Testimony given by Garry Loeppky, Deputy Commissioner of the RCMP
- Loeppky said the internal RCMP investigation into Maher Arar's case found that RCMP officers did not follow the rules on sharing information with other agencies properly.
- Loeppky said the RCMP investigation recommended it receive more "education" on sharing information with other agencies.
- Commission counsel said the Syrian government has refused to participate in the inquiry.
Testimony of Garry James Loeppky, Deputy Commissioner, RCMP, on July 6 (continued from June 30), when questioned by commission counsel.
Counsel told the inquiry that the Syrian government has refused to participate, but said they should reconsider given that Muayyed Nurredin will testify about his treatment while imprisoned in Syria’s Palestine Branch Detention Centre, and that the information used in his interrogations there came from Canadian officials.
Ministerial Directives and RCMP Policy on Information Sharing and Other Assistance
When asked, Loeppky explained that “investigative assistance” (in the ministerial directives) refers to such things as the RCMP lending its expertise to protect heads of states. He said “consultative assistance” refers to enhancing the skills of international organizations to ensure the evidence is acceptable in Canada.
Another directive mentions police assistance to “repressive” or “unpopular” regimes and careful review of such requests. Loeppky agreed with the directive that all requests for assistance should be evaluated because of possible damage to Canada’s reputation, the extent to which the country respects rights and the rule of law, and the political stability of that country.
Another directive about “control considerations” says some technical assistance can be abused if not carefully controlled. Loeppky said this refers to training, consultative advice and the sharing/exchange of technical information. Counsel then asked if such considerations should also apply to sharing information with a country that won’t respect the rights of a Canadian, and Loeppky agreed.
Another directive says Foreign Affairs must process another country’s request for Canadian police assistance, however Loeppky said that Foreign Affairs is only involved in the overall agreement with that other country, and not in day-to-day sharing of information.
A recent policy regarding law enforcement agencies that are not American says the Assistant Commissioner of CID must approve all national security investigations.
When counsel posed the hypothetical situation of an Iraqi agency, when Saddam Hussein was still in power, asking for an agreement with the RCMP, Loeppky said the RCMP would refer the intelligence agency to CSIS, who would work with Foreign Affairs, whereas the RCMP would consult Foreign Affairs if it was a law enforcement agency.
Another policy regarding Canadian organizations says classified information can only be released to those with a “need to know” and the proper clearance. When such classified information is shared with Canadian organizations not covered by the security policy and standards of the Canadian government, the RCMP is obligated to apply safeguards to it.
When asked, Loeppky said that information from a national security investigation would be classified, including information about Jim Jones. Counsel then asked if, pursuant to RCMP policy, written agreements to safeguard the information would be applied, and Loeppky said it wouldn’t refer to the day-to-day sharing of information, but that there are general understandings of the classification level of the information. He also said day-to-day sharing of information, such as about Jones, is covered under oral understandings, and may be included in broader agreements about protecting information generally.
Policy also says that all correspondence, messages and documents to CSIS are shared with the understanding that if the information is subject to the Access to Information or Privacy laws, CSIS must consult the RCMP.
Another policy says to respect the Privacy Act, and forbids disclosure of information without the consent of the subject of the information. When asked if this applies to Jones, Loeppky eventually said that it is personal information under the privacy act.
The Privacy Act also lists exceptions for when personal information can be shared, called the “Consistent Use Disclosure,” which says that the RCMP can collect information for one law enforcement purpose and release it for another purpose. It also says that information cannot be collected to facilitate investigations for another law enforcement agency because they should find the information for itself. Loeppky eventually confirmed that the information about Jones is considered personal information gathered for one law enforcement purpose.
Another policy allows for only those disclosures of a record that are required or a summary of the information when possible. Loeppky said that with someone like Jones, where this isn’t a record on him but he’s part of a larger investigation, a summary of the information would be provided.
An administrative policy says information given to the RCMP, whether from a Canadian or foreign organization, must be protected as confidential, secret or top secret or be protected under any existing agreements with that institution. The written permission of that organization is required to release or “downgrade” classified information.
Counsel asked if the Intelligence Review Board Process, which reviews criminal investigations, also reviews national security investigations. Loeppky said the board reviews the quality of various products and threat assessments that are made by the Criminal Intelligence Directorate for both national security and criminal investigations, but does not priorities for the national security investigations
With foreign organizations, the following caveats can be applied to shared information:
a) The information is the property of the RCMP and cannot be reclassified or disseminated without the consent of the originator.
b) The document is owned by the government of Canada and is given solely for use by the “intelligence community” of the receiving government and cannot be declassified without the permission of Canada.
Loeppky explained, when asked, that information shared with the FBI about Jones could be shared as written correspondence with a caveat stamped on the document, or as an oral agreement where the caveat would be implied.
RCMP Officers Working Abroad
The MOU between DFAIT and the RCMP, dated October 1988, says the RCMP must inform DFAIT of all visits abroad.
Policy says that an RCMP officer will not investigate in a foreign country without the knowledge of the RCMP liaison, the consent of that country and must be accompanied by a representative of the country when investigating. Loeppky confirmed that an INSET officer wanting to travel to the US must inform the RCMP liaison in Washington and have approval from RCMP national headquarters and the US. He said that travel requests are centrally coordinated at the International Travel and Visit Section.
Policy says an officer can travel elsewhere only for Canadian investigations requiring evidence/information in that country and “foreign cases of enforcement interest to Canada” that require the RCMP’s personnel or equipment to gather information. An RCMP officer cannot contact or interview a Canadian in custody in a foreign country unless the interview was requested through a Canadian government representative (a member of the RCMP or a member of Foreign Affairs) or consent is given in writing and that the interview is approved by the head of the foreign post.
Loeppky said that Charter Rights apply if an RCMP officer investigates or interviews in another country.
Loeppky also said the RCMP does not have an agreement to share information with Syria or Jordan, although there are 20 officers in Jordan right now who are training Iraqi police officers likely under an agreement with Foreign Affairs, though there are no operational agreements with Jordan. However, Loeppky said that there could still be contact between the RCMP and Syrian law enforcement or intelligence agents, which would usually come about through a liaison officer in Rome or through Foreign Affairs.
Direct Information Sharing between Officers of the RCMP and Other Agencies
Counsel noted that raw information becomes intelligence after being analyzed. When asked if the RCMP would also share raw information with foreign agencies like the FBI, Loeppky said they might if the situation is urgent and there isn’t time to apply the intelligence process.
When asked how officers on and INSET, whether from the RCMP or other law enforcement, receive guidance on sharing information that’s not yet intelligence, Loeppky said all exchanges go through liaisons unless it’s an ongoing case requiring investigators of different organizations to work together.
Counsel then asked if all information sharing is through attachés/liaison officers and headquarters and if it’s improper for information to pass solely through an INSET officer and an FBI officer. Loeppky replied that there can be direct interaction between officers to facilitate a continuing investigation, and said there would be supervision.
Counsel asked if there is any guidance for RCMP officers on sharing information via direct contact, and Loeppky replied that there is supervision within the INSET, which is also subject to audit. He said it would be an issue if a supervisor wasn’t reviewing files, explaining that that there are team leaders within an INSET as well as a supervisor who approve exchanges of information. Loeppky said that if the supervisors failed to do so it would not be “in keeping with his duties,” but that “inappropriate is a strong word” for this situation.
CSIS and the RCMP
The MOU between CSIS and the RCMP was written in 1989 (revised 1990).
Loeppky confirmed that the RCMP relies on CSIS for intelligence on national security offences and that the RCMP will give CSIS information if it’s relevant to its mandate or if the situation is urgent. He also confirmed that the RCMP is the primary recipient of CSIS intelligence (including threat assessments and investigative leads) on national security offences and that the two organizations consult each other on national security investigations.
When asked, Loeppky explained that CSIS and the RCMP might conduct concurrent investigations if CSIS is looking at an issue that concerns the government of Canada, while the RCMP looks into the criminal activity involved in that issue. Loeppky also confirmed that the RCMP would provide surveillance, or other assistance, for CSIS if they required it.
Counsel confirmed with Loeppky that CSIS would inform the RCMP if information it’s providing is of dubious reliability, and that the RCMP would also indicate the information is of “unknown reliability” if it shared it with yet another agency.
The RCMP and CSIS support each other abroad, such as with their liaisons to foreign agencies. Counsel confirmed with Loeppky that the third party rule, that information shared be protected by caveats, exists between CSIS and the RCMP. Loeppky explained a policy about liaisons as meaning the liaison cannot release information from CSIS to the RCMP without CSIS’ permission. He also said that the RCMP would document exchanges of information in their files, like CSIS does for SIRC.
Liaison Officers (also Foreign Affairs and Interpol)
Loeppky said the RCMP has 35 liaison officers in 25 locations around the world, some of whom work in several countries. The liaison officers facilitate operations and inquiries, support ambassadors or heads of missions, and enhance relationships.
He said Interpol serves as an information exchange and that they have an office in the RCMP headquarters where they exchange information and international warrants. Loeppky said RCMP liaison officers facilitate inquiries abroad, in consultation with Foreign Affairs, in countries where Interpol isn’t present.
Loeppky confirmed that the RCMP has two liaisons in Washington and one in Miami. He also said there are no officers stationed in Syria, which is covered by the liaison in Rome. He said one liaison officer is currently stationed in Jordan, but was not there at the material times to the Arar case. He said there wasn’t one in Tunisia at that time either, which is also covered by the liaison in Rome or Spain.
Loeppky confirmed that liaison work covers crimes of political motivations, which includes terrorism. RCMP policy also says that liaison of criminal activities will be covered by written agreements unless both parties prefer oral. These agreements go through diplomatic channels, indicate the subject area for exchanges of information, a list of organizations that liaison will be held with, channels for conveying information and the security protection on such information.
Loeppky confirmed that with ad hoc requests outside of liaison agreements, the RCMP must first check with Foreign Affairs.
Also, the heads of missions or ambassadors keep the RCMP liaison informed of the political, social and economic situation of the particular country they’re stationed in. Loeppky confirmed that this occurs in Washington, but said it’s less important there than with other “unstable political regimes,” where Foreign Affairs could give advice on safety and other issues.
Loeppky confirmed that the RCMP has a liaison officer at Foreign Affairs, but he’s not sure if Foreign Affairs has a liaison with them.
RCMP Training for National Security Investigations
The training course for national security investigations, which was revised in Feb. 2002 and July 2003, is approved by Dan Killam, the Chief Superintendent and Director General of Security. This 10-day course is given to anyone investigating national security matters or is on an INSET, including non-RCMP officers. However, Loeppky said they may not be trained when they are placed on the INSET, but will be “as soon as possible” afterwards. The course covers things like the national security program, criminal intelligence and threat assessments, anti-globalization and criminal protest movements, Middle East cultures and Islam, the “roots” of terrorism, etc.
Loeppky confirmed, however, that there is no section of the course that deals with the sharing of information. He said that the officers who come to these units are not “new officers” and have had training on professional police practices. He said they are already comfortable with information exchanges from their prior work. He also said he didn’t know if there were any courses on legitimate dissent.
Loeppky said that prior to 9/11, 350 RCMP officers were trained in this course, and after 9/11, another 172 RCMP officers and 50 officers from outside organizations were trained.
Loeppky said there is another 2½-day course about the Anti-Terrorism legislation.
INSETs (Integrated National Security Enforcement Teams)
Loeppky said that one INSET team was created shortly after 9/11, and the rest in the months that followed (late 2001 – early 2002) as funding was increased. He said the teams in central Canada (Montreal, Ottawa and Toronto) were put together before the one in Vancouver.
Aside from law enforcement, Loeppky said that Border Services and CSIS are also on the INSETs.
Law enforcement on the Ottawa INSET includes the Ottawa Police, Ontario Provincial Police, the Sûreté du Québec, the Hull Police, the Gatineau Police and the RCMP. The Ottawa INSET is housed in the A Division Headquarters building.
Loeppky confirmed that an RCMP officer in charge of the Integrated Proceeds of Crime (IPOCS) is in charge of all INSET teams. To give officers of other police forces authority, they are appointed as Supernumerary Constables and peace officers in the INSET, and are subject to the complaints commission of the RCMP. Loeppky said INSET officers are also subject to all RCMP policies and guidelines.
INSET investigators report to group leaders who report to the RCMP officer in charge of the INSET. That officer then reports to the Officer in Charge of Criminal Operations and the Officer in Charge of NSOB. The rest of the command structure was unclear from Loeppky’s testimony, but seems to be that the officer in charge of Criminal Operations reports to: 1) Assistant Commissioner Clément (formerly Dawson Hovey), who is also the Commanding Officer of A Division, and 2) Dan Killam, the Director General of the National Security Branch. Killam and Clément both report to Assistant Commissioner Proulx at the Criminal Intelligence Directorate.
Project O Canada
Loeppky explained that Project O Canada was a multi-jurisdictional/disciplinary/functional team established shortly after 9/11 to deal with criminal activity related to national security. Loeppky said it is an ongoing investigation, and wasn’t certain he could say where it operates. He confirmed that Project O Canada was created before the INSETs. He also explained that a project called “A” O Canada refers to an investigation in the A Division jurisdiction (Ottawa), while a “C” O Canada refers to Montreal.
Canada-US Integrated Border Enforcement Team (IBET)
Loeppky said that IBETs were created around the same time as the INSETs, and said the integrated concept began eight or nine years ago with the integrated proceeds of crime bringing in a variety of skill sets.
The IBET website says that originally the RCMP, US Customs and Border Protection, Citizenship and Immigration Canada, US Immigration and Customs Enforcement, Canada Border Services Agency and the US Coast Guard were involved in IBETs. Loeppky said CSIS and some municipal agencies may also be involved.
He said there is some collocation in Ontario where US liaisons work with the Canadian IBETs, though they are not there as police officers. He said that Canadian officers have no authority in the US, and US officers have no authority here, though they may work together on a joint project. Loeppky said IBET officers do not have access to the RCMP SCIS database, but would be given information on a need to know basis. However, he said certain supervisory people of the IBET have access to the SCIS, which was only recently made after 2002.
Canadian and US Watch Lists
Loeppky explained that if they were interested in someone’s travel information and had justification to pursue it in an investigation, then a request would be given to Canada Customs (now the Canada Border Services Agency) to “lookout” for that person, whose name would be entered into data system at Border Services. In order for a “lookout” to placed on an individual, that individual has to be the subject of an ongoing investigation and there must be a purpose for wanting the travel information, such as to further the investigation. Loeppky said there must also be appropriate supervision.
Loeppky said he is aware of the US watch lists, but he said that the RCMP and any other Canadian agency cannot provide names for inclusion in those lists, as they have no authority in the US. Counsel asked how, for example, someone like Jim Jones could be entered into the US watch lists, and Loeppky said that no Canadian agency could enter someone onto a US watch list. When asked again repeatedly, Loeppky said that generally it would not be proper for an RCMP officer to suggest someone go on a US watch list, but said there are circumstances where it might be done, such as if a murder suspect left a country where Canada does not have an extradition treaty to travel to the US, where Canada does have an extradition treaty.
Counsel asked again if it would be appropriate for an RCMP officer to suggest that Jones, who has never engaged in illegal activity, be put on a US watch list, Loeppky said it would generally be improper but that the context would need to be considered.
RCMP and US agencies
RCMP policy is for requests from the US, for assistance or anything other than national security matters, to be received by headquarters before going to the unit concerned, and in serious cases a copy of the request would be sent to division headquarters.
Loeppky testified that there is an oral understanding between the FBI and the RCMP about sharing information, and that once initial contact is made through the FBI attaché to headquarters, there can be day-to-day contact between investigators of both countries.
When a request is made by the US about security matters, Loeppky explained that requests from the FBI come from their legal attaché at the US embassy in Ottawa who brings it to RCMP headquarters. It is then passed on to the national security area that prepares a response that will be given back to headquarters to give to the FBI attaché.
For joint investigations, there can be direct contact between investigators without the use of the attaché. Loeppky confirmed that an INSET unit in Ottawa and FBI officers in N.Y. could have direct contact if it was an ongoing joint investigation that originated through the correct channels.
Loeppky said the FBI wouldn’t conduct an investigation in Canada, but there could be joint investigation with the RCMP having the lead role. For such investigations, RCMP policy is to have the request referred to headquarters for a decision. The policies also say that an RCMP officer must accompany US agents investigating or interviewing in Canada, and as of recently, this must be approved by the Assistant Commissioner at the Criminal Intelligence Directorate.
When asked, Loeppky confirmed that the FBI legal attaché could visit the INSET office in Ottawa, just as the RCMP liaison in Washington can visit offices there. He said the FBI legal attaché wouldn’t have access to the SCIS databank, however, they would be provided access with portions of the file (if they needed something specific, i.e. a particular statement) or receive a summary or overview.
Loeppky confirmed that it would be against RCMP policy for an FBI agent to have full access to an INSET file. He also confirmed that the RCMP does not have full access to FBI databases, but only indirect access through the proper channels.
If an FBI agent asked an RCMP officer if he/she wanted to interview a Canadian detained in the US, Loeppky said they wouldn’t need RCMP approval if initial contact on that ongoing file had already been made, but they would need approval to travel to the US from the Criminal Operations Officer at headquarters that supervises the INSET. He said they also need the approval of the RCMP's International Travel and Visit Section.
Loeppky said that an INSET officer could provide the FBI a list of questions to ask a detained Canadian if it furthers a Canadian investigation, if there has been regular interaction with the other organization and if the supervisor of the INSET unit was consulted. When asked if it could be done to further a US investigation, Loeppky said their objective is for Canadian prosecutions, but that most investigations are international and involve collaborative approaches.
Loeppky confirmed that if an RCMP officer knew of the US policy of renditions, then that should have been taken into consideration before providing a list of questions to ask the detainee.
Loeppky confirmed that the RCMP has an oral agreement with the CIA to share information that relates to relevant cases, however, CSIS has primary responsibility for liaising with the CIA. Loeppky said CSIS would be “advised” if the CIA wanted RCMP information.
When asked how an INSET officer in Ottawa would know the rules of information sharing with the CIA, Loeppky said there is an understanding that their primary dealings are with law enforcement, which is covered in training courses. He said headquarters would ensure that the exchange is appropriate.
The Scenario Planning Workshop (organized by the CID)
Counsel noted that there was also a workshop, organized by the CID in May 2003, on the future of terrorism. It was attended by members of the RCMP, CSIS, National Defence, Transport Canada, CIC, DFAIT, Solicitor General, CCRA, CCMD, Justice Canada, OPP, Montreal Police, Quebec Provincial Police and Carleton University.
The workshop presented hypothetical scenarios for 2013, one of which noted the global environment as harmful to Canada-US relations and that Canadians felt less threatened than Americans. The scenario said this was reflected in diverging views of both governments, as Canada didn’t support the war in Iraq and is seen as weak on terrorism and an open door to attack the US. It also noted pressure on Canada to bolster the military, immigration and border controls, and that while “smart border” controls were created, the US pushed for its authorities to operate in Canadian ports and airports and were granted limited access in that they must work with Canadian police and intelligence services and within Canadian law. Counsel asked if some of these pressures existed after 9/11, and Loeppky said that while it seems reflect present circumstances, the exercise was merely to consider hypothetical scenarios of what things might be like in 10 years.
When counsel asked if RCMP officers felt pressured from the US after 9/11, Loeppky said senior RCMP officers rather than the US pressured them. He also denied that senior RCMP officers might have felt pressure from the US and in turn applied that pressure on lower-ranking RCMP officers. He said their pressure was to protect Canada.
Counsel returned to the hypothetical scenario, which says that the most critical issue separating the US and Canada is Canada’s multicultural society, with the US being suspicious of some of Canada’s ethnic groups, particularly that Arab, North African, Iraqi and Iranian groups might be sources of terrorism. The scenario suggested the US might pressure Canada to do surveillance on these groups. Loeppky said he wasn’t aware of any such pressure.
Counsel noted another part of the scenarios suggested that Canada would be “reticent to share information with the US who was prone to overreact” and compromise intelligence sources. Counsel asked if this was felt in 2002, and Loeppky said he didn’t perceive it.
The RCMP and the Muslim Community
An RCMP brochure called “Muslim, What the RCMP Should Know” informs RCMP officers of the Muslim community. Loeppky said the Muslim community helped in making the brochure. He said there were other outreach initiatives, including the Commissioner of the RCMP and the Commissioner’s Advisory Committee on Visible Minorities meeting with Muslims in Toronto. He said there is also an outreach program for Muslims in every RCMP division, and that the RCMP also has given a “strong” statement about “bias-free” policing to all of its members.
When asked if questions about how often a person prays and if they are religious are inappropriate, Loeppky agreed and said that there is no correlation between religious observance and terrorist activity.
Testimony of Garry James Loeppky, Deputy Commissioner, RCMP, when cross-examined by counsel for Maher Arar.
Maher Arar and The RCMP’s Internal Investigation of Its Wrongdoing
Counsel referred to a letter by the Commanding Officer of A Division, Clément, which contained the results of the internal RCMP investigation on its involvement in the Arar case.
Counsel noted a concern in the letter about caveats not being properly followed by RCMP personnel, and Loeppky agreed, explaining that the RCMP did not first get the agreement of a Canadian organization before sharing its information with a third agency. He also agreed that the resolution proposed is for further education.
Counsel asked if there was an orientation program for those joining an INSET, and Loeppky said those joining the INSETs are experienced officers who bring their own skills, and that this recommendation of further education will be beyond what’s already in place.
Counsel also asked if there was a time between Nov. 2002 and April 2003 that RCMP officers were authorized to speak publicly about the rendition of Arar, and Loeppky said no.
The RCMP’s Complaints Mechanism
When asked, Loeppky confirmed that complaints can be initiated by a member of the public or Ms. Heafey, the Chair of the Commission for Public Inquiries Against the RCMP, and can be made to either the RCMP or the commission. He said the investigation will be done by the RCMP and copies of the results will be given to the complainant and the Commission. He said that 90% of complaints are resolved at this stage, but if the complainant isn’t happy with the results, then the Chair of the Commission can ask for further investigation, undertake her own investigation or hold an inquiry.
Loeppky also confirmed that the Commissioner can consider an informal disposition of a complaint before formally investigating.
Counsel noted that in the letter detailing the results of the RCMP investigation into the Arar case is only from the internal investigation and not of any further investigation or inquiry by the Commission. Counsel also noted that no further investigation will be conducted out of respect for this inquiry.
Counsel then noted the letter saying the investigation is limited in the amount of information that can be disclosed, due to its sensitive nature. Counsel said the Chair of the Commission is not given a full investigative brief of the actual interviews of witnesses, constables’ notes or other documents at this stage, and Loeppky agreed. Counsel said that lacking more information, the Chair wouldn’t know to initiate any further investigation, and Loeppky agreed, but said the Chair could request more information.
Counsel noted that the Chair is being treated as an outsider to the RCMP, as she is not being given the protected information. Loeppky said the Chair is independent of the RCMP and accountable to the Minister, and that at this stage, she is provided with a summary of the information and can request more. Counsel said the Chair couldn’t request information that falls within national security confidentiality, and Loeppky said this is the first time it has come up, and that they are trying to work with Ms. Heafey.
Counsel noted that the Chair has no independent powers to audit the RCMP and is not listed under the Canada Evidence Act as being able to receive those disclosures. Loeppky said they would turn over all the information required under the law.
Counsel noted that the Chair cannot review every information exchange like SIRC does for CSIS, and Loeppky agreed but said there are other things the RCMP are subject to, such as the review mechanisms in the Anti-Terrorism legislation. He said the Auditor General recently audited and criticized the RCMP for not sharing sufficient information.
Loeppky also confirmed, when asked, that there is a unit in the RCMP that handles access to information requests and decides what can or cannot legally be released. Loeppky confirmed that if the requester is unhappy with the amount of information released, they can file a complaint and the office of the Information Commissioner will investigate and take it to federal court if he/she believes more information should be released.
US Pressure and Criticism of the RCMP
Counsel later suggested that the pressure actually began before 9/11, in 1999 with the Ressam case, and Loeppky agreed. When asked, Loeppky denied that the Ressam case was an embarrassment to the RCMP. He said they learned from their mistakes. Counsel then asked if one of the lessons learned was that intelligence failed to predict Ressam’s attempted entry in the US in order to warn US authorities, and Loeppky agreed.
Loeppky also confirmed that the US media was critical of this intelligence failure, and that politicians and former US policing/intelligence officials had criticized Canadian immigration policies. However, he said he didn’t remember specific criticisms of Canada’s border security. He also said, when asked, that the US was concerned that Canadian intelligence operations were under-funded.
Counsel then referred to an article by Dick Coffman, a former high-ranking CIA officer, written after 9/11. The article said that Canada is used a staging point for attacks on the US, and that requests by the US for increased funding to Canadian defence and intelligence agencies as well as increased border and immigration controls caused a backlash in Canada. The article also referred to the Ressam and Mohamed Harkat cases, claiming the two trained in the same camp and exploited lax Canadian immigration policies. Loeppky wouldn’t say these were the kinds of criticism MPs and other Canadian politicians were hearing, but agreed there was concern in the RCMP and House of Commons that worries about the border would stop trade.
Counsel later said that the 2013 hypothetical scenario from the CID sponsored workshop sounded similar to the Coffman’s description of today. Loeppky said there are similarities, but reiterated that the workshop was only considering future possibilities.
Pressure on the RCMP from Within Canada
Counsel then referred to statements made after 9/11 in the Standing Committee of Citizenship and Immigration, when liberal MP Tony Valeri asked Ward Elcock (former Director of CSIS) and RCMP Commissioner Zaccardelli what needs to be done to strengthen the border and dispel the perception that Canada is an entry point to the US for terrorists. Counsel pointed out that Zaccardelli, in his response, said they sometimes operate as though the border isn’t there when exchanging information and working together.
Counsel asked if the RCMP was pressured by politicians to show that they were working with the US, and Loeppky generally agreed.
He also agreed that there were economic concerns in Canada about the border, that politicians were trying to convey to Canadians that necessary steps were being taken and that Canada isn’t the problem.
Counsel asked if all of that created internal pressure within the RCMP for a zero-risk based approach, and Loeppky replied that the RCMP is independent of political direction. He said that the pressure they felt was to reassure Canadians that they were working closely with their allies and in the interest of public safety.
Counsel reminded the witness that he said senior RCMP officers applied pressure to the lower ranks and that a “zero-risk based approach” was used. Loeppky agreed with counsel’s proposition that the “zero-risk based approach” meant that all leads would be investigated. He also agreed that there were integrated operations “domestically”, but didn’t really address joint operations between Canada and the US. Counsel asked if the phrase also meant that the “index” of suspicion was raised, and the witness replied that judgement is applied in terms of how far each piece of information is taken.
Counsel suggested that the “culture” that developed after the Ressam case and through 9/11 included the belief that not sharing information with an ally was very serious and would be treated harshly by the Commissioner. Loeppky said it wouldn’t be viewed as appropriate if there was legal authority and justification to share the information. He said the culture was to share information with the US.
Counsel then referred back to statements made after 9/11 in the Standing Committee of Citizenship and Immigration, where Elcock said they now have joint forces with the US, information sharing is quicker and that cooperation with the US and with other allies increased. Loeppky said this goes back to the UN resolution 1373 where Canada pledged to work in a more integrated way in sharing information. Counsel noted Commissioner Zaccardelli telling the committee that he and Elcock, as Director of CSIS, are always trying to “maximize” information/intelligence sharing, and that he holds people accountable if information isn’t shared. Loeppky agreed that there was pressure for information to be shared.
Counsel then referred to the Standing Committee on Human Rights, and noted that Zaccardelli again spoke about sharing information whenever possible and that RCMP officers are conducting investigations around the world. When asked, Loeppky said that 80% of their files are international and require officers to travel and work with foreign law enforcement abroad. He said that in total there might be the 35 liaisons and maybe five to ten other officers abroad at a given time.
Counsel asked about the directive system used by the Solicitor General and the Minister of Public Safety to give political input into policing, and whether it was the only such process. Loeppky replied that there are also letters from the Minister to the Commissioner, which are part of the accountability framework, and meetings where “expectations” are communicated.
When asked, Loeppky said he thinks there was interest from “all levels” to cooperate with the US after 9/11. He also seemed to agree that there is “seamless intelligence sharing” with the US.
The Jim Jones Hypothetical Scenario and the National Security Database
Counsel returned to the Jim Jones hypothetical scenario, and said it doesn’t seem to matter that there is no evidence that Jones is doing anything criminal in order to keep his name in the SCIS database. Loeppky replied that the context has to be taken into account, but that when someone is identified as innocent, they would be “moved off to the side” and further investigation would stop. He also said the information would remain in the file until their guidelines say it should be removed. Counsel noted that the name would remain in the database without being flagged as cleared, and Loeppky replied that there would be no further investigation of Jones and that they must retain information because it may later become important. He said they cannot arbitrarily decide how long to retain information beyond their guidelines.
Counsel told the witness that his own testimony was if information about Jones was shared, it would be the information and not the conclusion that Jones isn’t doing anything wrong, and Loeppky’s reply didn’t seem to answer this statement. Counsel said the presumption of innocence doesn’t seem to apply to the gathering of information for SCIS and whether or not information should be entered into the system, and Loeppky replied that they do work on the presumption of innocence, but they have to follow up on a person who met with a target. When asked about sharing such information, Loeppky said it would be “conveyed” if nothing was in the file about Jones or if there was something appropriate that would further an investigation.
Counsel noted that information isn’t purged from SCIS when an individual is cleared, and asked about the removal of information. Loeppky said the date of the purging of information, if no charges are laid, could be a few years depending on the type of case. He also said, when asked, that cases can be concluded when charges are laid, a lost child is found, when no further investigation is possible and all leads have been exhausted, when it is concluded there is nothing criminal in the matter, and other similar things.
Counsel referred back to the Jones scenario, and asked how that file would be concluded if no charges are laid. Loeppky said if things like no further investigation was possible, if the target died, or if the supervisors decide nothing else can be done, then the file will be concluded. He said only rarely, such as for an unsolved murders, will a file remain open, and that when a file is concluded, a time is set to purge it from the system.
Counsel asked how long Jones’ information might remain in the system and be at risk of information sharing, and Loeppky admitted it could be as long as decades.
Counsel said Loeppky had testified that the Stinchcombe decision requires information to be retained (for inclusion in a prosecution’s disclosure brief to defence counsel). Counsel asked if, other than the Air India case, information from SCIS was ever put into a disclosure brief, and Loeppky named the Ressam case. When asked which parts of SCIS intelligence would go into a disclosure brief, Loeppky said the evidentiary and information parts would be included.
Intelligence-Led Policing and National Security Investigations
Counsel referred to the five-year strategic plan and it’s promotion of intelligence-led policing (the RCMP threat measurement model) and integration (the INSETs). Loeppky explained that this plan was intended to modernize criminal intelligence and was an internal change to the RCMP.
Counsel said it seems the RCMP have reconsidered the components of policing since 1990, such as in moving towards community policing. Counsel then asked if intelligence-led policing, from Loeppky’s own testimony, has same conceptual foundation as community policing, and Loeppky said it’s “the next generation of policing in terms of dealing with issues.”
Counsel asked if the Criminal Intelligence Division was “reinvigorated” in 1991 with the authority for intelligence-led policing, and Loeppky said CID was dealing with things like organized crime at that time, and that intelligence-led policing promoted a change in the way decisions were made. He also said, when asked, that the preventative part of their mandate is discharged through this type of policing.
Counsel then referred to the witnesses prior testimony, when he said the RCMP and CSIS essentially perform the same type of intelligence gathering, using the same analysis process, with only the end product being different. Counsel said that intelligence-led policing has brought the RCMP back to what it was in 1984, when politicians felt intelligence work needed to be separated from police work and created CSIS. Counsel also said the overlap between the RCMP and CSIS is so great that the RCMP, in it’s mandate of prevention under intelligence-led policing, can actually do CSIS’ work. Loeppky replied that intelligence-led policing focuses on frontline police work and that the RCMP wouldn’t do anything within CSIS’ mandate. He said they would collect only criminal intelligence for preventing national security offences. Counsel said that criminal is not limited to the criminal code, as national security offences include the breaking of any federal law, and Loeppky agreed.
Counsel then reminded the witness of his testimony that headquarters must be notified of national security investigations, and Loeppky said there is a policy on the matter. However, the only policies that counsel could find noted that only sensitive investigations and operational plans required any notification to be given. Loeppky again said there is a policy, but he couldn’t find it. Counsel requested that he bring the policy to the inquiry whenever he does find it.
Counsel referred to the draft MOU of Project A-O Canada between the RCMP, the Ottawa Police, the Sûreté du Quebec, and others. Loeppky said he has “concerns” about the draft, saying it looks as though it were “cut and paste” from the Integrated Proceeds of Crime agreement. He said it looks like it was in the early stages and had issues needing to be resolved, which was why it was never signed. He said the draft doesn’t represent any final agreement.
Loeppky admitted, when asked, that there is no agreement or set of guidelines to govern the conduct and relationships of INSET members. He said that the INSET is under RCMP command and policies, but that things like, for example, who would be liable if an officer of another police department drove an RCMP vehicle hasn’t been worked out. When asked, Loeppky also admitted that accountability measures, such as a complaints process, hasn’t been worked out either. He said that the officers do have their own codes of conduct from their original forces, which also have their own disciplinary mechanisms.
Counsel asked where to file a complaint against an OPP officer working on an INSET where no agreement over the matter has been reached, and Loeppky said the complaint would be filed with the home agency, i.e. the OPP.
Counsel asked what would happen if an INSET officer did something outside of the INSET, and Loeppky said there are management teams in each area, which are not part of the INSETs, that promote integration, resolves “issues” and has a “role to play” in the conduct of their officers. He said the management team for Ottawa INSET is made of the Ottawa Police Chief, the commanding officer of the RCMP A Division, and the chiefs from the other departments involved. Loeppky also admitted that this management team, as well as each force’s legal department, should be resolving the issues that have prevented the creation of an MOU.
Counsel asked what is preventing an agreement for the Ottawa INSET besides the issue of discipline, and Loeppky said he doesn’t know what else is an issue, but suggested that there is one individual who has “concerns.” He said the commanding officer of the RCMP A Division would have to answer the question.
When asked if reasonable or probable grounds for suspicion are unnecessary to investigate national security threats, Loeppky said they can’t arbitrarily investigate and that there has to be a reason for starting an investigation. For resources to be deployed, he said they need the approval of the Commissioner or Assistant Commissioner of criminal intelligence. Counsel said that low-level investigating could be done without much resource commitment, and Loeppky later confirmed that approval to start an investigation involving few resources rests on a low-threshold, and can be done with just the supervisor’s approval. But he said that if the resources increase, the level of authorization needed also increases. Counsel suggested that there is no real approval process for a low-level investigation, and that an officer may have to notify headquarters but not have to state the reasoning for the investigation. Loeppky agreed that the INSETs do have some “independence” and that because there are few resources, the supervisor must decide what to do.
Loeppky also seemed to confirm, when asked, that as long as an RCMP officer had appropriate authorization within the RCMP, they could travel to the US to interrogate someone of interest to a joint Canada-US investigation. Counsel then proposed a scenario of the RCMP not wanting to fund the officer, and Loeppky seemed to say that since the officer is part of the INSET, they are accountable to the RCMP and would be bound by RCMP decisions.
Rating the Reliability of Information
Counsel asked about reliability classifications, and Loeppky said that information coming from a human source would be rated for reliability. He also said, when asked, that it is standard practice for the FBI to indicate reliability by giving the background of the information, such as if it was something they observed, heard from a source, obtained by electronic intercept and the source of the information.
Counsel asked about a policy that says a review of information should be conducted before it’s filed. Loeppky said analysts review the information from human sources, and try to corroborate it with other information. He said that this does not include information gathered by investigators (including what an officer saw or heard), surveillance reports or technical intercepts because that evidence is presumed reliable.
Counsel asked if an admission made during a police interview would be reliable, and Loeppky said yes, but also said he’s seen people make false confessions and that the context and motivations of such admissions must be taken into account.
Loeppky also said, when asked, that statements obtained by the FBI during an interrogation are considered reliable. He also said they assume it was taken under the appropriate standards.
Counsel said that with US information, the RCMP wouldn’t know if the interrogation was leading or if intimidation was used, and that the US only has to comply with their laws. Loeppky admitted that without being there, they don’t know what was done.
Counsel then referred to the inquiry into the wrongful conviction of Guy Paul Morin, which found that bad interviewing techniques resulted in false statements. Counsel said it seems the RCMP presumes reliability with information from the US because of the nature of the organizations. Loeppky agreed, when asked, that they are obliged to assume validity (with other forces). He said US statements are of more value, but statements from a country where human rights abuses occur may be of concern and thus it’s questionable reliability would be noted in SCIS.
Counsel proposed a hypothetical trans-national drug investigation involving Canada, the US, Colombia and Mexico, where the US received the admissions made during an interrogation in Colombia and shared it with the RCMP. Counsel asked how reliability would be assessed, and Loeppky said they would consult with the US about the statement. He said their liaison officer would make inquiries upon learning it was taken in Colombia, and that they would ensure the statement is acceptable as evidence.
Loeppky also agreed when counsel asked if the products of interrogations done in several countries, for a crime the RCMP is investigating, would be considered unreliable unless it met RCMP standards. Counsel asked if that also applies to entering information into the database and acting on it, and Loeppky seemed to confirm that.
Counsel asked if the US would relate the contextual information of a statement obtained in a country where rights abuses occur, and Loeppky said he expects them to provide accurate information, including the context. He said the statement would have no evidentiary value if it can’t be verified. Counsel said she was concerned that the information would still go on the database, and Loeppky said it would have the proper “notation.”
Counsel asked what would happen if information accepted into SCIS as reliable was later found to be unreliable, and Loeppky said it would be reflected in the file and become part of the record. He also said that if that information were shared with another organization, then that agency would also be updated.
Loeppky said that all sharing of information is recorded, including the date, the nature of the inquiry, the organization the information was shared with and a summary of the information shared (but not the exact pieces of information).
Counsel noted that one of the caveats says the information is for the use of the intelligence community, and she said that when a document is used as intelligence it is not evidence. Loeppky seemed to say that this caveat would be placed on information given to the FBI, indicating the information can only be used as intelligence and not evidence. Counsel asked if this caveat can be used by other than just the intelligence community, although the information is still to be treated as intelligence and not evidence, and Loeppky agreed. He said the caveat also means that the information cannot be shared further without their agreement. Counsel said this seems a narrower type of sharing than what the witness previously described, and Loeppky replied that there are other exchange mechanisms for information that will be used in court. He also agreed with counsel that the RCMP has to give its permission before it can be used in court, even if used in camera. He said this is the standard caveat for sharing information with US organizations.
Counsel asked the witness what he meant in his prior testimony of “protesting” if information the RCMP shared was subsequently used to torture a person, and Loeppky replied that the issue would be raised to senior RCMP officials who would talk with senior officials of the offending organization.
Counsel asked if there is a directive about a breach of caveat, and Loeppky said that breaches are not contrary to law but impact the relationship and trust between the organizations. He said that if an officer became aware of a breach of caveat they would report it within the accountability framework, and that the issue would be raised high in the RCMP. However, he said he wasn’t sure if there was a policy or directive telling INSET officers what to do and that he doesn’t know if they have to notify the Minister of a caveat breach or if rights violations occurred as result of information being shared. Nonetheless, he said Commissioner Zaccardelli would brief the Minister if an incident concerned Canada. Counsel asked for any possible policies on the issue to be brought forward when found.
Counsel then asked if anyone reviews the caveat placement on information, and Loeppky said the supervisors within the unit determine if it’s appropriate to share. Counsel then referred back to the RCMP’s caveats, and said it seems to only protect the document, rather than the information in it. Loeppky said he views it differently, that the document is a paper containing the information and both are protected.
Profiling, Watch Lists and Other Investigative Methods/Tools
Counsel referred to INSET officers discouraging Muslims from having lawyers present as a “notorious fact” in the Muslim community, and Loeppky said it’s unacceptable for an officer to conduct an interview and ignore or bypass a person’s request for a lawyer. He said an INSET officer would never be authorized to do so.
When asked, Loeppky explained that sections of the national security training programs, which he says were largely made by the INSETs, discuss different cultures and issues. He also said that good police practice, such as those covering courtesies to interviewees (i.e. requesting a lawyer), applies to the INSETs.
When asked, Loeppky confirmed that the RCMP uses criminal profiling and that it might be used in a national security investigation if appropriate. However, he said that criminal profiling is not used in SCIS.
When asked about profiling for membership in al-Qaeda, Loeppky said that their behavioural sciences unit might profile for criminal activity, but that there is no profile for al-Qaeda members.
Loeppky explained, when asked, that the Canadian Police Information Centre (CIPC) has a watch list using Interpol’s watch list that contains outstanding warrants (red notices) for terrorists and is accessible to all Canadian police officers. Counsel asked about the “lookouts” watch list used by Canadian authorities to track travel information, and Loeppky said it isn’t a watch list but is done on case-by-case basis. He said they wouldn’t ask the US to notify them of someone crossing the border because they could just ask Canadian officials. Loeppky also said, when asked, that the RCMP wouldn’t place people on their watch list for the US.
Loeppky also confirmed that sources can be paid for their cooperation or be given other legally permissible benefits, such as not to be charged or reduced sentences. Counsel said unreliable information can be obtained this way, and referred to the Supreme Court ruling in the Sophonow case and the selling of information, where the Justice said, “jailhouse informants comprise the most deceitful and deceptive group of witnesses.” Counsel asked if sources that receive benefit for their information are identified in the SCIS database, and Loeppky said they are, but their identities are hidden. With information from the US, Loeppky said the context of the information sharing might refer to the motivation of the source, but may not specifically say there was a benefit given.
Counsel also said that the Canadian government had given the RCMP the potential to commit crime within a legal framework, but it is short of being a party to torture. Counsel explained that an amendment of section 25.1 of the Criminal Code permits some police conduct that would otherwise be criminal (the amendment was made after a court ruling said there is no immunity for an officer in possession of counterfeit money in relation to an investigation). However, Counsel noted that 25.1 does not exempt police from liability in being a party to torture, even if ordered by a superior or if there is a national emergency, and Loeppky agreed.
Counsel also referred to the “Marcus of Queensbury Rules”, which are rules the RCMP doesn’t have to prescribe to, or police methods and operations that aren’t “delicate” when dealing with hostile communities. Loeppky said they shouldn’t confuse the challenges of police work with a breach of law. He said that lying and deceit can be used, but only to collect evidence and not to breach Charter rights.
Counsel noted that police don’t have to identify themselves as the police. When asked, Loeppky said a request for a lawyer, when the individual knows they are dealing the RCMP, would not be subverted.
Renditions and Torture
Counsel asked about the witness’ earlier testimony of not equating the US with countries that practices torture. Loeppky said, when asked, that the photos of Abu Ghraib shocked him.
Counsel then asked about renditions, and noted Loeppky had testified he wasn’t aware of that policy during Arar’s detainment. Counsel pointed out that Tenet testified at the 9/11 Commission that the US had rendered 70 people before 9/11. Loeppky said he noted it in Tenet’s statement.
Counsel then referred to the book “Against All Enemies,” by Richard Clarke, who worked in counter-terrorism and testified before the 9/11 commission. Counsel noted that Clarke calls renditions “snatches” and says they have been occurring for more than a decade. Loeppky said he isn’t able to verify Clarke’s perspective, but said he deals with the US as professionals.
Counsel asked if in light of Tenet’s testimony before the 9/11 Commission, the RCMP now has to assume that there is the issue of rendering people for torture in FBI and CIA national security investigations, and Loeppky said yes. Counsel then asked what controls or caveats are in place to ensure this doesn’t happen to a Canadian, and Loeppky said that continuing to cooperate in joint investigations with the US depends on the context of that particular investigation.
Counsel then proposed the context of a suspected al-Qaeda member who isn’t in Canada and within RCMP jurisdiction, but is on American soil. The US is aware of the Canadian investigation into this person, but there are no grounds to go to trial. Counsel said given that the US uses renditions, and that the man cannot be prosecuted in Canada for lack of evidence, what does the RCMP do and what caveats are put on information to prevent the US from acting on the information and rendering the man for torture elsewhere? Loeppky said that if they suspect a Canadian would be subject to torture, they would have “serious concerns” and it would come to the attention of higher officials. He said that if they believed an abuse would be committed, they wouldn’t share the information with the US, although he said it would be “case specific” with the US because it’s a democratic country with professional police standards. Counsel asked about the burden being shifted on the RCMP to inquire about suspected Canadian al-Qaeda members who are in the US, and Loeppky said it is an obligation upon Canada to ensure information is used in a consistent and appropriate way.
Counsel then asked if renditions would qualify as consistent use and something the RCMP can do if it were an almost formal use of powers, and Loeppky said they would evaluate to what extent they could share information if there was any indication of a person’s rights being violated. Counsel noted that if the RCMP shared information knowing it would be used to render someone, then it is a party to torture under Canada’s Criminal Code, and Loeppky agreed.
Counsel asked if concern about the behaviour of allies is more the concern of CSIS, and Loeppky replied that the RCMP would also be concerned because of evidentiary standards. Counsel said that the “snatches” Clarke said has occurred since 1985 were the kinds of things that the RCMP needs to know about, and Loeppky agreed. When asked who should have known about it, Loeppky said he accepts responsibility if counsel thinks this is something he, as Deputy Commissioner, should have known. He said that there may have been areas in the national security investigations area that was aware of the renditions, but said he said he doesn’t know. Counsel said it sounds like the witness thinks people in the chain of command knew about the practice and didn’t inform him, and Loeppky said he isn’t saying that, only that there may be “subject matter experts” who have greater knowledge, and that it may not have been told to him because the potential for it to happen in Canada was minimal. Loeppky agreed with counsel that if someone knew Canadian information was being used for renditions, then he should have been informed.
Counsel asked if Foreign Affairs or any Canadian official in Washington should have told the RCMP about renditions if they knew, as the government must share with the RCMP any pertinent information concerning law enforcement, and Loeppky agreed and said RCMP liaisons should also have informed someone if they knew it was occurring with a Canadian citizen. He also confirmed that Foreign Affairs is supposed to share this kind of information and that CSIS might be aware of the practices of other intelligence agencies. Counsel said that from Elcock’s testimony, he was aware of the practice of renditions, and Loeppky agreed that CSIS never told the RCMP about it, either before or after 9/11. (Cavalluzzo interjected that Elcock testified he knew of people being taken from other countries to the US, but not of cases like Arar’s where an individual was sent elsewhere.)
Counsel said that if CSIS knew of the renditions, then they should have informed the RCMP’s Commissioner and Loeppky himself, and Loeppky said that since CSIS’ mandate differs over the role of criminal prosecutions, CSIS may not have to inform the RCMP. He said the RCMP has an internal responsibility to ensure they comply with the law. Counsel asked, since CSIS advises government, if should they have told the government about the renditions, and Loeppky said he doesn’t know.
Counsel said they know from his testimony that no information came from CSIS, but asked if nothing came from the government, and Loeppky replied that he isn’t saying no information was given, but that he just doesn’t know.
Counsel said it seems like the US practice of rendition places information shared with the US at risk, and Loeppky again said they had no knowledge of it.
Counsel said that if the CIA or FBI used RCMP information to “snatch” someone from i.e. Africa and send them to Syria for torture, then that should also be of concern, and Loeppky agreed.
Counsel asked what the RCMP should do if it discovered that information it shared was used to torture a Canadian, and Loeppky said they would register their concerns and Foreign Affairs would undertake consular action to address to situation. Counsel asked if the RCMP would have a full discussion with Foreign Affairs about the matter and the information that was shared, and Loeppky said they would give Foreign Affairs the relevant information needed to fulfill their mandate, and only a summary of the shared information.
Loeppky explained that performance reports are done on the RCMP annually and tabled before government. The report also lists the strategies and expectations of the RCMP, and in 1999-2000 said they were “providing avenues” for information sharing and “interagency cooperation,” gathering intelligence on organized crime (distinguished from security intelligence) and the criminal intelligence database (not SCIS). Loeppky explained that these refer to the Criminal Intelligence Service Canada, which was created in 1970 to provide services to the law enforcement community. He said that the RCMP uses about 25% of those services and also supervises those services. He said things like the DNA databank and criminal records system are provided to the broader police community, and that CISC shares criminal intelligence on organized crime.
Counsel noted the performance overview of the RCMP as saying it will promote partnerships nationally and internationally to share resources and crime priorities. Loeppky said it was part of Commissioner Zaccardelli’s vision of the RCMP as an organization of excellence, which includes integrated policing.
Another page in the report says 9/11 emphasized the need for integration and collaboration, and that it “reconfirmed” the need for intelligence-led integrated policing. Loeppky confirmed, when asked, that this meant working “shoulder-to-shoulder” with their counterparts in the US and elsewhere.