-Politique concernant la relation entre la GRC et le SCRS.

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 06-07-2004

Mr Cavalluzzo: The first thing that I would like to refer to is the guiding principles underlying this relationship, and that can be found at page 3.   There are a number of principles, such as:

“the RCMP will rely on the CSIS for intelligence relevant to national security offences;”

That is still true today?

Mr Loeppky : Yes

Mr Cavalluzzo : And:

“the CSIS will provide to the RCMP intelligence relevant to the RCMP’s security enforcement and protective security responsibilities;”

That is still true today?

Mr Loeppky : Yes

Mr Cavalluzzo : Third:

“the RCMP will provide to the CSIS information relevant to the CSIS mandate;”

Still true today?

Mr Loeppky : Yes

Mr Cavalluzzo : Fourth:

“the RCMP will be the primary recipient of security intelligence on national security offences;”

Mr Loeppky : Yes

Mr Cavalluzzo : Fifth:

“the RCMP and the CSIS will consult with each other with respect to the conduct of security investigations;”

Mr Loeppky : Yes

Mr Cavalluzzo : Just stopping there , would there be any situations where both agencies would conducting a security investigation at the same time or concurrently?

Mr Loeppky : CSIS could be conducting an investigation that is consistent with their mandate where there may be an issue that is concern to the Government of Canada but that is clearly not criminal, while at the same time they might be involved in serious criminal activity that we would have an interest in. So there is the possibility that you could end up with both organizations involved in an investigation .

Mr Cavalluzzo : One question I have related to that, just for the information of the Commissioner, and that is: In such a situation does the RCMP ever provide assistance to CSIS in respect of its security investigations? For example, is it possible that CSIS might ask the RCMP to conduct surveillance on a particular individual?

Mr Loeppky : We would generally work within our mandate, but there are occasions when you are working in a very integrated way in terms of protecting Canada that we could provide assistance consistent with the agreement and consistent with the relationship that exists between our two organizations. So we work very closely, and we would keep them apprised of the progress of our criminal investigation.

Mr Cavalluzzo : And that would include, as I said before, surveillance of an individual if requested?

Mr Loeppky : If they absolutely were strapped and required some support.

Mr Cavalluzzo : Okay. The final principle set out on page 3 is that :

“ the RCMP and the CSIS will conduct security investigations in accordance with the guidelines, standards and directions provided by the Solicitor General.”

That obviously is true?

Mr Loeppky : Yes.

Mr Cavalluzzo  : If we move on, we come to when both entities exchange information or give information to each other, in paragraph 3 at page 4. It says that:

“The CSIS and the RCMP agree to adhere to certain fundamental principles governing the retention, use and disclosure of information and intelligence received from the other agency and agree further to the establishment of specific mechanisms to facilitate cooperation. These principles and mechanisms are set out in PART III of the Memorandum of Understanding.”

I will come to that. Just stopping at this point, I want to be clear. I asked you this before but I want to be crystal clear on this, and that is if CSIS was to give information to the RCMP which it qualified as being doubtful reliability and the RCMP was then to give that information to a foreign agency, I believe you said last day that that information should be similarly qualified as CSIS did, and that is that it is unknown reliability. Is that correct?

Mr Loeppky :   Yes

Mr Cavalluzzo : The security related responsibilities of each agency are set out at pages 6 and 7, and I just refer to one at page 6 in respect of the security related responsibility of the RCMP. In paragraph i) it sets out the statutory mandate that we have referred to earlier:

“the prevention, detection, investigation and laying of charges in relation to any offence referred to in section 2 of the Security Offences Act…”

And that there are other responsibilities such as:

“ the protective security measures to safeguard VIPs…”

And so on.

Mr Loeppky: Yes

Mr Cavalluzzo : As to the kind of information that CSIS should provide the RCMP, we have provision for that at page 8 under the paragraph 6. About halfway down paragraph 6 it says:

“…the CSIS agrees to provide on a timely basis, or upon specific request, information and intelligence in its possession that may assist the RCMP in fulfilling its security-related responsibilities, including:

[…] Page 67 (2).

Mr Cavalluzzo  : Okay. We see information and intelligence coming into your possession that may assist CSIS in investigating activities, et cetera :

“…detailed case-related information relevant to the security-related responsibilities of the CSIS;

       c) time-sensitive information or intelligence which may assists the CSIS in carrying out its (responsibilities)…”

Mr Loeppky : Yes

Mr Cavalluzzo : A couple of other references which I think will be of assistance to the Commissioner. At page 13, in paragraph 20, between those redacted portions, it states:

“The RCMP and the CSIS undertake to provide mutual assistance and support abroad, particularly as it relates to liaison with foreign agencies on security related matters.”

Is that still true today?

Mr Loeppky : Yes

Mr Cavalluzzo : Then if we go to page 14 we see the “ Principles of Cooperation”. We see in paragraph « A » of paragraph 24 :

« All information, documentation or material provided under this Memorandum of Understanding shall be fully protected and any caveats imposed by either party shall be full respected to the extent provided by law.”

So that the information that RCMP receives from CSIS?

Mr Loeppky : Yes

Mr   Cavalluzzo : Paragraph “B”:

“National security investigative files shall be maintained separately from other investigative records and access to these files shall be strictly governed by the “need to know” principle.”

Is that principle maintained at the RCMP today?

Mr Loeppky : Yes.   Page 51 (2)  

- Politique concernant la coopération et la coordination lors d’enquêtes mutuelles entre la GRC et le SCRS

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 06-07-2004

Mr Cavalluzzo: Then in paragraph 25, at the bottom of the page, we have the liaison program wherein CSIS provides liaison officers to the RCMP and vice versa?

Mr Loeppky : That has been replaced by the exchange program that I eluded to the other day at the headquarters level.

Mr Cavalluzzo : Then there is reference to a number of items. For example, on page 16 it talks about:

“cooperation and coordination with respect to the investigation of targets of mutual interest;”

Then (e):

“ the establishment of combined operations.”

I guess we asked you about that earlier on. Paragraph 28 on page 17. I just want to ask you about this. It provides that :

« Liaison officers shall not disclose information obtained or accessed in their liaison role unless the agency in possession of such information authorizes disclosure. »

[…]

Mr Cavalluzzo : On page 19 it provides in paragraph 33:

“ the CSIS shall, for the purpose of complying with the monitoring function of the Security Intelligence Review Committee, as designed in subparagraph 38 (a) (iii) of the CSIS Act, maintain written records of the provision of information pursuant to this Memorandum of Understanding.”

I note that there is no similar obligation on the RCMP to maintain such a written record. Is that correct?

Mr Loeppky : All of our exchanges would be documented in the perspective files that relate to an information exchange.

Mr Cavalluzzo : So that all information exchanges with the CSIS, you are saying there is a written records of those exchanges?

Mr Loeppky : There would be note in the file, yes. Page 69 (2)

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 06-07-2004

Mr Cavalluzzo: Thank you. Let us go to the other exception which I think is relevant, and that can be found in paragraph L2.d. It is under the exception relating to a disclosure under an agreement or arrangement. That is paragraph 8(2) (f) of the Privacy Act. It is L.2.d. Unfortunately, there are no pages on it. This exception provides that:

“Under an agreement or arrangement, this provision of the Act allows the exchange of information between federal police, security and investigative bodies and their Canadian and international counterparts for law enforcement purposes.”

Then the paragraph 2 talks about formal written agreements between Canada and other governments . Paragraph 3 is important. It provides that:

“It is not an obligation to release personal information under this provision: disclosures should be restricted to only that part of the record actually required, and the information condensed to a synopsis wherever possible.”

[…]

Mr Cavalluzzo : There is one other question relating to this particular exception to the privacy legislation. It says in paragraph 3 about not an obligation to release personal information, and   then it says:

“…disclosures should be restricted to only that part of a record actually required…”

Where it says “that part of the record”, and if I can bring you back to Jim Jones, how would you interpret giving information about Jim Jones when obviously you don’t have a record on him but he may be part of a larger investigation? How would I interpret that?

Mr Loeppky : It would just be a very brief summary of information that you might have.

Mr Cavalluzzo: On Jim Jones?

Mr Loeppky  : Yes

Mr Cavalluzzo  : I guess there is a question that flows from that, and that is : When you are talking about sharing information from the RCMP with, for example , the FBI or any foreign agency, and you said that the decision being made by the officer has to be a thoughtful one in the sense that he must or she must take into account a number of considerations –and what you are talking about are all of these policies that we are just reviewing – when a question is posed concerning information on a Canadian, these are the policies and guidelines that the officer must operate under in making those crucial decisions. Isn’t that correct?

Mr Loeppky . These are the guidelines. Page 45 (2)

- Politique concernant les ententes de la GRC avec des tiers.

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 30-06-2004

Mr Cavalluzzo: I would like to move on to Tab.   25. This is your policy on agreements. It is called “Administrative Manual –RCMP Agreements”.

Mr Loeppky : Yes

Mr Cavalluzzo : This, I guess, is what the Commissioner’s responsibility is in terms of incorporating the directives. It provides under “Policy” :
”All agreements…”

And then it says:

“…other than personnel secondment…whereby the RCMP undertakes a commitment with an another party to provide or receive services or assistance or engage in joint activities, will conform to the Ministerial Directive on RCMP Agreements…”

Which is what we just referred to? It refers to:

“Agreement/Understanding means a signed or unsigned written record of understanding, other than a contract…”

It then refers to the kinds of agreements that it applies to: memorandum of understanding letter of understanding, and so on and so forth. Once again, this would appear to suggest that agreements that the RCMP enters into, where you undertake a commitment with another party to provide or receive services or assistance or to engage in joint activities, must comply with the directive which says it must be in writing. I guess your position would be that this does not apply to any arrangement you may have with a foreign agency?

Mr Loeppky: These are very much the technical sharing arrangements on a variety of police support areas that exist.

Mr Cavalluzzo : What you are saying is that it would not apply to an agreement for sharing information?

Mr Loeppky :   No. Again, these are written agreements, obligations where liability may very well be attached in terms of training databanks, DNA. There are many areas where we have agreements in place that commit the Government of Canada, and those are the ones that need to be in writing and have the benefit of that need to be writing and have the of that legal review to make sure that we are not obligating the government to something that may not be acceptable. Page 221.

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 06-07-2004

Mr Cavalluzzo: As you can see from paragraph 1.1, the directive:

“…provide Ministerial direction relating it the provision of police training, consultative assistance and investigative assistance to foreign countries by the RCMP.”

Can you see that?

Mr Loeppky: Yes

Mr Cavalluzo: And it :

“…establishes routine procedures to be followed in reviewing such requests…”

And it sets out the necessary considerations to be taken into account.

Mr Loeppky : Yes.

[…]

Mr Cavalluzzo : Okay. The third kind of assistance that is referred to in this directive is “ consultative assistance”.

What is that, just briefly?

Mr Loeppky : During many of our international criminal operations we deal with countries that may not have the level of expertise that exist in Canadian law enforcement and this provision provides us the opportunity to provide consultative assistance to enhance their skills which will ensure that evidence is admissible in Canada.

 Page 10 (2).

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 06-07-2004

Mr Cavalluzzo: If you refer to page 10 we come back to what we referred to earlier as the “Control Considerations”. This is page 10, paragraph 5.4. It states:

“Some of the technical assistance provided by Canada, involves device that have a potential for abuse if not carefully controlled”

Then it goes on in the next paragraph:

“In reviewing requests for assistance that include access to sensitive equipment or easily abused methods and techniques, the possibility of a favourable decision shall require firstly, that the risks of potential abuse have been identified and, secondly, that feasible measures of control devised by the RCMP and acceptable to both parties are instituted by agreement so as to minimize these risks.” Page 16 (2)

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 06-07-2004

Mr Cavalluzzo: I think the directive is quite instructive because it talks about giving assistance to countries which may not have the same kind of democratic record as Canada. In particular, I am referring to page 3, paragraph 4.1. under “Police Assistance Objectives” and making reference in particular to the third sentence, which states that:

“Since provision of any police assistance to a repressive or otherwise unpopular regime or the provision of inappropriate assistance to any country could be harmful to Canada’s reputation and the reputation of the Royal Canadian Mounted Police, procedures are establishes herein to ensure the careful review of all requests and the effective administration of the assistance provided.”

[…]

Mr Cavalluzzo : I am referring to the second paragraph on page 4. It states;

“Finally, the nature of assistance being provided requires that the Government and the responsible Minister be assured that all assistance provides satisfies any control requirements imposed by either party to the assistance agreement.”

We will come back to that later in the agreement. Then in the next paragraph, paragraph 5, it talks about the “Approval Criteria” under the first subparagraph “Political Considerations”. We need not read all of it, but just three lines from bottom up, just picking that up, it states:

“Should standard forms of assistance be provided to repressive or otherwise unpopular regimes or should inappropriate assistance (e.g. assistance which is, in fact or in appearance, related to internal security) be provided to any country irreparable harm could be done to the international reputation of both Canada and the RCMP.”

Then it sets out considerations. It says:

“ Such considerations point to the need to evaluate all requests in light of the following political considerations:

William Hooper (Deputy Dir ector of CSIS)

Date: 23-06-2004

Mr Waldman: Well, I have another question on the same document, just the next page, 3.(1):

"Investigation by the Service under section 12 of the CSIS Act, in cooperation with the Canadian or federal, provincial or territorial government, a Canadian law enforcement authority or foreign police will only be undertaken with when approved." (As read)

Does that mean that there are circumstances when CSIS will operate with foreign security organizations in Canada?

Mr Hooper : That's correct.

Mr Waldman : Now, I just want to ask some questions about 5 .(2), groups and organizations. This one -- I don't think I passed your course yet. I am very confused about this part, so I'm going to have to go back to school. It says:

"A targeting level may be approved to investigate the activities of a group or persons of an organization..."

-- and then it says their criteria:

"The objectives and activities of the group constitute a threat. All participants in the group understand and sympathize with threat-related objectives." (As read)

Now, if I read that correctly, then, it's possible that you could get a targeting authority against an organization like al-Qaeda.

Is that correct?

Mr Hooper : That's correct. […]

Page 75 (2).

Mr David : … Domestic liaison, what does it mean in your organization, and what is the environment in which it occurs?

Mr Hooper : I think the routine discharge of our duties and responsibilities under the Act requires that we cooperate with departments and agencies of the Government of Canada, with provinces and with law enforcement agencies. I think if we are to be effective in carrying out our mandate, we need to have a wide array of arrangements with domestic agencies. The service enters into these arrangements in order to establish a medium by which we can legally acquire threat-related information and by which we can pass that same kind of information to principally federal entities but also provincial and municipal entities that have a requirement for it. Domestic exchanges are facilitated, as we have spoken about, through section 17 arrangements. We have talked a lot about, I think, how these arrangements are derived and the authorities that go behind them.

Mr David : In addition to the arrangements that exist under section 17 –and you have mentioned the word MOU in your testimony so far – there are also under section 17 memorandums of understanding that exist between CSIS and certain other organizations in Canada.

Mr Hooper : That is correct. We have them at the federal level and with all the provinces in Canada with the exception of Quebec

Mr David : In fact, we can refer in the policies binder, Exhibit 4, to tab 12, 13, 14 and 15: Tab 12 being the MOU that exists with the RCMP that has been already extensively referred to. If I could refer you to Tab 12, Mr Hooper, I would like to refer you to page 3 of that MOU. There is in the interpretation section of the memorandum that exists with the RCMP that is in force since 1990, a distinction that is made between security-related responsibilities of CSIS and security-related responsibilities of the RCMP. Could you bring us through that distinction that does exist in this memorandum.

Mr Hooper : When we talk about the security-related responsibilities of CSIS pursuant to the MOU, basically we are talking about, first of all, the duties of CSIS being the collection, analysis, retention and dissemination of information and intelligence respecting threats to the security of Canada.

Mr David : Section 12

Mr Hooper : That is directly in accordance with section 12. The second part refers to our requirement to advise government with respect to threats and then it adds an element that the provision of information, intelligence and advice to the RCMP with respect to offences or the apprehension of the commission of offences arising out of the threats to the security of Canada. Part 4 of that says the provision of security assessments and advice pursuant to sections 13 and 14 of the CSIS Act, which in plain terms refers to our providing the RCMP with security assessments relative to public service employment.

Mr David : With regard to the RCMP now, which is section 4 (d) of the MOU, what are the security-related responsibilities of the RCMP?

Mr Hooper : The first article of the responsibilities of the RCMP basically refers to the mandate of the RCMP under the Security Offences Act:

“The prevention, detection, investigation and laying of charges in relation to any offence…”

That is a product of a threat to the security of Canada.

“…or the apprehension of the commission of such an offence included in the Criminal Code, Official Secrets Act, Import and Export Permits Act or any other federal (legislation) having a national security dimension.”

It also adds an article relative to the protective security mandate of the RCMP. In practical terms what this means is that the service provides the RCMP with threat advice, threat assessments that allow it to more effectively execute its protective security mandate.

“The provision of advice to departments and agencies of the Government respecting protective security measures…”

Again this is a further extension of the RCMP’s protective security mandate. Basically it refers to our capacity to provide the RCMP with threat and risk assessments. Finally:

“The consolidation of threat assessment from CSIS and other sources to provide appropriate protection to VIPs and for special events.” As regards special events, people who have access to strategic sites or protected sites around special events must be vetted and we perform that role on behalf of the RCMP….

Mr David : Coming back now, we are always in the area of domestic liaison and more specifically domestic disclosure, which we have covered in some detail in reviewing section 19, Mr Hooper. Are there situations where one can distinguish where CSIS must disclose to the Government of Canada and situations where CSIS exercises a discretion as to whether information is to be disclosed to the Government of Canada or not?

Mr Hooper : To the Government of Canada

Mr David : Yes

Mr Hooper : You are talking broadly –

The Commissioner: Or the RCMP. Is it to the Government of Canada?

Mr David : To the Government of Canada. I am referring to obviously in the case of the government, threats to security. Are there situations where the law obliges you to inform the government of situations that constitute a threat to the security of Canada or can you exercise discretion in that regard?

Mr Hooper : I think the law obliges us to provide advice to the Government of Canada in respect to threats. Where there is a degree or an element of latitude, it comes down to the detail and quality of the information that we provide in terms of our requirement to protect in some instances, in most instances, the sources of that information or any third party considerations that may apply.

Mr David : Disclosure seems to evoke the idea that it is in writing. Does disclosure in fact, is it always written disclosure or can there be oral disclosure in the way CSIS approaches a situation?

Mr Hooper : If we are talking domestic disclosures, the service can make oral disclosures to an entity with which it has a section 17 MOU or arrangement.

Mr David: Which would mean, as an example that CSIS could decide to orally disclose a piece of information to the RCMP?

Mr Hooper : We could decide to do that. In point of fact, we try very hard to make most of all of our disclosures to the RCMP written disclosures because it is more effective administration means for dealing with that. Typically, where there are verbal disclosures, there is – not typically, there is a policy admonition that says if you make a verbal disclosure, it subsequently has to be committed in an operational report, that is then put into our operational database.

Mr David : Now, the idea of disclosing in writing also facilitates the existence and the accompanying of a caveat. Is it possible to have such a protection, a caveat protection, with an oral disclosure?

Mr Hooper : Well, one of the items that our investigators are admonished to provide, in making a verbal disclosure, is an admonition to the effect that the information contained in that verbal disclosure cannot be further disseminated. So in some respects there is a caveat applied even to verbal disclosures, but, again, the far more effective means of ensuring control of our information is to do that in writing, where you can apply the written caveats. Page 178.