In its second and final report, the commission of inquiry into the detainment and torture abroad of Ottawa engineer Maher Arar recommends the creation of a much strengthened, independent agency to oversee the national security operations of the RCMP.

Moreover, it would be one with extensive authority, including the ability to initiate its own full-fledged audits using similar powers to those offered under the Inquiries Act.

Dennis O'Connor speaks to reporters Tuesday following the release of his second report on the Maher Arar affair. (CBC)

The commission, headed by Mr. Justice Dennis O'Connor, concluded that the existing review mechanism for the Mounties is not adequate, largely because it is not geared to deal with the RCMP's expanding national security role.

The commission also recommends extending the national security watchdog to five other federal departments and agencies involved in intelligence gathering — the Canada Border Services Agency (CBSA), Citizenship and Immigration Canada (CIC), Transport Canada, the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) and Foreign Affairs and International Trade Canada (DFAIT).

Some of these groups would be overseen by the same review body that keeps tabs on the Canadian Security Intelligence Service (CSIS). CBSA, because it has a significant law enforcement mandate, would fall under the watchdog O'Connor is recommending for the RCMP, a new civilian complaint and review authority that he recommends be called ICRA for Independent Complaints and National Security Review Agency.

The full 636-page report can be found at http://www.ararcommission.ca/eng/index.html Below are his main recommendations and the rationale he cites for them.

Recommendation 1. Create an independent, arm's-length review and complaints mechanism with enhanced powers to encompass both the regular RCMP and its national security operations.

To provide effective review of the force, O'Connor says the new watchdog should have the power to investigate and report on complaints as well as the authority to conduct self-initiated reviews, similar to those conducted by the Security Intelligence Review Committee (SIRC) in respect of CSIS operations.

Rationale. Self-initiated reviews are needed because most of the RCMP's national security activities are conducted in secret and receive little, if any, judicial scrutiny. At the same time, they have the potential to significantly affect individual rights and freedoms.

Giving this new agency extensive investigative powers, similar to those used by public inquiries, will allow it to decide itself what information is necessary to fulfil its mandate and to subpoena documents and compel testimony from any federal, provincial, municipal or private sector person or entity.

When collecting information, O'Connor concludes, ICRA must not be hampered by jurisdictional boundaries. It must be able to follow the trail wherever it leads to ensure full and effective investigation or review of the RCMP's national security activities.

Recommendation 2. The review and complaints body should be located within a restructured Commission for Public Complaints against the RCMP, the body that exists to examine complaints against the force. It should be renamed the Independent Complaints and National Security Review Agency for the RCMP (ICRA) to reflect its expanded role.

Rationale. Building on the current structure will not reinvent the wheel and will allow for broad exposure to all of the RCMP's activities, including law enforcement and national security investigation, many of which overlap.

"As a law enforcement agency, the RCMP has a broad range of coercive powers, including powers to detain, search, use force and arrest. Since, in our society, such coercive powers of the state are generally restricted to agencies with a mandate linked to criminal or unlawful activity, it is important that the RCMP remain within its law enforcement mandate, no matter what type of activity is being investigated," O'Connor says.

An agency-based review body that would look at all of the RCMP's activities would be better positioned to develop a sophisticated understanding of the force and would not get caught up in jurisdictional battles.

The expanded mandate that O'Connor proposes for SIRC, on the other hand, is more what he calls function-based and would track individual cases through the different departments.

Recommendation 3 (a). ICRA's mandate should include authority to conduct self-initiated reviews with respect to the RCMP's national security activities, similar to those conducted by the Security Intelligence Review Committee (SIRC) with respect to CSIS.

These reviews would look at compliance with law, policies, ministerial directives and international obligations and for standards of propriety expected in Canadian society.

Recommendation 3 (b). ICRA's mandate should include authority to investigate and report on complaints with respect to the RCMP's national security activities made by individual complainants and by third-party groups or individuals.

Recommendation 3 (c). ICRA's mandate should include authority to conduct joint reviews or investigations with SIRC and the Communications Security Establishment Commissioner (an agency of National Defence) into integrated national security operations involving the RCMP.

Recommendation 3 (d). ICRA's mandate should include authority to conduct reviews or investigations into the national security activities of the RCMP where the minister of public safety so requests.

Recommendations 3 (e) and (f) ICRA's mandate should include authority to conduct reviews or investigations into the activities related to national security of one or more government departments, agencies, employees or contractors, where the governor in council so requests; and make recommendations to the relevant ministers. Rationale. Other countries, notably Australia, Belgium, New Zealand, Norway, Sweden, the United Kingdom and the United States, have at least some kind of self-initiating review mechanism to oversee their security agencies or police forces involved in national security activities.

It is being limited in this case to the RCMP's national security operations only because that was part of O'Connor's direct mandate. But, he says, the body that has responsibility for self-initiated reviews should also handle the complaints process in order to ensure integration and consistency between the two functions.

Recommendation 4 (a). ICRA should have extensive investigative powers, similar to those for public inquiries under the Inquiries Act, to allow it to obtain the information and evidence it considers necessary to carry out thorough reviews and investigations. These powers should include the power to subpoena documents and compel testimony from the RCMP and any federal, provincial, municipal or private-sector entity or person.

Recommendation 4 (b). ICRA should have the power to stay an investigation or review because it will interfere with an ongoing criminal investigation or prosecution.

Recommendation 4 (c). ICRA should have the power to conduct public education programs and provide information concerning the review body's role and activities.

Recommendation 4 (d). ICRA should have the power to engage in or to commission research on matters affecting the review body.

Rationale. The new watchdog will require extensive investigative powers both to fulfil its mandate and engender public confidence and trust.

The powers required to obtain information can be divided into two categories: Those needed to access all information from within the RCMP that the review body considers necessary, subject only to two minor exceptions, cabinet confidences and, in some circumstances, solicitor-client privilege where the RCMP is the client.

And those needed to access information from sources outside the RCMP, including other federal, provincial or municipal agencies and the private sector. ICRA, O'Connor says, must be allowed to "follow the trail" of information or evidence to obtain a complete picture of the RCMP's activities.

These new powers would also include the highly sensitive issue of access to information provided by human sources, which police have jealously guarded, to gauge matters of reliability.

Recommendations 5 (a) and (b). ICRA's complaints process should incorporate the following features:

(a) in the first instance, ability on the part of ICRA to refer a complaint to the RCMP for investigation or to investigate the complaint itself, if deemed appropriate;

(b) ability on the part of the complainant to request that ICRA review the complaint if the complainant is not satisfied with the RCMP's investigation and disposition of it.

Recommendation 5 (c). ICRA's complaints process should incorporate an ability on the part of ICRA to dismiss a complaint at any stage of an investigation as trivial, frivolous or vexatious, or made in bad faith.

Recommendation 5 (d). ICRA's complaints process should incorporate the establishment of a program providing opportunities for the use of mediation and informal complaint resolution, except where the complainant does not have the information about the RCMP activities that are relevant to the complaint.

Recommendations 5 (e) and (f). ICRA's complaints process should incorporate:

(e) opportunity for the commissioner of the RCMP and affected members of the RCMP to make representations to ICRA and, where a hearing is commenced, to present evidence and be heard personally or through counsel;

(f) opportunity for the complainant to make representations to ICRA and to present evidence and be heard personally or through counsel at a hearing.

Recommendation 5 (g). ICRA's complaints process should incorporate open and transparent hearings of a complaint, to the extent possible, but authority for ICRA to conduct all or part of a hearing in private when it deems it necessary to protect national security confidentiality, ongoing police investigations or the identity and safety of sources.

Recommendation 5 (h). ICRA's complaints process should incorporate discretion by ICRA to appoint security-cleared counsel independent of the RCMP and the government to test the need for confidentiality in regard to certain information and to test the information that may not be disclosed to the complainant or the public.

Recommendation 5 (i). ICRA's complaints process should incorporate the ability for ICRA to seek the opinions or comments of other accountability bodies, such as the Canadian Human Rights Commission, the Privacy Commissioner of Canada and the Information Commissioner of Canada.

O'Connor does not recommend that ICRA be given the power to impose discipline on individual officers. He says that while independent monitoring of complaints is appropriate, police management will most often be in the best position to impose sanctions on those who cross the line.

He also notes that it is clearly in the public interest that the complaints process be accepted within the RCMP.

Recommendation 6. ICRA should be structured so that complaints and reviews related to the RCMP's national security activities are addressed only by specified members of the agency. Appointments of such members should be aimed at inspiring public confidence and trust in their judgment and experience. Appointees should be highly regarded individuals with a stature similar to SIRC appointees.

O'Connor goes on to say that, in his view, only three to five members of the total ICRA contingent ought to be empowered to deal with national security complaints. Of the approximately 22,000 RCMP in the field, only about 300 are involved in security activities, the inquiry said.

Recommendation 7. ICRA should prepare the following reports to the minister of public safety and the commissioner of the RCMP:

(a) Reports arising from self-initiated reviews and investigations of complaints, which should include non-binding findings and recommendations.

(b) Annual reports on its operations to the minister, who should lay an edited version of the report, omitting national security information, before each house of Parliament.

Recommendation 8. ICRA should have an adequate budget to fulfil its mandate in relation to the RCMP's national security activities, including for purposes of self-initiated review.

Recommendation 9. There should be independent review, including complaint investigation and self-initiated review, for the national security activities of the Canada Border Services Agency, Citizenship and Immigration Canada, Transport Canada, the Financial Transactions and Reports Analysis Centre of Canada and Foreign Affairs and International Trade Canada.

Rationale. Since 9/11, the RCMP and the federal government have stressed a much more integrated approach to national security matters, O'Connor notes. As a result, he says, to have adequate review of the national security activities of one agency requires review of all the entities involved in what is being reviewed.

For example, he notes that Transport Canada is compiling a Canadian no-fly list of those considered a danger and that this work is highly sensitive to individual rights and will involve the input of a number of agencies.

"In general terms, I have two reasons for concluding that the government should extend independent review to the national security activities of the five entities mentioned above: the nature of their national security activities, which raise many of the same concerns that give rise to the need for independent review of the national security activities of the RCMP, CSIS and the CSE; and the degree of integration of the national security activities of each of the five entities with those of the other federal actors subject to independent review, including the RCMP."

Recommendation 10. ICRA should review the national security activities of the Canada Border Services Agency, and the Security Intelligence Review Committee should review the national security activities of the other four entities.

Rationale. It does not make sense to have a separate review agency for every operational entity. Such a situation would be unwieldy and could render the provisions for integrated or co-ordinated review unworkable.

But to keep the important operational and legal distinctions between law enforcement and intelligence gathering — distinctions stressed by the McDonald commission into the RCMP in 1981 — O'Connor wants basic review entities for national security: SIRC for CSIS and ICRA for the RCMP.

"My recommendation," he said, "is also based on the critical need for law enforcement experience and expertise on the part of those reviewing law enforcement activities in the area of national security.

"These same considerations do not apply to CIC, FINTRAC or DFAIT for the obvious reason that they are not law enforcement agencies. And while Transport Canada has some enforcement functions in relation to transport safety and security, I am satisfied that its national security intelligence function is not oriented toward law enforcement."

Recommendation 11. The government should establish statutory gateways among the national security review bodies, including ICRA, in order to provide for the exchange of information, referral of investigations, conduct of joint investigations and co-ordination in the preparation of reports.

Rationale. Providing a proper legislative framework for these new and reconstituted agencies should go a long way to eliminating turf wars.

Recommendation 12. The government should establish a committee, to be known as the Integrated National Security Review Coordinating Committee, comprising the chairs of ICRA and the Security Intelligence Review Committee, the Communications Security Establishment Commissioner and an outside person to act as committee chair.

INSRCC would have the following mandate:

• To ensure that the statutory gateways among the independent review bodies operate effectively.
• To take steps to avoid duplicative reviews.
• To provide a centralized intake mechanism for complaints regarding the national security activities of federal entities.
• To report on accountability issues relating to practices and trends in the area of national security in Canada, including the effects of those practices and trends on human rights and freedoms.
• To conduct public information programs with respect to its mandate, especially the complaint intake aspect.
• To initiate discussion for co-operative review with independent review bodies for provincial and municipal police forces involved in national security activities.

Recommendation 13. In five years' time, the government should appoint an independent person to re-examine the framework for independent review recommended in this report, in order to determine whether the objectives set out are being achieved and to make recommendations to ensure that the review of national security activities keeps pace with changing circumstances and requirements.

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