No oversight for abuse of power
Shunpiking Online is posting below an excerpt from the proceedings of 24 September 2003 meeting of the House of Commons Subcommittee on National Security of the Standing Committee on Justice and Human Rights pertaining to Project Thread. Twenty three men of Pakistani and Indian origin living in the Toronto area were detained on 14 August 2003 in early morning raids by August 14, officers from the RCMP, immigration officers and other police forces. They were all ultimately released.
The Chair (Mr. Derek Lee (Scarborough-Rouge River, Lib.)): ... I would just note that of the current list of detainees we have seven security certificates, some 23 initially detained under section 55 and section 58. Your presentation didn't go into too much detail on the sections 55 and 58 procedures. Colleagues here may wish to gather more information on that in the questioning.
Mrs. Marlene Jennings (Notre-Dame-de-Grâce-Lachine, Lib.): There has been a lot of media coverage of Project Thread, and it seems that none of the individuals were arrested and detained under a security certificate, since their names are not on the list we were given that was updated September 23. So it was done under the provisions of the Immigration and Refugee Protection Act.
In addition to arguing that the act is unfair and opposing it, council for some of the detainees have claimed that there has been abuse of certain powers. I am well aware of the current system for dealing with complaints of abuse of authority. In the case of the RCMP, there is the RCMP Public Complaints Commission, as well as the RCMP External Review Committee. There is another committee, the SIRC, which has quite a review power. I would like to know what there is for immigration. Where can a person turn if he or she feels that powers of arrest were exercised abusively or illegally, whether or not the act is fair or there is any evidence? What independent review mechanism is there for people to make complaints?
Ms. Claudette Deschênes: I would answer that the current system is always reviewed by independent decision-makers.
If we arrested someone and are detaining them, we have to provide our case to an independent member in front of the Immigration and Refugee Board, which is one process to ensure that we are doing things according to the act, and so on.
CIC does not have an independent overseer of the department. So if there were a feeling that we had arrested unfairly, they would have to take us to civil court. They would take us to court for abuse of power. There is not an oversight--
Mrs. Marlene Jennings: There's never been any discussion about putting into place an independent system of oversight of CIC, given that CIC has what people would characterize as police powers, policing or law enforcement powers, whereas CSIS and RCMP have that oversight? That's a real issue. That's what you see in the paper all of the time.
Take away the argument that we are opposed to Bill C-36 or we are opposed to immigration officials having law enforcement powers, take away that whole argument. Simply on the actual application of those powers, there are continuously allegations in the media and in the public that they've been used in an abusive fashion by immigration official agents.
Has there ever been any debate within CIC about whether or not it might be a good thing to have some kind of independent oversight that helps to deal with that perception -- and the perception may not be rooted in reality -- in the same way CSIS and RCMP have those oversight bodies?
Ms. Claudette Deschênes: I would make sure we all understand that in the cases we're talking about, they were arrested by the RCMP, which could be overseen. I think, from the perspective of the department, every one of our decisions is open to judicial review and review by an independent body. I think that at this moment we feel there are sufficient guarantees and checks and balances.
Right Hon. Joe Clark (Calgary Centre, PC): ... Can I go back to Project Thread? That seemed to have arisen almost haphazardly -- correct me if I'm wrong -- with the information about the Ottawa Business College. Is that impression correct? If not, is there a current practice or plan to gather information about accredited Canadian schools in any more systematic way?
Mr. Ward Elcock: We were not involved in any way in Project Thread, Mr. Chairman.
Ms. Claudette Deschênes: I think what I would say is that whenever we have information to lead us to have a concern about a school, we will investigate and do what's necessary. Whenever an applicant, for example, makes a request to go to a school where we have doubts, there are set procedures to follow. In this case, Project Thread, I think it's quite clear that it was not haphazard, that we were investigating, and that there was a framework to it. These people were detained under the Immigration Act because we believe they had violated it and were inadmissible. We detained them because we were concerned that they wouldn't show up for their hearings. After the warrant and collection of information, we also had suspicions that we needed to investigate on the security front.
Mr. Joe Clark: So you followed the individuals in this case. Do you also follow the institutions, or is there any intention to give more attention to institutions that might be considered comparable to the business college?
Ms. Claudette Deschênes: We work very hard with the provincial governments and the universities and academic areas to set up systems and systematic ways. We are continuing to explore ways to ensure that when there are issues, we can follow them up.
Mr. Joe Clark: How do you work with the universities or the provinces? Is it simply with respect to criteria that have to be followed by various institutions? Is there an inquiry into particular institutions?
Ms. Claudette Deschênes: We also, whenever we have issues, do specific investigations of institutions and work with the provincial authorities on that.
Mr. Joe Clark: Is there a requirement on the part of institutions, or a practice, to report information to you that might seem suspicious to them?
Ms. Claudette Deschênes: At this moment in time, there is not.
The Chair: I'm now going to address the work that would have gone into the second set of detainees, those detained under sections 55 and 58 under Project Thread.
Mr. Elcock has been here many times as a witness, and CSIS certainly has, but as we understand it, the information that CSIS develops on the intelligence side and puts forward is subjected to quality controls all the way through. Within CSIS itself, it has its own processes; plus there is TARC; then you have the Federal Court; then the Solicitor General's sign-off; then SIRC; and then you have this committee; and the inspector general; and it goes on. So we're reasonably assured that CSIS comes forward with a quality intelligence product.
In the sections 55 and 58 arrests and detentions, warrants were required. The information used for those warrants does not all necessarily come from CSIS; it may have come from Immigration Canada, and it may have come from the RCMP. It does not have the same kinds of quality controls, which is the thrust of my question. I don't know who I should ask, but how do Canadians know that quality information is coming through and going forward with the warrants?
I'm assuming these warrants were signed off by a justice of the peace somewhere. Maybe you might indicate that to us too, because that's the only point of check; it's the only pinch-point check on the section 55 arrests.
So could you please provide us some description of how you assure quality, especially in light of the fact that the RCMP is now using the integrated national security enforcement teams, INSETs, which involve local and provincial police forces. So you have information coming in from all over.
Ms. Claudette Deschênes: I just want to clarify that the immigration warrants for Project Thread were issued because we believed those people were inadmissible.
The Chair: Did you issue the warrants, or did a judge issue them?
Ms. Claudette Deschênes: They were immigration warrants.
...Immigration officials. So in terms of the detention issue, they were detained because we believed they were inadmissible to Canada and would be unlikely to appear for a procedure or process for us to hear that. That's all the warrants were issued for.
The Chair: Their continued detention, of course, is based on a security suspicion, as I understand it from the press. Is that correct?
Ms. Claudette Deschênes: They are being continued to be detained because they are unlikely to appear, some of them because we have issues about their identity and some because there is a reasonable suspicion that they may be inadmissible on grounds of security and that we need to further investigate. Those are the grounds that are deemed.
That case has been put in front of an adjudicator who is looking at that independently and is deciding yes or no. In three cases, when they looked at those cases they decided no, they should be released on conditions. All the others were found to be warranted to remain in detention
Mr. John McKay (Scarborough East, Lib.): So Immigration Canada detains all of these folks, 23 of them in total -- I think a couple have since been released -- and it's done on the basis of your own investigation, your own material, correct?
Ms. Claudette Deschênes: Again, I'd like to clarify that in this case we did not issue the warrant because of the security issue. We issued the warrant because these people were illegally in the country and inadmissible to Canada. They had multiple identities and had been involved in fraud with the school.
After that, based on a joint investigation with the RCMP, information came to light that caused us to have a reasonable suspicion that there might be something in terms of security that we needed to investigate. That was the argument we put forth to keep them in detention while we worked with the RCMP and CSIS to find out if there was an issue there or not. What I think we tried to do was balance the right of the individual with ensuring that the security of Canada was well protected. We didn't go out to arrest them for security reasons.
Mr. John McKay: It's just that it's kind of curious that these folks get put into security and yet CSIS has absolutely nothing to do with any investigation of them up until that point. You arrest them on the basis of immigration issues rather than on the basis of security issues.
... And then after the fact, you say, well, we think there might be some security issues that arise, so you the RCMP, and you CSIS, go and investigate.
Ms. Claudette Deschênes: No, we got information and we said we will detain them, and we will make an argument to detain them for identity, in some cases, and for flight risk; they may not appear for their hearing. As well, for some of them, there were issues there, and we said there was reasonable suspicion, so we wanted to investigate more. That is what is in the Immigration Act and that's what we tried to--
Mr. John McKay: But wouldn't a more comforting pattern of security be that the argument be made prior to the arrest of these folks, that CSIS and RCMP be alerted that these folks are--how shall we say -- "behaving suspiciously" in some manner or another? Wouldn't that make Canadians feel a bit more comfort that the three organizations are in fact talking to each other?
Ms. Claudette Deschênes: Well, I would say that when a situation happens, I think we have to judge based on the information we have. In this case, some of the information came after the fact, and caused us to say, okay, let's try to detain them for a little longer while we investigate.
Mr. John McKay: After the fact meaning once you had them in detention.
Ms. Claudette Deschênes: Because of the serious immigration inadmissibility issues.
Mr. John McKay: All right. The irony, of course, is that in Scarborough, Ottawa Business College is about three kilometres from the Immigration Canada offices. In fact, a good baseball man could hit the office. It's just curious that this is going on underneath one's nose.
Mr. Tom Wappel (Scarborough Southwest, Lib.): ... Madam, you're making a distinction about security. If I understand section 77 correctly -- and perhaps I don't -- security isn't the only reason why you might ask for a section 77 certificate. It doesn't have to be security. It can be membership in the Mafia, which one might say is automatically a security issue. But you at Immigration Canada can also pick people up for security reasons as defined in section 55, which refers to "danger to the public." And one might argue that would be a security reason, that you want to protect the Canadian populace.
So in Project Thread, you were making a specific point that the person was inadmissible and there were grounds to believe they wouldn't appear. But it's equally possible that you could pick them up because they're inadmissible and because they may be a threat to Canada.
Ms. Claudette Deschênes: In danger to the public, often we would consider criminality issues.
Mr. Tom Wappel: Right, but the wording is "danger to the public." That's pretty broad, and it can be interpreted in a lot of ways. Again, I'm going back to where I was in my previous questioning. Clearly, very few cases are section 77 cases -- 27, in fact -- and yet there must be many section 55 cases, and many immigration warrants, picking people up. So somebody has to make the judgment call that the 27 cases are so serious that a certificate is warranted.
I'm trying to figure out, what's the primary rationale for making that decision? Is it because you wish to keep the information secret or is it because of the nature of the criminality? You can pick up a Mafia boss under section 55, can you not?
Ms. Claudette Deschênes: Yes.
Mr. Tom Wappel: You can also pick up a Mafia boss under section 77, correct? So there has to be a determination made as to which one you're going to use, and clearly, most of the time you use section 55. I'm suggesting to you that the reason you would use section 77 is to keep information confidential, which makes sense, since under division 9 in the act it says, "Protection of Information." It doesn't say "Protection of Canada," in that sense, or "Protection of the Individual," it says "Protection of Information."
So is it reasonable to say -- and this is all I'm asking -- that section 77 is primarily used when you want to keep information secret?
Mr. Paul E. Kennedy: Yes. As I indicated to you at the beginning, we had the Chiarelli case at the Supreme Court of Canada, which dealt with a chap who was an alleged member of organized crime. There was a need to protect the information. There was a need to have that judgment brought as to what could or could not be disclosed in the summary to be prepared. And that is the only instance where it has occurred.
In most of the occasions where you would have criminality, the object is to try someone in open court. The information normally is collected with that in mind. Therefore, you could lead it in a normal immigration hearing or you could lead it on an extradition hearing, because it's your intent, when you go back to the country, if that's where the person's coming from, to try them there.
Clearly, then, with open information, and most criminality fits in that case, you wouldn't have to have recourse to section 77. There may be cases, though -- and certainly in the future there will be now that we have criminalized terrorist activity -- where you may want to use that. Again, it might be an ongoing member of an organization, and you'll want to use the unique provisions under section 78, with the judicial summaries and so on.
As I've indicated, we've also tweaked the Canada Evidence Act to give us some capacity there, too, but this is designed specifically for that in an immigration context, lower evidentiary thresholds and so on.
The Chair: I'm advised, through our research, that associated with the commencement of the detentions in Project Thread there was an amount of personal property seized by somebody. I'd like to ask you... and forgive me for scrutinizing. You'll understand that one of the purposes of this committee is to further the rule of law and ensure compliance with the law. Under what authority was the personal property seized? Who seized it? Who signed the warrant? What's happening in that regard?
And who can I ask that question of, Immigration Canada or the RCMP? I could also ask what role the RCMP may have had in developing Project Thread.
A/Commr Richard Proulx: On Project Thread, Mr. Chair, we have an ongoing investigation right now, so I'll have to be very careful in terms of what I'll be saying here. We might lay criminal charges very soon in this case, if need be, so I have to be very, very careful here.
We used a search warrant signed by a judge.
The Chair: Under the Criminal Code.
A/Commr Richard Proulx: Under the Criminal Code.
The Chair: In relation to specific charges...?
A/Commr Richard Proulx: I believe it was for an immigration offence, being illegally in Canada. Again, I will have to check that out for you, because I don't have the exact answer for you, unfortunately. If I'm wrong, I will come back to this committee and make sure you have the right information.
So, yes, we had a warrant, yes, we seized documents, and it's being reviewed as we speak.
The Chair: Documents and other materials?
A/Commr Richard Proulx: And other materials.
The Chair: Okay. Well, it won't be productive to probe too much, as there is an ongoing investigation at this time.
Back to immigration, based on my previous line of questioning. The execution on Project Thread evolved without a judge of any court seeing it. However, the immigration department routinely does warrants and detentions. I understand that. You're saying that the primary thrust of the immigration initiative was not security -- I may be putting words in your mouth -- but immigration inadmissibility.
Ms. Claudette Deschênes: That's correct. We were looking at people who were inadmissible to Canada, who had used fraudulent means to obtain student authorizations. We had information that they might be using multiple identities. That was the basis of it.
The Chair: Are you at liberty now to indicate the source, the general source, of that information on the multiple identities that led the immigration department to conclude that there was inadmissibility?
Ms. Claudette Deschênes: Well, it was part of an investigation that was started when an officer in a mission overseas interviewed an applicant, had doubts, and started...and asked the question. Then our enforcement officers followed up and did an investigation, working with the RCMP.
Mr. Joe Clark: Just very quickly, is CSIS now involved in the cases emanating from Project Thread?
Mr. Ward Elcock: We have reviewed some of the material that was seized.
Mr. Joe Clark: Does it end there, or does that lead you to maintain your interest?
Mr. Ward Elcock: No, we don't have any interest in those particular files.
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