ERTA - TCRG -- Maher Arar

L'affaire Maher Arar

Dépositions (5)
La GRC et le SCRS à l'étranger

VI.5 La GRC, le SCRS et les États-Unis

- “They were responding to direction from within our organization to follow up on leads to address issues”

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 30-06-2004

Mr Cavalluzzo : Would you agree with me that there was a great deal of pressure coming from the United States in respect of Canada’s response to 9/11?

Mr Loeppky : I think that we put a significant amount of pressure on our own people to make sure…

Mr Cavalluzzo :That is not the question, Deputy Commissioner. The question is: Do you feel that was a lot of pressure from United States on Canada in respect of its response to 9/11?

Mr Loeppky : It was clear that the United States was relying on us to do our part in terms of ensuring security of North America.

Mr Cavalluzzo : And in doing our part there were certain arrangements that were entered into—and we will come to this later on – between Canada and the United States in respect to the kind of pressure that was being imposed from the United States?

Mr Loeppky : There were –sorry, I just want to make sure I understand the question. I can talk about the volume of requests that we addressed in the short period of time, but I don’t think that is your question.

Mr. Cavalluzzo : No, it is not. What I am trying to determine at this point in time, in a contextual way, is to determine what might be going on in the mind of an average RCMP officer after 9/11. You have told us that there was some pressure being imposed by the United States. In fact, you said there were allegations that some of the 15 hijackers came through Canada.

Mr Loeppky : Yes

Mr Cavalluzzo : This was the kind of atmosphere that prevailed at that point in time, was it not?

Mr Loeppky : Yes. I just wanted to make sure it was clear on the record that our front-line investigators were –we were asking a lot of our investigators ourselves. They were not responding to direction from United States. They were responding to direction from within our organization to follow up on leads to address issues, because obviously the environment was that things needed to get done very quickly.

Mr Cavaluluzzo : I am not suggesting that the front-line people were taking direction from United States. What I am suggesting is that there war a great deal of pressure imposed by the United States on Canada to respond in their view appropriately to what happened on 9/11. Isn’t that correct?

Mr Loeppky : The environment was such that there was a significant amount of interest in making sure that we worked together and dealt with any potential threats that might still be out there.

Nr Cavalluzzo : And that would be common knowledge within the Force?

Mr Loeppky : Well, the situation was such that we were providing the direction. The inquiries were coming in, and we were providing the direction and tasking our people to make sure they dealt with questions and issues expeditiously. Page 78

- Politique concernant les enquêtes étasuniennes qui sont menées sur le territoire canadien.

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 06-07-2004

Mr Cavalluzzo : I will come back to that in a bit, but if we say stay at section « I », in I.5. at the bottom of the page it says : “U.S. Agencies Conducting Investigations in Canada”

Am I to understand that the FBI could conduct an investigation in Canada?

Mr Loeppky : It would be a joint investigation. It would not be an isolated investigation and we would always have the lead role subject to our legislation, our expectations of admissible evidence.

Mr Cavalluzzo : Okay.

Mr Loeppky : The scenario that I envision is, if you were conducting a joint investigation, for example on a murder, and you had a FBI source that was able to meet with a suspect who was in Canada, then there might be occasions where that sources comes to Canada with a FBI agent, but the investigation is always done under the supervision of the RCMP or the Canadian law enforcement community.

Mr Cavalluzzo : That is described at the next page. If I could take you to the next page, I.5.b, it says:

“If the RCMP is the host agency, and no unusual circumstances exist, the (commanding officer)/delegate may approve the request.”

Then is goes on for the conditions:

“If there are unusual circumstances, the request must be referred to the appropriate National Headquarters directorate for a decision.

2. All U.S. agents conducting investigations or interviews within the RCMP jurisdiction must be accompanied by an RCMP member.”

Mr Loeppky : Yes

Mr Cavalluzzo : Then, thirdly:

“The (Assistant Commissioner) Criminal Intelligence Directorate must approve all national security investigations.”

I point out to the counsel and Commissioner that is new. That was not in existence in 2002, paragraph numbered 3. Mr Loeppky : Yes

Mr Cavalluzzo : Then, finally:

“No U.S. agent entering Canada may carry a restricted weapon, even if pursuing a cooperative investigation or security arrangement,”

So that sets out the ground rules if they are participate in an investigation in Canada?

Mr Loeppky : Yes. Page 85 (2).

VI.6 La GRC, le SCRS et les pays étrangers (autres que les États-Unis)

- Politique concernant les ententes qui sont faites avec les agences de renseignements étrangères

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 30-06-2004

Mr Cavalluzzo: Okay. It goes on in the last page to provide that:

“The RCMP will maintain records relating to foreign arrangements, including a written record of terms and understandings of oral arrangements. The RCMP will indicate its means of periodic evaluation or audit of the arrangement, and the provision for its cancellation. The Commissioner will report annually to the Minister on the status of the RCMP’s written and oral arrangements with foreign security or intelligence organizations.”

Mr Loeppky : Yes

Mr Cavalluzzo : So this is a new requirement now saying that if you are going to have any arrangement whatever, oral or written, with a foreign intelligence agency, you had better maintain records of it and on an annual basis you had report to the Minister about it.

Mr Loeppky : We will provide an annual report.

Mr Cavalluzzo : Was there any particular problem which gave rise to this new requirement?

Mr Loeppky : No. I think it was just a clear picture that the Minister would have in terms of the arrangements that might exist between the RCMP and any security intelligence organizations.

Mr Cavvalluzzo : The final direction is that :

“Should any potentially controversial issue arise from such arrangements, the Commissioner shall advise the Minister in a timely fashion.”

Mr Loeppky: Yes.

[…]

Mr Cavalluzzo : But on a day-by-day basis under that arrangement, officers may be exchanging information at the field level which wouldn’t require the okay of the Minister (page 203). Page 199.

- Relation de la GRC avec les autres agences de renseignements, autre que les États-Unis

Garry Loeppky (Deputy Commissioner of Operations /RCMP)

Date: 06-07-2004

Mr Cavalluzzo: […] The only point that, once again, you should be aware of is that in J.2.a.3 where it says:

“The (Assistance Commissioner CID) must approve all national security investigations.”

That is new. It was not in the guidelines in 2002. The only other reference to this policy, Commissioner ---and I won’t take the witness through this –is section M. That just deals with –excuse me, That is in Tab 31, section M, and that is just mutual legal assistance. I won’t take you through that but you should be aware of that area of regulation. A couple of final questions regarding relationship with foreign agencies other than the United States. Does the RCMP have an agreement or arrangement with Syria concerning the exchange of information?

Mr Loeppky : No

Mr Cavalluzzo : Does the RCMP have any agreement or arrangement with Jordan concerning the exchange of information?

Mr Loeppky : No […]

Mr Cavalluzzo : So if Syrian authorities wanted the cooperation of the RCMP, then that contact would be done through the liaison officer in Rome?

Mr Loeppky : Yes, or they could go direct to Foreign Affairs if it was a general type of request for assistance that touched on law enforcement in the initial instance. Page 105 (2)

- Politique concernant les enquêtes qui sont faites à l’étranger.

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 06-07-2004

Mr Cavalluzzo : This applies to when an RCMP officer engages in foreign travel in pursuit of his or her duties. It states :

« A member will not undertake any investigational activity in a foreign country without the knowledge of the Liaison Office rand the explicit consent of the foreign country. »

Okay?

Mr Loeppky : Yes

Mr Cavalluzzo : So that if I am an RCMP officer and I want to travel to the United States, then I can’t do this without the knowledge of the liaison officer in Washington and the express consent of the Americans? Is that fair?

Mr Loeppky : Yes

Mr Cavalluzzo : Then it goes on:

“A member has no legal authority to conduct enquiries in the country being visited unless authorized by the country,

2. A member must be accompanied by a representative of the foreign country during the course of the investigation

3. In many countries it is an offence for an agent of a foreign government to conduct enquiries.”

Then it sets out:

“Travel to foreign country for investigational purposes…”

In I.1.b.

Mr Loeppky : Yes

Mr Cavalluzzo : In I.2.b., at the bottom there, I just want to cover the relevant portions
”If the travel request requires National Headquarters approval, submit your request to division immediately upon knowing the need to travel to a foreign country.”

So, once again, if I am an INSET member and I want to travel to the United States, then I have to get national headquarters approval to do that?

Mr Loeppky : Yes […]

Mr Cavalluzzo : Okay. Just finally on that point, it is important to note up at the top portion of that page in respect of I.1.b in terms of the purpose of such a visit, it states:

“Travel to a foreign country for investigational purposes is restricted to :

Canadian investigations requiring evidence or information to be gathered in a foreign country or
foreign cases of enforcement interest to Canada requiring evidence or information to be gathered in the foreign country by the RCMP personnel or technical equipment.”

There are other regulations that I would just point out to the Commissioner and counsel at page 7 o 14. You should be aware of these guidelines. In particular, paragraph I.2.g. It state :

« Do not contact or interview Canadian in custody in a foreign country unless :

the interview was requested through a Canadian government representative, or consent to the interview is given in writing, and the interview has been approved by the head of the foreign post.” Page 87.

- Relation du SCRS avec les agences ou gouvernements étrangers.

Mr David : Moving now to the third topic, Mr Commissioner, we are dealing now with liaison with foreign entities. We understand that they have to be approved by the minister. We understand that the arrangements exist under section 17 with foreign entities. We understood from Mr Elcock’s testimony yesterday there are some 247 approximate arrangements that are now in force with foreign entities. Mr Elcock well explained that, in certain cases, there may be more than one arrangement with a given country. The policies that apply, in terms of arriving to an arrangement with a foreign entity, I refer you to Tabs 4, 5 and 6 of the policies binder, which is, again, Exhibit No.4. Could you bring us through those directives, in terms of the establishment of these arrangements?

Mr Hooper : Tab 4 is our operational policy 402, dealing with arrangements with foreign governments and institutions of foreign governments. What that policy does is it articulates the responsibilities of the minister, the director. It provides for emergency circumstances, where the director may authorize certain contacts with an entity of a foreign government, absent ministerial authority, if exigent circumstances dictate, and it basically walks through the responsibilities of the Director General, Foreign Liaison, and the head of Foreign Arrangements. It also talks about some of the guidelines that accompany.

Mr David : And if I could refer you in that regard to subsection 3.3. It says:

“Arrangements with countries or international organizations that do not share Canada’s respect for democratic or human rights will only be considered where there is a definite requirement to protect the security of Canada.”

This is a guideline that exists and has existed for some time?

Mr Hooper : Yes

Mr David : Tab 5, Mr Hooper, if you could describe, in terms of, again, we are dealing with liaison, with foreign entities, and the existence of an operational guideline.

Mr Hooper : Yeah, this is a supplement to 402. This is, basically, an appendix the previous policy that speaks to the requirements we just meet in going forward to our minister, when making a request –

Mr David : If I could draw, in that regard, your attention to section 2.2, which reads as follows:

“Assess the internal political situation of the country and highlight the presence of democratic institutions noting the role, history and place in society. The assessment will address the human rights record of the country including any possible abuses by the security or intelligence organizations.”

Of that country, obviously. This is a policy that has existed for some time. Could you—

Mr Hooper : Yes and that policy requirement is an element of every memorandum, going forward to our minister, making a request for a foreign arrangement.

Mr David : Okay. And finally, I refer you to Tab 6, which deals with procedures and foreign arrangements, if you could bring us through that.

Mr Hooper : 402-2, basically, is an articulation of the scopes that accompany foreign arrangements and how we expand or limit the quality of a relationship that we have with a foreign entity.

Mr David : Now, these arrangements, are they reviewed, are they reconsidered, are they regularly analyzed? How does that occur?

Mr Hooper : There are analyzed every year and there is an imperative for all of our security liaison officers to submit an annual report on the quality of liaison that they have with entities under their ambit of responsibilities. We would also review the status of an arrangement that we had with a foreign entity. If there was some dramatic change in the political climate of that country. Page 186.

- Règle concernant les sources d’informations ainsi que le dévoilement d’informations à l’étranger.

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 30-06-2004

Mr Cavalluzzo: Let’s look at your policy. If you refer to Tab 31, this is the Operational Manual and it says “Information Sources”.

Mr Loeppky : Yes

Mr Cavalluzzo : I understand that this is the current policy. I would refer to paragraph M. […] This is a policy of the RCMP?

Mr Loeppky : Yes

Mr Cavalluzzo : Dealing with services. Paragraph M.3’s title is “Enquiries from Foreign Governments that Violate Human Rights”,

Mr Loeppky : Yes

Mr Cavalluzzo : It says in M.3.a:

“The RCMP will not become involved or appear to be involved in any activity that might be considered a violation of the rights of an individual, unless there is a need to comply with the following international conventions: “

Then those conventions are set out, such as the Conventions on the Prevention and Punishment of Crimes Against Internationally Protected Persons. It goes on in M.3.b and says:

“The disclosure of information to an agency of a foreign government that does not share Canada’s respect for democratic or human rights may be considered if it:

is justified because of Canadian security or law enforcement interests,
can be controlled by specific terms and conditions, and
does not have a negative human rights connotation.”

Is this the guideline, the expectation that is required of an RCMP officer, who gets an inquiry from a foreign government in terms of disclosing information?

Mr Loeppky : The issue of human rights, dealing with countries who do not have good human rights records is an extremely important one. I want to ensure that it is on the record that the RCMP, you know, condemns any form of human rights abuses. It is contrary to the Charter. It is contrary to the values of the RCMP . I think that is absolutely critical that –and our members are trained from day one about respecting human rights. This particular policy, we would be reluctant to share any type of information. We would make sure that the appropriate consultation was done with Foreign Affairs in terms of seeing what the human record was with our liaison officer who could perhaps provide a perspective with CSIS. But we spoke a little earlier about policy breaches, and this is to accommodate that rare exception where, if it was consistent with our obligations under section 18 to preserve the peace, to prevent crime, and it took into consideration the implications of human rights violations, then there might be –there might be—a need at some point to deal with a country that had less than a perfect human rights record. If I could perhaps give an example? If we had a Canadian that was kidnapped in a country that had a less than acceptable human rights record and we were in a position to be able to assist through working with that law enforcement community, I think –we would obviously do the appropriate consultation with Foreign Affairs, but I think Canadians would expect that we would do what we could to address the rights of a Canadian. The alternative is , if a foreign country with a less than perfect human rights record wanted to provide some information about a catastrophic events that was going on in Canada, obviously we would regard that information very carefully. We would consult with others who have a perspective, such as Foreign Affaires, CSIS. We would put the appropriate judgment to that information. But if it meant that not using the information resulted in a major incident, I think that we would be in breach of our duty as a peace officer and a public officer not to have at least responded in some way to that kind of a situation. Page 225.

VI.6.1 Les agents de liaison à l’étranger

-Politique concernant les fonctions et responsabilités des agents de liaison

Garry Loeppky (Deputy Commissioner of Operations/ RCMP)

Date: 06-07-2004

Mr Cavalluzzo: In terms of the functions and responsibilities, I would refer you quickly to the annex here where the principles are set out. It states in paragraph 1:

“RCMP liaison with foreign police and law enforcement intelligence agencies will be carried out if, in the opinion of the RCMP and the Department of…”

We will say Foreign Affairs.

“(a) The character of our relations with and the political situation in the country concerned make such liaison appropriate and desirable; and

(b) the information likely to be obtained from such liaison relates to the responsibilities of the RCMP for maintaining law and order in Canada and to the furtherance of the established international agreements,” That is true today, obviously.

Mr Loeppky: Yes.

Mr Cavalluzzo : Second, in paragraph 2 it says:

“Such liaison may cover the exchange of information concerning…”

And then I would highlight the words in paragraph (a):

“…the criminal aspects of politically motivated crime…”

I think that we could say that terrorism, for example, would fall under the words “the criminal aspects of politically motivated crime”?

Mr Loeppky : Yes

Mr Cavalluzzo : Third, in paragraph 3 it states:

“Liaison in the criminal field will be covered by agreements in writing unless unwritten understandings are considered desirable by either party. Such agreements or understandings, which will be negotiated through diplomatic channels, will indicate the subject areas for exchanges of information, a list of the local organizations with which liaison may be maintained, the channels to be followed for the conveying if information, and the security protection to be afforded it.”

That is still true today?

Mr Loeppky : Yes

Mr Cavalluzzo : All right. I guess the only other reference would be in paragraph 5. It says:

“When it is considered desirable for an RCMP officer to respond to ad hoc requests or situations outside the provisions of the liaison arrangements agreed upon with the country concerned, such action will be carried out only after consultation between the RCMP…”

And Foreign Affairs. Is that true today?

Mr Loeppky : Yes.

Mr Cavalluzzo : I think that may be it. Perhaps the final reference in terms of information the RCMP receives is if you refer to page 4 of the annex, to the last sentence of paragraph 7 at the top of page 4. It says:

“The Head of Mission will ensure that the Liaison Officer is kept fully informed of Canadian assessments of political economic and social developments in the country concerned.”

For example, what that would mean in Washington is that the Ambassador in Washington would keep the RCMP liaison officer fully informed of their assessment of political, economic and social developments in the United States?

Mr Loeppky : It would apply across the board, but it would be less critical in that environment than it would be in some areas around the world where you are dealing with very unstable political regimes, where you might be sending an officer into that environment and Foreign Affairs could give you a significant amount of advice in terms of safety, in terms of the broader issues that the officer needs to think about. Page 76 (2).

- Rôle concernant les agents de liaison de la GRC à l’étranger. Ceux-ci doivent travailler en collaboration avec les agents de liaison du SCRS à l’étranger pour éviter de travailler en « double ».

Garry Loeppky (Deputy Commissioner of Operations/RCMP)

Date: 30-06-2004

Mr Cavalluzzo: The next item is what is referred to as the “ Foreign Liaison Officer”. The guideline or expectation is to:

“Maintain close liaison with CSIS foreign Liaison Officers to avoid duplication of effort or dual tasking of foreign information sources.”

First of all, what is foreign liaison officer of CSIS and how does it interrelate with the RCMP?

Mr Loeppky : We have 35 foreign liaison officers in 25 locations around the world.

Mr Cavalluzzo : These are RCMP people?

Mr Loeppky : RCMP personnel, who are deployed for a certain period of time to facilitate furtherance of criminal investigations, establish relationships. They have a number of duties: support the head of mission in the embassy. They are deployed in consultation with the chief or the head of the mission and function within that environment. CSIS has liaison officers as well in terms of some locations around the world, and this policy really provides direction to make sure that there is no working at cross purposes, that they know which investigations we might be involved in, and having that integrated approach where necessary. Page 151

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