of their persons or restrictions on travel .
82 . In our view, there are no simple or legalistic solutions to problems of
these kinds, but only ad hoc checks and balances . Experience in the United
States (where almost complete reliance is placed upon due legal process and
the full force of the law can be invoked to rule upon almost any administrative decision) would suggest that there are no sensible or practical organizational or other arrangements which . can provide absolute protection to all
individuals against apparent occasional restrictions of their rights .
83 . Further, just as normal legal processes occasionally lead to injustices,
so will security procedures . Usually persons do not suffer in legal proceedings
because of arbitrary judgment ; if they suffer, they do so only because of the
nature of the system and the content of the law itself . Similarly in security
procedures extreme care must be taken to ensure that if the interests of an
individual are prejudiced they are prejudiced only because of an overriding
requirement and not because of lack of care . Whatever arrangements may
be made in an attempt to protect the rights of the individual, ultimately his
most important right-to fair, equitable and careful treatment-will depend
upon the existence of policies and procedures scrupulously formulated in
accordance with national style and traditions, and consistently executed and
enforced by competent and trained personnel of great integrity .
84 . Before proceeding to an examination of screening procedures, we
should note that the remainder of this chapter is largely concerned with
civilian government employees . In many instances, however, the comments
and suggestions we make are also applicable to members of the .armed forces
and to persons employed in classified work in industry ; we do however devote
later chapters to special problems in these areas . Somewhat similar procedures
are applied to most applicants for immigration or citizenship, and many of
the general remarks in this chapter apply here also, although again we devote
later chapters to a more detailed consideration of these matters .
Acquisition of Data .
85 . There are five methods by which data that is relevant to an individual's
reliability can be acquired : checking of available records ; written inquiries ;
personal inquiries ; physiological or psychological tests ; and personal interviews .
(a) . Records Checks. Minimal investigative procedures include the checking of readily available records such as RCMP subversive and criminal
records, government personnel files where previous service is claimed,
and .immigration or citizenship files where appropriate .
29
�(b) Written Inquiries . Written inquiries seek information about an individual's reliability, character, associations, experience and education
from former employers and supervisors, from schools and universities,
and from referees .
(c) Personal Inquiries . Personal inquiries (so-called "field investigations")
fall into two parts . First, an effort is made by means of personal interviews with former employers, associates, school or college teachers
or supervisors, neighbours or appropriate local agencies to check
and confirm the details of his past life that an individual has listed
on a comprehensive personal history form . Secondly, use is made of
these interviews to elicit information concerning character, habits,
morals, reputation or associations, as well as "leads" for further
interviews . If adverse information is elicited, further investigation is
concentrated on this particular area in an effort to confirm, deny or
expand it . Clearly this is a highly subjective and in some ways objectionable process, but in spite of considerable effort no substitute
for it has yet been devised . It seems to us however of special importance that the inquiries should be made and any resulting reports
prepared by mature, experienced, sophisticated and trained officers,
working under strict supervision, and that only significant information
should be recorded . We are impressed by the care with which personnel investigators are selected, trained and supervised and their
reports considered, checked, balanced and revised in some countries .
We cannot emphasize too strongly that, if an individual's rights are
to be protected, and cooperation obtained from such important sources
of information as universities, personnel investigations of this kind
must be regarded as duties requiring persons of high calibre and
considerable skill and experience.
(d) Tests.' It would be an ideal situation if it were possible to process an
individual through a series of more or less mechanistic tests, and
arrive at -an objective judgment of the subject's future loyalty, reliability and character . Unfortunately, we are informed that this is not
possible, nor likely to be possible in the foreseeable future . Some
reliance can however be placed on certain types of psychological
testing in special circumstances .
(e) Personal Interviews. Opinion is divided on the relevance and propriety of personal contact between an investigator and an individual
under investigation . Our own view is that each case must be considered on its merits . If areas of concern appear in, the course of
investigation, there seems no reason why attempts should not be
made to resolve them by interview, unless they appear to be of such
significance as to make it apparent that clearance is -almost certainly
impossible or the situation is such that a confrontation -appears unlikely to be rewarding .
30
�86 . Clearly, many combinations of these five techniques are possible, and
in fact actual procedures vary quite widely . In Canada, present arrangements
appear to be somewhat inconsistent ; In the first place, . it is clear that many
persons are recruited for classified employment before checks are completed,
and may even be given . access to . classified material before the results of . any
checks are available. This procedure is said to be due to the exigencies of
recruiting, but is nevertheless inexcusable . Secondly, records checks are conducted with some informality and inconsistency . Fingerprints are not consistently obtained from all applicants for classified employment, nor at all
from industrial workers on classified contracts, and in the absence of fingerprints fully adequate criminal records checks are impossible. Inquiries of referees are very limited, even in the context of personnel 'selection . It is unusual
for previous employers to be consulted in the absence of a field investigation .
Further, the requirement for a field investigation differs in different parts of
the government . Some departments require such an investigation for a
so=called "Secret" clearance, and some require it only for "Top Secret"
clearance . Subjects are interviewed by the security officers in some departments and not in others .
87 . There is a further area in which Canadian procedures seem to us
somewhat inflexible, and this is in the . relationship between security investigation and screening procedures on the .one hand, and the personnel selection
process on the other . The policy on this subject is that a person . to be
appointed to a permanent position in the public service„ will not normally be
made the subject of security screening for . this reason alone . However,
whenever a person to be appointed to such a position is, in the opinion of
the deputy minister or head of agency concerned, likely to be required eventually to have access to- classified information, that person shall before being
given :a permanent appointment be made the subject of at least a . rudimentary
security check . In fact, as far as we can determine, only the most limited
investigation of prospective members of the public service is conducted
by the Public Service Commission in . the absence of a requirement for
security screening . Sometimes qualifications are confirmed ; occasionally
referees are consulted . Personnel selection decisions are made largely on the
basis of a personal interview . What is more, in spite of the stated policy it
appears unusual for any security screening . to take place in anticipation of a
possible future requirement for access to classified information, except in the
armed forces and a few other departments and agencies .
88 . In the United States Government a .very different practice is followed .
Investigations are conducted by the Civil Service Commission as part of the
normal procedures for obtaining sufficient data to assess the suitability of
candidates . The Bureau of Personnel Investigations of the Commission is
responsible for the whole process of obtaining or confirming all the facts,
both favourable and unfavourable, that . bear on an individual's suitability
for employment . It . carries out this responsibility by means of records checks
or field inquiries, . and it evaluates the significance of . the information it de-
31
�velops in consultation with employing departments . All applicants for the
United States public service, whether or not they are to be employed in
sensitive positions, are subjected at least to records checks . The object of
this programme is to give effect to the Government's responsibility for maintaining the quality of the public service at a high level and for implementing
a meaningful merit system in which all factors bearing on suitability are
considered .
89 . We can see many advantages in the institution of a formalized effort
to acquire, in the context of personnel selection, elementary data about every
applicant for employment in the public service, whether or not he or she is
to be employed on classified duties . Adverse reports would of course not
necessarily be reasons for rejection, but the process of inquiry should help
to avoid the unfairness inherent in -a situation in which a candidate is able
to conceal relevant but adverse information merely because the government
makes little effort to check details of background and record . In addition,
even if an individual were being initially considered for a non-sensitive
appointment, some data would be available to indicate whether or not problems relating to clearance were likely to arise at a later stage when access
to classified material might be vital for promotion or transfer . In the absence
of such procedures, increasing mobility within the public service seems likely
to lead to growing numbers of problem cases . Further, inquiries concerning
individuals may become somewhat more acceptable if conducted in .the context of personnel selection rather than security investigation .
90. We have examined the present procedures for investigation and clearance, and have reached the conclusion that they could with advantage be
amended on the following lines . These suggestions extend records checks to
all members of the public service, and add certain elements of formality to
the procedures for granting access to classified material .
(a) Persons to be employed in the public service . Before a person is
employed in the public service his name should be checked against
the subversive records and he should be the subject of a fingerprint
check against criminal records . Adverse information need not result in
rejection, but the information should at least be made available to the
employing department, which can request further inquiries if these
-appear to be necessary .
(b) Persons to have access to Secret (and Confidential) information .
Before a person is given access to Secret or Confidential information
he should be the subject of comprehensive records checks (including subversive records, criminal records, all relevant federal departmental records, credit bureaux records and foreign records where
necessary and possible) . Where written inquiries to referees or previous employers have not been made as part of a personnel selection
process, this should be done . If these steps produce no adverse
information, access may be granted to Secret or Confidential informa32
�tion after a formal and recorded departmental judgment that this
access is necessary and desirable . If however any significant' adverse
information is developed, furthe r' investigation (including field 'inquiries) should be undertaken by the Security Service to confirm or
resolve doubts . After inquiry, the case should be referred by the
Security Service. (with a recommendation-a point to which we shall
return) to the department for decision .
(c) Persons to have access to Top Secret information . Before a person
is given access to Top Secret information he must be the subject of
a similar comprehensive records check and a fu ll field investigation
covering a period of at least the previous ten years of his life or the
period from age eighteen, whichever is shorter, and a formal and
recorded departmental judgment must - be made that this access is
necessary - and desirable .
(d) Clearance to Secret an d Top Secret levels should be formall y updated at regular intervals, Secret clearances 'by means of records
checks an d consultation with departmental- supervisors, and Top
Secret clearances by means of fu rther field investigations . Security
clearances should not be thought of as in any sense permanent, and .
in be tween these up-datings supervisors of personnel handling classified matters and departmental security officers should concern themselves, if necessary in consultation with the Secu rity Secretariat and
the Security Service, with cases in which possible doubts have com
.
etonic
91 . We have 'already referred to one specific inconsistency in present
regulations-that fingerprints are not required from industrial workers for
whom clearance is needed . In our opinion `there is no reason for any distinction between industrial workers and public servants in this respect . We regard
fingerprints simply as a' .means of identification, comparable perhaps to
photographs . We can see no validity in objections to the taking of fingerprints
and the retention of fingerprints on file . In addition,-we'understand that plans
are being made to "vacate" and seal original criminal'records after relatively
short periods and- to make" these'- sealed records available only for specific
reasons . We consider irof great importance that the full records should be
available for security screening purposes, although we would agree that only
the recent "unvacated" records should be used in the case of 'applicants for
employment in which access to classified informatiori is neither necessary
nor likely to be necessary in the future .
Reporting of Data
92 . Once data about an individual has been acquired, it must be reported
to the decision-making authority, which is the employing department . The
present practice is for the - RCMP to summarize the results of its records
checks and investigations in the form, of somewhat stereotyped letters o r
33
�"briefs" with little or no explanation of the significance to be attached to any
given item of information, and very often with data summarized to such an
extent as to be difficult to assess . We feel that this process of summarization
is wrong in principle . There will clearly be occasions (although we suggest
there are likely to be few in the area of personnel screening) when protection of sources must be considered of paramount importance, but the principle should be that decisions are made on the basis of all relevant information, although the means by which and the conditions under which the
information is made available to the departmental decision-makers may vary .
In general one of the most important functions of the protective security
branch of the Security Service should be to ensure that all relevant information is made available to departments in as complete a form as possible .
93 . In addition, the Government has taken the firm view that the RCMP
should do no more than provide basic information to departments concerning
the clearance of individuals, and that the Force must play no formal part in the
decision process itself . In a sense, the concept of departmental responsibility has been extended to support the position that the RCMP should not
be asked to advise formally on the significance of the information it provides .
The ostensible rationale for this attitude is somewhat mystical ; it is alleged
that provision o f this advice would tend to edge the nation closer to a"police
state" . We feel the real rationale is much more practical : the ability to dissociate activities concerned with personnel investigation from the results of
personnel judgment has obvious advantages as a public posture .
94 . We think this policy is wrong, for two reasons . First an organization
which provides data should bear some responsibility for the implications and
significance of that data . Such a responsibility adds to the compulsion to be
accurate and objective . Secondly, the present policy deprives the decisionmaker of the sole source of professional advice on the significance of subversive associations and the main source of professional experience on the
meaning and relevance of character defects and other factors . It seems to us
that this deprivation is as likely to be detrimental to the individual as it is
to be disadvantageous to the state . We agree that the final responsibility for
decision-making must rest with the departmental authorities ; we nevertheless
believe that the Security Service should have a duty to provide meaningful
advice to help with the decision, and that it should do this not only by providing as full information as possible but also by commenting on the importance and significance of the information it provides and by making formal
recommendations concerning clearance .
The Decision Process
95 . Whatever arrangements are made to provide data and advice, at some
point a decision to grant or withhold clearance must be made on each individual case . This decision involves estimating the possible future behaviour
34
�of an individual on the basis of his past history. The piocess is difficult
enough in the case of an applicant for employment, when the sole administrative effect of an adverse decision will be the'refusal of employment, or . the
selection of another individual from an eligible list . It is even more difficult if
it relates to a person already employed, when an adverse judgment may lead
to transfer, non-promotion, inhibition of career, . suspension or even dismissal,
and, what is more, may involve the department in a lengthy train of administrative negotiations and . difficulties concerned with hearings and reviews .
96 . A great deal of conceptual consideration has been devoted to definitions of loyalty and reliability, to the relationship of loyalty to security and to
the relevance of certain so-called character defects to either loyalty or reliability . In practice, we feel that the initial basis for decision must be a set of
criteria against which the history of the individual is- measured . It is . a truism
that no set of criteria can meet all cases, and that a large element of subjective judgment must eventually be applied in very many cases, but nevertheless the relevance and adequacy of the criteria seem to us to be of the firs t
importance .
97 . As we have suggested, we feel 'that "allpersons who may have access
to classified information in the performance of their duties must be persons
in whose reliability the government can repose full confidence . It has in our
view been clearly demonstrated that such confidence •cannot be placed in
persons whose loyalty to -Canada and our system of government is diluted
by loyalty to .any communist, fascist, or other legal -or illegal political organization whose purposes are inimical to the -processes of parliamentary
democracy. Therefore, persons in the following categories should not be .permitted to enter a position in the public service where they may have access to
classified information or are likely to have opportunities to gain such access :
(a) a person who is a member of a communist or fascist party or an organization affiliated with a communist or fascist party and having a similar
nature and purposes ;
(b) a person who by his words or his actions shows himself to support a
communist or fascist party or an organization affiliated with a communist
or fascist party and having a similar nature and purpose ;
(c) a person who, having reasonable grounds to understand its true nature
and purpose, is a- member or supports by his words or his actions an organization which has as its real objectives the furtherance of communist
or fascist aims and policies (commonly known as a front group) ;
(d) a person who is a secret agent of or an informer for a foreign power,
or who deliberately assists any such agent or 'informer ;
(e) a person who by his words or his actions shows himself to support any
organization which publicly or privately .advocates or practices the use
of force to alter the form of government .
It must be borne in mind that there may be reasons to entertain doubts about
persons who at some previous time fell into one or other of these categories,
even though these ,doubts may not :be confirmed by more recent information .
35
�98 . In addition, a person may be unreliable in the context of security for
a number of reasons other than associations or activities such as those described in the previous paragraph . To provide greater assurance of reliability,
persons in the following additional categories should not be permitted to have
access to classified information unless after consideration of the circumstances
the risk appears to be justified :
(a) a person who is unreliable, not because he is disloyal, but because of
features of his character which may lead to indiscretion or dishonesty, .
or make him vulnerable to blackmail or coercion . Such features may be
greed, debt, illicit sexual behaviour, drunkenness, drug addiction, mental
imbalance or such other aspects of character as might seriously affect
his reliability ;
(b) a person who, through family or other close continuing relationship with
persons described in paragraph 97 above, is likely to be induced, either
knowingly or unknowingly, to act in a manner prejudicial to the safety
and interest of Canada ; it is not the kind of relationship, whether by
blood, marriage or friendship, which is of primary concern, but the
degree of and the circumstances surrounding the relationship, and most
particularly the degree of influence that might be exerted, which should
dictate a judgment as to reliability ;
(c) a person who, though in no sense disloyal or unreliable, is bound by
close ties of blood or affection to persons living within the borders of such
foreign nations as may cause him to be subjected to intolerable pressures .
99 . There are four points we would like to raise concerning . these criteria .
The first concerns homosexuality, the second Quebec separatism, the third
the relevance of student activities at college or university, and the fourth the
security clearance of aliens or former aliens .
100. The question of homosexuality is a contentious area, especially as
social mores change . It is a fact, demonstrated by a large number of case
histories, that homosexuals are special targets for attention from foreign
intelligence services . What is more, there seems to us clear evidence that certain types of homosexuals are more readily compromised than non-deviate
persons . However, we feel that each case must be judged in the light of all its
circumstances, including such factors as the stability of the relationships,
the recency of the incidents, the public or private character of the acts, the
incidence of arrests or convictions, and the effect of any rehabilitative, efforts .
In general, we do not think that past homosexual acts or even current stable
homosexual relationships should always be a bar to employment with the
public service or even to low levels of clearance . We do feel however that,
in the interests of the individuals themselves as well as in the interests of the
state, homosexuals should not normally be granted clearance to higher levels,
should not be recruited if there is a possibility that they may require such
clearance in the course of their careers and should certainly not be posted to
sensitive positions overseas .
101 . The problem of separatists is equally contentious, and we suggest
that security policy concerning separatism should be made clear . We can see
36
�no' objection to the federal government taking (and being seen to take) steps
Ao prevent its infiltration by persons who are clearly committed to the dissolution of Canada, and who are involved with elements of the separatist movement in which seditious activity or foreign involvement are factors . We feel
that information concerning membership in or association with extreme
separatist groups should be reported on the same basis as information concerning other allegedly subversive movements, and that the departmental
decision process should be similar . We are of course aware that there is a
wide spectrum of activity relating to separatism, ranging from overt political
activity to clandestine terrorist planning and action, and we do not for a
moment suggest that all persons who have been associated with overt and
non-violent groups should be excluded from federal employment . We see
no reason however why the federal government should employ (especially
in sensitive areas) persons who appear to be actively committed to an
extreme separatist position . At the very least we feel that a decision to
employ such persons should be taken only on the basis of a knowledge of their
records .
102 . A third issue concerns the importance which should be attached by
the Security Service or the decision-makers to the activities of young persons
at universities . The point is made that universities are traditional homes of
free thought and protest, and that the positions taken by young and inquiring .
minds should not be held "against" them in later years . We agree with this
point of view . Questionable university associations or activities should not
necessarily bar an individual from government or sensitive employment, although such activities may well be relevant in any later investigation .
103 . We are however somewhat disturbed by the tendency in certain
university circles to use the plea of academic freedom to substantiate claims
to inviolability and to privileged immunity from normal security procedures .
In the first place, we can see no objection to inquiries at universities concerning persons who are seeking government employment or security clearance . In
fact, we regard such inquiries as of special importance because the products
of universities are more likely than other persons to reach sensitive and influential positions . In any case, university authorities can be said to have the
same status as "previous employers" and should accept inquiries about
students on this basis . We see no reason why any immunity should be
accorded to members of faculties or student bodies who engage in subversive
activities . We do believe however that all inquiries at universities should be
conducted by mature, experienced and sophisticated investigators and be the
subject of sensible and balanced reporting . The Security Service should take
special care not to interfere with freedom of thought and discussion, to avoid
random inquiries concerning student activities, and to avoid overemphasizing
the importance of such activities .
104 . Fourthly, we note that the clearance of aliens or former aliens presents problems, which have become of significance now that aliens are enter37
�ing the public service in growing numbers . We feel that definite rules must be
established to deal with this question, and we think that a decision to grant a
security clearance to an alien or former alien should be taken on the basis
of positive information comparable in quality and adequacy to that which
would be obtained in Canada. Unfortunately, there will be many cases in
which it will be impossible to obtain adequate data concerning an individual
who has recently arrived from abroad, and we think that, in such cases, no
clearance should be considered until the individual has been resident in
Canada for a meaningful period and has undergone a full field investigation .
Former citizens or residents of communist countries are a special category ;
in these cases clearances should only be granted where the obvious advantages
of doing so outweigh the special risks involved.
105 . Finally, we feel that positive arrangements must be made to ensure
as far as possible that departmental judgments are consistent and balanced .
Two procedures-one general and one specific-should be adopted to this
end . In the first place, all adverse decisions and a sampling of non-adverse
decisions should be reviewed by the Security Secretariat in consultation with
the Security Service . Continuing inconsistencies or anomalies in departmental
judgments and action should soon become apparent, and the Security Secretariat can use the channels open to it to rectify the situation . Secondly, we
suggest that when a department decides to grant access to classified information in spite of the Security Service's advice or recommendation, the Security
Service must be informed of the disposition of the case, so that it can take
such action as it considers appropriate to review the department's security
posture, or to bring the department's decision to the attention of the Security
Secretariat . It seems to us that procedures of this kind will combine the
requirement for departmental responsibility for judgment with an assurance
that a department's judgment will be responsible .
Review Procedures
106 . Decisions to withhold or (especially) to withdraw clearances must
often lead to administrative decisions that may affect the careers or the livelihood of individuals . In some cases the individuals concerned find it in their
own interests to resign or agree to a transfer . There remains however a residue of cases in which the demands of natural justice may well require that
decisions affecting individuals should be subject to some form of appeal or
review at the instance of the individual concerned . A great deal of attention
has been devoted in many countries to the problem of devising a form of
review which will meet the proper requirements of national security, and the
fact that there is no simple solution to the problem is demonstrated by the
wide variety of approaches that have resulted in different countries-approaches which vary from an absence of any appeal system to an ostensible
complete depedence on formal judicial proceedings .
38
�107 . Our inquiries suggest that both extreme positions are untenable . Some
form of review system is clearly desirable in itself, as well as to meet reasonable public and parliamentary expectation . On the other hand, we are certain
that fully judicial procedures are ill-suited to the review of decisions based
on security grounds . There are a number of reasons for-this .,One reason has
in our view been overemphasized in Canada, although it still has great importance in certain circumstances ; this is the need to protect information and
sources from disclosure in any form of hearing . A second reason has not been
emphasized sufficiently ; this is the fact that decisions in this area ultimately
relate to the defence of the state ; for which the government and only the
government is responsible . Such decisions should not be surrendered to any
group outside the executive, although there is no reason why the executive
cannot seek advice in its decision-making . A third reason relates to responsibility . Ministers and deputy ministers are responsible for the security of their
departments ; they cannot reasonably be required to be bound by an outside
decision (other of course than that of the Prime Minister) on questions of
individual access to the classified material for which they are responsible . A
fourth reason is pragmatic ; if all judgments in . the area of security become
subject to, independent appeal and 'decision, the executive may tend to take
such steps as are possible to ensure that cases which merit this form of review
do not arise ; in other words, the harder it becomes . to deal with security
cases without recourse to legal and public review, the greater will be the
pressures for very rigorous-even unfairly rigorous-judgments by departments before employment, and for resort to administrative (rather than
security) measures against employees who become the subject of adverse
security reports .
108 . There are three areas in which review may be required-employment,
immigration and citizenship . Until recently the situation was that decisions
concerning dismissals of public servants (but not industrial workers) on
security grounds might be reviewed as a last resort by three members of the
Security Panel who act in a collective advisory capacity . The situation has
however been changed by recent amendments to Sections 7(7) and 7(8) of
the Financial Administration Act (S .C . 1966-67, c . 74) which read as
fo llows :
"(7) Nothing in this or any other Act shall be construed to limit, or
affect the right or power of the Governor in Council, in the interest of
the safety or security of Canada or any state allied or associated with
Canada, to suspend any person employed in the public service or, after
an inquiry conducted in accordance with : . regulations of the Governor
in Council by a person appointed by the Governor in Council at which
the person concerned has been given an opportunity of being heard, to
dismiss any such person .
'
"(8) For the purposes of subsection (7), any order made by the Governor in Council is conclusive proof of the matters stated therein in relation to the suspension or dismissal of any person in the interest of the safety
or security of Canada or any state allied or associated with Canada . "
39
�Later in this chapter we suggest a means whereby this requirement for a
hearing may be met . Immigration decisions in which security is a factor may
be appealed to the Immigration Appeal Board, which may take into account
compassionate and humanitarian considerations, unless the two ministers concerned sign certificates denying discretion on other than strictly legal points
to the Board . Citizenship decisions involving security cases are decided by
the responsible minister and no appeal procedures exist at present . These
differing systems seem to us to be inconsistent, wasteful of expertise and in
the long term probably marginally dangerous to the security of the state as
well as to the rights of individuals . We have in fact encountered no very
widespread concern about these present arrangements but we feel that a new
and more formalized approach to the problem would serve to improve the
public image of security measures and still what criticism does now exist
about their fairness .
109 . We have reviewed the arguments and discussions that have taken
place over the years-particularly in ] 957 and 1963-concerning the propriety of establishing some form of security review panel to which public
servants would have access . In 1963, when the issue was considered in great
detail, the system was instituted by which three members of the Security Panel
would review any proposed recommendation to a minister for dismissal on
security grounds . At that time the main arguments advanced against the
establishment of a panel outside the public service were : first, that the
government would be subject to pressures for the extension of the proposal to
include fully judicial safeguards for the employee, and that these would inevitably compromise vital sources of security information ; secondly, that the
government would be subject to pressure for the extension of the plan to
members of the armed forces, who have their own grievance procedures, and
to employees of private firms, thus creating difficulties in the field of labourmanagement relations ; thirdly, that the proposed procedure would undermine
established managerial responsibilities and practices throughout the public
service ; and fourthly, that departments would tend to seek other methods of
dealing with security cases in order to avoid mandatory review of decisions
by a body outside the public service .
110 . We do not find these arguments completely persuasive. Briefly, we
feel that pressures for a fully judicial review system can be resisted, that
extension of a sensible system to the armed forces and to private industry
is not necessarily undesirable, that established managerial responsibilities
and practices in the public service in the area of security are not so effective
and satisfactory as to be entirely unworthy of interference, and that the
avoidance of decisions leading to mandatory review may not always be
undesirable from the point of view of national security . Further, although
we are convinced that great care is exercised in the handling of individual
cases, we are unimpressed by the operation of the system for final review
th at was adopted in 1963 . We do not think it impossible to devise a different
system which will provide for meaningful review of the decisions of depart-
40
�ments, preserve the requirement for governmental responsibility and decision, give adequate protection to sensitive information and sources yet
provide a reasonably effective, safeguard against . arbitrary, hasty or illconsidered judgments, and perhaps also avoid the necessity for ad hoc
inquiries into individual cases .
111 . In our attempt to devise such a system we have kept in mind three
principles . First, it seems to us vital that individuals (except applicants
for employment-and independent applicants for immigration) who are the
subjects of decisions on security grounds should be given as many details
as possible of the factors which have entered into the decisions . Quite
clearly there will be some cases in which little information can be made
available to the individual, but normally, in the general run of cases relating
to membership of associations, residence of relations and character defects,
it should be relatively simple to indicate the relevant factors-without disclosing sensitive sources . At the very least it is certain that in areas such as
employment, immigration and citizenship, in which decisions may be made
either on security or on non-security grounds, it is essential to inform the
subject of the category into which his case falls, so that he is able to take
the appropriate steps if he wishes his case to be reviewed .
112 . Secondly, as we have already implied, we maintain that the decisions
of a board concerned with the review of security matters can only be
advisory. Security is a function in which the safety of the state is involved,
and in such . an area the government must exercise its right to govern ; no
independent or extra-governmental. body can assume-this role. In practical
terms the board must review the final decisions of departments and advise
the Prime Minister and the minister concerned of the results of this review .
113 . Thirdly, we consider that security is an area in which expertise and
understanding are important . We consider it wasteful that expertise in this
area should be acquired and then used only in a few individual cases or
specialized areas ; all security decisions have much in common, and the
same board should review contentious decisions in all appropriate areas .
114 . In fact, we suggest that a new Board should be established to deal
with a variety of appeals against security decisions . The general responsibility of this . Board would be to review decisions made in the . area of
security in order to ensure that the rights of individuals had not been
unnecessarily abrogated or restricted in the interests of the security of the
state and its allies, and that no unnecessary distress had been caused to
individuals . The Board would deal with the following types of cases :
(a) Protests by public servants (including members of the armed
forces) who wish to appeal against a departmental . decision to
dismiss or transfer them on security grounds . In cases of dismissal,
the Board would provide the form of hearing required by Section
7(7) of the 1967 amendments .to the .Financial Administration Act
(S .C . 1966-67, c . 74) :
41
�(b) Protests by public servants against denial of promotion or against
an apparent inhibition of career prospects on security grounds . Cases
of this kind will normally only come to light after appeal through
normal channels to a Promotion Appeal Board if this Board feels
it necessary to advise the applicant of the true reason for failure
to take some such administrative action as posting or transfer .
(c) Protests by industrial workers against dismissal or transfer or against .
denial of promotion or apparent inhibition of career prospects on
security grounds .
(d) Protests by such persons as consultants or university faculty members
where withdrawal of clearance affects professional careers .
(e) Protests by sponsors or nominators against refusal on security
grounds to admit to Canada potential immigrants they have sponsored or nominated, and protests by sponsors or nominators against
refusal to grant landed immigrant status to a person already in
Canada whom they could have sponsored or nominated if he were
abroad .
(f) Protests by applicants for citizenship who have been refused on
security grounds .
115 . It will be noted that there are three categories of persons who we
think should have no' access to the Review Board . Nor should these classes
of persons be given any indication that the reasons for adverse decisions are
based on security grounds . These categories are as follows :
(a) Failed candidates for employment as public servants . An applicant
for employment knowingly places himself in a competitive situation,
and presumably appreciates that any decision concerning him will
be made on the basis of a complex of factors ; there is absolutely
no'requirement for the employer-in this case, the government-to
enter into controversy with an applicant by informing him of the
reasons for his .failure . Similar considerations apply to failed applicants for employment in industry, and to consultants and faculty
members who are denied clearance as opposed to having an existing
clearance withdrawn .
(b) Independent applicants for immigration resident abroad . Although
the Canadian Government is committed by common justice and
humanity to give fair consideration to all cases, it would be inappropriate for it to be placed in the position of having to enter into a
controversy concerning security with a citizen of another country
without sponsors .
(c) Persons without sponsors or nominators who enter Canada ostensibly
as visitors and then request a change of status to that of landed
immigrant . We see no reason why such persons should be treated
differently from independent applicants for immigration resident
abroad ; as such they should have no access to the Review Board .
42
�116 . In addition, it should be noted that persons who have already passed
through the immigration screening process (on their- own behalf or . through
sponsors or nominators) and have been formally admitted to Canada as
landed immigrants should have no need to appeal to this Board . We think
that deportation of such persons should be regarded as a most serious
punitive act, and that decisions to deport, even if taken on security grounds,
should be subject to formal judicial due process and appeal rather than
to a review by the kind of board we envisage . If the situation is such that
the government is unwilling to disclose acceptable and satisfactory evidence,
we feel that deportation_ should not be ordered .' As long as immigration
controls are reasonably rigorous and effective, such situations should not
often arise .
117 . The Security Review Board we envisage should consist of a Chairman and (say) two other members, 'all nominated by the Governor in
Council, and should meet as the need arises . The Board . should be independent of any government department or agency although its secretarial
support would be provided by the. Security Secretariat . Its members should
not be active government officials, although they would of course be subject
to government security screening procedures : The Board's procedures should
be on the following lines : ,
(a) An employee, sponsor or nominator of an immigrant, or applicant
for citizenship about whom an adverse decision has been made on
security grounds and who decides to apply for an inquiry is provided
with a document indicating to the extent possible without compromising sensitive information or sources the reasons for the adverse
decision .
(b) The Board interviews separately and privately representatives of
the department concerned, representatives of the security authorities,
the person concerned (who may be accompanied by any friend,
lawyer or trade union official he wishes to nominate) and any other
individuals whom the person wishes to be heard . The Board may
interview these persons as many times as it considers necessary to
gain a full understanding of the case . The Board is not bound to
make its decision and render its advice solely on the basis of the
evidence brought before it, and may order such further inquiries
as it considers appropriate . As all those who appear before the
Board are interviewed separately, there is no direct confrontation or
cross-examination, but the Board may of course ask questions based
as previous testimony .
(c) The advice of the Board on a given case, the reasons for this advice
and any recommendations or comments which the Board considers
appropriate are communicated by the Board to the Governor in
Council and the minister concerned . A brief record of the Board's
decision is also communicated to the individual concerned . When th e
43
�advice of the Board has been received, any further action on the case
is considered by the Prime Minister in the light of this advice .
118 . The suggestion has been made that recent legislation affecting the
public service, especially the Public Service Employment Act, the Public
Services Staff Relations Act and Amendments to the Financial Administration Act (S .C . 1966-67, c . 71, c . 72 and c . 74), together with the grievance
procedures which stem from them, may make it difficult in future to deal
with individual security cases in the manner we outline above . We have
considered the existing legislation, however, and believe that the government's position is secured by Section 112 of the Public Service Staff Relations Act, which reads as follows :
"(1) Nothing in this or any other Act shall be construed to require the
employer to do or refrain from doing anything contrary to any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or
any state allied or associated with Canada .
"(2) For the purposes of subsection (1), any order made by the Governor
in Council is conclusive proof of the matters stated therein in relation
to the giving or making of any instruction, direction or regulation by
or on behalf of the Government of Canada in the interest of the safety
or security of Canada or any state allied or associated with Canada . "
44
�V. IMMIGRATION AND SECURIT Y
Present Procedures
General Considerations
119 . The principle, is firmly established that . Canada's requirement for
immigrants must be balanced .against and reconciled with the need to protect
the safety and health of the state and its ;peop!e by excluding certain classes
of persons who appear to be undesirable : This undesirability may take a
variety, of forms ; individuals may be undesirable because they lack skills
which will enable them to support themselves and their families ; they may be
undesirable because they are physically or mentally unhealthy or have
criminal records involving moral turpitude . The need for some form of
screening to exclude such persons is generally understood and accepted .
120 . Unfortunately in present- circumstances individuals may also be
undesirable on security grounds : their past records of activities or associations may suggest that they are likely to behave in ways which may be
detrimental to the security of Canada or -her allies . Accordingly, Canada,
in common with almost all other states, attempts to exclude persons who
represent a potential danger in the fields of subversion or espionage . It is
however admittedly a difficult task to assess how great a potential danger
any particular individual represents, and, because of the almost complete
absence of satisfactory data concerning the behaviour of different classes
of immigrants after their arrival in Canada, it is hard to assess after the
event the effectiveness of the security screening programme .
121 . It should be noted, first, that only a very small proportion of potential immigrants who are excluded from Canada are refused on security
grounds ; most refusals are on grounds of health or lack of skills . In numerical
terms the security screening programme has a negligible effect on the total
number of immigrants who enter Canada . Secondly, we have already mentioned in general terms Canadian responsibilities to her allies for security
measures . In the area of immigration policy, because of the open border
with the United States, this responsibility is of special importance .
Classes of Immigrants
122 . Canada's immigration regulations,, which had become extremely
complex and inconsistent, underwent a major revision in October 1967 . The y
45
�now provide for the admission of four classes of immigrants, and the distinction between these classes must be appreciated if security screening procedures
are to be understood :
(a) Sponsored dependants: every person residing in Canada who is a
Canadian citizen or a person lawfully admitted to Canada for
permanent residence (i .e ., a landed immigrant) is entitled to sponsor
for admission to Canada for permanent residence any of the following so-called "dependants" : husband, wife, fiance(e) and accompanying unmarried children under 21 of fiancee(e) ; unmarried
children under 21 ; parents or grandparents over 60 or under 60 if
incapable of gainful employment and accompanying immediate
family of parents or grandparents ; orphaned brothers, sisters,
nephews, nieces, or grandchildren under 18 ; children who were
adopted under 18, and who are unmarried and under 21 ; certain
children under 13 whom the sponsor intends to adopt ; and (under
certain conditions) one other of the sponsor's next closest relatives .
(b) Nominated relatives : every person residing in Canada as a Canadian
citizen or landed immigrant may nominate for admission to Canada
for permanent residence any of his or her children over 21, married
children under 21, brothers and sisters, parents and grandparents
under 60 years of age, nieces, nephews, uncles, aunts and grandchildren .
(c) Independent applicants : those without sponsors or nominators .
(d) Applicants already present in Canada : persons who have entered the
country as non-immigrants and wish to change their status .
123 . Sponsored dependants are admissible without regard to their skills,
personal qualifications or the financial circumstances of the sponsor . They
are ordinarily admitted without question unless barred for serious reasons
of health, criminal activity, or security . Nominated relatives and independent
applicants must, in order to be admissible, pass a series of selection tests
relating to their occupational skill and educational level and a number of
other factors . A nominated relative is presumably coming to Canada to earn
a living, and, unlike the sponsored dependant, must satisfy some criteria as
to his ability to do so . In practice, these prospective immigrants are assessed
points, according to their education, personal qualities, and other factors .
An immigrant who ranks high in each of these categories is likely to be
accepted subject to medical and security screening . Other factors taken into
account, particularly in the case of independent applicants, include employment arrangements, knowledge of English or French, and area of destination .
Applicants already present in Canada (i .e ., non-immigrants in Canada who
apply for permanent admission and landed immigrant status) are admissible
on essentially the same bases as if they had been examined abroad, except
that those who do not qualify as sponsored dependants must meet a somewhat higher selection standard than if they had applied abroad .
46
�Security Screening of Immigrant s
124 . The security screening programme for prospective immigrants was
originally established in 1947 with the following objective : "To deny admission to any persons who, from their known history and background, would
be unlikely to adapt themselves to the Canadian way of life and to our
democratic form of government" . The authority for the present programme
derives from the Immigration Act (R .S .C . 1952, c. 325), Section 5 of
which states that no person shall be admitted to Canada as an immigrant
if he is a member of any of certain classes of persons . These classes include :
"(d) persons who have been convicted of or admit having committed any
crime involving moral turpitude, except persons whose admission to
Canada is authorized by the Governor in Council upon evidence satisfactory to him tha t
(i) at least five years, in the case of a person who was convicted of such
crime when he was twenty-one or more years of age, or at least two
years, in the case of a person who was convicted of such . crime when
he was under twenty-one years of age, have elapsed since the
termination of his period of imprisonment or completion of sentence
and, in either case, he has successfully rehabilitated himself, o r
(ii) in the case of a person who admits to having committed such crime
of which he was not convicted, at least five years, in the case of a
person who committed such- crime when he was twenty-one or more
years of . age, or at least two years, in the case of a person who
committed such crime when he-was under twenty-one years of age,
have elapsed since the date of commission of the crime and, in
either .case, he has successfully rehabilitated himself ;
(e) prostitutes, homosexuals or persons living on the avails of prostitution
or homosexualism, pimps, or persons coming to Canada for these or any
other immoral purposes .
(f) persons who attempt to bring into Canada or procure prostitutes or other
persons for the purpose of prostitution, homosexual or other immoral
purposes ; . . .
(1) persons who are or have been, at any time before or after the commencement of this . Act, members of or associated with any organization,
group or body of any kind concerning which there are reasonable grounds
for believing that it promotes or advocates or at the time of such membership or association promoted or advocated subversion by force or other
means of democratic government, institutions or processes, as they are
understood in Canada, except persons who, satisfy the Minister that they
have ceased to be members of or associated with - such organizations,
groups or bodies and whose admission would not be detrimental to the
security of Canada ;
(m) persons who have engaged in or advocated or concerning whom there
are reasonable grounds for believing they' are likely to engage in or advocate subversion by force or other means of democratic government,
institutions or processes, as they are understood in Canada ;
(n) persons concerning whom there are reasonable grounds for believing they
are likely to engage in espionage, sabotage or any other . subversive activity
directed against Canada or detrimental to the security of Canada ; . . .
47
�(q) persons who have been found guilty of espionage with respect to Her
Majesty or any of Her Majesty's allies ;
(r) persons who have been found guilty of high treason or treason against or
of conspiring against Her Majesty or of assisting Her Majesty's enemies
in time of war, or of any similar offence against any of Her Majesty's
allies ; . . . "
125 . Certain arrangements have been developed over the years in order
to decide whether immigrants fall within these prohibited classes . These
arrangements necessarily vary from country to country, but information
about a prospective immigrant may be acquired from the application form
itself, by personal interview, or in some cases through liaison with authorities
in the immigrant's country of origin . As can be imagined the quality of
the information obtained from these authorities varies widely ; there are
some places where the situation is such that, through no fault of their own,
the authorities are often unable to furnish useful information ; in some
other countries (including those within the communist bloc) no liaison
with the authorities is practicable, and the main reliance is placed upon
interviews with the potential immigrant and upon the security screening
of the immigrant's sponsor in Canada . The information bearing on the
suitability of individuals is considered by Canadian officials located in the
countries concerned in relation to a set of criteria (which also vary from
country to country and according to whether the immigrant is sponsored,
nominated or independent) . If in the judgment of these officials the circumstances are such that the applicant should be refused on security
grounds, in certain instances the case is referred to Ottawa for decision .
126 . A further element of variation is introduced by the fact that sponsored dependants are normally not themselves the subjects of security examination . Instead, the sponsor is checked against the subversive records in
Ottawa and only if an adverse trace is found is a security check of the
dependant instituted in his own country . In the case of nominated relatives,
both the nominator and the relative are ordinarily subject to some form of
security screening . Independent applicants are normally subject to full
screening .
127 . It should be emphasized that, according to the present procedures,
the officials in the field do not make the final decision to reject a sponsored
dependant on security grounds ; this decision rests ultimately with the Department of Manpower and Immigration . Cases are studied by departmental
officials and a decision is normally made by the Director of the Home
Branch and the Deputy Minister. In addition, if any particular case appears
to be somewhat sensitive or contentious, it may, at the discretion of the
Department, be referred to an ad hoc Interdepartmental Committee of
officials . The function of this body, which is entiely advisory, is to make
a recommendation to the Deputy Minister of Manpower and Immigration
as to whether the prospective immigrant should be admitted or refused .
48
�The advice of the Committee may be rejected by the Deputy Minister or
the Minister of Manpower and Immigration .
Deportation and Appeal Procedures
128 . Until 1967, facilities for appeal were available only to persons who
had been ordered deported, and not to those who had been refused admission as immigrants . The then existing Immigration Appeal Board dealt
only with deportation orders, and was advisory to the Minister of Manpower
and Immigration . This situation was changed by the Immigration Appeal
Board Act of 1967 (R .S .C. 1966-67, c . 90) . The new Board established
under this Act is concerned with both immigration and deportation, may
hear and consider' humanitarian and compassionate as well as legal factors,
and commands some of the discretionary power previously vested in the
Minister of Manpower and Immigration . An appeal may be made on any
ground that involves law or fact or mixed law and fact by a person against
whom an order of deportation has been issued, or by the sponsor (if a
Canadian citizen) of a dependant against refusal . to admit the dependant.
It should be noted that neither nominators of relatives, nor independent
applicants outside Canada, have a right of appeal, but an applicant already
in the country may appeal against a deportation order whether or not he is
sponsored or nominated . This right of appeal, incidentally, applies even to
stowaways or deserting seamen .
129 . In cases of deportation the Immigration Appeal Board may, in
addition to ruling on the legal correctness of the deportation order, consider
whether the order should be stayed or quashed on compassionate or humanitarian grounds . At the stage when the Board has confirmed the legal correctness of the order, a certificate signed' jointly by the Minister of Manpower and Immigration and the Solicitor General may be introduced stating
that in their opinion on the basis of confidential security reports it would be
contrary to the national interest for the Board to stay or quash the order on
compassionate or humanitarian grounds . On receiving such a certificate the
Board has no alternative but to allow the order to proceed . A similar certificate may be issued to prevent the Board from exercising its discretion on
compassionate or humanitarian grounds in cases where sponsored dependants are refused visas .
Comments and Alternative s
Data and Decision s
130 . We have several times referred to the need for scrupulously formulated and consistently enforced security policies and procedures, and we feel
that this requirement applies with special force in areas such as immigration
where there is an immediate impact on the lives of individuals but no im49
�mediate question of access to classified information . We realize that some
anomalies are inevitable, but we believe that the basic principles should be
clear and unequivocal .
131 . We feel that data must be acquired as far as possible about the
criminal and security records of all prospective immigrants to Canada irrespective of relationship, sponsorship, or country of origin . We can see no
reason why, in the case of sponsored dependants, efforts are made to acquire
information about the immigrant himself only if a check of the sponsor
against the subversive records has produced some adverse trace . We cannot
understand why the state should deny itself the use of available means of
inquiry concerning an immigrant merely because he is sponsored . In our
view, security and criminal checking of the sponsor should be a substitute
for the screening of the potential immigrant only when no information is
available on the immigrant himself .
132 . We fully appreciate that on humanitarian grounds it is necessary to
apply rejection criteria with leniency in the cases of close relatives, and
especially where husbands or wives, aged persons or children are concerned,
but we would point out that sponsored dependants are a large class and
include many persons whose connection with the sponsor may be relatively
remote . In general we feel that unless humanitarian considerations are
judged to be overriding, significantly adverse security reports on an adult
immigrant should lead to rejection, as should significantly adverse reports
on a sponsor or nominator in cases where the immigrant himself cannot
be checked .
133 . We have noted that the final decision to admit or reject a prospective immigrant rests with the Department of Manpower and Immigration,
even where an objection has been raised on security grounds . We recognize
the ultimate responsibility of the Department for the acceptance or rejection
of immigrants, but we feel that the Department's responsibility in the area
of security is analogous to that exercised by all departments for their own
security . In particular, the significance to be attached to an adverse security
report would be best evaluated in conjunction with specialists in security .
134 . We believe that security procedures in the area of immigration
could be much improved if there were an upgrading of the quality, maturity,
and training of the concerned officials in the field . A working knowledge
of the local language, for example, would seem to be imperative . Given
such an upgrading, however, we feel that the decisions of the officials in the
field, who have immediate knowledge of the applicant, should carry great
weight .
135 . If the officials in the field are uncertain about the admission or
rejection of any applicant on security grounds, the case should be referred
to Ottawa for . consideration by the Department of Manpower and Immigration, the Security Service, and, at the option of either one, the Securit y
50
�Secretariat . In addition, every case of rejection of a sponsored dependant or
nominated relative should be reviewed jointly by these agencies in Ottawa .
Humanitarian considerations relating to dependants or relatives will thus be
introduced into the decision process in Ottawa, as will representations from
interested persons in Canada about particular applications . Only if no agreement can be reached by the Department and the security authorities on any
of these cases should the Minister's final responsibility for decision-making
be exercised, and even then he should be in receipt of briefs on a particular
case both from his Department and from the security authorities . . In addition, the Security Secretariat should assume responsibility for a continuing
audit and review of a sample of field decisions in order to detect any significant biases in the decisions made at particular locations .
Rejection Criteria
136 . Even with these revised arrangements the officials in the field will
continue to need guidelines on which to base their judgments although, given
officials of adequate calibre and experience, these guidelines need not be so
binding in detail as the rejection criteria have been in the past . We regard
the present criteria for sponsored dependants and nominated relatives as
unnecessarily complex and somewhat illogical, and the criteria for independent applicants as obscure and outdated . We think that one set of criteria
should apply to all countries and all cases .
137 . We have tried our hand at drafting a set of general and universally
applicable guidelines, or factors that should be considered by the officials
in the field in making initial judgments of potential immigrants from the point
of view of security . In considering the following- guidelines three points
should be noted . First, these guidelines relate only to security and are not
intended to affect judgments of acceptability in other civil or criminal
contexts as laid down in the Immigration Act . Secondly, the guidelines should
be interpreted with mature judgment by the officials on the spot according
to their understanding of local conditions . Thirdly, elements of leniency
should be introduced into the decision process in Ottawa, and should not
be the concern of the officials using these guidelines abroad . In general, we
think that persons in the following classes should be rejected :
(a) Persons who are believed on reasonable grounds to have held at any time
an official position in a communist, neo-Nazi, neo-Fascist or other subversive or revolutionary organization, or .to have held a government, party,
public or other senior position or appointment known to be given only
to reliable members of such an organization .
(b) Persons who are believed on reasonable grounds to have held membership
within the past ten years in a communist, neo-Nazi, neo-Fascist or other
subversive or revolutionary organization, unless the applicant can demonstrate that membership was for trivial, practical, non-ideological or other
acceptable reasons .
(c) Persons who are suspected on reasonable grounds to be or to have
been at any time agents on behalf of a communist, neo-Nazi, neo-Fascis t
51
�or other subversive or revolutionary organization, or to have taken part
in sabotage or other clandestine activities or agitation on behalf of such
an organization .
(d) Persons who for unexplained reasons engage in significant misrepresentation or untruthfulness in completing documents for immigration purposes
or during interviews .
We suggest also that similar guidelines should be used in Ottawa in making
judgments both about sponsors or nominators on those occasions when no
direct check of the applicant has been possible, and about applicants who
are already in Canada .
138 . Certain points must be added about applicants from the communist
bloc and Hong Kong . As far as the communist bloc is concerned, we do not
accept the argument that anyone who leaves a communist country is
necessarily a non-communist or an anti-communist . However, we are sure
that the acceptance of dependants and relatives from communist countries
can often be justified on humanitarian grounds, although we have some
reservations about the remoteness of the, dependants and relatives who may
now be sponsored or nominated . In these cases we feel that the sponsor or
nominator should be screened against criminal and subversive records, and a
significant adverse report should be balanced against the humanitarian
considerations . We feel that independent applicants from communist countries must not normally be accepted unless they have first established sufficient residence in a country where facilities exist to carry out a meaningful
check on their character and background . In certain other circumstances,
even this requirement may, after careful consideration, be waived (say, in
the case of a communist scientist of international repute), but we feel that
the principle must remain . To ignore or regularly to contravene it would in
our opinion cast doubt on the value of the entire security screening programme . It would encourage communist governments to make use of an
obvious opportunity to infiltrate persons into .North America, and, when
combined with the current case of entry into the Canadian public service,
would eventually invalidate (or at least call into question) the basic governmental security programme .
139 . The acceptance of Chinese immigrants from Hong Kong presents
another series of special problems, which arise largely from the inadequacy
of Canadian security screening procedures in Hong Kong . The Canadian
authorities depend in many cases entirely on the results of an interview,
conducted through an interpreter by an officer who does not speak Chinese
and is not particularly expert in Chinese affairs . We think that these arrangements must be rapidly and extensively revised . Some years residence in
Hong Kong itself or in an area where some meaningful check is possible
must be made mandatory . Fingerprints are a clear requirement . There is
no doubt that fingerprinting is the only sure method of establishing identity
and facilitating criminal traces, particularly in Hong Kong ; available statistic s
52
�make quite apparent the additional positive traces that are revealed by
fingerprint checks . Furthermore in cases of doubt the fingerprints of the
individual to whom the visa is issued should be compared at the port of
entry with the fingerprints of the person who actually arrives .
140. We consider in fact that the requirement for fingerprinting should
be extended to all prospective immigrants to Canada, irrespective of their
country of origin or the immigration class into which they fall . In many cases
meaningful checks of criminal records cannot be carried out without fingerprints, and in addition they may well be of importance in establishing
identity. In this connection, we note that most other western countries
fingerprint prospective immigrants .
Applicants in Canada
141 . The granting of landed status to unscreened non-immigrants . who
are for one reason or another already present in Canada has historically
constituted a significant gap in Canadian security defences . The extent of
this problem is shown by the fact that on three occasions in the past ten
years (in 1958, 1960 and 1966) the Department of Manpower and Immigration found it necessary to make arrangements to grant so-called amnesties
to persons who were in Canada illegally . We believe that steps must be
taken to ensure that persons who apply for landed immigrant status after
arrival in this country are not entitled to any form of appeal or review to
which they would not have had access had they applied through normal
channels . In other words, independent applicants who cannot satisfy the
security (and other) criteria they would have been required to satisfy in
their country of origin should be deported without appeal . Sponsors of
dependants should have the same access to the Security Review Board they
would have had if the dependant had been abroad . Furthermore, we think
that this access should be extended to nominators of relatives who are refused visas or landed status . If the Review Board's recommendations is
adverse and is accepted by the government, no further appeal should be
possible .
Deportation and Appeal
142 . Our views on one important aspect of deportation and appeal
procedures have already been outlined . We feel that the deportation of an
immigrant who has been formally landed in Canada is a most serious matter,
and that it is right that any such order should be subject to formal judicial
due process and appeal before a body such as the Immigration Appeal
Board. If the government is unwilling to produce acceptable and satisfactory
evidence, we feel that deportation should not be ordered . Such situations
should not often arise, if reasonably effective immigration screening procedures exist .
53
�143 . However, it seems to us inequitable that an individual who has not
been granted landed immigrant status should have-access to _ a fully judicial
system of appeal against deportation on security grounds, when an applicant
abroad has no such right . Individuals can attempt to evade our immigration
regulations by entering the country as visitors and making use of the process
of appeal now available to them . We think however that the sponsors or
nominators of prospective immigrants (but not the prospective immigrants
themselves) should be able to request the review of decisions taken on
security grounds to refuse immigrant visas or (in the case of persons already
here) landed status to those whom they have sponsored or nominated .
This review should be undertaken not by the Immigration Appeal Board,
but by the Security Review Board that we suggest in Chapter IV . We believe
that access to a review board of this kind will in the long term be considerably more satisfactory than present procedures .
Aliens Registration
144 . We have given some consideration to the usefulness in Canadian
circumstances of an aliens registration procedure . In the most usual form
of this procedure an alien entering a country is required to complete a
document at time of entry, and to file with the government at regular intervals (or at each change of address) details of his location, status and
occupation . This process is continued until the alien either becomes a
citizen or leaves the country . Experience with such systems has shown that
only . a relatively small percentage of those who should make returns do
so, and that it is difficult to enforce sanctions against delinquents . The
most rewarding aspect of the process is that it may help to provide some
data concerning the activities of a sampling of immigrants, and thus provide
a basis for judgments about the usefulness and effectiveness of screening
procedures . There is serious doubt however whether an aliens registration
system is the best way of achieving this limited objective, because those
persons who do not respond most probably include those who have engaged
in dubious activities . It would appear that a continuing programme of
follow-up studies of samples of the immigrant population would have considerably more validity .
145 . We understand that a system is in force in Canada whereby visitors
entering the country complete a form, which is retained on record until their
departure ; this provides some check that individuals do not overstay their
visas . Beyond this, however, we think it impracticable to go .
54
�VI . CITIZENSHIP, PASSPORTS AND VISA S
Present Citizenship Procedure s
146. The grant of Canadian citizenship is a prerogative of the Crown,
exercised in practice by the minister responsible for the administration
of the Canadian Citizenship Act (R .S .C. 1952, c . 33), at present the
Secretary of State . Citizenship may be awarded to individuals who comply
with certain administrative and residential qualifications, but may be withheld by the minister in the public interest .
147 . The following procedures for granting citizenship have developed
over the years . Application for citizenship may be made after a person has
been resident in Canada for at least five of the eight years and twelve of
the eighteen months immediately preceding his application . Non-British
subjects apply in person either to one of the 13 departmental or the . more
than 250 local courts . British subjects may apply by mail to the Registrar of
Canadian Citizenship or to one of the departmental courts . The applicant's name is checked-against the subversive records of the RCMP, and the
Citizenship court may conduct a check of local criminal records . NonBritish applicants are then subject to an oral interview by a citizenship
court and, if no significant adverse information on the individual has come
to light and he possesses the proper residence, language and administrative
requirements, the applicant is advised that the court is satisfied with his
qualifications and is making a favourable recommendation to the department. If he lacks a specific qualification-knowledge of English or French,
for example-the applicant is informed of this fact .
148 . The recommendation of the court and the RCMP security report
are received in the Department and, in the absence of adverse information,
the Registrar of Citizenship authorizes the issuance of a certificate to the
applicant at a citizenship ceremony . If adverse information is received from
the RCMP, the case -is examined by an Interdepartmental Committee of
officials . The significance of. the security information is considered, together
with such factors as age, marital status, occupation', place and length of
residence in Canada, and generally the circumstances and conditions of the
applicant concerned . After a review of all the relevant data, the . Committee
may recommend that the application be approved, rejected, or deferred .
55
�149 . When the Committee's recommendation has been received by the
Department of the Secretary of State, the Minister exercises his discretion .
In practice the Registrar of Canadian Citizenship authorizes conferral where
the recommendation has been in favour of the applicant, and the Secretary
of State or the Under Secretary of State acting on his behalf makes the
decision where the recommendation has been for deferral or rejection .
The Minister himself will make the final decision on an application, where
sensitive or contentious political issues may be involved . If the Department
accepts a recommendation from the Committee that citizenship should not
be granted, the applicant is simply advised by the Department that he has
been rejected, but is given no specific reasons to explain his unacceptability .
It is often quite obvious to the applicant, however, in view of the fact that
a court has earlier indicated that it has no objections to his application, that
security considerations have been the cause of his rejection .
150 . In the earlier years of its operation, the Committee tended to base
its recommendations on rather rigid and arbitrary criteria, and to recommend the rejection of applicants suspected of being sympathetic to subversive causes and organizations . Such an attitude has more recently come
to be regarded as unrealistic and a more lenient approach has been adopted .
Furthermore, the Committe makes its judgments in the knowledge that
its recommendation does not result in a permanent refusal ; any rejected
applicant can make an indefinite number of further applications at intervals
of at least two years .
151 . An applicant for citizenship has at present no right to appeal a
rejection on security grounds . Although a Citizenship Appeal Court has
recently been established to hear appeals resulting from a negative decision
by a citizenship court, this body has no relevance to security cases as an
appeal is possible only in connection with a rejection by a local court,
which is not authorized to consider questions of security .
Citizenship and Securit y
152 . Our assessment of the efficiency and the value of our system of
security screening of applicants for citizenship is naturally based on our
view of the relative threats that may be posed to the security of Canada
by citizens and non-citizens . There are undeniably certain material advantages to be gained by the possession of citizenship, including the right to
vote, the right to run for public office, the right to a Canadian passport, the
right to enter Canada, and the right to be employed in certain occupations
and professions. It is true that many of these privileges are more or less
available to the non-citizen who is determined to avail himself of them,
although in some cases it may be necessary to make a false declaration
(with a minimal risk of discovery) in order . to do so . A resident noncitizen, for example, can remain in and return to Canada almost at will
provided he complies with Canadian law ; he can vote if he so desires (n o
56
�check of qualifications is normally made during the compilation of voters'
lists) ; and he could probably even run for office after reasonably lengthy
residence .
153 . One of the more important advantages of Canadian citizenship is
the legal acquisition . of a Canadian passport, and the ability to travel as a
Canadian . On the other hand, a resident without a Canadian passport is not
necessarily restricted in his ability to travel . Most countries will extend or
renew their passports indefinitely even if the bearer continues to be absent
from his country of origin . There is also of course the possibility that a
Canadian passport may be deliberately acquired in order to be made
available for hostile use . It would appear to us however that foreign intelligence services can obtain an adequate supply of Canadian passpo rt s by other
and simpler methods, and we would not regard it as very likely that individuals would seek Canadian citizenship merely to obtain passpo rt s for
such purposes . Other less tangible considerations have been advanced in
support of the maintenance of existing criteria for refusal of citizenship,
including the arguments that to award citizenship to communists would be
to make a mocke ry of the Oath of Allegiance, and that any relaxation of
procedures would represent a .communist propaganda victory .
154 . We have considered all these factors from the admittedly limited
point of view of security, and have concluded that on balance the danger
posed to the security of Canada and her allies by a Canadian resident
legally admitted as a landed immigrant is only marginally diminished by lack
of citizenship, and only marginally increased by possession of citizenship .
The individual in question is, and will remain, - a resident, and we are not
persuaded that his capabilities in the fields of espionage or subversion will
be significantly enhanced by a citizenship certifi cate .
155 . While we are impressed with present attempts to ensure objectivity
and consistency in the app lication of the existing procedures, we feel that
there still remains an. element of unfairness in denying citizenship to an
individual who has been a resident of Canada for five years when his
actions have not been illegal* and represent no immediate and direct threat
to the security of Canada . We suggest that as a general rule citizenship
should be withheld only for actual illegalities or c ri minal acts ; in the area
of security, these would include espionage, treason and similar offences .
Membership in communist organizations or even .of the Party itself, however,
should not constitute causes for rejection .
156 . We think however that there will remain some occasions on which
it will be appropriate for the Minister to exercise his discretion to refuse
citizenship on security grounds . We have in mind, for example, cases in
which an applicant has taken certain actions clearly constituting a significant
risk to security, but which it may not be in the public interest to prosecute
or which may not in themselves be i llegal . Such cases could include an
57
�applicant who had had recent clandestine meetings with an intelligence agent
of a foreign power, or who had shown other evidence of being an agent or
informer of a foreign power . There may be nothing that could be proved
to be illegal about such meetings, but it would probably be inappropriate to
grant citizenship to an applicant in these circumstances, and the Minister's
discretion must, we feel, continue to apply to such cases . We envisage that
all those whose applications for citizenship are rejected on security grounds
should have access to the Security Review Board described in Chapter IV .
Existing Passport Procedure s
157 . Passports in Canada are issued to Canadian citizens by the Passport
Division of the Department of External Affairs . Theoretically, a passport
cannot be demanded as of right, as its issue constitutes an exercise of the
royal prerogative . In practice, however, the granting of passports has tended
to be regarded by the government as a service, and only a very few categories
of citizens-for example, those who owe money to the Department of External Affairs for repatriation-are denied passports . It has not been government policy to deny a passport to a Canadian citizen on security grounds
unless travel abroad by the person concerned can be judged to represent a
grave threat to our national security .
158 . In order to acquire a Canadian passport a-person living in Canada
and claiming to be a Canadian citizen completes an application form in
which he claims Canadian citizenship by birth, by naturalization or under
some other provision of the Canadian Citizenship Act . If he is naturalized,
proof of citizenship must be provided ; if he claims to have been born in Canada, no documentation of any kind is required . The application must normally
be endorsed by a guarantor, who must belong to one of a number of groups
or professions . (There are currently some 300,000 eligible guarantors in
Canada .) The guarantor signs a statement to the effect that he has known
the applicant for at least two years, and believes the data contained in the
application to be true, but this statement is neither witnessed nor made under
oath . Neither is the requirement for a guarantor mandatory . If, for example,
an applicant claims that he has not resided in a particular location long
enough for any guarantor to know him well, he may go to a Commissioner
for Oaths, Notary Public or Justice of the Peace and file a statutory declaration to this effect . The completed application may then be mailed to the
Passport Office in Ottawa or presented over the counter . If it appears to be
in order, the passport (valid for five years and renewable for a further five
years) is mailed to the address provided in the application, or handed over
the counter to the applicant or his messenger . About 300,000 Canadian
passports are now issued each year .
159 . Applicants for a Canadian passport living outside Canada apply to
the Canadian diplomatic mission (Embassy, High Commissioner's Office,
or Legation) or Canadian Consular or Trade Office in their country o f
58
�residence . All such applic ants must provide documentation whe ther they
claim citizenship by birth or by naturalization .
Passports and Security
160 . We are fully aware that a passport is not intended to be a guarantee
of its bearer's loyalty and reliability, and we are in full agreement with the
policy that passports should not be denied to Canadian citizens on security
grounds . We would not deny freedom to travel even to known subversives,
nor would we. place limitations on the geographical validity of their passports . We do believe however .that urgent steps must be taken to ensure
that the Canadian passport is a document of integrity, issued only to those
persons who are entitled to receive it . This is not the case at present, in
spite of certain minor innovations which have been introduced into the
system of issuance recently . In Canada Canadian passports are in effect issued
indiscriminately to any person who claims to have been born in Canada ;.
no evidence of birth is required, nor are any effective checks made to,
ensure that the applicant (or his ostensible guarantor) exists . The guarantor
system can be readily circumvented by means of the statutory declaration,
and Canadian passports are delivered by mail even to a box number or
accommodation address .
161 . Canada has acquired a dubious international reputation . with regard
to her passports, and there is evidence that hostile intelligence services have
concentrated on the acquisition of Canadian documentation because of this
relative ease of procurement . In her own self-interest Canada should exercise
considerably more stringent control in this area, and in addition there is
the consideration that a Canadian passport acquired by hostile authorities
will in many cases not be used in Canada . As a member of the western
alliance, Canada has an obligation to implement an adequate system of passport control, and not to represent a vulnerable link .
162 . We have compared our procedures with those which exist in certain
NATO and Commonwealth countries . Canada is unique among these nations
in that she does not require a certification of birth from anyone claiming to
have been boni in Canada . In most other countries, passports are issued by
local authorities with the details of the application subject to verification
from available records . Most countries require a personal appearance by the
applicant (or his appropriately authorized representative) before the passport is issued .
163 . It would seem to us important that all applicants for passports
should be treated alike, and that two basic requirements should be levied
upon all passport applicants-certification of birth or citizenship, and
personal appearance before a local official . As far as the former is concerned, Canada should demand that all applicants for a passport who claim
to have been born in Canada produce a birth certificate, or alternatively .
59
�acceptable proof of birth ; naturalized Canadians must continue to be
required to produce their citizenship certificates . We are aware of the fact
that such a requirement woud be of only limited value in uncovering fraudulent applications, but it would impose some difficulty for the dishonest
applicant . In those cases where a passport was urgently required and a birth
certificate or suitable evidence was not immediately available, the Passport
Office might have discretion to issue a passport for only a limited period
(say, six months), on condition that the bearer promise to provide satisfactory evidence of birth on return to Canada, at which time the passport
would be made valid for the normal term . In those few cases where evidence
of birth was impossible to obtain, an affidavit and a serious guarantee by
a known guarantor could be accepted after investigation .
164 . The requirement that all applicants appear personally before a
public official necessarily involves some decentralization of arrangements for
the receipt of applications or the issuance of passports . The Glassco Commission on Government Organization recommended the decentralization of
the Passport Office and suggested that the (then) Department of Citizenship
and Immigration might be the logical agency to act for External Affairs in
the issue and renewal of passports . Other suggestions have been made, including the use of the offices of clerks of courts (in the United States, for
example, an applicant must appear personally either at one of the ten passport offices or before one of the 3,800 federal and state courts), or RCMP
detachment offices (or the Provincial Police offices in those areas of Ontario
and Quebec where no RCMP detachments exist) . The Department of External Affairs does, in fact, envisage a limited expansion of its facilities in the
immediate future, and intends to open passport offices in Vancouver, Toronto
and Montreal ; we support such a programme, but we are quite sure that
more extensive arrangements must be made for personal appearance . While
we accept the need for occasional exceptions under particularly compelling
circumstances-if the applicant is very ill, for example-we are convinced
that generally all applicants for passports must present themselves before
an authorized local official where their existence, statements and documentation will be subject to verification .
165 . We feel that the guarantor system should be retained even after a
decentralized passport operation has been established . The guarantor represents a useful point of departure for future investigation of statements
made on the application form, and the requirement may sometimes constitute
a further, though minor, impediment to those who would seek to obtain a
passport by illegal means . We would add, however, that in our opinion
pressures to extend the ability to act as guarantor to additional groups of
persons should be resisted .
166. Further, we are somewhat alarmed by the apparent ease with which
ostensibly lost passports may be replaced . We think that it should be made
clear to the public that the loss of a passport is a serious matter . When
60
�individuals lose more than one passport or where there is reason to suspect
that the "loss" may have been intentional, the issuance of a further passport
should be delayed until the validity of the original has expired . In cases of
emergency such persons would travel on emergency passports issued for
specific journeys .
167 . The usefulness of a computerized list of Canadian citizens has been
pointed out to us . We would not recommand that such a list should be
created merely for passport control purposes, but if a decision were made
on other grounds to form such a system passport applications should clearly
be referred to it.
Certificates of Identit y
168 . A certificate of identity is roughly the equivalent of a passport for
a non-citizen and, in conjunction with appropriate visas, may be used as
a legitimate travel document . About 1,500 are issued each year, and roughly
the same number renewed .
169 . Certificates of identity have several applications . For example, if a
landed immigrant wishes to travel abroad while living in Canada, he will
normally do so on the basis of his native passport, as most countries will
extend or renew their passports indefinitely, even if the holder continues to
be absent from the country of origin . If, however, his passport has expired
and cannot be renewed, a certificate of identity may be granted . Generally,
the security and other criteria that are applied to citizenship applications
apply to the gr ant of . these certificates . They may however be granted to
persons who have been rejected for citizenship for such reasons as inadequate language proficiency . The certificates are valid for up . to two years
and require visas for entry to any foreign country, including the United
States . Further, a certificate of identity may occasionally be granted as a
one-way document to a non-citizen who is without a passport, wishes to
move elsewhere and has been accepted by another country . Finally, if an
individual (a refugee, for example) wishes to come to Canada but does not
possess a passport issued by his native country, he may, after being cleared
by our immigration authorities, be granted an "affidavit in lieu of passport" ;
this is a one-way document and must be surrendered upon entry to Canada .
170 . We are satisfied that the procedures relating to certificates of identity
are satisfactory and we do not think that any additional problems will be
raised by our suggested relaxation of criteria for the rejection of applicants
for citizenship . Certificates of identity are issued in small numbers and are
granted only under specific and unusual circumstances for limited purposes .
Exchanges of Visits with Communist Countrie s
171 . In principle, increasing contact between the communist countries
and the west by means of visits in each direction by private or official delega-
61
�tions and individuals is desirable for a variety of reasons . Nevertheless,
certain problems posed by these exchanges must be of concern to western
governments and security authorities . First, western visitors to communist
countries are liable to be subjected to various forms of pressure, persuasion
and intimidation with the object of exploiting them for intelligence purposes
at the time of the visit or later . Communist societies are such that behaviour
which would be accepted in a western society, or apparently simple acts
(such as, for example, trivial attempts to trade on the so-called "black
market"), can unexpectedly render largely innocent individuals vulnerable
to pressures from the intelligence services of the countries concerned . This
problem is compounded in the case of persons who originate from communist countries ; some of these states refuse to accept loss of native citizenship, and western authorities may be quite unable to be of assistance to people
in this situation . In these circumstances, western governments have a duty
to provide warning, advice and counsel to intending travellers as a form of
defence against these activities .
172 . Secondly, in permitting visits to the west, the communist countries
are often motivated by intelligence considerations and by the possibility of
exploiting western industrial, scientific or technological achievements and
information . Almost all visitors from communist countries are subject to
some form of control by their governments, and it is routine communist
practice for delegations to include officers charged with intelligence tasks
in addition to their ostensible missions .
173 . Present Canadian procedures in the general area of exchanges of
visits are directed towards ensuring as far as possible that visas are not
issued to intending visitors from communist countries until relevant factors
have been weighed, and also that Canadian individuals and delegations are
warned of the security and other dangers involved in visits to communist
countries . These procedures date from 1956 when a committee of senior
officials known as the Visits Panel was established by the Cabinet . Generally,
this Panel co-ordinates the plans of government departments and agencies
for official exchanges between Canada and the communist countries in
order to obtain comparable advantages in reciprocal exchange agreements,
helps with arrangements for unofficial visits to and from communist countries which it considers would be in the national interest and provides advice
to the Canadian sponsors of such visits, makes recommendations concerning financial support for Canadian groups and individuals in the professional,
academic and performing arts fields who are visiting the Soviet Union, and
reviews Canadian policy and practices and current trends in exchanges with
communist countries .
174 . The Panel and its Secretariat seem to us in recent years to have
faced their somewhat unrewarding task with considerable skill . Such difficulties as they have encountered have arisen partly from the limited
authority of the Panel and partly from the inflexible attitudes of a numbe r
62
�of the concerned agencies and organizations . We appreciate . that any
attempt by the government to achieve complete control over all exchanges
of visits with communist countries by individuals or delegations, official or
private, for tourism, business or any other purpose, _would of course . be
undesirable as well as impracticable . Nevertheless, we feel that some simple
steps can be taken to improve the situation from the point of view of
security -without significantly affecting the rights and convenience of individuals . .
175 . At present, government departments are able to -engage in preliminary discussion concerning prospective exchanges with communist governments, and are only required to -submit details to the Panel when agreement in principle has been . reached ; often in fact negotiations have reached
such a stage that useful intervention by the Panel in the interests of security
or a balanced programme is difficult . Also, some departments and agencies
are excluded either explicitly or-by usage from the operations of the Panel .
Our view is that there is no reason why any official or government-sponsored
arrangements should be excluded from consideration by the Visits Panel,
even during the preliminary stages of negotiation, as long as there is some
assurance that this consideration will be reasonably realistic . Neither would
we exclude official or government-sponsored professional or scientific
exchanges from consideration . Whatever the needs in individual cases,
the Panel can only maintain serious surveillance -of the progress of the
total exchange programme if it is fully competent to deal with all forms
of official exchanges .
176 . With regard to unofficial exchanges of visits with communist countries, we think that the Panel Secretariat should continue and expand -the
present arrangements by which contact is made with commercial, profes=
sional, industrial and academic organizations or similar agencies contemplating such exchanges, and their cooperation sought on an informal or
semi-formal basis . The problem seems to us to be of especial significance
in the case of academics and students . Western students and academics
tend to spend fairly lengthy periods in communist countries, and are
known to be particular targets of the comunist authorities ; they are after all
quite likely eventually to assume influential or sensitive posts in their' home
countries . Also, the experience of other western countries suggests that
students and academics from communist countries often play significant
roles in "talent-spotting" and recruiting agents in the west .
177 . We do not wish to enlarge upon the difficulties which apparently
hinder at to obtain useful cooperation in the academic fields, but
we think that a special effort must be made to establish closer and more
meaningful liaison with the universities and with such institutions as the
National Research Council . The value of government advice, and the
justified interest of the security authorities in these programmes, must be
.demonstrated to these institutions with tact and sophistication. The govern-
63
�ment should take the position that, if situations in which visas have to be
refused are to be avoided, invitations must be issued and programmes
devised with due regard to such considerations as security and balance of
advantage . At the very least arrangements must be made to ensure on the
one hand that the number of students and academics from communist
countries does not grow haphazardly, and on the other that Canadians taking part in exchanges are made aware of the dangers they will face .
178 . The suggestion has been made that exchanges of both official and
unofficial visits could be more readily reviewed and coordinated if they were
undertaken within the framework of a formal cultural, technological and
scientific agreement . Many countries, including the United States, Britain
and France, have concluded such agreements with the Soviet Union and
other communist countries . The usefulness of agreements of this kind from
the point of view of security seems to us to depend upon their nature . If,
like that concluded between the United States and the Soviet Union, they are
comprehensive and detailed, and include, either in the agreements themselves
or in annexes or protocols, detailed plans for exchanges of visits in all or
most areas of concern for a given period, they would have obvious ad-_
vantages . They would, for example, enable considerations of reciprocity and
security to be taken into account during the advance bargaining and negotiations, rather than piecemeal or after the event . Simple agreements without
details would seem to us to have little relevance to security .
64
�VII. SECURITY OF INFORMATION
AND PHYSICAL SECURITY
Security of Informatio n
General Consideration s
179 . This chapter is mainly concerned with a variety of practical security
procedures, most of which depend upon three factors : the preparation of
sensible regulations ; arrangements to implement and enforce these regulations ; and the, provision of such equipment and facilities as will enable
them to be implemented effectively . We deal first with security of information or documentary security, that is, the classification, safeguarding,
transmission, custody and destruction of documents ; and we add comments
upon the present Canadian Official Secrets Act and certain sections of the
Criminal Code relating to security of information and material, and upon the
question of administrative secrecy and access to government records for
research and other purposes . In the second section of this chapter we deal
with physical and technical security (the protection of buildings and offices
against intrusion by physical, electronic and other means, and the protection
of material within buildings and offices) and with communications security .
180 . The basic Canadian Government regulations touch briefly upon most
of the subjects we have mentioned above ; their general intent is shown by
the following extracts :
"The instructions contained in this book lay down the minimum security
requirements which all departments and agencies are to enforce . Because
security is largely an interdepartmental .problem, the need for consistency
of security procedures among all . departments and agencies is paramount .
Security obviously cannot be satisfactorily maintained if one department
applies less effective standards than another . The instructions which this
booklet contains 'are therefore mandatory . Security control, however,
is a departmental responsibility, and therefore an additional duty rests on
each department and each official to take such further measures as may
in particular circumstances seem necessary to meet the individual needs
of a department .
"Many of the regulations, however, are only deterrents to espionage, for
there is no security measure which can fully protect a department or
agency which may number a foreign agent among its employees . For
this reason they must be supplemented by the initiative, vigilance and
common sense of all persons who are permitted access to classified information. All departments and agencies handling classified' informatio n
65
�are required by Cabinet Directive to appoint a security officer, whose
responsibility it is to ensure that these regulations are effectively administered .
"The principle upon which all good security must be based is that classified
information should be made available only to persons who have an appropriate security clearance and who need to have such information in
the performance of their duties . It should not be made available to persons
merely because of the positions they hold or the level to which they have
been cleared for security . It is the responsibility of senior offcers to decide
which information is or is not relevant to the duties of their staff.
"The regulations are being circulated to all departments and agencies, and
may be usefully distributed to such senior officials as may require them .
They are not, however, intended for distribution to all employees . The
Panel has assumed that they will form the basis of departmental regulations designed to meet the particular circumstances of each department
or agency . "
181 . In some countries regulations of this kind are embodied in statutes
or otherwise have at least some of the force of law . In the United States,
for example, they are the subject of a formal executive order . In Canada,
however, these regulations have been regarded as administrative instructions ;
most departments and agencies in fact consider them as merely advisory,
and their reactions to them have been varied . For example, the first step
in compliance is clearly the preparation of departmental security instructions
in general consonance with the government regulations but related to the
circumstances of the individual departments . Only a few departments (including the Departments of External Affairs and National Defence) have
in fact issued adequate and comprehensive instructions (most of these departments had done so before the government regulations were issued) and
have taken any steps to enforce them and audit their enforcement . Twelve
years after the government regulations were issued, many departments which
in our opinion should have security instructions are without them, many
have inadequate instructions and some take no effective steps to enforce
even the general regulations .
182 . Our inquiries into present standards of physical and documentary
security have admittedly not been exhaustive, but we have vetted the security instructions and have physically examined the security posture and situation of some 20 departments and agencies including most of those with any
serious responsibilities for the security of classified material . These examinations were not surveys in depth of the departments' security organizations
and practices, but they were adequate to demonstrate in general terms
current security standards, and they led to a conviction that standards of
security of information and physical security within many departments and
agencies of the Government of Canada need improvement . Some of the
shortcomings arise from the reluctance of the central personnel and financial
authorities to make available adequate resources for the security function ;
another part of the blame must be attributed to the senior officers of man y
66
�departments for their lack of understanding of the requirement and its
importance ; a further part of the blame must be laid at the door of the security
authorities for their apparent inability to convince and educate the government and the public service of the need for security, and for their willingness
to accept a largely passive protective security role .
183 . As we have already suggested in ,Chapter III, we think the solution
to these problems lies in making arrangements to provide expert advice
to departments, to inspect and audit departmental security procedures and
to train departmental security officers . If a new Security Service is established, . these general protective security roles should fall within its terms
of reference . In the meantime however we feel that immediate arrangements must be made to ensure that the Privy Council Office (or the new
Security Secretariat we have proposed) and the Directorate of Security
and Intelligence of the RCMP have clear joint responsibilities for
training, inspection and audit, and for taking steps to ensure departmental
compliance . Together, the two agencies should re-examine present regulations, in consultation with departments when appropriate and in the light
of our comments on certain detailed points below . They should prepare new
regulations for promulgation by the government, at which time departments
should be allowed a specified period in which to create adequate and
effective security staffs and structures and to make preliminary efforts at
compliance . During these months departments should have available to
them the advice of the two agencies, and on the completion of this period
their efforts should be audited . Cases of non-cooperation, and cases in which
the security posture of departments or agencies is unsatisfactory should be
brought to the attention of deputy ministers and ministers either directly by
the RCMP, or if necessary through the Security Secretariat .
184 . Following this preliminary period, a continuing effort will be needed
to ensure that compliance with regulations continues to reach reasonable
standards, to educate senior officers, to train departmental security staffs,
and generally to create throughout the government service an awareness of
the requirement for and importance of the simple measures of protective
security . If for any reason the Security Service considers that the security
posture of a particular department is unsatisfactory, it should have authority
to suggest a survey to the deputy minister concerned . In the unlikely event
that the deputy minister is uncooperative, the Security Service should be able
to appeal his decision to the Security Secretariat and the Secretary to the Cabinet . We would hope however that matters would rarely reach these straits .
We would envisage, for example, a system of security liaison officers of the
protective security branch whose duties would be to establish day-to-day
working relationships with departmental security officers and staffs . One
officer might well liaise with one (or perhaps two) of the departments
heavily concerned with classified material ; others might be responsible for
liaison with groups of departments with less heavy security responsibilities
and with similar problems . These officers would also of course provide th e
67
�links between the Security Service and the departments on personnel security
matters, and would in fact bear the Security Service's recommendations to
the departments and discuss them with the appropriate departmental officers .
Our general suggestion, in fact, is that an interlocking security community or
framework should be created within which departmental responsibility can
be competently exercised .
185 . Given reasonable regulations and instructions, adequate security
staffs and sensible training programmes, there is no reason why breaches of
security by individuals (which are almost always due to lack of training or
to carelessness) should not be handled where necessary as matters of normal
discipline . We can see no reason for example why an individual who consistently fails to put away classified documents, or to lock a safe, should not
be subject to the same sanctions as if he had consistently arrived late at the
office, or had been consistently absent .
Documentary Security and Classification System s
186 . The point has often been made in examinations of security procedures that one of the main objectives of an espionage agent is to procure
information in documentary form . Therefore, it is argued, it is of considerable importance to prevent the unauthorized copying of classified documents
and the unauthorized removal of documents from offices and buildings . We
appreciate these arguments, although we think that the importance of documentary material is sometimes overrated . From the point of view of the
receiving intelligence service, a document must be considered in its context .
If it is a draft, or merely an individual's bright idea, or an outdated instruction, it may be of small value . Generally, documents must be available as
part of a constant stream if they are to be of serious use, and a discussion
with a well-placed, intelligent and trusted agent may well be worth many
documents . In other words, we are sure that security of personnel (with all
that this involves in terms of investigation, judgment and reinvestigation) is
generally more important than physical or documentary security measures .
187 . However, it is quite apparent that no conceivable system of personnel
investigation and clearance can offer complete certainty that all cleared personnel will prove trustworthy. In fact, there are some grounds for suggesting
that the most dangerous spies (or at least those who are potentially the most
dangerous) are amongst those who may succeed in evading personnel security precautions, or about whom favourable judgments may well be made .
Therefore, steps must be taken to ensure a reasonable standard of formality
and security in the handling of classified documents . The first step in this
process is to ensure that sensible regulations govern the classification of
documents .
188 . The categorization of documents and material according to their
apparent sensitivity is a basic, though slightly illogical, part of the securit y
68
�system . Theoreticaliy, a document is-either secret (in the common sense of
the word) or it is not . Any further distinctions involve curious concepts such
as partly secret documents that may be seen by partly reliable people . In
fact, and in spite of a certain mystique that has grown up around the subject
of classifications, the reasons for categorization are primarily economic . It
has presumably been judged that the risks involved in -less than optimum
security . standards (of personnel investigation or of physical security) can
be accepted for certain classes of documents .
189 . At present a single classification system is effectively in use throughout most of the western world, although there are a number of exceptions .
We quote below the definitions officially in use in Canada, together with
some extracts from the principles governing classification .
"Definitions of Classifications
"1 . All official documents produced by the Canadian . public service are the
property of the Canadian Government . Most of these documents, together with
those on loan from other governments, require some form of protection . The
degree of security protection that a document requires will be indicated by
a classification placed preferably in its top right-hand corner . .
"2 . The following are definitions of the four classifications together with
examples of their application . . .
Top Secre t
"3 . Documents, information -and material are to be classified Top Secret
when their security aspect is paramount, and when their unauthorized disclosure would cause exceptionally grave damage to the nation . From this
general description it will be seen that the classification of Top Secret should
be used only rarely . When it is used, the user should first be certain that all
the special measures which are contingent upon its use are in fact fully
justified . The following are examples of subjects falling within this category :
(a) Documents or material containing plans for the defence of the natio n
as a whole or of strategic areas vital to its defence ;
(b) Information on new and important . munitions of war, including important
scientific and technical developments directly connected with the defence of
the nation ;
(c) Detailed information on new or proposed defence alliances, and on the
defence plans of allied nations .
Secret
"4 . Documents, information and material are to be classified Secret when
their unauthorized disclosure would endanger national security, cause serious
injury to the interests or prestige of the nation, or would be of substantial advantage to a foreign power . The following are examples of subjects falling
within this category :
(a) Minutes or records of discussions of Cabinet or Cabinet Committees :
(b) Documents or material containing plans for the defence of areas and installations of other than vital strategic importance ;
(c) Documents or material directly 'pertaining to current and important
negotiations with foreign powers ;
(d) Particulars of the national budget prior to its official release ;
69
�(e) Information about foreign powers, the value of which lies in concealing our
possession of it ;
( f) Information about new and important scientific and technical developments pertaining to national defence ;
(g) Information about the identity or composition of scientific or military
units employed on operations involving techniques, the knowledge of
which would be of substantial value to a foreign power .
Confidential*
"5 . Documents, information and material are to be classified Confidential
when their unauthorized disclosure would be prejudicial to the interests or
prestige of the nation, would cause damage to an individual, and would be
of advantage to a foreign power . The following are examples of subjects
falling within this category :
(a) Information of a personal or disciplinary nature which should be protected for administrative reasons ;
(b) Minutes or records of discussions of interdepartmental committees when
the content of such minutes or records does not fall within a higher
category ;
(c) Political and economic reports which would be of advantage to a foreign
power but which do not fall in the Secret category ;
(d) Private views of officials on public events which are not intended to be
disclosed .
Restricted
"6 . Documents, information and material are to be classified Restricted
when they should not be published or communicated to anyone except
for official purposes, and when they are not classified in any of the three
previous categories . . .
"General Principles Governing
Classification of Document s
"8 . The following important principles should be borne in mind in giving a
classification to a document :
(a) Each document will be classified on its merits by reference to its contents
and their implications and not by reference to an automatic test e .g .,
the classification of other documents in the same series . . .
(b) It should be borne in mind that the source of the information contained
in a document may justify a higher classification than the information
taken by itself would at first seem to warrant, e .g ., Confidential information obtained from a very delicate source may justify the classification
of a document as Secret . That is, the process by which the information was
obtained may require more protection than the information itself .
(c) The tendency to give too high a classification to information is a natural
one, but the result is to clog the machinery for dealing with documents
and to allow personnel to become so familiar with handling highly classi"*Documents which are 'Confidential' not in the sense of a security classification as used
here, but merely private and persona], should be marked "In Confidence" or "Private and
Personal" . These designations can be used, for instance, on certain letters to provincial
governments or to commercial organizations where the contents are for the private
information of the addressee and must not be made public, but do not need the protection
given to a document bearing the security classification 'Confidential' . "
70
�fled material that the significance of the classification becomes obscured,
particularly if persons handling the material recognize that it is overclassified .
(d) The classification appropriate to a document may alter with the passage
of time, and departments_ should arrange to review classified documents as
and when required . Documents received from other departments should
not be downgraded without the approval of the originating department .
In the case of reports from intelligence sources, factors other than the
contents of the report may need to be considered . . . It is strongly
recommended that the originating departments indicate wherever possible,
either at the time of issue or later, that a document may be downgraded
after a given date or event. "
190 . It will readily be understood from these quotations that the accurate
classification of documents is a demanding task, requiring experience and
understanding of the implications of the compromise of a given piece of
information . In practice, of course, in many departments there is an obvious
tendency to "play safe", especially on the part of more junior officials, and
to classify too much or to overclassify . This is of concern because it is to
be presumed that security precautions will be more effective the more limited
the area they attempt to cover . In any case, additional and unnecessary
precautions will be wasteful and hindering, 'while overclassification will in the
long term tend to bring the idea of security into disrepute ; at least among
more sophisticated public servants .
191 . It was the opinion of most of those concerned with the question
that overclassification was a general current problem . Unfortunately, these
experts were quite uncertain as to what steps should be taken to improve
the situation . Suggestions included total revision of the system, even to the
extent of employing only two categories-classified and unclassified ; the
introduction . of two classification systems, one for so-called "administratively
classified" documents, and the other for "defence classified" documents ;
more rigid control of authority to classify, at least to the higher levels of
classification ; redefinition of the present classifications ; and systems for the
review of classification of documents after action on them had been completed and before they were finally filed .
192 . We have considered these and similar possibilities in some detail,
and while we understand the current concern about overclassification, we find
ourselves unable to suggest any very sweeping changes in present procedures .
Although they are not necessarily overriding, there are considerable advantages to be gained from retaining .a system which is generally in consonance
with those of our allies . The present system is reasonably well understood
and established, . and it would appear to us that very compelling arguments
would need to be advanced for major changes . We agree, for example, that
the definitions in current use are much too vague to offer a great deal of
guidance to an official faced with an individual case, but we have found it
difficult to redraft them in terms that are likely to be much more meaningful
or helpful . We think the best that can be done is to ensure that each depart-
71
�ment or agency issues its own specific security instructions and includes
examples of classification from within its own experience . It should be noted
also that it is rare for an official to approach a classification problem completely "cold" ; there will be a background of data on the file or in the official's
own experience which will assist with the problem . In departments only
occasionally concerned with the question advice should be available from
superiors or security staffs .
193 . It seems to us that the obverse of this problem of overclassification
is also of significance in some areas . For example, in the scientific branches
of certain departments which are only occasionally concerned with genuinely
sensitive matters, there are undoubtedly pressures to underclassify unwisely
in the interests of scientific freedom or publication . It is also less usual in
branches of this kind for scientific papers to be reviewed with the possible
need for classification seriously in mind . Ultimately of course a true solution
to this general problem of correct classification will only be found in adequate
training, education and security awareness . It may well take a long time to
reach satisfactory standards, but once they have been reached many of these
apparently intractable .problems of over- and under-classification will tend
to diminish .
194 . Neither do we think there are any great advantages to be gained from
an attempt to distinguish between "administratively classified' documents
and "defence classified documents" . The present system of classification seems
to us to present few problems in this connection . Most documents that may
be classified for administrative reasons can in broad terms be said to come
under an undramatic interpretation of the definition of Confidential : they
would be prejudicial to the interests of the nation or cause damage to an
individual . We would not discourage departments or agencies which have
special markings in use for (say) personnel matters, but we think that one
of the normal security classifications (usually Confidential) should be used
if it is intended that the document in question should come within the
cognizance of the official security of information system . We . realize also
that special arrangements are in force in appropriate departments to protect
the privacy of such information as income tax returns and commercial
statistical data, and we would not suggest any changes in these procedures .
195 . We do think however that in the area of classification consideration
should be given to one particular anomaly . This is the fact that, since no
government information may be made public without due authorization, the
classification Restricted is superfluous, and may indeed even mislead officials
into revealing information not so marked . We think therefore that the use
of the classification Restricted should be abandoned, and that information
which it is . important to protect should form part of the regular security
system, and should thus be classified at least Confidential . Documents without
any security markings would then be protected from publicity solely by the
normal disciplinary rule that communications to the press and public ma y
72
�be made only with the authority of specified officers . The Oath of Office
and Secrecy which gives expression to this rule is taken by all officials ; while
it appears to us to have no legal significance, it may serve as a warning
against the unauthorized publication of official information .
Declassification Programthe s
196 . Classification markings are often ephemeral . For example, a document may be highly classified one day because it argues the case for a policy
in the making . As soon as the policy is ''announced, the same document is
of historical interest only, and can certainly be downgraded, if not entirely
declassified . There are many views on the implications of the question of
declassification . Some maintain that the advantages of downgrading or declassifying documents are not worth the effort involved ; an accumulation
of "dead" and overclassified files is a tolerable minor nuisance . Some suggest that effective efforts must be taken to strip and reclassify files, if only
in the interests of reducing the need for expensive secure storage facilities .
Others have attempted to introduce an administrative system by which certain categories of documents are automatically downgraded at regular
intervals .
197 . Ideally, of course, it . is quite clear that changes in classification
should be formally made at appropriate times, and the markings on the
documents amended . Our own view however is that this ideal is quite
impossible of achievement . We think it would be unacceptably extravagant
of effort to insist that all departments and agencies examine their total records
solely for the purpose of declassification . We think that no general downgrading system 'can be devised which will apply automatically to the whole
possible range of classified material, although we are also aware that some
departments (especially the Department of External Affairs) must make
arrangements to re-examine records at regular intervals if the requirement
to release many of these records for historical research and public appraisal
after a given period of years is to be met.
198 . We think . that declassification is an area in which departmental judgment must be permitted to play a large role, subject only to the condition
that records, while they remain classified, must remain the responsibility of
the department holding them, and that no documents should be declassified
without the agreement (either individually or by category) of the originating
department . We suggest that the file-stripping programmes which are in force
in some departments be extended to cover the question_ of classification,
although we realize that this will tend to delay the programme, as in many
cases the judgment of relatively senior officers will be required . In general
we suggest that departments should be constantly reminded of the value of
downgrading documents and that officers should seize any opportunity . to
amend the classifications of papers that come to their attention in the course
of their duties .
73
�Handling of Classified Documents
199 . Assuming that documents are properly classified, there are a number
of measures which need to be taken in the handling of these classified documents . First of all, certain restrictions concerning the copying and removal
of such documents need to be observed . Some quite simple measures are
possible . Copying of classified documents should be centralized, and records
kept . These, together with records of persons entering or leaving buildings
at unusual hours, should be subject to examination and audit by security
staffs . We also think that insufficient attention has been given to the handling
of classified documents in departments or branches in which only a small
number of the officials and staff is cleared . In departments such as National
Defence and External Affairs where classified material is commonplace, it
is normal practice to set aside certain rooms or areas for the handling of
special categories of very highly classified information ; these areas are under
the control of specified staff, and the documents in question may only be
consulted and worked on within these areas . We think that in departments in
which classified material is uncommon, similar arrangements should be made
for Secret or Top Secret material .
200 . Arrangements of this kind would eliminate the present problem of
shared offices and offices (readily accessible to uncleared staff) left empty
at lunchtime with classified documents lying on desks . Security breaches of
this nature seem to be almost routine in some departments . We feel that
they should be the subject of consistent and rigorous disciplinary action . We
would add, however, that they will only be detected if security staffs are
adequate, and aware that part of their responsibility is to make regular
checks of offices where classified material is held or handled .
201 . In addition, we think that more attention should be paid to what is
known as the "need-to-know" principle . This means that classified information should be disseminated no further than is necessary for the conduct of
business . This principle is extended in the cases of certain very highly
classified categories of material to the establishment of lists of those persons
who are "indoctrinated" for access to the material . This process serves both
to control access, and to provide a starting place for investigation in the
event of loss or apparent compromise . We think it may be useful to establish
similar formalized indoctrination arrangements, at least for persons with
access to Top Secret information, and especially in departments where
highly classified material is rare . In addition, we think that a central list
of all persons with access to such information should be maintained by the
Security Secretariat .
The Official Secrets Act
202 . We have several times stated our view that security procedures are
not primarily legal in character, but administrative and disciplinary . How-
74
�ever, one important legal issue is directly related to security of information :
this is the adequacy of the present Official Secrets Act and certain provisions
of the Criminal Code .
203 .The United Kingdom Parliament enacted its first Official Secrets Act
in 1889 . This Act was repealed in 1911 and replaced by a new statute which
applied to Canada as well as to the United Kingdom (1 & 2 Geo . 5, chap .
28) . In 1920, the United Kingdom amended its Act on the basis of its experience during the first World War, but specifically provided that the
amending statute was inapplicable to Canada (10 & 11 Geo . 5, chap . 75) .
In May 1939, under the stress of 4orthcoming hostilities, the Canadian
Parliament repealed the 1911 British statute and passed the present Canadian
Official Secrets Act, which is in fact a very slightly reworded consolidation
of the 1911 and 1920 British statutes . The Canadian Act (R .S .C. 1952, c .
198) has been amended twice, first in 1950 when the maximum penalty
under the Act was increased from seven to fourteen years imprisonment,
and secondly in 1967 when minor changes were required as a result of the
Canadian Forces Reorganization Act (S .C . 1966-67 c . 96) . At Appendix
"C" are copies of the English and French texts of the Canadian Official
Secrets Act, and of extracts from the Canadian Forces Reorganization
Act .
204. The Canadian Official Secrets Act is an unwieldy statute, couched
in very broad and ambiguous language . A large part of the confusion which
attaches to the Act in Canada has arisen from its use of the phrase which first
occurs in section 3(1) (c) ; "any secret official code word, or pass word, or
any sketch, plan, model,, article, or note, or other document or information" ;
this was mistranslated into French from the English original as "un chiffre
officiel ou mot de passe, ou un croquis, plan, mod'ele, article, note ou autre
document ou renseignement" . The same phrase (with a similar translation)
also occurs in later sections of the Act, but the phrase is sometimes turned
as "official document or secret official code word or pass word", or "sketch,
plan, model, article, note, document, secret official code word or pass word
or information", etc . In fact there is sufficient inconsistency in the Act for
there to have arisen in Canada a question as to whether the words "secret" or
"official" qualify only "code word", or "code word or pass word" or (more
importantly) also the words "sketch, plan, model, article, or note, or other
document or information" . In other words, must the Crown prove in all cases
that the information concerned is secret and official? If so, an espionage
operation directed towards the collection of information in the public domain,
or within the possession of a government agency but not classified (such as
much information in government files) might not constitute an offence
under the Act.
205 . Strangely enough, the interpretational problem has never become
acute in Britain where opinion generally has been consistently in favour of
the view that all affairs of government are within the meaning of the Act ,
75
�whatever their security classification, or even if they have no security classification (see, for example, Rex . v . Crisp and Holmwood [1921] 1 K .B . 451) .
206 . In Canada, however, a good deal of confusion was caused by the
decision rendered in the case of Rex . v . Biernacki (1962) 37 C .R . 226 .
The accused had collected information on the antecedents, social status,
employment and character of Polish immigrants . It was evident that the
information had been collected for use in, or in the course of, espionage
operations . However the Court discharged the accused at the conclusion of
the preliminary hearing, holding that the information collected was neither
"secret" nor "official" and that to collect such information (even during the
course of an espionage operation) was not an offence under the Official
Secrets Act . A similar view was taken by a Judge of the Quebec Court of
Appeal commenting on one of the arguments in the case of Rex . v . Boyer
(1946) 94 C .C .C . 195 . He remarked that the Official Secrets Act, by its
very title, indicated that its provisions did not apply to what had already
been published or publicized or had fallen into the public domain .
207 . In addition, the Act contains unusual evidential and procedural
provisions relating to espionage cases . For example, the Crown need not
prove that an accused is guilty of . any particular act tending to show a
purpose prejudicial to the interests of the state ; it need only appear so from
the circumstances of the case or the conduct or character of the accused .
If information "relating to or used in" a prohibited place, or "any secret
official code word or pass word is made, obtained, collected, recorded,
published or communicated" without authority it shall be deemed to have
been so made, obtained, etc . for a purpose prejudicial to the safety or
interests of the state unless the contrary is proved . Again, unless the
contrary is proved, the fact that an accused has been in communication with
or has attempted to communicate with an agent of a foreign power is considered to be evidence that he has for a purpose prejudicial to the safety or
interests of the state obtained or attempted to obtain information that might
be directly or indirectly useful to a foreign power . Unless he proves to the
contrary, an accused is deemed to have been in communication with an
agent of a foreign power if he has visited the address of or consorted or
associated with such an agent within or without Canada, or if the name
and address of an agent, or any other information regarding an agent is
found in his possession. The Act defines in very broad terms who is regarded
for the purposes of the Act as an agent of a foreign power and when an
address is deemed to be that of an agent of a foreign power .
208 . These provisions appear extraordinarily onerous, although of course
prosecutions under the Act cannot take place without the approval of the
Attorney General and this requirement should normally afford protection
against unnecessary use . Further, it is fairly clear from at least one case
(Rex v . Benning 4 C .R . 39 (1947-Ont . C.A .) ) that an entirely "technical"
charge, based in this instance only on evidence of communication wit h
76
�agents of a foreign power (Section 3(4) ) and with no evidence that the
, accused has obtained any information that might be useful to a foreign
power or passed such information to them, is not likely to be sustained by
the courts . In addition, it should be noted that a large proportion of Canadian prosecutions relating to official secrets have been conducted under the
sections of the Criminal Code (408(1)(d) and 408(2)) concerning conspiracy . A prosecution for conspiracy to commit an Official Secrets Act
offence is .a. prosecution under the Criminal Code ; it does not require the
Attorney General's fiat, nor are the procedural and evidential rules and
advantages of the Official Secrets Act available to the' prosecution : However,
in spite of these qualifications we feel that the present Act is too broad and
too rigorous .
209 . We have given some thought to the ideal content of an Official
Secrets Act . In our opinion, such an Act should in the first place protect all
classified information from any unauthorized dissemination, whether or not
the . purpose of such dissemination is prejudicial to the interests of the state
and whether or not the information is intended to be directly or indirectly
useful to a foreign power ; possibly (as in the British Act) offences due to
carelessness should be treated as misdemeanours (summary conviction
offences) rather than as felonies (indictable offences) and thus carry
reduced penalties, but the Act should have general application as far as
classified material is concerned . A certificate from a responsible minister
that the classification of given material was necessary and appropriate in'
the national interest should be accepted by the courts .
.
210 . Secondly, the Act should protect unclassified information from
attempts at collection and dissemination which are prejudicial to the interests
of the state or intended to be useful to a .foreign power . The fact that such
attempts are systematic, clandestine, conducted for payment or carried out
under the direction of foreign agents should be evidence that they are prejudicial to the state or intended to be useful to a foreign power .
211 . Apart from the two provisions we have mentioned (relating to classi.fication in . cases involving classified information, . and relating to . purpose in
cases involving unclassified material), we see no reason for other major
unusual evidential or procedural arrangements . We think however that prosecutions should continue to require the Attorney General's fiat ; also the Act
would undoubtedly require sections comparable to those in the present Act
concerning, for example, definitions of agents, harbouring spies, attempts and
incitements, powers to arrest and search without warrant and in camera
hearings . We think there is a good deal to be said for the view that conspiracy to commit offences against an Official Secrets Act amended as we
suggest should be included as an offence in the Act itself .
212 . Some countries manage without a formal Official Secrets Act, and
rely upon statutory provisions concerning espionage and other . specific
offences . Nevertheless, it is possible that an Official Secrets Act may have
77
�some deterrent effect, and it was in fact the almost unanimous attitude of
the authorities in those countries without such an Act to envy those who
had one . On balance, we think that in Canadian circumstances an Official
Secrets Act is desirable .
213 . However, we have said enough to indicate that we think the present
Act is unsatisfactory from a number of points of view . We have considered
the possibility of relatively minor amendments, but we feel that any such
attempts would inevitably call the whole Act into question . There may be no
urgency about the matter, but we nevertheless think that consideration should
be given to a complete revision of the Canadian Official Secrets Act, bearing
in mind the points we have mentioned .
214. A wide variety of Criminal Code provisions may be relevant to
security . These include, first, the sections relating to treason, sabotage and
sedition ; secondly, sections which may be invoked to prosecute certain
breaches of security, including bribery, attempts to weaken the loyalty of
officials, or breach of trust by a public officer ; thirdly, sections which could
apply in conditions of political or social unrest, such as intimidation of Parliament, unlawful assembly or rioting and unlawful military training ; and
finally, sections which deal with crimes that could be committed in the
course of espionage or subversive activities, such as making a false statement to procure a passport, fraudulent use of a citizenship certificate,
spreading false news, making use of official papers, personation or mischief .
215 . Most of these provisions require no comment, but the section of the
Criminal Code concerned with treason should be mentioned . This reads in
part :
"46 . (1) Every one commits treason who, in Canada . . . .
(e) without lawful authority, communicates or makes available to an agent
of a state other than Canada, military or scientific information or any
sketch, plan, model, article, note or document of a military or scientific
character that he knows or ought to know may be used by that state for
a purpose prejudicial to the safety or defence of Canada ; . . .
(h) conspires with any person to do anything mentioned in paragraph (e) or
forms an intention to do anything mentioned in paragraph (e) and manifests that intention by an overt act . "
Section 47 provides that the maximum penalties for offences under these
subsections are death or life imprisonment in wartime, and fourteen years
imprisonment in peacetime .
216 . These provisions concerning treason in the Criminal Code clearly
overlap with the Official Secrets Act . If they are necessary at all, we find
their restriction to military or scientific information difficult to understand .
If this section remains in the Criminal Code (possbly on the grounds that
it may be useful in wartime), it should be expanded to apply to information
of all kinds .
78
�Administrative Secrec y
217 . Some controversy has in recent years centred around the extent to
which governments maintain that their administrative activities and documents should remain confidential unless and until the government concerned
chooses to reveal them . In many countries various professional groups,
including journalists, scientists, lawyers and historians, have complained
about the adverse effects of so-called administrative secrecy .
218 . It is in fact true that some countries-notably Sweden and the
United States-have arrangements by which the public ostensibly has access
to a great deal of administrative information that is not available to the
public in, for example, Canada and Britain . The constitutional principle of
publicity in administration has applied in Sweden since 1766 . Theoretically,
all state documents are public, and a department is required to produce
any document or file at the request of any citizen or any representative of
the press, radio or television, who need give no reason nor declare any
specific interest . However, the practice is very complex and there are a
number of exceptions, including documents concerned with defence and
foreign policy, personal files, especially in the social service ministries, informal memoranda and certain drafts .
219 . The position in the United States is rather different. A relatively
new Public Law-the, Freedom of Information Act of July 1967-permits
public access . to certain documents, if the inquirer can identify them and
if they are unclassified . There are certain exempted classes of records, which
vary slightly from department to department ; if the regulations are interpreted broadly, the exempted categories are large .
220 . The question of unofficial historical or other research is dealt with
in the United States as a separate issue . The State Department, for example,
recognizes three "periods" with respect to its records . First there is a "closed"
period covering the more recent years ; during this period, foreign policy
records are in general closed to access by non-official researchers in advance
of the publication of the Department's documentary series entitled "Foreign
Relations of the United States" ; the beginning date of this closed period is
advanced automatically as the annual "Foreign Relations" volumes are
released . Secondly, an "open" period extends from the earliest days up
to 30 years before the current year ; foreign policy records for the open
period are in the National Archives and may be consulted under regulations
issued by the National Archives . Thirdly, there is a "restricted" period between the open period and the closed period ;, access to foreign policy records
in the restricted period is confined to qualified researchers who are United
States citizens and who demonstrate a scholarly or professional need for the
information contained in such records . Additional restrictions are in fact
included in the regulations . Access to foreign policy records is not given
if their publication would be contrary to the interests of national defence o r
79
�foreign policy ; and such records would include any that might tend to
prejudice the conduct of foreign relations, might tend to give needless
offence to other nations or to individuals abroad or would violate confidence .
Neither, of course, are records originated by another government or another
agency of the United States Government made available without permission .
On the other hand, application may be made for a specific relaxation of the
regulations, and for access to certain records during the restricted or closed
period .
221 . The situation in Canada is less formal . In the absence of any
statutory provision (other than the Official Secrets Act) either forbidding
or permitting access to government records, departments have had to treat
individual applications on their merits . As far as the Department of External
Affairs is concerned, its files include so many documents originated by
other governments intermingled with its own material that it has felt obliged
not to release these files unless or until the foreign documents are released
by the government concerned. Up to the time the Governor General ceased
to be the channel of communication with the British Government, a very
high proportion of the files contain documents which are, technically at
least, British documents . It has therefore been considered necessary not to
release some files containing British documents until such files are "open"
in Britain . Until recently, under the provisions of the Public Records Act of
1958, such records remained "closed" until they were 50 years old ; but it
is now British policy to open records after 30 years . Most other countries
are as restrictive as the-British, or more so .
222 . Although general access to Canadian files has for these reasons been
restricted to those 50 years old or more, in a few cases where few nonCanadian records were involved and where material was not sensitive,
controlled access by serious researchers has been permitted to records of
somewhat more recent-date . In addition, the Department of External Affairs
is preparing for publication a series of documents under the general title
Documents on Canadian External Relations which will make available to
scholars all significant documents of the "open" period . This publication
should go far to meet the legitimate needs of researchers for documents,
and thus minimize requests for access to files .
223 . We are not required to make general recommendations about these
problems, but, as far as Canada-is concerned, we would view suggestions for
increased publicity with some alarm . We think the knowledge that memoranda might be made public would have a seriously inhibiting effect on the
transaction of public business . We believe that the process of policy-making
implies a need for wide-ranging and tentative consideration of options, many
of which it would be silly or undesirable to expose to the public gaze . To
insist that all such communications must be made public would appear to us
likely to impede the discussive deliberation that is necessary for wise administration . In Canada, the bureaucracy is not vast, and the number of seriou s
80
�inquirers quite small . It seems to us that there is no reason why controlled
access to specific administrative files or documents cannot be permitted and
arranged on an ad hoc basis when a genuine requirement can be established .
224 . However, as far as historical and other research is concerned, we
think the lack of a stated government policy a serious handicap and we
suggest that steps should be taken to remedy this situation by making public
appropriate regulations . It is important that our regulations should remain
in step with those of Britain since our files (and especially the earlier ones)
contain so much British material ; it is also important that we remain in step
with the United States . In practice, there seems to be no alternative to a
"thirty year rule" . From the point of view of security we must point out that
there is some material (mainly intelligence and security material) which for
a variety of good reasons should not be made public even after thirty years,
and adequate arrangements must be made to strip files of such material
before the files are made available to the public .
Physical Security
.Buildings and Offices
225 . During working hours, the security of buildings and offices (or at
least the 'protection of classified information used and handled in these
offices) is the responsibility of those working in them . As we have suggested,
standards of security in this area are often poor, and must be improved, but
this is a matter of departmental training and discipline . Nevertheless we do
regard it as surprising that so many buildings in Ottawa, including buildings
in which highly classified material is held, are accessible to the public without hindrance during working hours . Certainly the East Block is one of the
very few freely accessible central Cabinet and Foreign Offices in the western
world .
226 . Responsibility for the guarding of government buildings containing
classified information during silent hours is however somewhat diffuse . In
some cases (where one department occupies most of a given building), it is
that department's responsibility to request a security survey by the RCMP,
to hire Corps of Commissionaire or other personnel as guards (if it wishes
to do so), and generally to maintain an adequate standard of protection .
Where no single department or agency occupies most of a building, the
RCMP assumes responsibility on a direct request from one of the occupying departments .
227 . This situation seems to us unsatisfactory . We think it should be
government policy that any building which contains classified information
should be subject to a security survey, and placed under guard during silent
hours . In some cases, where (say) only confidential information is held, it
may be possible to compromise on some system of electronic intrusion alarm
plus regular inspections . In general, however, the basic principle that build =
81
�ings containing classified material should be effectively protected at all times
must be upheld . Consideration should also be given to the establishment of
an "escort" system for visitors to the more sensitive buildings during working
hours .
228 . It will, of course, become part of the responsibility of the protective
security branch of the Security Service to play an active role in physical
security, to survey all government buildings which contain classified material
and to audit the implementation of government policy and regulations . In
the meantime we feel that urgent steps are necessary to acquaint departments and agencies with the requirement for guards and to ensure that at
least preliminary steps are taken toward their introduction as necessary .
Technical Security
229 . One aspect of physical security is generally referred to as technical
security, and is concerned with protection against electronic eavesdropping
and telephone interception, and with a variety of other technical subjects .
A number of Canadian agencies are involved in one way or another with
these matters . We think that all the present agencies concerned with technical security should be combined in one part of the protective security
branch of the Security Service . Relevant technical expertise is limited in
Canada and must be pooled if an adequate service is to be provided in this
field.
230 . Technological advances, including the increasing use of computers,
have given rise to a range of other new security problems, some of which
can be solved fairly simply, but some of which are relatively intractable
without considerable effort . There seems to us no doubt that the process of
technological innovation will continue to create problems of this general
kind, and that a serious research and developmental effort will be required
from the technical security authorities .
Communications Securit y
231 . With regard to the security of governmental information transmitted
by telegraphic means, we are satisfied that the regulations which prescribe
that all classified telegrams shall be enciphered and handled under conditions approved by the competent authorities are in general observed . The
cryptographic systems in use in Canada seem to us to provide adequate
security.
232 . The situation with regard to the security of telephone conversations is much less satisfactory . From what we have heard, we do not believe that there is sufficient awareness, even in senior governmental positions where it is most important, that the telephone is a basically insecure
instrument, and that therefore classified matters should not be discussed on
the telephone .
82
�VIII. EXTERNAL AFFAIRS AND NATIONAL DEFENC E
External Affairs and the Foreign Servic e
233 . It is quite evident that security in the foreign service is a matter
of special importance . Staff are dispersed, and in many countries, especially
the communist countries, they are clear and obvious targets for hostile
intelligence attack. This is true not only of officers of the Department of
External Affairs, but of officers and employees of the many other departments with staff abroad . In fact, officials and employees of the Department
of External Affairs represent less than one-third of the nearly 7000 Canadian employees stationed abroad and the list of departments with such
personnel is surprisingly lengthy, including for example National Defence,
Trade and Commerce, Defence Production, Manpower . and .Immigration,
Finance, Atomic Energy of Canada Ltd ., and the Emergency Measures
Organization . It must be understood that the attention of hostile intelligence
services is not directed only towards those . who have access to classified
information . Officials or employees without access may become . useful
sources of information, not about classified matters, but about other individuals employed in the post or the service . This information may later be
used to compromise or entrap the officials who do have access . There is
no dearth of examples and case histories to demonstrate the truth of the
statement that Canadian officials serving abroad are targets of hostile intelligence attack, especially in communist countries ; and some years ago the
Department of External Affairs itself suffered from serious security problems
particularly at certain missions within the communist countries . Many reasons
have been advanced for the existence of these problems-hasty recruiting
during a period of rapid expansion, for example, and the attraction of the
foreign service for individuals with certain character defects . Although there
is no doubt that many of the factors giving rise to these situations have
been minimized, . the existence of such problems reflects on the past effectiveness of the departmental security system .
234. The present security organization of the Department of External
Affairs is established within a Division which is also responsible for a variety
of other functions . The . security organization overseas includes Regional
Security Officers, post security officers . appointed by heads of missions, and
security guards recruited especially for service at posts abroad .
83
�235 . In theory, heads of posts abroad are responsible for the security
not only of the External Affairs missions but also of the offices of other
government departments ; they are instructed to ensure that all classified information is given adequate protection by representatives of Canadian
Government departments and agencies to whom it may be entrusted, and that
classified information is handled and stored in accordance with the regulations . Canadian posts abroad have been divided into three categories :
(a) Posts where all Canadian departments and agencies share the same
premises . At these, the head of mission undertakes responsibility for
all security measures affecting the security of the post ;
(b) Posts where Canadian departments and agencies are located in the capital city with some offices outside the main`chancery premises ; at such
posts, a local security co-ordinating committee can be formed by the
head of mission, consisting of representatives of all departments and
agencies concerned, to advise on local security problems and report
to the head of mission ;
(c) Posts outside and at some distance from the capital city, where the
head of mission cannot assume any direct responsibility for security .
At these, the head of the local post is responsible for security, in
consultation with the head of mission in the capital city or the Department of External Affairs .
236 . Post security officers are responsible for the day to day app li cation
of security regulations and for the formulation of local security orders . The
Regional Security Officers provide guidance and assistance in security
matters to .posts within their region and inspect, report upon and supervise
arrangements at these posts . Upon receipt of a report from a Regional
Security Officer, a head of post takes such steps as are .within his authority
to correct any fault, and if the recommended action exceeds his own authority he seeks approval from the Depa rtment .
237 . Our general comment on this organization is that we are not sure
that the structure is properly adapted to the size of the present operation,
and to the sophistication of the attack . We feel it may retain vestiges of the
time when the Department of External Affairs was small and could be
managed on an informal basis, and when few Canadians were stationed
abroad . - We think that the establishment of a separate Security Division
within the Department is probably justified .
238 . A number of other points also need consideration . In the first place,
it is quite clear that in spite of the theoretical tidiness of the instructions,
there exists a great deal of confusion in posts abroad concerning responsibi lity
for the security of Canadi an offices and personnel . The responsibility of the
head of post is not always understood by the other depa rtments ; and, in
fact, when the head of a post attempts ~ to exercise his responsibility towards
other departments, he frequently finds it difficult to do so . Some post securit y
84
�officers, acting as agents for heads of posts, assume responsibility for the
inspection and supervision of the security of all government departments
located in the same country, but most, do not . Whether they do or do not
appears to depend largely upon the seriousness with which they and their
local superiors regard the security function .
.239 . We think that this matter is too important to be left to the whims
of those on the spot . It must be made quite clear to all concerned (if
necessary by some form of general security instruction applicable to all
departments with representatives abroad) that the head of post is responsible
for all Canadian security measures in the country to which he is accredited,
and that the post security officer acts on his behalf . The post security officer
must have full authority to supervise the security of the offices of other
departments ; he should, for example, maintain a list of the security clearance
status of all Canadians officially in the country ; he must have access to relevant information concerning the personnel in the post, and when necessary
to the security staffs at the headquarters of the other departments in Ottawa .
In practice, of course, any departments and agencies dealing with classified
information must have security officers of their own on the spot, and a good
deal of delegation of responsibility by the post security officer will be necessary, especially in posts such as London and Washington where there are
large staffs in buildings quite separate from the Chancery, or where offices
are located in cities other than the capital . Nevertheless, the principle of
audit, inspection, recommendation and ultimate enforcement by the head of
mission and his security officer should be preserved .
240 . Such a plan is only practicable if the post security officer is reasonably trained . At present, heads of posts have probably become at least
slightly acquainted with some security problems in the course of their progress
through the service, but there is no guarantee that a post security officer has
received any more than the short security indoctrination offered to all personnel before posting outside Canada . Whether he is trained or not depends on
the exigencies of the service and the initiative of his head of post or head
of Chancery.
241 . We think that the function of post security officer should be the
primary responsibility of an adequately trained officer of sufficient status to
advise and influence heads of missions and officers from other departments
at all posts abroad ; this is especially necessary in large posts or in posts
with special security problems, such as all those within the communist
countries and some outside . In a few cases, the appointment of a full-time
security officer would appear to be justified, but training and status seem to
us to be the factors of primary importance . We realize the difficulty of
providing personnel for a system of this kind, but we can see no reason why
other departments and the Security Service itself cannot be used as sources
of experienced and suitable security officers for special posts on a secondment basis .
85
�242 . Standards of physical security at missions abroad are very varied .
We are disturbed by the number of Canadian Government offices abroad
located in commercial buildings to which the public has access throughout
the day and night, and in which classified material is left unprotected except
by a safe during silent hours . In some locations there are inadequate arrangements for the separation of areas in which classified information is handled
and areas in which locally engaged staff work . However, we understand that
steps are being taken to rectify these situations . In addition, all the information we have received leads us to believe that the present calibre of some
of the security guards in Canadian missions is unsatisfactory . We realize the
difficulties of recruiting suitable personnel for such duties and providing
them with a useful career,' but we think this problem must be solved if
adequate security is to be maintained .
243 . Generally, we consider that more attention must be paid to the problem of providing reasonable standards of physical security at posts abroad .
Trivial financial considerations should not be allowed to enter into matters
with possible security implications ; we were told for example of instructions
to change a cleaning contract from a known and trusted firm to an unknown
company because of a marginally lower bid. The fact that such instructions
are issued suggests to us that there is a need for greater awareness of the
realities of the security problem amongst those responsible for financial
administration in Ottawa .
244 . The operations of the Canadian Government abroad are very dependent upon the assistance of locally-engaged staff (usually nationals of the
country in which they are located) as interpreters, messengers, cleaners,
drivers, and so on . This gives rise to a number of issues which vary with
the location of the mission . In communist countries there is no doubt that
all staff should ideally be Canadians (just as the whole staffs of Soviet
missions in the west are- Soviet nationals) because local employees are
usually members of the intelligence service of the country concerned, and
can report on Canadian staff and readily install intrusion devices . However,
in spite of the dangers, we 'agree that a programme to change the present
situation would not be feasible, even if the local authorities in communist
countries would permit it . The employment of foreign nationals means however that a very high standard of security discipline must be maintained in
such missions .
245 . The dangers at posts outside the communist countries are perhaps
slightly less acute, but they exist nevertheless . In many countries there are
great difficulties in identifying communist agents and sympathisers .
Further, in such countries there is perhaps a greater tendency to recruit
local staff for more responsible posts, which may require some access to
classified material . Except in the most exceptional circumstances, we think
that such tendencies, which are largely apparent in departments other than
External Affairs, should be resisted .
86
�National Defence and the Armed Force s
246 . The Department of National Defence is also a department with important security problems, partly because of the very large volume of classified material which it holds or generates, and partly because of the large
numbers of its personnel who :require security clearance. The Deputy Minnister is responsible to the Minister of National Defence for the security
of the whole Department in accordance with the security policies and
directives laid down by the government . Within this framework the Chief
of the Defence Staff is responsible for the security of the Canadian armed
forces, and the Chairman of the Defence Research Board is responsible for
the security of the' Defence Research Board and its establishments .
247 . Within the Canadian armed forces security is a responsibility of
command at all levels . Security staffs provide advice to commanders, administer and direct the security forces and other security resources, and
maintain liaison with civilian law enforcement agencies . The organization
of security within each command varies to meet the different requirements
of the commanders . In general, police matters and security measures are
coordinated by a command staff officer .
248 . At Canadian Forces Headquarters, a . Director of Security is responsible to the Director General of Intelligence and Security for advice on
the state of security within the Canadian armed forces . This responsibility
includes the development. of policy, procedures and regulations as well as
advice to commanders arising from inspections and surveys, and the enforcement of relevant regulations . The functions of the Directorate of Security
are grouped in three areas : security standards and procedures for the protection of information and the physical security of material and units ; security clearance of personnel ; and technical supervision of military police
and security staffs employed at commands and bases . A special investigation unit carries out field investigations of personnel in the Canadian forces
and the Administrative Branch of the Department, and also conducts criminal investigations at the request of any Commanding Officer . The investigators employed for personnel clearances are of corporal rank or above
and are selected for this work only after having obtained some investigative
experience in the military police and security fields . Training in field investigation is mainly done "on the job" .
249 . We have a number of comments on these procedures . First, the
security organization in the Canadian armed forces constitutes a second
security investigation agency . Ideally we believe there should be but one
such agency. We understand however that in general investigations by the
armed forces are concerned primarily with character weaknesses, and that
cases, in which subversive aspects come to notice are immediately turned
over to the RCMP . We also appreciate the requirements for the armed
forces to provide a career in security investigation for uniformed personne l
87
�and to maintain its competence in this field, so that trained personnel may
be available for use in theatres of operations . On balance we think there is
a case for the armed forces to continue to conduct field investigations, with
certain limitations .
250 . The first limitation we suggest is that the armed forces agency should
be responsible for the investigation only of uniformed personnel and potential recruits to the forces . At present, Defence Research Board civilian
personnel are investigated by the RCMP, while civilian members of the
Administration Branch of the Department and civilians employed by the
Canadian forces are investigated by the armed forces . We have already suggested that the field investigation of civilian public servants should be removed from the police context and the functions reallocated to a branch
of a civilian security service . If this is done, we think that the investigation
of all civilians (including those employed by the Department of National
Defence and the armed forces) should be conducted by the civilian security
service .
251 . The second limitation relates to standards . There have in the past
been significant differences in the standards of investigations performed by
the RCMP and the armed forces . As we have said many times, we think it
important in the interests of individuals that the type of investigation, the
calibre of the investigator, the nature of the reports and the criteria for
judgment should be consistent . We have outlined our general views on
standards of clearance in Chapter IV, and we think these standards should
apply to all personnel-uniformed or civilian-of the Department of National Defence.
252 . The Department of National Defence has expressed particular concern about the question of separatism as it affects members of the armed
forces . We tend to share this concern . Quite apart from such practical considerations as immediate access . to weapons, the concept of allegiance is
important to the armed forces, and it would clearly be unwise to recruit
personnel whose loyalty is at present confused or divided or who may in the
future come to owe allegiance to a separate state . We realize that this argument cannot be carried too far ; many individuals-including many with clearances-change their allegiances and citizenships in the course of their lifetimes . Nevertheless it is clear that the Department and especially the armed
forces can justify a special interest in the separatist activities of members or
potential recruits . We think that the same standards should be applied to
civilian members of the Department as we suggest in Chapter IV should be
applied to other government employees . As far as the uniformed personnel
are concerned, we think there should be a clear statement of government
policy that persons currently engaged in separatist activities will not be permitted to join the armed forces, and will be released if they are found to be
members of the armed forces .
88
�Release of Informatio n
253 . A further problem is concerned with the exchange of information
with other countries . At present questions conce rn ed with the release of
classified defence information are dealt with by an official committee of the
Depa rt ment of National Defence, the meetings of which are attended by
officials of other Depa rtments when necessa ry . We suggest that the formulation and coordination of national disclosure policy should become a function
of the Secu rity Secretariat, advised as necessa ry by departments . The major
part played by the Departments of National Defence and External Affairs
in these matters would of course continue, but the central role would be
performed on an extra-departmental basis.
254 . In addition, there exists a number of problems conce rned with the
flow of unclassified information ( particularly scientific or technological publications and information) between Canadian Government departments and
officials and the communist countries . ( It should be noted that the transmission or sale abroad of even unclassified publications is strictly controlled by
communist gove rn ments ; similarly, there is no doubt that the presentations
and comments of communist individuals or delegations at scientific or other
conferences or meetings are also examined and controlled .) At present
individual depa rt ments, many of which are not aware of or prima ri ly interested in securi ty considerations, are responsible for exchange programmes,
subject to certain general instructions . We believe that in practice the present
system is inconsistent and possibly dangerous . We think that an effective
form of centralized coordination must be establi shed, and consider that this
should also be a function of the Secu rity Secretari at, advised as necessa ry by
departments . Depa rtments should be instructed to consult with the Securi ty
Secreta ri at before entering into specific or general arrangements for the
exchange of unclassified information with communist count ri es, and the
Secretari at should approve or disapprove proposals, subject of course to
appeal by depa rtments to higher levels .
89
��IX . INDUSTRIAL SECURIT Y
General Considerations
255 . We define industrial security procedures as those concerned with the
protection of information and material relating to classified industrial contracts placed with Canadian industry by the Canadian Government or by
allied governments . We have not considered the safe-guarding of information
which is not government-owned and thus, for example, the problems posed
by industrial espionage in the private sector or the theft of trade secrets
by competitors, although such activities can -obviously affect Canadian
economic interests, especially if they are conducted by or on behalf of a
foreign firm .
256 . There are three reasons why a Canadian industrial security system
is necessary . In the first place, the Canadian Government has some secrets
of its own to protect ; it would for example be highly detrimental to Canadian
national interests and Canadian defence posture if all the details of Canadian
defence research, development and production contracts were available
at will to potential enemies . Secondly, there is no doubt that a reasonable
standard of government-controlled industrial security is an important factor
in Canada's economic well-being . Suspicion of industrial security standards
can have a generally adverse effect upon industry and trade, for the flow of
contracts and the interchange of information will tend to be restricted if
allied powers suspect that their secrets may pass to potential enemies or
their technology to competitors . Thirdly and more specifically, Canada
receives a great deal of allied classified information and undertakes classified
contracts for its allies . Quite apart from any moral obligations, the Canadian
Government is a party to a number : of agreements by which it is required
to ensure that industry provides this allied information with protection essentially similar to that which it would receive in its country of origin .
Present Organization
257 . During World War II, industrial security in Canada was a responsibility of the civil Department of Munitions and Supply . At the end of the
war the responsibility was transferred to the armed forces ; but in 1949 the
Chiefs of Staff asked to relieved of the task . Responsibility was then transfered first to. the Canadian Commercial Corporation and finally in 1951 t o
91
�the Department of Defence Production . A Director of Industrial Security,
responsible to the Deputy Minister, was appointed to head an Industrial
Security Branch within this Department . The Branch dealt with all security
matters, both within the Department and in industry, and was responsible
for the negotiation of international security agreements ; later, the Director
of Industrial Security came to assume responsibility for security within the
Department of Industry as well as within the . Department of Defence
Production . In 1966 the Department of Defence Production was reorganized
and the status of the Industrial Security Branch reduced to that of a Division
within the Contracts Administration Branch . The Head of the Industrial
Security Division is now responsible to the Director of Contracts Administration who reports through the Director General (Contracts) and the
Assistant Deputy Minister (Purchasing) to the Deputy Minister of Defence
Production . The Head of the Industrial Security Division has a direct channel
to the Deputy Minister in order to deal with sensitive matters concerning
personnel security within the Department ; more recently a direct channel
has been re-established for matters relating to security in industry .
258 . The duties of the Industrial Security Division are very broad in scope ;
they include provision of advice on security matters to the Departments of
Defence Production and Industry, associated agencies and Crown companies ;
administrative arrangements for, and decision-making on, personnel clearances of departmental employees and employees in industry (but not personnel investigation, which is the responsibility of the RCMP) ; physical
security of departmental premises ; advice on the classification and security
requirements of contracts ; clearances and inspections of industrial plants
and facilities ; control of classified documents held in the departments and
released to industry ; implementation and monitoring of international agreements and regulations on industrial security . The latter include agreements
and procedures resulting from the production-sharing arrangements between
Canada and the United States (the United States-Canada Industrial Security
Agreement of 1952 and a later agreement on the exchange of classified
information), similar agreements within the framework of the North Atlantic
Treaty Organization, and a series of bilateral and multilateral agreements
(some on specific programmes) with allied countries . Regulations and
procedures have in fact already been established to cover most eventualities
relating to industrial security, and precedents have been created for the
negotiation and content of any relevant international agreements . The
continuing tasks are largely concerned with the implementation of appropriate
procedures relating to personnel clearance, contract security, document
classification and control, and facility inspection and clearance, and with
the detailed implementation and monitoring of international regulations,
especially those relating to exchanges of visits and classified information
between Canadian and United States industry .
259 . The Department of Defence Production's security staff is very small .
Apart from the staff at headquarters in Ottawa, small field offices ar e
92
�maintained in Montreal and Toronto, each consisting of an officer and a
secretary . These field offices are responsible, under the direction of the Industrial Security Branch, for the inspection and general supervision of the
security of industrial plants across Canada, for liaison with these companies
and for the provision of -advice to their managements and security officers,
for a number of administrative .functions relating to the transmission of documents and exchanges of visits and for the investigation of specific incidents .
The territory covered by the Montreal office extends from the East Coast to
Belleville ; Ontario, while the territory of the Toronto office extends from
Belleville to British Columbia .
260 . The bulk of the plants at present engaged on classified contracts is
located in Ontario and Quebec, but the others are spread from Newfoundland
to British Columbia . In addition some executives, and in many cases the
physical facilities, of additional firms are cleared so that they may receive
classified information in order to maintain their expertise and bid on classified
contracts . A large part of the detailed responsibility for industrial security is
assumed by the firms themselves . If they have access to classified information
they are required to nominate security officers, and most large firms maintain
such officers on a full time basis ; small firms nominate a staff member for parttime security duties .
Shortcomings and Options
261 . As always in the field of security, it is a matter of great difficulty to
arrive at a reasonable judgment of the effectiveness of present procedures .
However, on the basis of such inquiries as we have been able to make, it
would appear to us that some improvements could be made in the present
standards of industrial security in Canada .
262 . We believe that industrial security is an activity in which government and industry are necessarily interdependent . In spite of provisions in
contracts, enforcement by sanction is in practice difficult even if it were
desirable, and reasonable security can only be achieved by cooperation . We
have therefore been disturbed by the somewhat antagonistic relationships
which appeared to exist at one time between the industrial security authorities and at least some sections of industry . If industry is to cooperate
willingly the industrial security authorities must either devise procedures
which appear to industry to be efficient and practicable, or if this is not
possible at least satisfy industry that any delays are necessary and inevitable . Failure to do either of these things could result in the most dangerous
situation of all, in which industry is antagonistic to what may appear to be
bureaucratic and incompetent procedures, and may take steps to evade the
spirit, if not the letter, of security regulations .
263 . In such circumstances, we would be especially worried about the
arrangements for auditing the compliance of industrial firms with the regula-
93
�tions and for general liaison with firms on security matters . Before classified
information is released to an industrial plant, a physical inspection of the
facility is conducted, and advice proffered on security requirements . As we
have said, these inspections are conducted by the two field officers of the
Department of Defence Production and are supposed to be repeated at
intervals . In our opinion repeated facilities inspections should be regarded
as of central importance to the industrial security programme ; they represent
not only an opportunity to consider a firm's physical environment but also
a chance to examine the general posture and attitude of the company in
terms of security precautions . If they are regular, these visits can also represent an important enforcement procedure, for the inspecting officer can
ensure that suggestions made on previous visits have been carried out . It is
quite clear to us that a reasonable inspection programme of the kind we have
in mind cannot possibly be undertaken across the whole of Canada by two
officers ; certainly present inspections fail to meet reasonable standards of
frequency and thoroughness .
264 . In addition, the field offices of the Department represent the crucial
point of day-to-day contact between industry and government for a wide
variety of matters concerned with industrial security . Although some of these
matters may in themselves be relatively trivial, nevertheless the apparent
competence and responsiveness of the field offices will be noted by industry,
and will have an effect upon industry's willingness to cooperate in an effective industrial security programme . Finally, the field offices should provide
the continuity necessary for an effective security programme by advising and
assisting newly-appointed company security officers . For all these reasons we
think it of great importance that sufficient numbers of personnel of adequate
calibre be made available to these offices .
265 . It seems clear to us that for some years there has been a lack of
understanding on the part of the management of the Department of Defence
Production of the importance of the security function, and a lack of support
for it . This has resulted in the present situation in which industrial security
has too low a status in the departmental structure, and too low a priority in
the competition for resources, and especially for sufficient staff of adequate
calibre . We are aware that the Department is now making efforts to rectify
this situation by seeking additional staff .
266 . We have considered a number of possible structural changes which
might be made in order to improve the present situation . One obvious option
is to reallocate responsibility for industrial security to the Department of
National Defence, so that, for example, the Canadian Forces Headquarters
security organization becomes responsible for the security of armed forces
contracts and the Defence Research Board responsible for the security of its
own research and development contracts . This possibility seems to us worthy
of detailed examination, and has in fact been urged in one form or another
by a number of individuals in government and industry .
94
�267 . In the first place, there would appear to be advantages in avoiding
the present situation in which a single department-Defence Productionhas an unaudited responsibility both for the security of classified contracts,
and for a variety of commercial functions the efficient exercise of which may
reasonably be in conflict with the requirement for security . In addition, the
involvement of two departments-National Defence and Defence Production
-in issues in which security must be weighed against other factors would
at least help to ensure that any conflict was formally resolved on an interdepartmental level . Further, nearly all classified contracts relate to defence
matters, and a large part of the relevant classified information is made available to Canada through defence chanriels, and remains in a sense the responsibility of the Department of National Defence . It would seem likely
that industrial security would generally be handled with more enthusiasm if
it were a function of whichever department was primarily responsible for
the classified material .
268 . At the administrative level, the Canadian Forces and the Defence
Research Board have establishments across the country, each with security
officers and staffs who could probably be used to perform facilities inspections ; at least they represent a framework within which an industrial security
capability could be readily developed . A good deal of security expertise is
available within these agencies, and security organizations exist in Canadian
Forces Headquarters and Defence Research Board Headquarters which could
probably be expanded at small extra cost to assume control of these . additional tasks .
269 . We acknowledge, however, that reallocation of responsibility from
the Department of Defence Production to the Department of National Defence would raise a number of problems . Some classified contracts are negotiated directly and are not at present the direct concern of the Department
of National Defence. Further, some of the most important industrial security
tasks are carried out during the negotiating stage before a contract is
awarded, and the separation of industrial security from the department responsible for the negotiations might raise questions of divided responsibility .
We do not think such problems are insuperable . There seems to us to be a
clear analogy between the engineering inspection and quality control functions
now performed by the Department of National Defence for defence contracts
and the general form of the industrial security role . We would not push the
analogy too far, but we suggest that if problems of coordination can be solved
in one area they can certainly be solved in the other .
270 . It seems to us, therefore, that the balance of advantage lies in
allocating the function to the Department of National Defence . However,
if this suggestion is considered impracticable, the Department of Defence
Production should continue to take steps to improve the present situation .
First, sufficient numbers of personnel of suitable calibre, experience and
maturity must be allocated to the task . Secondly, the industrial securit y
95
�function must be given an appropriate status in the departmental organization . Thirdly, relations with industry must be strengthened, procedures must
be improved and rationalized, and services provided more rapidly . Industrial
security procedures and decisions must be subject to the same audit and
enforcement by the Security Secretariat, advised where necessary by the
Security Service, as are procedures in other areas .
Personnel Security in Industry
271 . The criteria for Canadian industrial personnel clearance procedures
are identical with those for the public service, but the procedures themselves
are somewhat different . The security officer of each firm is made responsible
for ensuring that, before being employed in a position requiring access to
classified information, each person being considered for such employment
provides sufficient data about himself by completing a Personal History
Form, and for submitting the completed form to the Department of Defence
Production . Fingerprints are not at present required from industrial workers .
The Director of Industrial Security submits the form to the RCMP, which
for Confidential or Secret clearances conducts a subversive records check
but, in the absence of fingerprints, is unable to make an adequate check
of criminal records . In those few cases where a Top Secret clearance is
necessary the RCMP carries out a normal field investigation . On the basis
of the information resulting from these inquiries, and of any other data
that are available, the Department of Defence Production may grant the
firm a security clearance in respect of the employee or prospective employee .
The procedures that are followed when adverse reports are received, and
doubts cannot be resolved, are similar to those that are followed in the
case of government employees .
272 . We have already outlined our views on these procedures in
Chapter IV . As far as possible, we would apply to industrial workers the
same procedures as are applied to government employees . Data should be
acquired about industrial workers as for all other persons who are required
,to have access to classified information ; certainly industrial workers should
be required to provide fingerprints . Records should be checked and, when
necessary, inquiries made by the Security Service : the formality of the decision process should be that the Security Service makes a recommendation,
and the responsible department takes the decision to grant or withhold
clearance .
273 . Similarly we think that review procedures should be identical with
those available to government employees . An applicant for industrial employment who is refused employment on security grounds should not be
told why and should have no right to apply for the decision to be reviewed .
On the other hand an individual who already has access should be informed
of the grounds for withdrawal of access to the extent possible withou t
96
�jeopardizing security, and told of his right to ask for a review of the Department's decision by the Security Review Board . Similarly, an individual
who is employed by a firm on a permanent basis, and whose career is significantly inhibited because security considerations have led to the refusal
of a transfer or promotion should be told the reason and of his right of
review .
274 . In practice, the question of the review of decisions has not been
a particularly live issue as far as industrial workers are concerned . The
main problem in this area seems to have arisen from the inordinate length of
time it sometimes takes to obtain even a minimal clearance when no trace
of any kind appears in the records . Classified contracts often require the
services of skilled and scarce workers . It is seldom economically possible for
a company to hire workers unless they can be put to work on a current
contract within a short time, and delays in obtaining a clearance are said
frequently to deny a company the services of a potential recruit . We have
been unable to establish in detail where delays occur, but we believe it of
considerable importance to ensure that clearances are available within a
reasonable time, at least in the vast majority of cases where no adverse
trace exists in any records . We think that as many steps as possible should
be taken to speed up present procedures . A wide variety of arrangements
are available for this purpose, including adequate and competent staffs, a
simplified Personal History Form, direct transmission of the form from the
company to the Security Service (with a copy to the responsible Department), and special procedures to meet the convenience of industry when
very rapid replies are essential for one reason or another . Eventually the
automation of subversive and criminal records will help to improve the
situation .
Training of Company Security Officer s
275 . As we have indicated, responsibility for certain aspects of industrial
security procedures is assumed by the firms themselves, through the company
security officers . These officers are central to the efficient operation of the
system . As a result, although they are company employees and owe their
first allegiance to the company which employs them, the government has
a justifiable interest in their calibre and efficiency . At present these qualities
vary widely ; some company security offiers are aware and competent, but
some are clearly untrained and ineffective .
276 . We think that the selection and training of company security officers
is a matter of importance, in which the government should involve itself .
Regular training courses should be run either by the Security Service or by
the responsible Department with the assistance of the Security Service, and
as a general rule no company security officer should be "recognized" by the
government until he has successfully completed such a course or has acquired
equivalent experience . What is more, employment of a "recognized" securit y
97
�officer by a firm should as a general rule be a condition of any classified
contract . We realize that small firms, including some consultants, may have
some difficulty in meeting these requirements, and we do not rule out the
possibility of special briefings for the executives of such firms, or other special
arrangements to meet their convenience . In principle, however, we think it
important that the officer who is designated as responsible for security in a
company which has access to classified material should receive appropriate
training .
277 . In addition, we think that a great deal more could be done to increase
awareness of the importance of security amongst executives of firms engaged,
or likely to be engaged, in classified contracts . Other countries have considerable educational programmes for this purpose, including conferences for
executives and lectures for staff. Measures of these kinds are needed in
Canada .
Documents, Visits and Classification
278 . There are three detailed areas which seem to be causes of particular
annoyance to some sections of Canadian industry . The first arises from the
fact that, under the provisions of the United States-Canada Agreement,
classified documents must only pass across the border in the course of transit
from one government to another, and arrangements for visits between firms
or by employees of firms to government establishments to discuss classified
matters must also be arranged between governments . The second concerns
certain present regulations for the handling and destruction of classified
documents . The third relates to the classification of contracts or parts of
contracts .
279 . We are told that delays of up to six months can occur when a
Canadian firm requests a classified document from a United States industrial
or research establishment, and that these delays can sometimes be of considerable significance to a company's operation . In addition, delays of three
months can occur between the submission of a request to visit an establishment across the border and the receipt of authority .
280 . We can see no objection to the rules themselves . Classified documents
are government property, and should only pass between governments .
Permission should be sought from the appropriate authorities when nongovernment employees wish to discuss classified matters outside their immediate environments . We find it somewhat difficult to judge the exact
relevance of the criticisms we have heard-clearly there will be some document requests that governments will wish to consider in detail over a period ;
there may well be some requests to which they will not accede at all . Similarly, there will be some occasions when one government or another will wish
to give extended consideration to the desirability of a particular visit . In general, however, it seems to us that bureaucratic processes and inertia on both
98
�sides are -responsible for a good deal of the delay, and obviously arrangements must be made which will meet the justifiable industrial requirement for
reasonable expedition . There exists a whole range of possibilities, including
the provision of adequate. staffs to deal with requests with reasonable speed,
authorization for direct exchanges between named persons of documents
related to a specific . project (subject to the government authorities being
informed), blanket authorization for exchanges of visits between designated
persons on designated subjects, the use of specified company security officers
as government agents for the making of arrangements, and so on . We are
told that steps are being taken to improve procedures and we hope that these
will continue .
281 . With regard to the handling and control of documents it has been
pointed out that the regulations laid down by the- Department of Defence
Production-for industry are more stringent than the regulations in government
departments . To some extent this, is a. matter of interpretation . For instance,
the Industrial Security Manual requires that a contractor shall keep a record
of all classified . material or information . received, distributed, originated,
reproduced or destroyed . Certainly if this regulation is interpreted by the
firm to mean that every classified working note made by an employee shall
be registered, and that a signature shall be obtained whenever a document is
passed across an office, the implementation of the regulation must be timeconsuming and onerous . On the other hand, it is certainly appropriate that
the government should be able to require production of any classified information it has supplied to a firm, and to seek reasonable assurance that classified documents created by the firm are accounted for with some precision .
282 . Similarly it appears that some firms are faced with problems caused
by the growing numbers of classified documents they hold . In fact, the regulations stipulate that any firm may destroy any classified document it has
itself created, but that the firm must seek permission for the destruction of
government-owned documents . If a firm does not wish to go through the
procedure of seeking permission for the destruction of government-owned
documents, it may return them to the Department of Defence Production .
As far as declassification is concerned, we think it . right that companies
should be required to seek permission from the government, but given adequate staffs we can see no reason why special arrangements cannot be made
to meet extreme cases . Officials of the Department could, for example, spend
periods with companies to assist with the sorting and declassification of documents when a problem of long standing exists .
283 . Generally, it is quite clear that the formulation and application of
the security regulations could be improved and rationalized, and we can see
no reason why this process of rationalization should not be carried out in
consultation with industry . The basic principle must be preserved that classified information remains the property of the government and cannot be th e
99
�property of an individual or a firm, but there is obviously room for a good
deal of negotiation on the details of the rules and for more imaginative
interpretation and implementation .
284 . The proper classification of the various aspects of a classified contract is of considerable importance to the effective operation of the industrial
security system, for overclassification or unnecessary classification can place
a considerable burden on industry . The originator of the contract-in Canada usually the Department of National Defence-prepares a document
known as a Security Requirements Check List which sets out the security
classifications to be applied to various aspects of the project ; this is likely to
be a matter of considerable complexity if the contract is of any size . These
check lists are passed to the Department of Defence Production and to
industry when the contract is awarded . We believe that more formality should
enter into the classification process . The full implications of the classifications
allotted to various aspects of a project should be considered in greater detail
by the contract originator and the security authorities, in consultation with
the contractor . The need for classification should be balanced against the
cost and effort required to implement the necessary procedures . The need
to declassify specific aspects of a contract as the contract proceeds should
also be considered .
100
�X. SOURCES AND TECHNIQUE S
285 . All security activities depend upon information . The adequacy of
appreciations and judgments can be no better than the information available . Without accurate and full information, the perception of the threat by
the security authorities, and thus by the government whom they advise, will
be less than satisfactory . Unimportant threats may be overemphasized, significant threats may be overlooked, and vital counter-measures may not be
taken .
286 . Similarly, in the area of security clearance, it is in the interests of
both the state and of individuals that information should be accurate and
complete . Inadequate records can mean that poor reports are sent to departments and unreasonable judgments made . Persons may unjustifiably be refused access to classified information, or unworthy persons may be given
access .
287 . Most of this is true of any activity that involves choices or decisions :
it is important that adequate information should be available . What is
different about the area of security is that those who possess the information
often take steps to conceal it, or to prevent its acquisition by the security
authorities . This means that the security authorities must often take special
steps to obtain it . The remainder of this chapter is concerned with some of
these steps and the issues that arise from them . We do not consider the
obvious and casual sources who provide information in the course of the
clearance process, such as referees, employers or neighbours, nor do we deal
with such sources as open publications and liaison with friendly agencies .
We are more particularly concerned with sources that directly or indirectly
provide data on espionage or subversive organizations and operations .
288 . Human agents are one of the traditional sources of intelligence and
security information, and any security service is to a large extent dependent
,upon its network of agents, on the scale of their penetration of or access
to useful targets and on their reliability . Operations involving human sources
require the most sophisticated handling by trained men with wide experience .
Nevertheless, in spite of the difficulties associated with some of these operations, we regard them as essential to an effective security posture . We would
101
�go further, and suggest that it is impossible fully to comprehend or contain
the current threats to security-especially in the field of espionage-without
active operations devoted to the acquisition of human sources .
289 . Surveillance programmes are of some importance in maintaining
contact with the activities of known or suspected subversive individuals or
foreign intelligence officers . It should be noted, however, that members of
communist missions in Canada have considerably more freedom to travel
than have Canadian and other western diplomats in communist countries .
This freedom naturally leads to increasing pressure on available resources .
290. In recent years the general question of the use of technical sources
has caused concern in democratic countries in case it should constitute an
invasion of privacy. In Canada the Criminal Code does not explicitly declare
wiretapping or eavesdropping to be crimes, although it is possible that in
certain circumstances they could constitute the indictable offence of mischief .
In addition, it can be argued that sections of some Telephone Company
Acts or the General Regulations of the Board of Transport Commissioners,
in combination with sections 107 and 108 of the Criminal Code, could provide
a basis for prosecution related to telephone interception .
291 . Our views on this subject are simple . We are not required by our
terms of reference to consider the propriety of telephone tapping or eavesdropping by private persons, or even by the police for criminal investigation
purposes . In the security context, however, we see no reason to differ from
the conclusions of the British Committee of Privy Councillors which examined this general subject in 1957 . This Committee concluded that espionage
and subversive activities are carried out by highly trained persons who take
extreme precautions, that the weakest link in this highly skilled chain of
espionage and subversion is communication between agents, and that methods
of interception are very effective, and indeed are often the only effective
means of countering espionage and subversion and of safeguarding the secrets
of the state .
. 292 . There appears to be a possibility that legislation may be proposed
to control the interception of telephone conversations and electronic eavesdropping. We think it important that any such legislation should contain a
clause or clauses exempting interception operations for security purposes
from the provisions of the statute : We think it reasonable however that
arrangements should exist for the control of such operations . In the case of
telephone interception, we think this control should be ministerial rather
than judicial, since ministers are more readily aware of the full details of
the cases brought to their attention, are in better position to understand
the special requirements of security, and could maintain more centralized
control of the complete range of wiretapping operations .
293 . Eavesdropping, however, presents a rather different problem . The
practice is particularly distasteful to the common conscience, -and we thin k
102
�that it should only be undertaken when it appears to be an indispensable
source in connection with a specific operation . We believe that eavesdropping
operations should be authorized personally and individually by the Head
of the Security Service, and that he, rather than the minister to whom he
reports, should bear full responsibility for all such operations .
294 . The question of the interception of mail for security purposes also
deserves consideration . In Canada, mail may be withheld by the Postmaster
General if he suspects that any person is by means of the mails attempting
to commit an offence, or aiding or procuring any other person to commit
an offence, but it may not be opened in any circumstances except with the
consent of the person under suspicion and then only by a specially appointed
Board of Review . These rules are known to the public from the Post Office
Act (R .S .C . 1952, c . 212) and seem to us to provide an open invitation
to hostile agents to make use of the mails for their secure communications .
We believe that arrangements should be made (possibly in the course of
amendment of the Official Secrets Act) to permit the examination of the
mail of persons suspected by the security authorities on reasonable grounds
to be engaged in activities dangerous to the security of the state . However,
any such examination should also be strictly controlled, and should require
ministerial authorization in each instance.
103
�XI . RECOMMENDATIONS
295 . We have not attempted to summarize our Report . Instead we state
briefly below our more important recommendations . The supporting arguments for these recommendations will be found in the body of our Report,
as will a number of our relatively less important suggestions . Numbers in
parentheses refer to paragraphs in the text .
Organization for Security
296 . WE RECOMMEND that there should be established in the Privy
Council Office a formalized Security Secretariat with adequate status, resources and staff to formulate security policy and procedures in the context
of general governmental policies, and more importantly, with effective
authority to supervise the implementation of government security policies
and regulations and to ensure their consistent application . This Secretariat
should be analogous as an organizational entity to the present Secretariats
on Science and on Bilingualism . It should be headed by a Director responsible
to the Secretary to the Cabinet, and should maintain close links and be
advised by the Security Service .
(49 )
297 . WE RECOMMEND the establishment of a new civilian non-police
agency to perform the functions of a Security Service in Canada . This
agency should eventually be quite separate from the RCMP ; it should be
generally without law enforcement powers, although it should, when necessary, operate in close liaison and cooperation with the RCMP and other
police forces . The organizational and operational detachment of the Directorate of Security and Intelligence from the RCMP may be a necessary first
stage in the process of devlopment of the new agency . WE ALSO RECOMMEND
that :
(58,63 )
(a) The duties of the Security Service should include the following tasks,
and its terms of reference should be made public :
(i) to collect, collate and evaluate information or intelligence concerning espionage and subversion, and to communicate such
information in such manner and to such persons as the Head
of the Service considers to be in the public interest ;
105
�(ii) to be responsible for th e direction, coordination and implementation of counter-espionage an d counter-subversive operations in
Canada ;
(iii) to be responsible for security investigations concerning civilian
personnel employed by the Government of Canada, and other
persons as required ;
(iv) to be responsible for the inspection of security precautions in
departments throughout the Government of Canada and elsewhere as required, and for the provision of training and advice
for depa rt ments of government and oth er agencies on matters
concern ed with security ;
(v) to be responsible for the operation and coordination of a ll technical security measures ;
(vi) to cooperate and li aise as may be necessa ry with domestic,
Commonweal th and foreign police forces and security services .
(63 )
(b) The Service should be responsible to a designated minister, but the
Head should have the right of direct access to the P ri me Minister.
The Head should also have a ce rt ain degree of independence of the
(63,64 )
government of the day .
(c) The Head of the Security Se rvice should present periodic reports for
th e consideration of the Security Review Board ( see paragraph 299(d)
below) and the Board should have autho rity to draw to the attention
of the Pri me Minister any matters it considers appropriate . (66 )
Personnel Security
298 . WE RECOMMEND that the following steps be taken with regard to
the Canadian security screening programme :
(a) Before a person is employed in the public service, whether or not
he is likely to have access to classified material, his name should be
checked against the subversive records and he should be the subject
of a fingerprint check against criminal records . Adverse information
need not result in rejection, but the information should be made
available to the employing department, which can request further
inquiries if they appear to be necessary . (89,90 )
(b) All persons without exception should undergo appropriate security
screening procedures before they have access to classified information
(78 )
or material .
(c) Standards of clearance for access to classified material should be as
follows :
(i) before a person is given access to Secret or Confidential information he should be the subject of comprehensive records check s
106
�(including subversive records, criminal records, all relevant
federal departmental records, credit bureaux records and foreign
records where necessary and possible) . Where written inquiries
to referees or previous employers have not been made as part
of a personnel selection process, this should be done . If these
steps produce no adverse information, access may be granted
to Secret or Confidential information after a formal and
recorded departmental judgment that this access is necessary
and desirable . If however any significant adverse information is
developed, further investigation (including field inquiries)
should be undertaken by the Security Service to confirm or
resolve doubts . After inquiry, the case should be referred by
the Security Service, with a recommendation, to the employing
department for decision ;
(ii) before a person is given access to Top Secret information he
must be the subject of a similar comprehensive records check
and a full field investigation covering a period of at least the
previous ten years of his life or the period from age eighteen,
whichever is shorter, and a formal and recorded departmental
judgment must be made that this access is necessary and
desirable .
(iii) clearances to Secret and Top Secret levels should be formally
up-dated at regular intervals, Secret clearances by means of
records checks and consultation with departmental supervisors,
and Top Secret clearances by means of further field investigations . Security clearances should not be thought of as permanent
and in between these up-datings supervisors of personnel
handling classified matters and departmental security officers
should concern themselves, if necessary in consultation with the
Security Secretariat and the Security Service, with cases in which
possible doubts have come to notice ;
(90 )
(d) Departments and agencies should remain responsible for granting
clearance, but the Security Service should assist by providing
information on individual cases as fully as possible, rather than in
the form of abbreviated reports . In addition, the Security Service
should comment on the validity, relevance and importance of the
information it provides and make a formal recommendation on
whether or not clearance should be granted . (92,94 )
(e) When a department decides to grant a security clearance contrary
to the recommendation of the Security Service, the latter should be
informed, and should be able to bring the department's decision to
the attention of the Security Secretariat . In addition, the Security
Secretariat should itself review departmental security decisions in
order to ensure consistency.
(105 )
107
�(f) Persons in the following categories should not be permitted to enter
a position in the public service where they may have access to classified information or are likely to have opportunities to gain such
access :
(i) a person who is a member of a communist or fascist party or
an organization affiliated with a communist or fascist party and
having a similar nature and purpose ;
(ii) a person who by his words or his actions shows himself to
support a communist or fascist party or an organization affiliated
with a communist or fascist party and having a similar nature
and purpose ;
(iii) a person who, having reasonable grounds to understand its true
nature and purpose, is a member of or supports by his words
or his actions an organization which has as its real objective
the furtherance of communist or fascist aims and policies
(commonly known as a front group) ;
(iv) a person who is a secret agent of or an informer for a foreign
power, or who deliberately assists any such agent or informer ;
(v) a person who by his words or his actions shows himself t o
support any organization which publicly or privately advocates
or practices the use of force to alter the form of government .
(97 )
(g) Persons in the following additional categories should not be permitted
to have access to classified information unless after consideration of
the circumstances the risk appears to be justified :
(i) a person who is unreliable, not because he is disloyal, but
because of features of his character which may lead to indiscretion or dishonesty, or make him vulnerable to blackmail or
coercion. Such features may be greed, debt, illicit sexual
behaviour, drunkenness, drug addiction, mental imbalance or
such other aspect of character as might seriously affect his
reliability ;
(ii) a person who, through family or other close continuing relationship with persons described in sub-paragraph (f) above, is likely
to be induced, either knowingly or unknowingly, to act in a manner prejudicial to the safety and interest of Canada ; it is not the
kind of relationship, whether by blood, marriage or friendship,
which is of primary concern, but the degree of and the circumstances surrounding the relationship, and most particularly the
degree of influence that might be exerted, which should dictate
a judgment as to reliability ;
(iii) a person who, though in no sense disloyal or unreliable, is bound
by close ties of blood or affection to persons living within th e
108
�borders of such foreign nations as may cause him to be subjected
to intolerable pressures .
(98 )
(h) Homosexuality should not always be a bar to employment in the
public service, but should normally preclude clearance to the higher
levels of classification and certainly' preclude posting to sensitive
positions overseas .
(100 )
(i) Security policy concerning separatism should be made clear ; the
federal government should take (and be seen to take) steps to prevent
its infiltration by persons who are clearly committed to the dissolution
of Canada, or who are involved with elements of the separatist
movement in . which seditious activity or . foreign involvement are
factors ; information concerning membership in or associations with
extreme separatist groups should be reported on the same basis as
information concerning other allegedly subversive movements, and
the departmental decision process should be similar. (101 )
(j) Universities should not be immune from the same kind of inquiries
as any other institutions or previous employers . However, these
inquiries in particular should be conducted by mature, experienced
and sophisticated investigators who - should take great care not to
conduct random inquiries concerning student activities, or to interfere with freedom of thought and discussion.
(102,103 )
(k) Definite rules should be established concerning the clearance of
aliens or former aliens . In general, clearance should only be granted
to such individuals when it is possible to obtain adequate data on
which to base a judgment .
(104 )
(1) Fingerprints should be taken from all persons requiring clearance,
including industrial workers .
(91)
(m) Full criminal records should remain available for purposes of securit y
clearance, whatever the decision about "vacating" such records in
other contexts .
(91 )
Review Procedure s
299 . WE RECOMMEND that a Security Review Board be established, consisting of a Chairman and (say) two other members, all nominated by the
Governor in Council, but independent of any government department or
agency . The members of the Board should not be active government officials,
although they would undergo normal security clearance procedures, and
their secretarial support would be provided by the Security Secretariat . WE
ALSO RECOMMEND that :
(114,117 )
(a) The Board should consider protests by public servants, members of
the armed forces or industrial workers against dismissal or transfer
or . against any denial of . promotion or apparent inhibition of career
prospects on security grounds ; protests by such persons as consultant s
109
�or university faculty members where withdrawals of clearance affect
professional careers ; protests by sponsors or nominators against
refusal on security grounds to admit or grant landed immigrant status
to those they have sponsored or nominated ; and protests by applicants for citizenship who have been refused on security, grounds. (114 )
(b) The Board should proceed on the following lines : an individual
entitled to appeal to the Board should be provided with a document
indicating as far as possible the reasons for the adverse decision ;
the Board should interview separately and privately representatives
of the Security Service and of the department concerned, the person
concerned (accompanied by a friend, lawyer or trade union official
if he wishes) and any other individuals whom the persons wishes to
be heard ; the Board may interview these persons as many times as
it wishes, and may also order further inquiries ; the Board's advice,
recommendations, or comments should be communicated to the
Governor in Council and the minister concerned ; a brief record of the
Board's decision should also be communicated to the individual concerned ; when the advice of the Board has been received, any further
action on the case should be considered by the Prime Minister in the
(117 )
light of this advice .
(c) In connection with dismissals, the Board 'should provide the form of
hearing required by section 7(7) of the 1967 . amendments to the
Financial Administration Act . (S .C . 1966-67, c. 74) (114 )
(d) In addition, the Board should receive periodic reports from the Head
of the Security Service (see paragraph 297 (c) above) and should
have authority to draw to the attention of the Prime Minister any
(66 )
matters it considers appropriate .
Immigration
300 . WE RECOMMEND that the following changes be made in the pro-
cedures for the security screening of immigrants :
(a) Wherever possible, data should be acquired about the criminal and
security records of all prospective immigrants to Canada irrespective
of relationship, sponsorship, or country of origin . . (131 )
(b) Significantly adverse security reports on an adult immigrant should
lead to rejection, as should significantly adverse reports on a sponsor
or nominator in those cases where data on the immigrant himself is
(132 )
not available .
(c) Normally, decisions on individual cases should be made in the field
(134)
by the concerned officials .
(d) All cases of rejection of sponsored dependants or nominated relatives ,
and all cases where the officials in the field are uncertain about th e
110
�admission or rejection of any applicant on .security grounds, should be
reviewed jointly in Ottawa by the Department of Manpower and
Immigration and the Security Service, and, at the option of either,
the Security Secretariat . Elements of leniency arising from relationships or humanitarian considerations will thus be introduced into
the decision process in Ottawa during interdepartmental consultation .
(135)
(e) Guidelines should be introduced to take the place of the present
rejection criteria and to assist officials in the field in making 'their
judgments . The following is a draft set of guidelines which relate only
to security, and are not intended to affect judgments of acceptability
in other contexts . These guidelines should be interpreted with mature
judgment by the officials on the spot, according to their understanding
of local conditions, and without regard to elements of leniency arising
from relationships or other considerations . Similar guidelines should
be used in Ottawa in making judgments about sponsors or nominators
on those occasions when no direct check of the applicant'has been
possible, and about applicants already in Canada . In general, persons
in the following classes should be rejected :
(i) persons who are believed on reasonable grounds to have held at
any time an -official position in a communist,' neo-Nazi, neoFascist or other subversive or revolutionary organization, or to
.have held a government, party, public or other senior position
or appointment known to be given only to reliable members of
such an organization ;
(ii) persons who are believed on reasonable grounds to have held
membership within the past ten years in a communist, neo-Nazi,
neo-Fascist or other subversive or revolutionary organization,
unless the applicant can demonstrate that membership was for
trivial, practical, non-ideological or other acceptable reasons ;
(iii) persons who are suspected on reasonable grounds to be or to
have been at any time agents on behalf of a communist, neoNazi, neo-Fascist or other subversive or revolutionary organization, or to have taken part in sabotage or other clandestine
activities or agitation on behalf of such an organization ;
(iv) persons who for unexplained reasons engage in significant misrepresentation or untruthfulness in completing documents for
immigration purposes or during interviews .
(137 )
(f) Independent applicants for immigration should normally not be
accepted from communist-bloc countries, unless they have first
established sufficient residence in a country where a meaningful
security check can be made ; where the prospective immigrant has
a sponsor or nominator, a security screening of the latter should be
carried out, and the potential immigrant rejected if the reports are
111
�significantly adverse, unless humanitarian considerations are over(138 )
riding.
(g) Procedures for admitting Chinese immigrants from Hong Kong
should be extensively revised as a matter of urgency . Some years
residence in Hong Kong itself or in an area where a meaningful
(139 )
security check is possible should be mandatory .
(h) The requirement to provide fingerprints should be levied on all prospective immigrants, both to confirm identity as well as to facilitate
(140 )
criminal records checks .
(i) Persons who have already been formally admitted as landed imniigrants should not be subject to deportation on security grounds
without full judicial appeal before a body such as the Immigration
Appeal Board . (116, 142 )
(j) Sponsors or nominators whose dependants or relatives have been
refused admission or refused landed immigrant status should have
access to the Security Review Board (see paragraph 299 above) . (143 )
(k) Applicants for landed immigrant status who are already in Canada .
should be treated in the same way as if they had applied abroad, and
should have no entitlement to an appeal against rejection on security
grounds ; their sponsors or nominators (if any) should however have
the right to appeal rejections on security grounds to the proposed
Security Review Board . (but not to the Immigration Appeal
Board) .
(141 )
Citizenship
301 . WE RECOMMEND that the grant of citizenship should normally b e
refused on security grounds only if actual illegalities or criminal acts have
been committed and proved in court, and not merely for membership in
subversive associations or even the Communist Party . However, WE
RECOMMEND that ministerial discretion should be retained to deal with
certain cases in which it may remain appropriate to withhold citizenship for
particularly significant security reasons . A ll persons whose applications are
rejected on security grounds should have access to the Security Review
Board .
(155,
156 )
Passports
302 . WE RECOMMEND that :
(a) All applicants for a passport who claim to have been born in Canada
should be required to produce a birth certificate or some other acceptable proof of birth ; all applicants claiming to be naturalized citizens
should continue to be required to produce their citizenship certificates .
(163 )
112
�(b) All applicants should normally be required to appear . personally
before an appropriate official . This will require a further decentralization of facilities for the issuance of passports . (163, 164 )
(c) In the cases of persons who lose more than one passport or where
there is reason to suspect that the "loss" may have been intentional,
the issuance of a further passport should be delayed until the validity
of the original has expired, subject to arrangements for truly urgent
cases .
(166 )
Departmental Security
303 . WE RECOMMEND that :
All Departments and Agencie s
(a) The general policy of departmental responsibility should continue,
but :
(i) each department should create an effective security organization
headed by a trained security officer at a sufficiently senior level
in its own structure ;
(ii) each department should prepare departmental security regulations, based on the regulations issued by the Security Secretariat,
but responsive to departmental requirements ;
(iii) training for departmental security staff and for other selected
senior officers should be provided by the Security Service ; in
addition, security education should be provided within departments on a continuing basis ;
(iv) arrangements should be . made for expert security advice to be
given to departments, including if necessary the secondment of
officers from the Security Service to departments for periods of
time .
(b) Inspection and audit of departmental security measures should be
carried out by aprotective security branch of the Security Service,
and arrangements should be made for appropriate action to be taken
where departmental procedures are inadequate .
(c) As a matter of urgency, the RCMP and the Privy Council Office (or
the new Security Secretariat we have proposed) should, after reexamination of present security regulations and consultation with
departments, prepare new security regulations for promulgation by
the government . When this is done, departments should be allowed a
specified period in which to create adequate and effective security
staffs and structures and to make preliminary efforts at compliance .
On completion of this period their efforts should be audited, and cases
in which the security posture of departments is unsatisfactory should
be brought to the attention of their deputy ministers or ministers .
113
�(d) After this preliminary period, a continuing effort should be made to
ensure that compliance with security regulations continues to reach
reasonable standards . Cases in which the security posture of a department is unsatisfactory should be brought to the attention of deputy
ministers and ministers by the RCMP or the Security Secretariat .
(68-75, 183, 184 )
Department of External Affairs
(e) Consideration should be given to . the establishment of a separate
Security Division in the Department of External Affairs . (237)
( f) It should be made clear that the head of each Canadian mission abroa d
is responsible for the security of all Canadian Government personnel
and offices located in the country to which he is accredited, and that
the post security officer acts on his behalf . (238, 239 )
(g) The function of post security officer should generally be the primary
responsibility of a trained officer of adequate seniority . (240, 241)
(h) Greater attention should be paid to the problem of providing reasonable standards of physical security at missions abroad . (242 )
Department of National Defence
(1 ) The armed forces security investigation service should be responsible
for the investigation only of uniformed personnel or potential recruits
to the forces, and its standards of investigation should be consistent
with those which the Security Service applies to civilians . (250, 251)
(1) Persons currently engaged in separatist activities should not be permitted to join the armed forces, and should be released if they are
found to be members of the armed forces . (252 )
Industrial Security
304 . WE RECOMMEND that the industrial security function be removed
from the Department of Defence Production, and reallocated to the Department of National Defence . Whether or not this recommendation is accepted,
we feel that the following steps should be taken : (270 )
(a) The industrial security function should be recognized as important,
and sufficient numbers of staff of adequate calibre should be allocated
to it . In particular, the industrial security field offices should have
increased numbers of personnel, in order to provide adequate standards of facility inspection, advice and audit . (263, 264, 270 )
(b) The general standard of cooperation between the government industrial security authorities and individual companies should be
(262 )
improved .
(c) Clearance procedures for industrial workers should generally be the
same as those applied to government employees, and should includ e
114
�fingerprint checks . Review procedures for indust ri al workers should
also be identical wi th those available to gove rnment employees .
(272)
(d) Steps should be taken to reduce the delays th at now occur in obtaining clearances for industrial workers .
(274 )
(e) The government should concern itself with the calibre, efficiency and
training of company secu rity officers, and should not "recognize" such
officers until they meet standards acceptable to th e government .
Employment of a "recognized" company secu rity officer should
usually be a condition for the grant of a classified contract . The
government should sponsor security education programmes in firms
with classified contracts .
(275-277 )
(f) Ce rt ain detailed arrangements should be made between Canada and
the United States to expedite industri al security procedures .
(279, 280)
(g) The regulations concern ing the handling and control of classified
documents by industry should be improved and rationalized by the
government in consultation wi th industry.
( 281-284 )
(h) Industrial security procedures and decisions should be subject to the
same audit and enforcement by the Securi ty Secretariat, advised where
necessary by the Security Service, as procedures in other areas .
(270 )
Security of Information
305 . WE RECOMMEND that the following steps be taken :
(a) The use of the classification Restricted (or such equivalents as "For
Official Use Only") should be abandoned, and any documents containing information below the level of Confidential should be unclassified and should be protected only by the normal disciplinary rule
against the unauthorized disclosure of any official information . (195 )
(b) The responsibility for declassifying documents should remain with
individual departments, who should perform this task as the occasion
arises, and in consultation with other authorities where necessary .
(197, 198)
(c) Certain detailed measures should be taken by all departments and
agencies charged with the custody of classified documents, including
the centralization of arrangements for document copying, the physical
separation of highly classified information in special areas to which
access is permitted only to cleared personnel, and the paying of strict
attention to the "need-to-know" principle in the dissemination of
classified documents . (199-201 )
(d) Government policy on the release of official documents for historical
and other research should be clarified and made known by means
of published regulations . (223, 224 )
115
�(e) National policy and procedures concerning the release of classified
information to other nations should be formulated and coordinated
in the Security Secretariat, which should also coordinate exchanges of
unclassified information between government departments and the
communist countri es .
(253, 254 )
(f) Consideration should be given to a complete revision of the Official
Secrets Act .
(213 )
Physical, Technical and Communications Security
Sources and Techniques
3 06 . WE RECOMMEND that :
(a) Any building which contains classified material should be effectively
protected at all times . Steps should be taken as a matter of urgency
to provide security guards where necessary, and consideration should
be given to the establishment of an escort system in more sensitive
buildings during working hours . (227, 228 )
(b) All technical security agencies should be combined and form a section
of the protective security branch of the Security Service .
(229)
(c) In any future legislation concerning the interception of telephon e
conversations and electronic eavesdropping exemptions should be
made for their use for security purposes under proper safeguards .
Interception of telephone conversations should only be conducted
by the Security Service on the authority of its designated minister ;
electronic eavesdropping should be permitted on the authority of the
Head of the Service . (291-293 )
(d) Arrangements should be made to permit the examination of the mail
of persons suspected on reasonable grounds of being engaged in
activities dangerous to the security of the state ; such examination
should be conducted only on the authority of the designated minister .
(294 )
116
�APPENDIX "A"
to Report of
Royal Commission
on Securit y
COMMISSION
appointin g
Maxwell Weir Mackenzie,' Esquire, Yves Pratte, Esquire, and the
Honourable Major James William Coldwell ,
Commissioners under Part I of the Inquiries Act to make a full and
confidential inquiry into the operation of Canadian security methods
and procedures .
DATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16th December, 196 6
. RECORDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16th December, 196 6
Film 197 Document 174
(Sgd .) L. McCnrrrr
FOR DEPUTY REGISTRAR GENERAL OF CANAD A
117
�(Sgd .) GEORGES P. VANIE R
CANADA
ELIZABETH .THE SECOND, by the Grace of God of the United Kingdom ,
Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith .
(Sgd .) E . A . DRIEDGER
DEPUTY ATTORNEY GENERA L
TO ALL TO WHOM these Presents shall come or whom the same may in
anywise concern,
GREETING :
WHEREAS pursuant to the provisions of Part I of the Inquiries Act, chapter
154 of the Revised Statutes of Canada, 1952, His Excellency the Governor in
Council, by Order P .C. 1966-2148 of the sixteenth day of November in the
year of Our Lord one thousand nine hundred and sixty-six, a copy of which is
annexed, has authorized the appointment of Our Commissioners therein and
hereinafter named to make a full and confidential inquiry into the operation of
Canadian security methods and procedures and, having regard to the necessity
of maintainin g
(a) the security of Canada as a nation ; and
(b) the rights and responsibilities of individual persons ,
to advise what security methods and procedures are most effective and how they
can best be implemented, and to make such reports for this purpose as they deem
necessary and desirable in the national interest, and has conferred certain rights,
powers and privileges upon Our said Commissioners as will by reference to the
said Order more fully appear.
NOW KNOW YE that, by and with the advice of Our Privy Council for
Canada, We do by these Presents nominate, constitute and appoint Maxwell Weir
Mackenzie, Esquire, of the City of Montreal in the Province of Quebec, Yves
Pratte, Esquire, of Quebec City in the Province of Quebec, and the Honourable
Major James William Coldwell, of the City of Ottawa in the Province of Ontario
to be Our Commissioners to conduct such inquiry .
TO HAVE, HOLD, exercise and enjoy the said office, place and trust unto the
said Maxwell Weir Mackenzie, Yves Pratte and Major James William Coldwell,
together with the rights, powers, privileges and emoluments unto the said office,
place and trust of right and by law appertaining during Our Pleasure .
AND WE DO HEREBY direct that the proceedings of the inquiry be held in
camera and that Our said Commissioners, in conducting their inquiry and in
making their reports, consider and take all steps necessary to preserve
(a) the secrecy of sources of security information within Canada ;
(b) the privacy of individuals involved in specific cases which may be examined ; an d
(c) the security of information provided to Canada in confidence by other
nations .
118
�AND WE DO HEREBY FURTHER direct that Our said Commissioners
follow established security procedures with regard to their staff and the handling
of classified information at all stages of the inquiry .
AND WE DO HEREBY authorize Our said Commissioners to exercise all the
powers conferred upon them by section 11 of the Inquiries Act .
AND WE DO FURTHER authorize Our said Commissioners to sit at such
times and at such places as they may decide from time to time .
AND WE DO FURTHER authorize Our said Commissioners to engage the
services of such counsel, staff and technical advisers as they may require, at rates
of remuneration and reimbursement approved by the Treasury Board .
AND WE DO HEREBY require and direct Our said Commissioners to report
to Our Governor in Council with all reasonable dispatch, and file with the Privy
Council Office the papers and records of the Commission as soon as reasonably
may be after the conclusion of the inquiry .
AND WE DO HEREBY appoint Maxwell Weir Mackenzie of the City of
Montreal in the Province of Quebec to be Chairman of the Commission .
IN TESTIMONY WHEREOF We have caused these Our Letters to be made
Patent and the Great Seal of Canada to be hereunto affixed .
WITNESS :
Our Right Trusty and Well-beloved Counsellor, General . Georges P . Vanier,
a member of Our Most Honourable Privy Council ; Companion of Our Distinguished Service Order upon whom We have conferred Our Military Cross
and Our Canadian Forces' Decoration, 'Governor General and Commanderin-Chief of Canada.
AT OUR GOVERNMENT HOUSE, in Our City of Ottawa, this sixteenth
day of December in the year of Our Lord one thousand nine hundred and sixtysix and in the fifteenth year of Our Reign .
BY COMMAND,
(Sgd. )
JEAN MIQUELON
DEPUTY REGISTRAR GENERAL OF CANADA
119
�ORDER IN COUNCI L
P.C. 1966-214 8
Certified to be a true copy of a Minute of a Meeting of. the Committee
of the Privy Council, approved by His Excellency the Governor General
on the 16th November, 1966 .
The Committee of the Privy Council, on the recommendation of the Right
Honourable Lester Bowles Pearson, the Prime Minister, advise
1 . that Mr . M . W. Mackenzie, Montreal, Quebec, Mr . Yves Pratte, Quebec
City, Quebec, and Honourable M . J . Coldwell, Ottawa, Ontario, be appointed Commissioners under Part I of the Inquiries Act to make a full and
confidential inquiry into the operation of Canadian security methods and
procedures and, having regard to the necessity of maintainin g
(a) the security of Canada as a nation; an d
(b) the rights and responsibilities of individual persons .
to advise what security methods and procedures are most effective and
how they can best be implemented, and to make such reports for this
purpose as they deem necessary and desirable in the national interest ;
2 . that the proceedings of the inquiry be held in camera and that the
Commissioners, in conducting their inquiry and in making their reports,
consider and take all steps necessary to preserv e
(a) the secrecy of sources of security information within Canada ;
(b) the privacy of individuals involved in specific cases which may be
examined ; and
(c) the security of information provided to Canada in confidence by other
nations ;
.
3 . that the Commissioners follow established security procedure with regard
to their staff and the handling of classified, information at all stages of the
inquiry ;
4 . that the Commissioners be authorized to exercise all the powers conferred on them by section . 11 of the Inquiries Act ;
5 . that the Commissioners be authorized to sit at such times and at such
places as they may decide from time to time ;
6 . that the Commissioners be authorized to engage the services of such
counsel, staff and technical advisers as they may require, at rates of remuneration and reimbursement approved by the Treasury Board ;
7 . that the Commissioners report to the Governor in Council with all reasonable dispatch, and file with the Privy Council Office the papers and
records of the Commission as soon as reasonably may be after the conclusion of the inquiry ; and
8 . that Mr. M . W . Mackenzie, Montreal, Quebec, be Chairman of the
Commission. •
(Sgd .) R . G . ROBERTSON
CLERK OF THE PRIVY COUNCIL
120
�APPENDIX "B"
to Report of
Royal Commission
on Securit y
SELECTED BIBLIOGRAPHIE S
Published Book s
Altavilla, Enrico . The Art of Spying . New York, Prentice-Hall, 1967 .
Asprey, R . B . The Panther's Feast : The Case of Colonel Redl . New York, Putnam, 1959 .
Baker, Major General L. C. History of the United States Secret Service in the Civil
War . Philadelphia, King & Baird, 1868 .
Bialoguski, M . The Petrov Story . New York, McGraw-Hill, 1955 .
Biddle, Francis . The Fear of Freedom . Garden City, N .Y ., Doubleday, 1951 .
Blackstock, Paul W. The Strategy of Subversion . Chicago, Quadrangle Books,
1964.
Bontecou, Eleanor . The Federal Loyalty-Security Program. Ithaca, Cornell University Press, 1953 .
Bowes, Stuart . The Police and Civil Liberties . London, Lawrence & Wishart,
1966 .
Brossard, Jacques . L'Immigration : Les droits et pouvoirs du Canada et du
Quebec . Montreal, Les Presses de 1'Universite de Montreal, 1967 .
Brown, Ralph S . Jr . Loyality and Security : Employment Tests in the United
States . New Haven, Yale University . Press, 1958 .
Bulloch, John . MI5 : The Origin and History of the British Counterespionage
Service . London, Barker, 1963 .
Bulloch, John, and Henry Miller . Spy Ring : A Story of the Naval Secrets Case .
London, Secker & Warburg, 1961 .
Burnham, James . The Web of Subversion . New York, John Day, 1954 .
Carew-Hunt, R . The Theory and Practice of Communism . London, Geoffrey
Bles, 1950 .
Carroll, John M . Secrets of Electronic Espionage . New York, Dutton, 1966 .
Cater, Douglas . The Fourth Branch of Government . Boston, Houghton Mifflin,
1959 .
Chambers, Whittaker . Witness . New York, Random House, 1952 .
Collins, F. L. The FBI in Peace and War. New York, Putnam, 1962 .
Commanger, Henry S . Freedom, Loyalty, Dissent . New York, Oxford University
Press, 1954 .
Cook, Fred J . The Unfinished Story of Alger Hiss . New York, William Morrow,
1958 .
Cookridge, E . H . La verite sur Philby. Paris, Fayard, 1968 .
Cookridge, E . H . Shadow . of a Spy : The Complete Dossier on George Blake .
London, Leslie Frewin, 1967 .
121
�Cookridge, E . H . The Third Man. The Truth about `Kim' Philby, Double Agent .
London, Barker, 1968 .
Cowen, Zelman . Federal Jurisdiction in Australia . Melbourne, Oxford University Press, 1959 .
Cronbach, L . J . Essentials of Psychological Testing, New York, Harper, 1960 .
Curtis, Charles P . The Oppenheimer Case . New York, Simon & Schuster, 1955 .
Dallin, David J . Soviet Espionage . New Haven, Yale University Press, 1955 .
Dash, Samuel . The Eavesdroppers . New Brunswick, N .J ., Rutgers University
Press, 1959 .
Deakin, F. W . and G . R . Storry . The Case of Richard Sorge . New York, Harper
& Row, 1966 .
Deriabin, Peter and Frank Gibney. The Secret World . New York, Doubleday,
1959 .
Donovan, James B . Strangers on a Bridge : The Case of Colonel Abel . New
York, Atheneum, 1964 .
Dulles, Allen . The Craft of Intelligence . New York, Harper & Row, 1963 .
Ernst, Morris and A . U . Schwartz. Privacy : The Right to be Let Alone . New
York, Macmillan, 1962 .
Ernst, Morris and David Loth . Report on the American Communist . New York,
Putnam, 1952 .
Farago,, L . Burn After Reading : The Espionage History of World War II . New
York, Walker, 1962 .
Farago, L . Les secrets de 1'espionnage . Paris, Presses de ]a Cite, 1962 .
Farago, L . War of Wits : The Anatomy of Espionage and Intelligence . New York,
Funk & Wagnalls, 1954 .
Felix, C . The Spy and His Masters : A Short Course in the Secret War . London,
Seeker & Warburg, 1963 .
Fisher, Harold H . The Communist Revolution : An Outline of Strategy and
Tactics . Stanford, Hoover Institute Studies . 1955 .
Foote, Alexander . Handbook for Spies . London, Museum Press, 1964 .
Friedman, Otto. The Break-up of Czech Democracy . London, Gollancz, 1950 .
Fund for the Republic . Bibliography on the Communist Problem in the Unite d
States . Santa Barbara, Calif ., Centre for the Study of Democratic Institutions,
1964 .
,Garthoff, Raymond L . Soviet Military Policy : A Historical Analysis . London,
Faber & Faber, 1966 .
Gellhorn, Walter . Individual Freedom and Governmental Restraints . Louisiana
State University Press, 1956 .
•Gelihorn, Walter. Ombudsmen and Others : Citizens' Protectors in Nine Countries .
Cambridge, Mass ., Harvard University Press, 1966.
Gellhorn, Walter. Security, Loyalty and Science . New York, Johnson, 1950 .
Gellhorn, Walter. When Americans Complain : Governmental Grievance Procedures . Cambridge, Mass ., Harvard University Press, 1966 .
,Gouzenko, Igor . The Iron Curtain . New York, Dutton, 1948 .
,de Gramont, Sanche . The Secret War : The Story of Industrial Espionage since
1945 . London, Andre Deutsch, 1962 .
Hamilton, Peter . Espionage and Subversion in an Industrial Society ; An Examination and Philosophy of Defence for Management . London, Hutchinson, 1967 .
122
�Harvison, Commissioner (Retired) C . W ., RCMP. The Horsemen . Toronto,
McClelland & Stewart, 19 6 7 .
Hedley, Peter and Cyril Aynsley. The D-Notice Affair. London, Michael Joseph,
1967 .
Hilsman, Roger . Strategic Intelligence and National Decisions . Glencoe, Ill .,
Free Press, 1956 .
Hinchley, Colonel Vernon . The Defectors . London, Harrop, 1967 .
Hiss, Alger . In the Court of Public Opinion . New York, Knopf, 1957 .
Hoare, Geoffrey. The Missing Macleans . London, Cassell, 1955 :
Hook, Sidney. Heresy, Yes-Conspiracy, No . New York, John Day, 1953 .
Hook, Sidney. Marx and Marxists . Princeton, N .J ., Van Nostrand, 1955 .
Hyde, Douglas . I Believed . London, Heinemann, 1950 .
Hyde, H. Montgomery . The Quiet Canadian : The Secret Service Story of Sir
William Stephenson . London, Hamilton, 1962 .
Inbau, F . E . and J . E . Reid . Criminal Interrogation and Confessions . Baltimore,
Williams & Wilkins, 1962 .
Ind, A . Espions d'aujourd'hui . Paris, Fayard, 1966 .
Irving, Clive, Ron Hall and J . Wallington . Scandal '63 : A Study of the Profumo
Affair. London, Heinemann, 1963 .
Joesten, J . They Call it Intelligence : Spies and Spy Techniques since World
War II . London, Abelard-Schuman, 1963 .
Jowitt, The Earl . The Strange Case of Alger Hiss . New York, Doubleday, 1953 .
Kahn, David . The Codebreakers . New York, Macmillan, 1967 .
Kaznacheev, Aleksandr . Inside a Soviet Embassy . Philadelphia, Lippincott, 1962 .
Kennedy, Ludovic . The Trial of Stephen Ward . London, Gollancz, 1964 .
Kent, Sherman . Strategic Intelligence for American World Policy . Princeton, N.J .,
Princeton University Press, 1949 .
King-Hall, Stephen . The Communist Conspiracy . London, Constable, 1953 .
Konvitz, Milton . Civil Rights in Immigration. Ithaca, N .Y., Cornell University
Press, 1953 .
Korbel, Josef. The Communist Subversion of Czechoslovakia, 1938-1948 . Princeton, Princeton University Press, 1959 .
Kravchenko, Victor . I Chose Freedom . New York, Scribners, 1946 .
Kravchenko, Victor. I Chose Justice. New York, Scribners, 1950 .
Long, Senator Edward V . The Intruders : The Invasion of Privacy by Government
and Industry. New York, Praeger, 1966 .
Lonsdale, G . A . Spy ; Twenty Years in Soviet Secret Service : The Memoirs of
Gordon Lonsdale . New York, Hawthorn Books, 1965 .
Maciver, Robert . Academic Freedom in Our Time . New York, Columbia University Press, 1955 .
McLachlan, Donald . Room 39 . London, Weidenfeld & Nicolson, 1968 .
McGuire, Martin C . Secrecy and the Arms Race : A Theory of the Accumulation
of Strategic Weapons and How Secrecy Affects It . Cambridge, Mass., Harvard
University Press, 1965 .
Miksche, F . O . Secret Forces . London, Faber & Faber, 1950 .
Milosz, C . The Captive Mind . New York, Vantage, 1953 .
Monat, Pavel. Spy in the U .S. New York, Harper & Row, 1961 .
123
�Moorehead, Alan . The Traitors : The Double Life of Fuchs, Pontecorvo and
Nunn May. New York, Harper & Row, 1963 .
Morden, John W. Recent Developments in Administrative Law (Special Lectures
of the Law Society of Upper Canada. Recent Dvelopments in the LawPart II) . Toronto, Richard de Boo Ltd ., 1967.
Morison, Samuel E. Freedom in Contemporary Society . Boston, Mass ., Little,
Brown, 1956 .
Morris, B . International Communism and American Policy . New York, Atherton
Press, 1966 .
Newman, Bernard . Real Life Spies . London, Hutchinson, 1956 .
Newman, Bernard . Soviet Atomic Spies . London, Robert Hale, 1952 .
Newman, Bernard . Spies in Britain . London, Robert Hale, 1964 .
New York City Bar Association. Report of the Special Committee on the Federal
Loyalty-Security Program of the Association of the Bar of the City of New
York . New York, Dodd, Mead, 1956 .
Nord, P . and J . Bergier . L'actuelle guerre secrete . Paris, tditions Planete, 1967 .
Ollestad, Norman . Inside the FBI . New York, Lyle Stuart, 1967 .
Orlov, Alexander . Handbook of Intelligence and Guerilla Warfare . Ann Arbor,
Mich ., University of Michigan Press, 1963 .
Page, Bruce, David Leitch and Philip Knightley . Philby : The Spy Who Betrayed
a Generation . London, Andre Deutsch, 1968 .
Payne, Ronald . Private Spies . London, Barker, 1967 .
Penkovskiy, Oleg. The Penkovskiy Papers . New York, Doubleday, 1965 .
Petrov, Vladimir and Evdokia . Empire of Fear . New York, Praeger, 1957 .
Philby, Kim . My Silent War . New York, Grove Press, 1968 .
Pilat, Oliver. The Atom Spies . New York, Putnam, 1952 .
Pinto, Oreste . Spy Catcher . New York, Harper, 1952 .
Purdy, Anthony and Douglas Sutherland . Burgess and Maclean. Garden City,
Doubleday, 1963 .
Radzinowicz, Professor Leon . Ideology and Crime . London, Heinemann, 1966 .
Ransom, Harry Rowe . Central Intelligence and National Security . Cambridge,
Mass ., Harvard University Press, 1958 .
Rolph, C. H . All Those in Favour . London, Andre Deutsch, 1962.
Rolph, C . H . Personal Identity . London, Michael Joseph, 1957 .
Rourke, Francis E . Secrecy and Publicity : Dilemmas of Democracy . Baltimore,
Md ., Johns Hopkins University Press, 1961 .
Rowan, Richard Wilmer . The Story of Secret Service. New York, Doubleday,
1937 .
Rowan, Richard W . and Robert G . Deindorfer. Secret Service : Thirty-three
Centuries of Espionage. New York, Hawthorn, 1967 .
Sargant, William . Battle for the Mind . London, Heinemann, 1957 .
Schaar, John . Loyalty in America. Berkeley, Calif ., University of California Press,
1957 .
Schmidt, Folke and Stig Stromholm . Legal Values in Modern Sweden . Svenska
Bokforlaget (Scandinavian University Books), 1965 .
Seth, Ronald . Anatomy of Spying . London, Barker, 1961 .
Seth, Ronald. Secret Servants : The Story of Japanese Espionage . London, Gollancz, 1961 .
124
�Seth, Ronald. The Executioners : The Story of SMERSH . London, Cassell, 1967 .
Shils, Edward . The Torment of Secrecy . London, Heinemann, 1957 .
Sillitoe, Sir Percy. Cloak Without Dagger. London, Cassell, 1955 .
Smith, S . A . de . Judicial Review of Administrative Action . London, Stevens, 1959 .
Stouffer, Samuel . Communism, Conformity and Civil Liberties . New York,
Doubleday, 1955 .
Street, Harry . Freedom, the Individual and the Law . London, Pelican, 1963 .
Voska, Emanuel Victor, and W . H. Irwin . Spy and Counterspy : The Autobiography of a Master Spy . Toronto, Doubleday, 1941 .
West, Rebecca . The New Meaning of Treason . New York, Viking, 1964 .
West, Rebecca . A Train of Powder . New York, Viking, 1953 .
West, Rebecca. The Vassall Affair . London, Sunday Telegraph, 1963 .
Westin, Alan F . Privacy and Freedom . New York, Atheneum, 1967 .
Weyl, Nathaniel. The Battle Against Disloyalty . New York, Crowell, 1951 .
Whitaker, Ben . The Police . London, Penguin, 1964.
Whitehead, Don . The FBI Story. New York, Random House, 1956 .
Whiteside, Thomas. Agent in Place . New York, Viking, 1966 .
Whitwell, John . British Agent . London, Kimber, 1966 .
Williams; David . Keeping the Peace : The Police and Public Order . London,
Hutchinson, 1967 .
Williams, David . Not in the Public Interest : The Problem of Security in Democracy. London, Hutchinson, 1965 .
Willoughby, . C . A. Shanghai Conspiracy : The Sorge Spy Ring . New York,
Dutton, 1952 .
Wise, David and Thomas B . Ross . The Espionage Establishment . New York,
Random House, 1967 .
Wise, David and Thomas B . Ross . The Invisible Government . London, Cape,
1965 .
Wynne, Greville. The Man from Moscow : The Story of Wynne and Penkovskiy .
London, Hutchinson, 1967 .
Yarmolinsky; Adam (editor) . Case Studies in Personnel Security . Washington,
Bureau of National Affairs, 1955 .
Young, Wayland. The Profumo Affair : Aspects of Conservatism . London, Penguin, 1963 .
Articles
Abel, Lionel . Seven Heroes of the New Left . New York Times Magazine . 5 May
1968 .
Anonymous . Cleared for Top Secret . Scientific Monthly 74 :145 . 1952 .
Anonymous. De Gaulle's Secret War with America . Sunday Times . 28 Apr 1968 .
Anonymous . L'Amerique declare la guerre psychologique a la France . Sa nouvelle bombe : le roman d'espionnage . Planete 37 . Nov-Dec . 1967 .
Anonymous . Our Not So Private Lives : Surveillance and Freedom . Carnegie
Quarterly 15 . Spring, 1967 .
Anonymous . Snooping Comes of Age . Monetary- Times 134 :26 . Feb 1966 .
Anonymous . Three Tales of the CIA . Ramparts . Apr 1967 .
Anonymous. When Credit is Flatly Refused . Consumer Reports . May 1967 .
125
�Barrett, R . S . Guide to Using Psychological Tests . Harvard Business Review 13846. Sep 1963 .
Barth, Alan . How Good is an FBI Report? Harper's . Mar 1954 .
Berkner, Lloyd . Is Secrecy Effective? Bulletin of the Atomic Scientists 11 :62 .
1955 .
Berton, Pierre . Tales of the RCMP : Not Suitable for Television . Toronto Daily
Star . 27 Apr 1959 .
Botsford, Keith . Elite Proletarians All . New York Times Magazine . 13 Nov
1966 .
Boudin, Leonard . The Constitutional Right to Travel . Columbia Law Review 56 :
47 . 1956 .
Brannon, P . Secrets Should be Bared Before Select Committee . Canadian Aviation 36 :17 . Oct 1963 .
Brown, R . S . Jr., and J . D . Fassett. Loyalty Tests for Admission to the Bar.
University of Chicago Law Review 20 :506 . 1953 .
Brown, R. S . Jr ., and J . D . Fassett . Security Tests for Maritime Workers . Yale
Law Journal 62 : 1163-1208 . 1953 .
Bulloch, John . The Last Word on Spies and Spying . London Weekend Telegraph .
24 Jun 1966 .
Burkey, L. M . Lie Detectors in Industrial Relations . Continuing Legal Education
2 :107 . Apr 1963 .
Butz, F. S. Jr. The Myth of Technological Stalemate . Aerospace International .
Apr 1967 .
Chodoff, Paul . Loyalty Programs and Mental Health in the Washington Area .
Psychiatry 16 :399 . 1953 .
Conquest, Robert . The Real Man from SMERSH . New York Times Magazine .
5 Nov 1967 .
Cross, Rupert . Official Secrets . The Lawyer 6 :31 . 1963 .
Dore, R. P . Eighty-One Percent Justice . Canadian Forum 40 :76 . 1 Jan 1960.
Edsall, J . T. Government and the Freedom of Science . Science 121 :615 . 1955 .
Ellson, D . G ., et al . A Report of Research on Detection of Deception . Dept. of
Psychology, Univ . of Indiana . 1952 .
Emerson, Thomas I . and David Helfeld . Loyalty Among Government Employees.
Yale Law Journal 58 . 1948 .
Ewing, Ann. Lie Detection at a Distance . Science News Letter 88 :106. 14 Aug
1965 .
Feuer, Lewis S . The Elite of the Alienated . New York Times Magazine . 26 Mar
1967 .
Fisher, Douglas . A Dossier on Bungling by the S & I. Toronto Telegram . 19 Mar
1966 .
Fisher, Douglas . For the Sake of Argument. Maclean's Magazine . Feb 1967 .
Flanigan, J. C . and R . E. Krug . Testing in Management Selection : State of the
Art . Personnel Administration . Mar-Apr 1964 .
Fraser, R . B . Can McCarthy Happen Here? Maclean's Magazine . 15 Mar 1954 .
Fraser, R . B .'How We Check on Loyalty. Maclean's Magazine . 15 Jan 1952 .
Fraser, R . B . New, Slick, Quiet Soviet Spies in Our Midst. Maclean's Magazine .
25 Jul 1964 .
126
�Fulbright, Sen . J . W . We Must Not Fight Fire with Fire. New York Times
Magazine . 23 Apr 1967 .
Fyfe, Sir David M . How Britain Handles Communists . U .S. News and World
Report 15 :86 . Oct 1964 .
Goodspeed, D . J . Arts of Subversion . Queen's Quarterly 63 :71 . Spring, 1956 .
Green, H . C. U-2 Incident . External Affairs 12 :673 . Jun 1960 .
Gregor, Richard . Soviet Foreign Policy . EMO National Digest . Feb 1968 .
Grimond, J . Do We Have to Use Stealth? The Observer. 26 Mar 1967 .
Haggart, Ron . Why Do We Track the Kid Radical? Toronto Daily Star . 29 Aug
1963 .
Hamilton, Peter. Espionage in Industry . New Scientist . 1 Dec 1966.
Hand, Learned. A Plea for the Freedom of Dissent . New York Times Magazine .
6 Feb 1955 .
Hess, E . H .,-and J . M. Polt . Pupil Size as Related to Interest Value of Visual
Stimuli . Science 132 :349 . 5 Aug 1960 .
Hilsman, Roger . Intelligence and Policy Making in Foreign Affairs . World Politics . Oct 1952.
Hoover, J . Edgar . A Comment on the Article "Loyalty Among Government Employees" . Yale Law Journal . 1949 .
Hoover, J . Edgar. The Confidential Nature of FBI Reports . Syracuse Law Review. .1956 .
Hoover, J . Edgar . Role of the FBI in the Federal Employment Security Program .
Northwestern University Law Review . 1954 .
Ioffe, A. Ye . Activities of Foreign Societies of Friendship with the Soviet Union .
U.S. Department of Commerce . Joint Publications Research Service . .6 Jun 1966 .
Jackson, David C . Individual Rights and National Security. Modern Law Review
20 :364 . 1957 .
Jahoda, Marie and Stuart Cook . Security Measures and Freedom of Thought : An
Exploratory Study of the Impact of Loyalty and Security Programs . Yale Law
Journal 61 :295 . 1952 .
James, Robert Rhodes. The Fifty Year Rule . The Spectator. 21 Aug 1964.
Katz, S. Inside Canada's Secret Police. Maclean's Magazine . 20 Apr 1963 .
Kaufman, Charlotte A . and Herbert . Some Problems of Treatment Arising fro m
the Federal Loyalty and Security Program . American Journal of Orthopsychiatry 25 :813 . 1955 .
Kendall, Willmoore . The Function of Intelligence . World Politics . Jul 1949 .
Kennan, George . Rebels Without a Program. New York Times Magazine . 21 Jan
1968 .
Knight, K . W . Administrative Secrecy and Ministerial Responsibility . Canadian
Journal of Economics and Political Science 32 :77-84 . Feb 1966 .
Lear, John . Whither Personal Privacy . Saturday Review . 23 Jul 1966 .
Lefolii, K . What the New Parliament Can Do About the Political Police : Stop
Trial by Dossier. Maclean's Magazine . 20 Apr 1963 .
Lipski, Sam . Security Report : A Dossier on ASIO . The Bulletin, Sydney, Australia . 10 Dec 1966 .
Lohan, Colonel L . G . Why the D Notice System Failed . Security Gazette . Jul
1967 .
127
�Lower, Arthur R . M. Is the RCMP a Threat to Our Liberty? Maclean's Magazine . 6 Jul 1957 .
Lunney, V. Business of Espionage . Financial Post. 12 Dec 1959 .
MacDonald, Dwight . The Lie Detector Era . The Reporter. Jun 1954 .
MacDonald, Robert. The RCMP S& I : To Catch a Spy. Toronto Telegram. 3
1
Jun 1965 .
Machlup, Fritz . On Some Misconceptions Concerning Academic Freedom . Association of American University Professors' Bulletin 41 :781 . 1955 .
Marks, Herbert and . George Trowbridge . Control of Information Under the
Atomic Energy Act of 1954 . Bulletin of the Atomic Scientists 11 :128 . 1955 .
Martin, Harold. Those Loyalty Investigations . Saturday Evening Post . Jun 1953 .
McDermott, Geoffrey . James Bond•. could have learned from Philby. New York
Times Magazine . 12 Nov 1967 .
McGeachy, J . B . Spies Who Are Out in the Cold . Financial Post . 4 Dec 1966 .
Messick, Samuel. Personality Measurement and the Ethics of Assessment . American Psychologist 21 : 136 . 1966 .
Michael, D . N . Speculation on the Relation of the Computer to Individual Freedom and the Right of Privacy . George Washington Law Review 33 :270 . 1964.
Morgenthau, Hans . The Impact of the Loyalty-Security Measures on the State
Department. Bulletin of the Atomic. Scientists 11 :134. 1955 .
Palfrey, John . The Problem of Secrecy. Annals of the American Academy of
Political and Social Science 290 :90. 1953 .
Parry, Clive . Legislatures and Secrecy . Harvard Law Review 67 :737 . 1954.
Petren, Gustaf. Free Access to Public Documents one of Constitutional Guarantees : Press Freedom in Sweden . American Swedish Monthly 61 :26 . Jun 1967 .
Pratt, Fletcher . How Not to Run a Spy System . Harper's . Sep 1947 .
Prevezer, S . Peacetime Espionage and the Law . Current Legal Problems 6 :82.
1953 .
Reguly, Robert . The Mounties Come in From the Cold . Parts 1-6 . Toronto Star.
27 Aug-2 Sep 1966 .
Reilly, Peter . Don't Always Blame the RCMP . Toronto Daily Star . 29 Aug 1963 .
Rhomm, P . Le SDECE, qu'est-ce? Lui . D6c . 1947.
Rosenzweig, Margaret L. The Law of Wiretapping . Cornell Law Quarterly 33 :73 .
1947.
Rowat, Donald C . Administrative Secrecy and Ministerial Responsibility : A
Reply . Canadian Journal of Economics and Political Science 32 :84 . Feb 1966.
Rowat, Donald C . How Much Administrative Secrecy? Canadian Journal of
•
Economics and Political Science 31 :479 . Nov 1965 .
. The Problem of Administrative Secrecy. Int . Rev. Ad. Sci . 2.
Rowat, Donald C
1966.
Scanlan, Alfred . The Communist-Dominated Union Problem . Notre Dame Lawyer 28 :458 . 1953 .
Shawcross, Sir Hartley . Communist Security vs . Man's Right to Knowledge.
Columbia Law Review 54 :734 . 1954 .
Sheeham, Edward R . F. The Rise and Fall of a Soviet Agent . Saturday Evening
Post . 15 Feb 1964 .
Skolnick, J . M. Scientific Theory and Scientific Evidence : An Analysis of LieDetection . Yale Law Journal 70 :715 . 1961 .
128
�Smith, Burke M . The Polygraph .* Scientific American 216 :25 . Jan 1967 .
Solomon, H . What Happened to Privacy? Financial Post . 2 Apr 1966 .
Solomon, Morris . A Statistician Looks at the Employee Security Problem . Personnel Administration . Jul 1955 .
Stacey, C . P . . Some Pros and Cons of the Access Problem. International Journal .
Winter, 1964-65 .
Stewart, H. L . Espionage Shock in Canada . Dalhousie Review 26 :239 . 1946 .
Stewart, Walter. Here's How the Mounties Get Their Man . Canadian Weekly .
20 Sep 1963 .
Sypnowich, Peter . The Mounties : What has Happened to their Image? The Star
Weekly. 20 Dec 1965 .
Tanner, Henry . France's Communists Make a Formidable Comeback . New York
Times Magazine. 19 Nov 1967 .
Thompson, Donald . The Committee of 100 and the Official Secrets Act, 1911 .
Public Law . 1963 .
Trevor-Roper, Hugh . The Philby Affair : Espionage, Treason and Secret Services .
Encounter. Apr 1968 .
Van Der Haag, Arnest . Controlling Subversive Groups . Annals of the American
Academy of Political and Social Science 300 :62. 1955 .
Vosjoli, Philippe de . The Soviet Agent Close to de Gaulle . Sunday Times Magazine. 21 Apr 1968 .
Walker, John R . Spying on the Spies . The Canadian. 17 Sep 1966 .
Watson, W . H . Scientists and State Security . International Journal 10 :171 . Summer, 1955.
Westin, A . F. The Wire-Tapping Problem . Columbia Law Review 52 :165 . 1952 .
Worthington, Peter. Metro Peace Establishment . Parts 1-9 . Toronto Telegram .
27 Jan-6 Feb 1968 .
Yarmolinsky, Adam . How a Lawyer Conducts a Security Case . The Reporter . 2
Mar 1954 .
Official Publications
CANAD A
Report of the Royal Commission appointed to investigate the facts relating to
and the circumstances surrounding the communication, by public officials and
other persons in positions of trust of secret and confidential information to
agents of a foreign power . Hon . Mr. Justice Robert Taschereau and Hon . Mr.
Justice R . L. Kellock, Commissioners. 27 June 1946 .
Report to Minister of Justice on Immigration by Joseph Sedgwick, Q .C. Part I,
April 1965, Part 11, January 1966 .
Commission of Inquiry into complaints made by George Victor Spencer . The
Hon . Mr. Justice Dalton Wells, Commissioner . July 1966.
Report of the Commission of Inquiry into matters relating to one Gerda Munsinger . The Hon . Mr. Justice Wishart Spence, Commissioner . September 1966.
Report to the Minister of Justice of the Special Committee on Hate Propaganda
in Canada. Maxwell Cohen, Chairman . 1966.
Report of the British Columbia Commission of Inquiry into Invasion of Privacy .
R . A . Sargent, Commissioner. 9 August 1967 .
Report No . I of Ontario Royal Commission of Inquiry into Civil Rights . The
Hon . James Chalmers McRuer, Commissioner . 1968 .
129
�BRITAIN
Report of the Committee on Administrative Tribunals and Enquiries . July 1957
(Cmnd 218) .
Report of the Committee of Privy Councillors appointed to inquire into the Interception of Communications, October 1957 (Cmnd 283) .
Report of the Royal Commission on the Press, 1949 (Cmnd 770) .
Security Procedures in the Public Service (Radcliffe Report), April 1962 (Cmnd
1681) .
Report of the Tribunal appointed to Inquire into the Vassall Case and Related
Matters, April 1963 (Cmnd 2009) .
Minutes of Evidence taken before the Tribunal appointed to Inquire into the
Vassall Case and Related Matters, June 1963 (Cmnd 2037) .
Lord Denning's Report, September 1963 (Cmnd 2152) .
Report of the Standing Security Commission, July 1965 (Cmnd 2722) .
Report of the Security Commission on the Bossard and Allan Cases, September
1965 (Cmnd 2773) .
Report of the Committee of Privy Councillors appointed to inquire into "D"
notice matters, June 1967 (Cmnd 3309) .
The "D" Notice System (White Paper), June 1967 (Cmnd 3312) .
Report of the Committee on Immigration Appeals, August 1967 (Cmnd 3387) .
Report of the Committee on Departmental Records, 1954 (Cmnd 9163) .
Report concerning the disappearance of two former Foreign Office Officials, 1955
(Cmnd 9577) .
Statement on the Findings of the Conference of Privy Councillors on Security,
March 1956 (Cmnd 9715) .
UNITED STATES
Atomic Energy Commission
-In the Matter of J . Robert Oppenheimer. Texts of Principal Documents and
Letters, 1954 .
-In the Matter of J . Robert Oppenheimer, Transcript of Hearing, 1954 .
Bureau of the Budget, "Intelligence and Security Activities of the Government",
A Report to the President, Washington, 20 September 1945 .
Civil Service Commission
-Conducting and Reporting Personal Investigations
-The Educator and the Civil Service Investigator
-Bureau of Personnel Investigations, The Investigative and Suitability Evaluation Programs .
California Senate Judiciary Committee, Report on the Interception of Messages
by the Use of Electronic and Other Devices, 1957 .
Commission on Government Security . Loyd Wright, Chairman . Report, Jun 1957 .
Commission on Organization of the Executive Branch of the Government
(Hoover Commission), 1949 : Task Force Report on Foreign Affairs, 1949 :
Foreign Affairs, A Report to Congress, 1949 : Task Force Report, National
Security Organization, 1949.
Department of Defence
-Industrial Security Manual for Safeguarding Classified Information
-Industrial Personnel Security Clearance Progra m
130
�-Industrial Security Operating Manual
-Industrial Security Regulations.
House of Representatives, Committee on Armed Services, Subcommittee on Central Intelligence Agency . Statement of Laszlo Szabo, 1966.
House of Representatives, Subcommittee of the Committee on Government Operations . Hearings and Reports, 1955-1966 .
(Subjects include : subversion and espionage in defence stablishments and industry, use of polygraphs by the Federal Government, the computer and privacy, etc.) .
Library of Congress, Law Library-Survey of Legislation on Security Safeguards
and Anti-Subversive Measures, 1957 .
New York State Joint Legislative Commission to Study Illegal Interception of
Communications . Report, 1956 .
Senate Committee on Expenditures in the Executive Departments, Subcommittee
on Investigations . Report : Employment of Homosexuals and Other Sex Perverts in Government, 1950 .
Senate Committee on the Judiciar y
Subcommittee to investigate the administration of the Internal Security
Act and Other Internal Security Laws (Senate Internal Security Subcommittee )
Hearings and Reports, 1952-196 7
(Subjects Include : State Department security, Communist subversion
and penetration in various areas, the communist youth programme,
gaps in internal security laws, passport regulations and safeguarding
of communications facilities, subversion in United States government
departments, activities of United States citizens employed by the
United Nations, etc . )
Subcommittee on Administrative Practice and Procedure
Hearings and Reports, 1966-6 7
(Subjects include : invasion of privacy, telephone interception, computer privacy, the Right of Privacy Act, 1967, etc . )
Subcommittee on Constitutional Rights
Hearings and Reports, 1958-196 5
(Subjects include : wiretapping, eavesdropping and the Bill of Rights,
the rights of government employees, psychiatric examinations and
psychological tests, etc .) .
Senate Committee on Rules and Administration, Report of Joint Committee on
Central Intelligence Agency, 1956 .
AUSTRALIA
Report of the Royal Commission on Espionage, 1955 .
NEW ZEALAND
New Zealand Royal Commission Report of the administration of security service
so far as it relates to attendance of officers thereof at a university and matters
incidental thereto, 5 August 1966 .
SWEDEN
Report of Royal Commission established to Inquire into the Wennerstrom Affair,
1968 .
131
�APPENDIX "C"
to Report of
Royal Commission
on Security
OFFICIAL SECRETS ACT
1 . Canadian Official Secrets Act (R.S .C. 1952, c . 198 )
II . Extract from Canadian Forces Reorganization Act (S .C. 1966-67, c . 96)
III . Loi sur les secrets officiels ( S.R . du C. 1952, c . 198 )
IV. Extract from Loi sur la reorganization des Forces canadiennes (S. du C .
1966-67, c . 96)
132
�CHAPTER 198 .
An Act respecting Official Secrets.
SHORT TITLE .
1. This Act may be cited as the ' O fficial Secrets Act . Short
t
1939, c . 49, s . 1 .
INTERPRETATION .
2. In-this
Act ,
Definitions.
(a) "Attorney General" means the Attorney General of "Attorne ~
;
General .'
Canada
"Document ."
(b) "document" includes part of a document ;
(c) "model" includes design, pattern and specimen ;
"Model ."
.(d) "munitions of war" means arms, ammunition ; imple- "Munitions
ments or munitions of -war., army, naval- or air stores, of `°8r ~~
or any articles deemed capable of being converted
thereinto, or made useful in the production thereof ;
(e) "offence under this Act" includes - any act, omission, -Offence .
or other thing that is punishable hereunder ; A~;; this
(f) "office under Her Majesty" includes any office or " o ffic e
employment in or under any department or branch of °naeraer
Majesty."
the Government of Canada or of any province, and
any office or employment in, on or under any board,
commiss, on, corporation or other body that is an agen t
of Her Majesty in right of Canada or any province ;
" Prohibited
(g) "prohibited place" means
(i) any work of defence belonging to or occupied place . "
or used by or on behalf of Her Majesty including
arsenals, naval, army or air force establishments
or stations, factories, dockyards, mines, minefields,
camps, ships . aircraft, telegraph, telephone, wireless or signal stations or offices, and places used for
the purpose of building, repairing, . making or storing any munitions of war or any sketches, plans,
models, or documents relating thereto, or for the
purpose of getting any metals, oil or minerals of
use in time of war,
133
�2 Chap . 198.
Official Secrets Act.
(ii) any place not belonging to Her Majesty where
any munitions of war or any sketches, models,
plans or documents relating thereto, are being
made, repaired, gotten or stored under contract
with, or with any person on behalf of, Her Majesty,
or otherwise on behalf of Her Majesty, an d
(iii) any place that is for the time being declared
by order of the Governor in Council to be a pro'hibited place on the ground that information with
respect thereto or damage thereto would be useful
to a foreign power ;
"Sketch ." (h) "sketch" includes apy mode of representing any
place or thing ;
" Senior (i) "senior police officer" means any officer of the Royal
polic e
officer :" Canadian Mounted Police not below the rank of
Inspector ; any officer of any provincial police force of
a like or superior rank ; the chief constable of any city
or town with a population of not less than ten
thousand ; or any person upon whom the powers of a
senior police officer are for the purposes of this Act
conferred by the Governor in Council ;
Reference
to He r
(j) any reference to Her Majesty means Her Majesty in
Majesty . right of Canada or of any province ; an d
Communi- (k) expressions referring to communicating or receiving
cating o r . include ' any communicating or receiving, whether in
receiving
Spying.
whole or in part, and whether the sketch, plan, model,
article, note, document or information itself or the
-substance, effect, or description thereof only is communicated or received ; expressions referring to obtaining or retaining any sketch, plan, model, article, note,
or document, include the copying or causing to be
copied ., the whole or any part of any sketch, plan,
model, article, note ; or document ; and expressions
referring to the communication of any sketch, plan,
model, article, note or document include the transfer
or transmission of the sketch, plan, model, -article,
note or document . 1939, c. 49, s . 2 ; 1950, c. 46, s . 1 .
3 . (1) Every person who, for any purpose prejudicial
to the safety or interests of the State ,
(a) approaches, inspects, passes over, or is in the neighbourhood of, 'or enters any prohibited place ;
(b) makes any sketch, plan, model or note that is calculated to be or might be or is intended to be directly
or indirectly useful to a foreign power ; o r
(c) obtains, collects, records, or publishes, or communicates to any other person any secret official code word ,
or
134
�Official Secrets Act .
Chap. 198 .
3
or pass word, or any .sketch, plan, model, article, o r
note, or other document or information that is calculated to be or might be or is intended to be directly or
indirectly useful to a foreign power ;
is guilty of an offence under this Act .
(2) On a prosecution under this section, it is not neces- Accused
sary to show that the accused person was guilty of any ~ ~onvmted
particular act tending to show a purpose prejudicial to the if purpose
safety or interests of the State, and, notwithstanding that to tKedsafetq
no such act is proved against him ; he may be convicted if, of the State .
from the circumstances of the case, or his conduct, or hi s
known character as proved, it appears that his purpose was
a purpose prejudicial to the safety or interests of the State ;
and if any sketch, plan, model, article, note, .document or
information relating to or used in any prohibited place, or
anything in such a place, or any secret official code word or
pass word is made, obtained, collected, recorded, published
or communicated by any person other than a person acting
under lawful authority, it shall be deemed to have been
made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests
of the State -unless the contrary is- proved .
(3) In 'any proceedings against a person for an offence oommuniunder this section, the fact that he has been in communi- cation wit h
agent o f
cation with, or -attempted to communicate with, an agent foreig n
is power, etc.,
of a foreign power, whether within or without Canada , sufficient
evidence that he has, for a purpose prejudicial to the evidence .
safety or interests of the State, obtained or attempted t o
obtain information that is calculated to be or might be
or is intended to be directly or indirectly useful to a foreign
power.
(4) For the purpose of this section, but without prejudice W hen person
deemed to
to the of the foregoing provision
generality
have been i n
(a) a person shall, unless he proves the contrary, be communi- h
cation wit
deemed to have been in communication with an agent agent of a
foreign
of a foreign power if
power .
(i) he has, either within or without Canada, visite d
the address of an agent of a foreign power or consorted or associated with such agent, o r
(ii) either within or without Canada, the name or
address of, or any other information regarding such
an agent has been found in his possession, or has
been supplied by him to any other person, or has
been obtained by him from any other person ;
(b) "an agent of a foreign power" includes any person "An agent of
who is or has been or is reasonably suspected'of being Poweri 'g"
or having been employed by a foreign power . either
135
defined .
�4 Chap . 198.
Official Secrets Act .
directly or indirectly for the purpose of committing an
act, either within or without Canada, prejudicial to
the safety or interests of the State, or who has or is
reasonably suspected of having, either within or without Canada, . committed, or attempted,to commit, such
an act in the interests of a foreign power ; an d
when
(c) any address, whether within or without Canada,
address
reasonably suspected of being an address used for the
deemed
that of a n
agent of receipt of communications intended for an agent of a
a foreign
foreign power, or any address at which such an agent
p°`°er' resides, or to-which he resorts for the purpose of givin g
or receiving communications, or at which he carries on
any business, shall be deemed to be the address of an
agent of a foreign power, and communications
addressed to such an address to be communications
with such an agent. 1939, c . 49, s . 3.
Wrongful 4. (1) Every person who, having in his possession or
eoF!muni- control any secret official code word, or pass word, or any
oftion'etc' sketch, plan, model, article, note, document or information
information. that relates to or is used in a prohibited place or anythin g
in such a place, or that has been made or obtained in contravention of this Act, or that has been entrusted in
confidence to him by any person holding office under Her
Majesty, or that he has obtained or to which he has had
access while subject to the Code of Service Discipline within
the meaning of the National Defence Act or owing to his
position as a person who holds or has held office under Her
Majesty, or as a person who holds or has .held a contract
made on behalf of Her Majesty, or a contract the performance of which in whole or in part is carried out in a prohibited place, or as a person who is or has been employed
under a person who holds or has held such an office or
contract,
(a) communicates the code word, pass word, .ketch,
plan, model, article, note, document or information to
any person, other than a person to whom he is authorized to communicate with, or a person to whom it is
in the interest of the State his duty to communicat e
it ►
(b) uses the information in his possession for the benefit
of any foreign power or in any other manner prejudicial
to the safety or interests of the State ;
(c) retains the sketch, plan, model, article, note, or
document in his possession or control when he has no
right to retain it or, when it Is contrary to his dut y
136
�Official Secrets Act .
Chap. 198 .
to retain it or fails to comply with all directions issued
by lawful authority with regard to the return or disposal thereof ; or
(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of the sketch, plan,
model, article, note, document, secret official code word
or pass word or information ;
is guilty of an offence under this Act.
(2) Every person who, having in his possession or con- Communitrol any sketch, plan, model, article, note, document or cation of
information that relates to munitions of war, communicates modei,etc .
it directly or indirectly to, any foreign power, or in an y
other manner prejudicial to the safety or interests of the
State, is guilty of an offence under this Act .
(3) Every person who receives any secret official code Receiving
word, or pass word, or sketch, plan, model, article, note, :etch, etc.
document or information, knowing, or having reasonabl e
ground to believe, at the time when he receives it, that the
code word, pass word, sketch, plan . model, article, note,
document or information is communicated to him in contravention of this Act, is guilty of an offence under this Act,
unless he proves that the communication to him of the
code word, pass word, sketch, plan . model, article, note,
document or information was contrary to his desire .
(4) Every person wh o
(a) retains for any purpose prejudicial to the safety or Retaining
interests of the State any official document, whether a~ument,
or not completed or issued for use, when he has no right etc .
to retain it, or when it is contrary .to his duty to retain
it, or fails to comply with any directions issued by any
Government department or any person authorized by
such department with regard to the return or disposal
thereof ; o r
(b) allows any other person to have possession of any AnoWing
offic ;al document issued for his use alone, or corn- other
municates any secret official code word or pass word so po~wwion .
issued . or, without lawful authority or excuse, has i n
his possession any official document or 'secret official
code word or pass word issued for the use of some person
other than himself, or on obtaining possession . of any
official document by finding or otherwise, neglects or
fails to restore it to the person or authority by whom or
for whose use it was issued, or to a-police constable ; is guilty of an offence under this Act . 1939 ; c . 49, s. 4 ;
1951 (2nd Sess .), c . 7, g. 28 .
137
�6 Chap . 198.
Official Secrets Act.
5. (1) Every person who, for the purpose of gaining
admission, or of assisting any other person to gain admission, to a prohibited place, or for any other purpose prejudicial to the safety or interests of the State,
forgeryrtB'
personation (a) uses or wears, without lawful authority, any naval,
and false
Unauthorized use o f
uniforms ;
falsification
documents . army, air force, police or other official uniform or any
uniform so nearly resembliq the same as to be calculated to deceive, or falsely represents himself to be a
person who is or has been entitled to use or wear any
such uniform ;
(b) orally, or in writing in any declaration or application,
or in any document signed by him or on his behalf,
knowingly makes or connives at the making of any
false statement or any omission ;
(c) forges, alters, or tampers with any passport or any
naval, army, air force, police or official pass, permit,
certificate, licence or other document of a similar character, (hereinafter in this section referred to as an
official document), or uses or has in his possession any
such forged, altered, or irregular official document ;
(d) personates, or falsely represents himself to , be a
person holding, or in the employment of a person
hotding, office under Her Majesty, or to be or not to be a
person to whom an official document or secret official
code word or pass word has been duly issued or communicated, or with intent to obtain -an official document, secret official code word or pass word, whether
for himself or any other person, knowingly makes any
false statement ; or
(e) uses, or has in his possession or under his control,
without the authority of the Government department
or the authority concerned, any die, seal, or stamp
of or belonging to, or used, made, or provided by any
Government department, or by any diplomatic, naval,
army, or air force authority appointed by or acting
under the authority of Her Majesty, or any die, seal
or stamp, so nearly resembling any such die, seal or
stamp as to be calculated to deceive, or counterfeits
any such die, seal or stamp, or uses, or has in his
possession, or under his control, any such counterfeited die, seal or stamp ;
is guilty of an offence under this Act .
Unlawful (2) Every . person who, without lawful authority or excuse,
dealing with manufactures or sells, or has in his possession for sale any
dies, seals,
such die, seal or stamp as aforesaid, is guilty of an offence
etc under this Act. 1939, c . 49, s . 5 .
138
�Official Secrets Act .
Chap. 198 .
7
6 . No person in the vicinity of any prohibited place Interferin g
shall obstruct, knowingly mislead or otherwise interfere
with or impede any constable or police officer, or any
f with officers
the police
or members
Her
o
member of Her Majesty's forces engaged on guard, sentry, M
y .e
patrol, or other similar duty in relation to the prohibited foreea •
place, and every person who acts in contravention of, or
fails to comply with, this provision, is guilty of an offence
under this Act . 1939, c . 49, s . 6 .
7 . (1) Where it appears to the Minister of Justice that
such a course is expedient in the public interest, he may,
by warrant under his hand, require any person who owns
or controls any telegraphic cable or wire, or any apparatus
for wireless telegraphy, used for the sending or receipt of
telegrams to or from any place out of Canada, to produce
to him, or to any person named in the warrant, the originals
and transcripts, either of all telegrams, or of telegrams of
any specified class or description, or of telegrams sent from
or addressed to any specified person or place, sent to or
received from any place out of Canada by means of any
such cable, wire, or apparatus and all other papers relating
to any such telegram as aforesaid .
Power to
require the
production
of
telegrams.
(2) Every person who, on being required to produce any Refusing or
g
such original or transcript orpaper ~ refuses neglectin
as aforesaid, to produce
or neglects to do so is guilty of an offence under this Act, original, etc .
and is for each offence, liable on summary conviction to
imprisonment, with or without hard labour, for a term not Peaalty
exceeding three months, or to a fine not exceeding tw o
hundred dollars, or to both such imprisonment and fine .
1939, c . 49, s . 7 .
8 . Every person who knowingly harbours any person Harbouring
whom he knows, or has reasonable grounds for supposing, spiesto be a person who is about to commit or who has committed an offence under this Act, or knowingly permits to
meet or assemble in any premises in his occupation or under
his control any such persons, and every person who, having
harboured any such person, or permitted to meet or
assemble in . any premises in his occupation or under his
control any such persons, wilfully omits or refuses to disclose to a senior police officer any information that it is in
his power to give in relation to any such person, is guilty
of an offence under this Act . 1939, c . 49, s . 8 .
9. Every person who attempts to commit any offence Attempts,
under this Act, or solicits or incites or endeavours to per-incitements,
etc
suade another person to commit an offence, or aids or abets
and does any act preparatory to the commission of an
139
�8 Chap . 198.
Official Secrets Act .
offence under this Act, is guilty of an offence under this Act
and is liable to the same punishment, and to be proceeded
against in the same manner, as if he had committed the
off en ce . 1939, c . 49, s . 9 .
10 . E very person who is found committing an offence
without under this Act, or who is reasonably suspected of having
warrant• committed, or having attempted to commit, or being about
to commit, such an offence, may be arrested without a
warrant and detained by any constable or police officer .
1939, c . 49, s . 10 .
Power to
arres t
Search 11 . (1) If a justice of the peace is satisfied by in#orwarrante.
mation on oath that there is reasonable ground for suspecting that an offence under this Act has been or is about
to be committed, he may grant a search warrant authorizing
any constable named therein, to enter at any time any
premises or place named in the warrant, if necessary by
force, and to search the premises or place and every person
found therein, and to seize any sketch, plan, model, article,
note or document, or anything that is evidence of an offence
under this Act having been or being about to be committed,
that he may find on the premises or place or on any such
person, and with regard to or in connection with which he
has reasonable ground for suspecting that an offence under
this Act, has been or is about to be committed .
(2) Where it appears to an officer of the Royal Canadian
Mounted Police not below the rank of Su p erintendent that
emergency.
the case is one of great emergency and that in the interest
of. the State immediate action is necessary, he may by a
written order under his hand give to any constable the like
authority as may be given by the warrant of a justice under
this section . 1939, c . 49, s . 11 .
In case of
grea t
12 . A prosecution for an offence under this Act shall not
consent of be instituted except by or with the consent of the Attorney
Attorney General ; except that a person charged with such an offence
General' may be arrested, or a warrant for his arrest may be issue d
Prosecution
only with
and executed,'and any such person may be remanded in
custody or _ on bail, notwithstanding that the consent of
the Attorney General to the institution of a prosecution
for the offence has not been obtained, but no further or
other proceedings shall be taken until that consent has been
obtained . 1939, c . 49, s . 12.
Offences 13 . An Act, omission or thing that would, by reason of
committe d
this Act, be punishable as an offence if committed in
outside
Canada Canada, is, if committed outside Canada, an offence against
triabl e
this Act, triable and punishable in Canada, in the following
Canada~n
cases :
140
�Official Secrets Act .
Chap. 198.
.9
(a) where the offender at the time of the commissio n
was a Canadian citizen within the meaning of the
Canadian Citizenship Act ; or
(b) where any code word, pass word, sketch, plan, model,
article, note, document, information or other thing
whatsoever in respect of which an offender is charged
was obtained by him, or depends upon'information that
he obtained, while owing allegiance to Her Majesty .
1950, c . 46, s. 2 .
14. (1) For the purposes of the trial of a person for wt,e, .B
an offence under this Act, the offence shall be deemed to dffem a to
have been committed either at the place in which the same have been .
actually was committed, or at any place in Canada in eOmmittea'
which the offender may be found .
(2) In addition and without prejudice to any powers public
that a court may possess to order the exclusion of the maybe d
exclude
public from any proceedings if, in the course of proceedings from trial.
before a court against any person for an offence under this
Act or the proceedings on appeal, application is made by
the prosecution, on the ground that the publication of any
evidence to be given or of any statement to be made in the
course of the proceedings would be prejudicial to the
interest of the State, that all or any portion of the public
shall be excluded during any part of the hearing, the court
may make an order to that effect, but the passing of
sentence shall in any case take place in public .
(3) Where the person guilty of an offence under .this Where guilty
Act is a company or corporation, ever director and officer person a
y company or
of the company or corporation is guilty of the like offence corporation.
unless he proves that the act or omission constituting th e
offence took place without his knowledge or consent . 1939,
c . 49, s. 13 .
15 . (1) Where no specific penalty is provided in this Penalties .
Act, any person who is guilty of an offence under this Ac t
shall be deemed to be guilty of an indictable offence and General .
is on conviction punishable bby
imprisonment for a term Indictable
is, >
offence.
not exceeding fourteen years ; but such person may, at th e
election of the Attorney General, be prosecuted summarily Summary
in the manner provided by the provisions of the C riminal conviction..
Code relating to summary convictions, and, if so prosecuted, is punishable by fine not exceeding five hundred
dollars, or by imprisonment not exceeding twelve months,
or by both fine and imprisonment.
141
�10 Chap . 198.
Application
of the
Identification of
Ac~ inals
Official Secrets Act .
(2) Any person charged with or convicted for an offence
under this Act shall, for the purposes of the Identification
of Criminals Act, be deemed to be charged with or convicted of an indictable offence notwithstanding that suc h
person is prosecuted summarily in the manner provided by
the provisions of the Criminal Code relating to summary
convictions . 1950, c . 46, s . 3 .
EDMOND CLOUTIER, C .M .G . . O .A ., D.S .P .
QUEEN'S PRINTER AND CONTROLLER OF STATIONERY
OTTAWA, 1952
142
�.14-15-16 ELIZABETH
11 .
CHAP. 96
An Act to amend the National Defence Act and other Acts
in consequence thereof .
[Assented to 8th May, 1967.]
H
ER
Majesty, by and with the advice and consent of th e
Senate and House of Commons of Canada, enacts as
follows :
SHORT TITLE .
1 . This Act may be cited as the Canadian Forces
Reorganization Act .
R .S ., cc .
184, 310;
1952-53, cc .
6, 24 ;
1953-54, cc .
13, 21, 40 ;
1955, c . 28 ;
1956, c . 18 ;
1959, c . 5 ;
1964-65, c . 21 .
Short title .
64. The Acts and portions of Acts set out in Schedule B are repealed or amended in the manner and to the
extent indicated in that Schedule .
SCHEDULE B .
Amendments and Repeals .
Act affected .
. : Repeal or amendment .
Official Secrets Act 1 . Paragraph (d) of section 2 is repealed and
R.S ., c . 198 the following substituted therefor :
"(d) "munitions of war" means arms, ammunition, implements or munitions of
war, military stores, or any articles
deemed capable of being converted
thereinto, or made useful in the production thereof ; "
2. Subparagraph (i) of paragraph (g) of section
2 is repealed and the following substituted
therefor :
«(i)
any work of defence belonging to
or occupied or used by or on behalf
of Her Majesty including arsenals,
143
�42 Chap . 96. Canadian Forces Reorganization. 14-15-16 ELIZ . II .
SCHEDULE B-Continued
Act affected . Repeal or amendment.
armed forces establishments or
stations, factories, dockyards,
mines, minefields, camps, ships,
aircraft, telegraph, telephone, wireless or signal stations or offices,
and places used for the purpose of
building, . repairing, making or
storing any munitions of war or
any sketches, plans, models, or
documents relating thereto, or for
the purpose of getting any metals,
oil or minerals of use in time of
war, "
3 . Paragraph (a) of subsection (1) of section 5
is repealed and the following substituted
therefor :
"(a) uses or wears, without lawful authority,
any military, police or other official
uniform or any uniform so nearly
resembling the same as to be calculated
to deceive, or falsely represents himself to be a person who is or has been
entitled to use or wear any such
uniform ; "
4 . Paragraph (c) of subsection (1) of section 5
is repealed and the following substituted
therefor :
"(c) forges, alters, or tampers with any
passport or any military, police or
official pass, permit, certificate, licence
or other document of a similar character, (hereinafter in this section referred to as an official document), or
uses or has in his possession any such
forged, altered, or irregular official
document ; "
5 . Paragraph (e) of subsection (1) of section 5
is repealed and the following substituted
therefor :
"(e) uses, or has in his possession or under
his control, without the authority of
the Government department or the
authority concerned, any die, seal, or
stamp of or belonging to, or used, made ,
144
�1966-67 .
Canadian Forces Reorganization.
Chap . 96. 43
SCHEDULE B-Continued
Act affected . Repeal or amendment .
or proyided by any Government department, or by any diplomatic or
military authority appointed by or
acting under the authority of Her
Majesty, or any die, seal or stamp, so
nearly resembling any such die, seal or
stamp as to be calculated to deceive, or
counterfeits any such die, seal or stamp,
or uses, or has in his possession, or under
his control, any such counterfeited die,
seal or stamp ; "
145
�CHAPITRE 198 .
Loi concernant les secrets officiels .
TIRE ABREGE .
1 . La presente loi peut etre citee sous le titre : Loi sur Titre
les secrets officiels . 1939, c . 49, art . 1 . abre°e .
INTERPRETATION .
2 . Dans la presente loi, 1'expression
Definitions .
a) uprocureur general)) signifie le procureur general du ~~ Procureur
;
~e"`ra l . "
Canada
b) ((document)) comprend toute partie d'un document ; Document .,,
c) ccmodele» comprend tout dessin, patron et sp'e'cimen ; ,,Mo(16te .,,
d) umunitions de guerre)) signifie les armes, le materiel,-nTunitions
ou les munitions de guerre, les fournitures de 1'armee, `i° guerre .,,
de la marine ou de 1'aviation ou tout article susceptibl e
d'etre converti en Pun des susdits ou qui peut etre
utilisable dans leur production ;
e) ccinfraetion a la presente lob) comprend tout aete, ;Jn(raction
omission ou autre chose punissable sous le regime de la I'o ;~;,Pr`sente
presente loi ;
f)«fonction relevant de Sa Majeste» comprend toute,,Fonction
charge ou tout emploi dans quelque departement OU relevant de .,,
division du gouvernement du Canada ou d'une province, Sa Majeste
ou qui en releve, ainsi que toute charge ou tout emplo i
dans ou sur un conseil, une commission, un office, une
corporation ou, un autre organisme qui est mandataire
de Sa Majeste du chef du Canada ou d'une province, et
toute charge ou tout emploi relevant d'un tel conseil,
commission, office, corporation ou autre organisme ;
g ) «endroit prohibe» signifie ,Endroit
(i) tout ouvrage de defense appartenant a Sa Ma .jeste pr°nive ."
ou occupe ou utilise par Elle ou pour son compte ,
y compris les arsenaux, les stations ou etablissements de la marine, de 1'armee ou de 1'aviation, les
u.sines, les chantiers de construction maritime, les
mines, les regions minieres, les camps, les navires ,
147
�2 Chap . 198.
Loi sur les secrets officiels .
les a.eronefs, les postes ou bureaux de telegraphe, de
telephone, de radio telegraphie ou de transmission,
et les endroits utilises en vue de la construction, de
la reparation, de la fabrication ou de 1'emmagasinage de munitions de guerre ou des croquis, plans
ou mod'eles, . ou des documents y afferents, ou en
vue de 1'obtention de inetaux, d'huiles ou de mineraux en usage en temps de guerre ;
(ii) tout endroit n'appartenant pas a Sa Majeste, ou
des munitions de guerre ou des croquis, mod'eles,
plans ou documents y afferents sont fabriques, repares ; obtenus ou emmagasines en vertu d'un contrat passe avec Sa Majeste ou avec toute personne
pour son compte, ou, d'autre fagon, passe au nom
de Sa Majeste,, e t
(iii) tout endroit que le gouverneur en conseil, par
arrete, declare pour le moment etre un endroit
prohibe pour le motif que des renseignements It
son egard ou des dommages qu'il pourrait subir
seraient utiles It une puissance etrangere ;
oCroquis .,,
h) «croquis» comprend toute maniere de representer un
endroit ou une chose ;
tlAgent de
police
superieur . -)
i) «agent de police superieurn signifie un officier de la
Gendarmerie royale du Canada dont le grade West pas
inferieur .a celui d'inspecteur ; un membre d'une police
provinciale d'un grade semblable ou superieur ; le chef
de police d'une cite ou ville ayant une population d'au
moins dix mille ames ; ou toute personne It qui le gouverneur en conseil a confere les pouvoirs d'un agent de
police superieur pour les fins de la presente loi ;
Mention de
Sa Maje W
j) toute mention de Sa Majeste signifie Sa Majeste du
I chef du Canada ou d'une province ; .
Communication ou
r6ception .
k.) les expressions se rapportant It la communication ou
It la reception comprennent toute communication ou
reception, qu'elle soit totale ou partielle ou que le
croquis, le plan, le mod'ele, Particle, la note, le document ou .le renseignement meme ou la substance, 1'effet
ou la . description des susdits seulement soit communiquee ou re~ue ; les expressions visant 1'obtention ou la
retention d'un croquis, plan, mod'ele, article, note ou
document comprennent la reproduction ou le fait de
faire reproduire la totalite ou toute partie d'un croquis,
plan, mod'ele, article, note ou document ; et les expressions ayant trait It la communication d'un croquis,
plan, mod'ele, article, note ou document comprennent
le transfert ou la transmission du croquis, plan, mod'ele,
article, note ou document . 1939, c . 49, art . 2 ; 1950,
c . 46, art . 1 .
148
�Lot sur les secrets officiels .
Chap . 198 .
3
3 . (1) Est coupable d'infraction a la presente loi qui-Eepionnage .
conque, dans un dessein nuisible a .la securite ou aux interet s
de 1'Etat ,
a) s'approche d'un endroit prohibe, Pinspecte, le traverse,
se trouve dans son voisinage ou y penetre ;
b) prend une note ou fait un croquis, plan ou mod'ele
propre ou destine a aider, ou susceptible d'aider directement ou indirectement a une puissance etrangere ; ou
c) obtient, recueille, enregistre, publie ou -communique
a une autre personne un chiffre officiel ou mot de passe,
ou un croquis, plan, mod'ele, article, note ou autre
document ou renseignement propre ou destine a aider,
ou susceptible d'aider, directement ou indirectement
une puissance etrangere .
(2) Dans une poursuite intentee sous le regime du L'accua 6
present article, il n'est pas necessaire de demontrer que a€~iai~ e
1'accuse etait coupable d'un acte particulier indiquant un CO11pabl e
ei son
dessein nuisible a la securite ou aux interets de 1'Etat, et, dessein eat
bienqued'un tel acte ne soit ass€curitl e a ] a
la reuve
preuve etablie a son n°iaib ~
encontre, il peut etre declare coupable s'il apparait, d'apres de rEtat .
les circonstances de 1'espece, sa conduite ou la preuve d e
sa reputation, que son dessein etait nuisible a la securite ou
aux interets de 1'Etat ; et si un croquis, un plan, un modele,
un article, une note, un document ou un renseignement se
rapportant a un endroit prohibe ou qui y est utilise, ou
quelque chose en cet endroit, ou un chiffre officiel ou mot
de passe est fabrique, obtenu, recueilli, enregistre, publie
ou communique par une personne autre qu'une personne
legalement autorisee, il est cense avoir ete fabrique, obtenu,
recueilli, enregistre, pu'blie ou communique dans un dessein
nuisible a la securite ou aux interets de 1'Etat, a moins de
preuve contraire .
(3) Dans toute procedure intentee *contre une personne Communic
qu'elle catio nuneinfractionauresd'une
P
~
q ent ntarticle,lefaita1ave
communique ou qu'e lle a tente de communiquer avec un Puissanc e
trang~re ,
'
k
agent dune puissance etrangere, au Canada ou hors du etc ., eat
Canada, constitue la preuve qu'elle a, dans un dessein nui- ~~eani~ e
sible a la securite ou,aux interets de 1'Etat, obtenu ou tente
d'obtenir des renseignements propres ou destines a aider ou
susceptibles d'aider, directement ou indirectement une puissance etrangere.
pour
(4) Pour les fins du present article, mais sans prejudice Quand un e
pereonne
de la teneur generale de la disposition precitee,
estcens h
a)- une personne, a moins de preuve contraire, est censee ~ommun~ en
avoir communique avec un agent d'une puissance c ation av ee e
g ent d'un
etrangere V a
,
puissanc e
krang & e.
149
�4 Chap . 198 .
Loi sur les secrets o)Tciels .
(i) si elle a, au Canada ou hors du Canada, visite
1'adresse d'un. agent d'une puissance etrangere ou a
f.requente cet agent ou s'est associee avec lui, o u
(ii) si, au Canada ou hors du Canada, le nom ou
1'adresse, ou tout autre renseignement concernant
cet agent a ete trouve en sa possession, ou lui a
ete fourni par une autre personne ou a ete obtenu
par elle d'une autre personne ;
DLfinition d e
aun agent
b) 1'expression ccun agent d'une puissance etrangere»
d'une comprend toute personne qui est ou a W ou qui est
puissance . raisonnablement soupconnee d 'etre au d' avoir ete a
~
etrangere,,
1'emploi d'une puissance etrangere, directement ou
indirectement, aux fins de commettre, au Canada ou
hors du Canada, un acte nuisible a la securite ou aux
interets de 1'Etat, ou qui a ou est raisonnablement
soupconnee d'avoir, au Canada ou hors du Canada,
commis ou tente de commettre un tel acte dans l'interet
d'une puissance 6t.rang6re ; e t
~~ase c) toute adresse, au Canada ou hors du Canada, raisoneatcens 6e nablement soupgonnee d'etre 1'adresse utilisee pour la
ritre ce lae
recep tion de communications destinees a un agent
d'un agent
d'une
d'une puissance etrangere, ou toute adresse ou demeure
uissanc e
€~trang6 re. cet agent ou dont il se sert pour la transmission ou la
reception de communications, ou a laquelle il exerce
un commerce, est censee 1'adresse d'un agent d'une
puissance etrangere, et les communications envoyees a
-cette adresse sont censees . des communications a cet
agent . 1939, c . 49, art . 3 .
Communication, etc.,
4 . (1) Est coupable d'infraction a la presente loi qui-
i•llicite de ren- conque, ayant en sa possession ou controle un chiffre officiel
seignements . ou mot de passe, ou un croquis, plan, mod'ele, article, note,
document ou renseignement se rapportant a un endroit
prohibe ou a quelque chose en cet endroit ou qui y est
utilise, ou qui a ete fabrique ou obtenu contrairement a
la presente loi, ou qui lui a ete confie par une personne
detenant une fonction relevant de Sa Majeste, ou qu'il a
obtenu ou auquel il a eu acces, alors qu'il etait assujeti au
Code de discipline militaire au sens de la Loi sur la defense
nationale, _ou a titre de personne deternant ou ayant detenu
une fonction relevant de Sa Majeste, ou a titre de personne
qui est ou a ete 1'adjudicataire d'un contrat passe pour le
compte de Sa Majeste, ou d'un contrat qui est execute en
totalite ou en partie dans un endroit prohibe, ou a titre de
personne qui est ou a e+e a 1'empl6i de quelqu'un qui
detierit ou a detenu cette fonction, ou est ou a ete 1'adjudicataire du contrat,
150
�Lot sur les secrets officiels .
Chap . 198 .
5
a) communique le chiffre, mot de passe, croquis, plan ,
mod6le, article, note, document ou renseignement a
toute personne autre que celle avec laquelle il est
autorise a communiquer ou a qui il est tenu de le
communiquer dans 1'interet de 1'Etat ;
b) utilise les renseignements qu'il a en sa possession au
profit d'une puissance etrangere ou de toute autre maniere nuisible a la securite ou aux interets de 1'Etat ;
c) retient le croquis, le plan, le mod6le, Particle, la note
ou le document qu'il a en sa possession ou controle
quand il n'a pas le droit de le retenir, ou lorsqu'il est
contraire a son devoir de le retenir, ou qu'il ne se
conforme pas aux instructions donnees par 1'autorite
competente relativement .a sa mise ou a la fagon d'en
disposer ; o u
d) ne prend pas les precautions raisonnables en vue de
la conservation du croquis, du plan, du mod6le, de
Particle, de la note, du document, du chiffre officiel
ou mot de passe ou du renseignement, ou se conduit de
maniere a en compromettre la securite .
(2) Est coupable d'infraction h la presente loi quiconque, Communicatio
nay ntensapos e sion ucontroleuncroquis,plan,mod6le,croquis,plan ,
article, note, document ou renseignement se rapportant am°d6le, etc .
des munitions de guerre, en donne communication directement ou indirectement a une puissance etrangere, ou de
toute autre maniere nuisible a la securite ou aux interets de
I'Etat .
(3) -Si une personne recoit un chiffre officiel ou mot de ReeePtio n
du
passe, ou un croquis, plan, mod6le, article, note, document officchifTre
;el .
ou renseignement, sachant ou ayant raisonnablement lieu eCO4°19, ete•
de croire, au moment on elle le recoit, que le chiffre, le mo t
de . passe, le croquis, le plan, le mod6le, Particle, la note, le
document ou le renseignement lui est communique contrairement a la presente loi, cette personne est coupable
d'infraction a la presente loi, a moins qu'elle ne prouve que
la communication a elle faite du chiffre, mot de passe,
croquis, plan, mod6le, article, note, document ou renseignement etait contraire a son desir .
(4) Est coupable d'infraction a la presente loi, quiconqu e
Retention
a) retient, dans un dessein nuisible a la securite ou all X documentade
interets de 1'Etat,, un document officiel, qu'il soit ou officiels, etc .
non complete ou emis pour usage, lorsqu'il n'a pas l e
droit de le retenir ou lorsqu'il est contraire a son
devoir de le retenir, ou ne se conforme pas aux instructions donnees par un departement du gouvernement ou
par toute personne autorisee par ce departement concernant la remise dudit document officiel ou la fagon
d'en disposer ; ou
151
�6 Chap . 198 .
Loi sur les secrets officiels .
Permettre
i d'autre s
b) permet qu'un document officiel emis pour son propre
usage entre en la possession d'une autre personne, ou
de a 'avoir en
sa possession . communique un chiffre officiel ou mot de passe ainsi
emis, ou, sans autorite ni excuse legitime, a en sa
possession un document officiel ou un chiffre officiel
ou mot de passe emis pour 1'usage d'une personne autre
que lui-meme, ou, en obtenant possession d'un document officiel par decouverte ou autrement, neglige ou
omet de le remettre a la personne ou a 1'autorite par
-qui ou pour 1'usage de laquelle il a ete emis, ou It un
agent de police . 1939, c. 49,'art . 4 ; 1951 (2e session),
c . 7, art . 28 .
personnes
Usag~de
5 . (1) Est coupable d'infraction It la presente loi, qui~a tenue, conque, dans le dessein d'avoir acces ou d'aider une autre
falsification
de rapports, personne a avoir acces It un endroit P rohibe, ou pour toute
faux, autre fin nuisible a la securite ou aux interets de I'Etat,
supposition
de ersonne
a) endosse ou porte, sans autorite legitime, un uniforme
. de la marine, de 1'armee, de 1'aviation ou de la police, ou
documents
autre uniforme officiel, ou tout uniforme qui y ressemble au point d'etre susceptible d'induire en erreur, ou
se represente faussement comme etant une personne
qui est ou a ete autorisee a endosser ou porter un tel
uniforme ;
b) verbalement, ou par ecrit dans une declaration ou
demande, ou dans un document signe par lui ou en
son nom, sciemment fait une fausse declaration ou une
omission, ou la tolere ;
c) forge, altere ou falsifie tout passeport ou une passe,
un permis, un certificat ou une autorisation officielle
ou emise par la marine, l'armee, 1'aviation ou la police,
ou tout autre document d'une nature semblable (ciapres designe «document officiel) au present article),
ou qui utilise ou a en sa possession un tel- document
officiel forge, altere ou irregulier ;
d) se fait passer pour une personne ou se represente
faussement comme une personne detenant, ou It 1'emploi d'une personne detenant, une fonction relevant de
Sa Majeste, ou comme etant ou n'etant pas une personne It qui un document officiel ou un chiffre officiel ou
mot de passe a ete dument emis ou communique, ou,
dans 1'intention d'obtenir un document officiel, un
chiffre officiel ou mot de passe, pour lui-meme ou pour
une autre personne, fait sciemment une fausse declaration ; ou
e) utilise ou a en sa possession ou sous son controle,
sans 1'autorisation du departement du gouvernement
ou de 1'autorite en cause, une matrice, un sceau o u
152
�Loi sur les secrets officiels.
Chap. 198.
7
un timbre d'un departement du gouvernement ou appartenant a ce dernier ou utilise, fabrique ou fourn i
par un semblable departement ou une autorite diplomatique, une autorite de la marine, de 1'armee ou de 1'aviation nommee par Sa Majeste ou agissant sous son
autorite, ou une matrice, un sceau ou un timbre qui
y ressemble au point d'etre susceptible d'induire en
erreur, ou contrefait cette matrice, ce sceau ou ce timbre,
ou utilise ou a en sa possession ou sous son controle
une telle matrice, un tel sceau ou un tel timbre contrefait.
(2) Est coupable d'infraction a la presente loi quiconque, u 81 =e ivieite
sans autorite ou excuse 1e g' ~ ~l eceaua,matrices,
itime fabri ue ou vend ou a en de etc.
sa possession pour la vente une matrice, un sceau ou u n
timbre de ce genre . 1939, c . 49, art . 5.
6. Nulle personne dans le voisinage d'un endroit prohibe Entraver
ne doit entraver, sciemment induire en erreur, ni autrement lea agent s
r
de
police
contrecarrer ou gener un gendarme ou agent de police ou un on le9 de s
membres
membre des forces de Sa Majeste qui monte la garde, qui forces de
est de faction, qui fait la patrouille ou qui remplit d'autres Sa Maieet6 .
fonctions semblables relativement a 1'endroit prohibe, et si
cette personne contrevient a la presente disposition ou
omet de s'y conformer, elle est coupable d'infraction a la
presente loi . 1939, c . 49, art. 6 .
7.. (1) Lorsqu'il estime qu'une telle mesure s'impose Pouvoirae
dans 1'interet public, le ministre de la Justice peut, par ig pTOa ;etion
mandat, revetu de son seing, requerir toute personne deg t6le- .
possedant ou controlant un cable ou fil telegraphique ou grammes
un appareil de radiotelegraphie, utilise pour la transmission ou la reception de telegrammes a destination ou en
provenance de tout endroit situe en dehors du Canada,
de lui produire ou de produire a toute personne nommee
dans le mandat, les originaux et transcriptions de tous les
telegrammes ou des telegrammes d'une categorie ou description specifiee, ou des telegrammes . transmis par une
personne ou d'un endroit specifie ou adresses a une personne
ou a un endroit specifie, expedies it un endroit situe en
dehors du Canada ou recus de cet endroit au moyen de ce
cable, fil ou appareil, et tous autres papiers se rapportant
a tout semblable telegramme .
(2) Quiconque, etant requis de produire un tel original Refufl on
negligence
ou une telle transcription ou papier comme il est susdit , de prncluire
refuse ou neglige de le faire, est coupable d'une infraction etc°ri,i n at,
a la presente loi et passible, pour chaque infraction, sur
declaration sommaire de culpabilite, de 1'emprisonnement ,
avec ou sans travaux forces, pour une periode d'au plu s
153
�Chap. 198 .
Loi sur les secrets officiels .
Peine .
trois mois, ou d'une amende n'excedant pas deux cents
dollars, ou a la fois de 1'amende et de l'emprisonnement .
1939, c . 49, art . 7.
Wberger des
espions .
8 . Est coupable d'infraction a la presente loi, quiconque
heberge sciemment une personne qu'il croit ou qu'il a
raisonnablement lieu de croire etre une personne sur le
point de commettre ou qui a commis une infraction a la
presente loi, ou qui permet sciemment a de telles personnes
de, se rencontrer ou de se reunir dans des locaux qu'il occupe
ou qu'il a sous son controle, ou qui, ayant heberge une telle
personne ou permis a de telles personnes de se rencontrer
ou de se reunir dans des locaux qu'il occupe ou qu'il a sous
son controle, omet ou refuse volontairement de devoiler
a un agent de police superieur des renseignements qu'il
peut fournir a 1'egard de cette personne . 1939, c . 49, art . 8 .
Tentatives, 9 . Est coupable d'infraction a la presente loi, passible
incitations,
des memes peines et sujet aux memes procedures que s'il
avait commis 1'infraction, quiconque tente de commettre
une infraction a la presente loi, ou sollicite, incite ou cherche
a induire une autre personne a commettre une infraction,
ou devient son complice et accomplit tout acte en vue de la
perpetration d'une infraction a, la presente loi . 1939, c . 49,
art. 9 .
Pouvoir
d'arreetatio n
10 . Quiconque est pris sur le fait de commettre une
sans mandat . infraction a la presente loi, ou est raisonnablement soupgonne d'avoir commis, d'avoir tente de commettre ou d'etre
sur le point de commettre une telle infraction, peut We
arrete sans mandat et detenu par un gendarme ou un agent
de police . 1939, c . 49, art . 10 .
Mandatsde
perquieition .
11 . (1) Si un juge de paix est convaincu, sur une plainte
formulee sous serment, qu'il y a raisonnablement lieu de
soupgonner qu'une infraction a la presente loi a ete ou est
sur le point d'etre commise, il peut decerner un mandat de
perquisition autorisant tout agent de police y nomme it
penetrer en tout temps dans les lieux ou 1'endroit indique
dans le mandat, en ayant recours a la force au besoin, a
perquisitionner dans les lieux ou 1'endroit, a fouiller toutes
les personnes qui s'y trouvent et a saisir tout croquis,
plan, mod'ele, article, note ou document, ou tout objet
constituant une preuve qu'une infraction a la presente loi
a ete ou est sur le point d'etre commise, qu'il peut trouver
sur les lieux, dans cet endroit ou sur cette personne, et a
1'egard duquel ou relativement auquel il peut raisonnablement soupgonner qu'une infraction a la presente loi a ete
ou est sur le point d'etre commise .
154
�Loi sur les secrets officiels .
Chap . 198 .
9
(2) Lorsqu'un officier de la Gendarmerie royale du En cas s cirde
otances
Canada dont le grade n'est pas critiques .
inferieur a celui de surin- cn
tendant est d'avis que 1'affaire est extremement urgente e t
que dans 1'interet de 1'Etat des mesures immediates s'im=
posent, il peut, moyennant un ordre revetu de son seing,
conferer a un gendarme la meme autorite que peut donner
le mandat d'un juge de paix sous le regime du present
article . 1939 ; c . 49, art . 11 .
12 . Nulle poursuite pour une infraction a la presente loi POnreuite a
avec ]e conne doit etre intentee, sauf avec le consentement du procu- sentement
reur general ; toutefois, une personne accusee d'une telle du g 6n 6 ral . r
pr°c"ren
infraction peut etre arretee on un mandat d'arrestation
peut etre decerne et execute a'son egard, et cette personn e
peut etre renvo,yee a une autre audience avec detention
provisoire ou admise a caution, malgre que le consentement du procureur general 'a 1'ouverture d'une poursuite
pour 1'infraction n'ait pas ete obtenu, mais il ne doit etre
intente aucune autre procedure avant que ce consentement
ait ete obtenu . 1939, c . 49, art . 12 .
13 . Une action, omission ou chose qui, en raison de la Les infraetions commipresente loi, serait punissable comme infraction si elle avait eeBhore du
lieu au Canada, constitue, lorsqu'elle se produit hors du Canada sont
Canada, une infraction a la presente loi, jugeable et punis- aa e ce pays .
sable au Canada, dans les .cas suivants :
a) lorsque le contrevenant, a 1'epoque on 1'action, omission ou chose s'est produite, etait citoyen canadien au
sens de la Loi sur la citoyennete canadienne;
b) lorsqu'un chiffre, mot de passe, croquis, plan, mod'ele,
article, note, document, renseignement ou autre chose
a 1'egard de quoi un contrevenant est accuse, a ete
obtenu par ce dernier, ou . depend d'un renseignement
par lui obtenu, pendant que le contrevenant devait
allegeance a Sa Majeste . 1950, c . 46, art . 2 .
14. (1) Aux fins de juger une personne accusee d'in- oaP infrace9t eenfraction a la presente loi, l'infraction est censee avoir ete tionavoir 6t €
s~e
commise a 1'endroit ou elle 1'a ete reellement ou a tout c°mmiae•
endroit du Canada ou le contrevenant peut etre trouve .
(2) En sus et sans prejudice des pouvoirs qu'un tribunal Le public
peut posseder pour ordonner 1'exclusion du public de toute Qaiu aue
audience, si, lors d'une poursuite intentee devant un tribunal pr-68•
contre une personne pour une infraction a la presente lo i
ou lors des procedures en appel, le ministere public, pour le
motif que la publication de tout temoignage qui doit etre
renclu ou de toute declaration qui doit etre faite au cour s
155
�10 Chap. 198.
Si la per-
sonne cou-
Loi sur les secrets officiels .
des procedures serait nuisible aux interets de 1'Etat, demande 1'exclusion de la totalite ou d'une partie du public durant
une partie de 1'audition, le tribunal pout rendre une ordonnance dans ce sens, mais le prononce de la sentence doit dans
chaque cas avoir lieu en public .
(3) Lorsque la personne coupable d'une infraction a la
pabie est. une presente loi est une compagnie ou une corporation, chaque
ou corpora- administrateur et fonctionnaire de la compagnie ou corporation. tion est coupable de la meme infraction, a moins qu'il ne
prouve que Facto ou 1'omission constituant 1'infraction a eu
lieu a son insu ou sans son consentement . 1939, c . 49,
art . 13 .
compagn e
Lorsque 15 . (1) Lorsque nulle peine specifique n'est prevue
n~uile~eUee dans la presente loi, toute personne coupable d'une infracg
n QBi pQ ue . tion y visee est reputee coupable d'un acte criminel et est
e~te crimi- punissable, sur declaration de culpabilite, de l'emprisonnement pour une periode n'excedant pas quatorze ans ;
mais cette personne pout, au choix du procureur general ,
Poursuites faire 1'objet de poursuites sommaires de la mariiere que presommaires . voient les dispositions du Code criminel relatives -aux
declarations sornmaires de culpabilite, et, dans le cas de
telles poursuites, elle est punissable d'une amende d'au plus
cinq cents dollars ou d'un emprisonnement d'au plus douze
mois, ou a la fois de 1'amende et de 1'emprisonnement .
(2) Toute personne accusee, ou declaree coupable, d'une
aur i aent~- infraction a la presente loi est, pour 1'application de la
Application
fieat i on des
criminels .
Loi sur l'identification des criminels, reputee accusee, ou
declaree coupable, d'un acte criminel, meme si cette personne
fait 1'objet de procedures sommaires de la maniere que
prevoient les dispositions du Code criminel relatives aux
declarations sommaires de culpabilite . 1950, c . 46, art . 3 .
EDMOND CLOUTIER, C .M .G ., O .A ., D .S .P .
IMPRIMEUR DE LA REINE ET CONTRSLEUR DE LA PAPETERIE
OTTAWA, 195 2
156
�14-15-16
f LISABETH
11 .
CHAP. 96
Loi modifiant la Loi sur la d6fense nationale et, par voie
de cons6quence, certaines autres lois .
[Sanctionn6e is 8 mai 1967 .]
1'avis et du consentement
S6
S laMajest 6 , surdes communes du Canada, dducrknat et de
' Chambre
e:
6
A
TITRE ABRPG~ .
S. R., cc . 184,
310 ;
1952-1953,
cc. 6, 24;
1953-1954,
cc . 13, 21, 40 ;
1955 c . 28 ;
1956, c. 18 ;
1959, c . 5 ;
1984-1985,
c . 21 .
1 . La pr6sente loi peut 9tre cit6e sous le titre : Titre abr5g6 .
Loi sur la r6organisation des Forces canadiennes .
64 . Les lois et les parties de lois 6nonc6es A I'Annexe
B sont abrog6es ou modifi6es de la maniere et dans la mesure
qu'indique cette annexe .
ANNEXE B .
Modifications et abrogations
Abrogation ou modificatio n
Lois vis6es
Loi sur les secrets 1 . L'alinda d) de 1'article 2 est abrog6 et remofficiels, S .R ., c . .198. plac6 par le suivant :
ad) amunitions de guerre)) signifie les armes,
le mat6riel ou les munitions de guerre,
les fournitures militaires ou tout article
susceptible d'etre converti en Fun des
susdits ou qui peut 6tre utilisable dans
leur production ; »
157
�44 Chap. 9 6 . Reorganisation des Forces canadiennes. 14-15-16 P r,ts . II .
ANNEXE B-Suit e
Lois vis 6es
Abrogation ou modificatio n
.2 . Le sous-alin6a (i) de 1'alinda g) de 1'article 2
est abrog6 et remplacrs par le suivant :
cc(i) tout ouvrage de d6fense appartenant
A, Sa Majest6, ou occup6 ou utilisE:
par Elle ou pour son compte, y
compris les arsenaux, les stations ou
6tablissements des forces arm6es, les
usines, les chantiers de construction
maritime, les mines, les regions
miniLres, les camps, les navires, les
a6ronefs, les postes ou bureaux de
t6.lEgraphe, de t6l6phone, de radiot6legraphie ou de transmission, et
les endroits utilis6s en vue de la
construction, de la r6paration, de la
fabrication ou de 1'emmagasinage de
munitions de guerre ou des croquis,
plans ou mod6les, ou des documents
y aff6rents, ou en vue de 1'obtention
de m6taux, d'huiles ou de min6raux
en usage en temps de guerre ;))
3 . L'alinda a) du paragraphe (1) de 1'article 5
est abrog6 et remplac6 par le suivant :
aa) endosse ou porte, sans autorit6 l4gitime,
un uniforme militaire ou de la police,
ou autre uniforme officiel, ou tout
uniforme qui y ressemble au point
d'etre susceptible d'induire en erreur,
ou se reprdsente faussement comme Rant
une personne qui est ou aW autoris6e
A , endosser ou porter un tel uniforme ; »
4 . L'alin6a c) du paragraphe (1) de Particle 5
est abrog6 et remplac6 par le suivant :
«c) forge, alti're ou falsifie tout passeport,
ou une passe, un permis, un certificat
ou une autorisation officielle ou 6mise
par 1'autorit6 militaire ou la police, ou
tout autre document d'une nature
semblable (ci-apr6s d6sign6 udocument
officiel» au pr6sent article), ou qui utilise
ou a en sa possession un tel document
officiel forg6, alt6r6 ou irr6gulier ; »
158
�1966-1967 . . REorganisation des Forces canadiennes .
Chap . 96 . 45
ANNEXE B-Suite
Lois visE;es Abrogation ou modification
5 . L'alin6a e) du paragraphe (1) de Particle 5
est abrog6 et remplacd par le suivant :
ae) utilise ou a en sa possession ou sous son
contr8le, sans 1'autorisation du d &
partement du gouvernement ou de
1'autorith en cause, une matrice, un
sceau ou un timbre d'un d6partement du
gouvernement ou appartenant A ce
dernier ou utilis6, fabriqu6 ou fourni
par un semblable d6partement ou une
autorit6 diplomatique ou militaire nomm6e par Sa Majest6 ou agissant sous son
autoritd, ou une matrice, un sceau ou un
timbre qui y ressemble au point d'@tre
susceptible d'induire en erreur, ou
contrefait cette matrice, ce sceau ou ce
timbre, ou utilise ou a en sa possession
ou sous son contr6le une telle matrice,
un tel sceau ou un tel timbre contrefait ; u
159
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Commissions of inquiry
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Report of the Royal Commission on Security (Mackenzie Commission) (1969)
Subject
The topic of the resource
Commissions of inquiry
Description
An account of the resource
Commission of inquiry created in 1966 in response to a security lapse in a federal institution. Mandated was to inquire into security procedures in government, but it also to examine more broadly Canada’s national security.
Source
A related resource from which the described resource is derived
Public document archived at the Library and Archives Canada <a href="http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/mackenzie1969-eng/mackenzie1969-eng.pdf">here.</a>
commission of inquiry
information security
national security