RCMP Watch

Jim Brown, Ottawa (Canadian Press) - The head of the RCMP says mandatory disclosure of detailed police files to defence lawyers is complicating terrorist and other criminal prosecutions.

Commissioner William Elliott told the Air India inquiry Thursday it’s increasingly difficult for police to meet the requirements imposed by the country’s courts to divulge all the background gathered before a trial begins.

“Certainly the disclosure requirements are a significant burden,” he said. In fact, things have reached the point where “the burden of disclosure, as it is (currently) interpreted and practised, arguably outweighs the benefits.”

Elliott acknowledged, however, that he doesn’t know quite how to fix the problem.

The head of the inquiry, former Supreme Court judge John Major, suggested it might be possible to carve out a legal exception to disclosure in anti-terrorist cases to ensure that sensitive national security information can remain secret.

“I can see the merit of that,” Elliott replied. But he quickly added that may be difficult to do in practice without infringing on defendants’ constitutional guarantees under the Charter of Rights.

“The more I think about this, the more I know about it, the more difficult it seems to be.”

Speaking later to reporters, Elliott said his main concern about the present disclosure regime is that it puts a strain on scarce police resources. It can take days to put together a package of all the information deemed relevant to defence counsel, even in the simplest of criminal cases, he said.

Nevertheless, he cautioned, that burden has to be balanced against the need to protect individual liberties.

“These are very complicated things,” said Elliott. “If your only objective was successful prosecutions you might leap to some conclusions (but) there really are fundamental issues around the rights of the accused.”

The same principle applies in other areas, he said, such as the oft-heard proposal to lower the legal test for police to obtain wiretap warrants or otherwise conduct surveillance in terrorist cases.

“I’m the commissioner of the RCMP, but I’m a Canadian citizen too. I’m not sure how comfortable I am that we would suggest that, on mere suspicion, the police should be able to access my private communications.”

Elliot was cautious, as well, on the question of whether federal legislation should be changed to make it mandatory for the Canadian Security Intelligence Service to hand over information that could be useful to the Mounties in criminal prosecutions.

Former commissioner Giuliano Zaccardelli has suggested, in previous testimony, that the CSIS Act should be amended to grant virtually automatic police access to such material.

But Elliott, a veteran bureaucrat who became the first civilian ever appointed RCMP commissioner in July, took a more nuanced position.

CSIS has a legitimate interest in keeping some information secret because it could harm national security, he told Major. And if that information automatically went to police it could wind up in the hands of defendants as part of the court’s disclosure process.

“It’s hard to be definitive with respect to all potential future events or situations,” said Elliott. “I think there needs to be some room for appropriate levels of discretion to be appropriately exercised.”

Much of the inquiry’s work has centred on turf wars that erupted between the RCMP and CSIS after the terrorist downing of Air India Flight 182 took 329 lives in 1985.

But Jim Judd, the current director of CSIS, testified Thursday that information-sharing with the Mounties has improved remarkably since then – and especially since the 9-11 attacks by Al Qaeda in the United States in 2001.

The spy service is now much more willing to make material available for use in court cases, he said, even when that might mean cutting short a longer-term intelligence operation.

“The actual practice of the service has been to disclose early on cases in the terrorism realm,” said Judd, on the theory that convicting a terrorist should take priority over intelligence needs.

Furthermore, he said, CSIS no longer targets any suspects for investigation without checking first with the RCMP, and the police retain the ability to step in and mount a criminal probe at any time.