Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 10 -- Evidence
Ottawa, Thursday, May 9, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-9, respecting the Law Commission of Canada; and Bill C-13, to provide for the establishment and operation of a program to enable certain persons to receive protection in relation to certain inquiries, investigations or prosecutions, met this day at 10:30 a.m. to give consideration to the bills.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Good morning, senators. We will begin our meeting with consideration of Bill C-9, an act respecting the Law Commission of Canada. You will remember that at our meeting last week some concerns were expressed with respect to certain wording in the legislation, rather than with the legislation itself. We have asked the Department of Justice representatives, David Paget and Ms McCorkell-Hoy, to come back this morning to explain from their perspective the problems that arose at last week's meeting.
Let us begin with their report.
Mr. David Paget, Senior General Counsel, Corporate Policy Group, Department of Justice: Madam Chair, further to the issue raised at last week's meeting about the appropriateness of the provision in clause 18(1) regarding the appointment during pleasure of advisory council members by the commission, we did, indeed, undertake to research and to consider this issue. We have done so, with the assistance of the legislative drafter and administrative law experts in the Department of Justice.
My recollection of the concern is that it might be inappropriate for a body other than the Governor in Council to make appointments during pleasure. Our research indicates that the provision in the bill is appropriate. The general rule for the appointment of public officers is, in fact, that they are made "during pleasure."
This rule is reflected in the Interpretation Act, subsection 23(1). I will cite the relevant extract from it which states:
Every public officer... is deemed to have been appointed to hold office during pleasure only, unless it is otherwise expressed...
The term "public officer" is defined in an inclusive but not definitive way in the Interpretation Act itself. It provides that the phrase "includes any person in the public service of Canada." For greater certainty, Bill C-9 specifies that this general rule for public office holders during pleasure applies to members of the advisory council.
Failure to specify this in the legislation would leave doubt as to the application of the general rule set out in the Interpretation Act. In our judgment, this doubt would be undesirable. The bill resolves the doubt by stipulating that the appointments are "during pleasure" which is the more appropriate standard because it is the general and, hence, more common standard of tenure. The Interpretation Act makes it clear that anything else is an exception to this general standard.
That, Madam Chair, is the response we have developed to the concern raised last week.
The Chair: Honourable senators, before we move to your questions, I wish to say that I had a conversation about this matter with Senator Beaudoin last week. Unfortunately, at the moment, he is not here to speak for himself. As a result of a conversation he had with Mary Dawson, the Assistant Deputy Minister of Justice, his difficulties concerning the legislation were resolved. He has since told me that he is prepared to proceed with the bill.
The Chair: Honourable senators, is it your wish that we proceed to clause-by-clause study of Bill C-9?
Senator Lewis: Madam Chair, I move that we report the bill without amendment.
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: We will now move to consideration of Bill C-13.
I would invite Helen Banulescu, Warren Black and Corporal Jeff Warren of the RCMP to join us for our consideration of Bill C-13, to provide for the establishment and operation of a program to enable certain persons to receive protection in relation to certain inquiries, investigations or prosecutions.
In the First Session of the Thirty-Fifth Parliament this bill was known as Bill C-78. That bill never reached the Senate. Thus, this is our first opportunity to take a look at it.
Please make your presentation and then we will proceed, I am sure, with some questions.
Ms Helen Banulescu, Chief, Law Enforcement Group, Department of the Solicitor General of Canada: Madam Chair, it is, indeed, our pleasure to place Bill C-13, the Witness Protection Program Act, before this committee for its review and consideration.
Since the bill was first tabled in the House of Commons in March of 1995, we have tried to underline the importance of witness protection as one of the most effective law-enforcement tools.
As members of the committee may be aware, a high percentage of cases involving witness protection result in convictions, usually because of the testimony of the protected individual. For this reason, the RCMP have had a source witness protection program in place as an administrative program since 1984.
The purpose of this bill is to establish a legislative footing for the existing program in order to provide for, among other things, a clearly defined admission-criteria system for witnesses; a more consistent handling of cases across the country; a clear setting out of the responsibilities of both the police and the individuals entering the program; and a more defined management structure within the RCMP for the day-to-day operations of the program. The bill will also ensure that there is a complaints procedure in place and that an annual report is tabled in the House of Commons with respect to the operations of the program. In this manner, the federal witness protection program will become more open and accountable to the Canadian public.
When the bill was reviewed in the House of Commons Justice and Legal Affairs Committee, the government gave serious consideration to the concerns expressed by committee members. As a result, we made the necessary changes to make the bill a stronger piece of legislation. With your indulgence, I should like to highlight those changes for you, Madam Chair.
First, the legislation now makes it clear that the protection agreement between the witness and the police must state the obligations of both parties and not just those of the witness. The bill also was amended to ensure that, in addition to meeting all financial obligations, the individual in the program meets all legal obligations as well. This includes the custody and maintenance of children. A new provision was added to allow the commissioner to provide, on an emergency basis, protective services to a witness before a protection agreement has been signed.
In addition, while it remains an offence to disclose information about the whereabouts or identity of an individual in the program, it is now clear that a person must knowingly disclose this information to emphasize that the individual must have the requisite intent to be in breach of the section.
A new provision was added to make it clear that if an individual in the program chooses to disclose information about his location or identity, then it would not be an offence for the person to whom this information is revealed to disclose it, as long as certain safeguards are in place. For example, that disclosure cannot jeopardize the safety of the protected individual.
Finally, the government dropped the provision that would have provided protection from liability for the Crown and for RCMP officials as long as officials were acting in good faith in running the program.
Although there are similar provisions in U.S. and Australian legislation, the government agreed with the committee that individuals should have recourse to the courts, if necessary.
As I mentioned earlier, one of the key goals of the bill is to make the program more open, transparent and accountable. In this fashion, we certainly hope to avoid intentional misunderstandings.
To conclude my remarks, the witness protection program bill is intended to serve the needs of both the public and law enforcement. My colleagues and I look forward to your comments to assist us in meeting this overall objective.
The Chair: Thank you, Ms Banulescu.
Senator Beaudoin: Madam Chair, I am somewhat concerned with clause 13. I find it to be vague. Could you explain why it is vague?
Ms Banulescu: Clause 13 was put in for the protection of the individual. Someone who is signing a form and is asked, "Is this your true identity?" should not be penalized because they are giving their new identity as opposed to their old identity. It is simply protection for the person who is living under a new name.
Senator Beaudoin: Is that person not obliged to live under the new name?
Corporal Jeff Warren, Royal Canadian Mounted Police: There are situations in which, for example, we acquire a passport in the new identity of one of our protectees. The law which governs those who issue passports requires that certain information be given, information which may include disclosure of previous identities. We have a process in place whereby that information is not made known to the normal record keeping system of the passport office. Therefore, if that person goes for a new passport five years down the road, they will not be required, nor will they be breaking the law, if they do not make reference to their previous identity. Generally, it is an administrative process on federal and provincial government forms which requires that previous identities be recorded.
Senator Beaudoin: You do keep records nevertheless, do you not?
Mr. Warren: Absolutely.
Senator Gigantès: I am alarmed by the words you used at the beginning when you stated "making the system more open and accountable to the Canadian public." I can just see what might happen as a result of freedom of information and access to information legislation. Is it not the main purpose of this bill to protect the witness? Is that protection not based on secrecy about the previous identity of this witness?
Ms Banulescu: You are absolutely correct. When we refer to the system being more open and accountable, it is simply putting on the table the procedures or policies that govern the system, for example, with respect to admission criteria. It is fair that the public should know, if they are applying to the program, how they are selected or rejected. That is the information contained in the bill. In terms of the names and identities in individual cases, of course, that information will never be revealed.
Senator Gigantès: The other thing that perturbs me is this. You said that if a protected witness reveals his or her previous name to someone else and that someone else discloses it, then no one is at fault.
Ms Banulescu: This is an issue that was discussed at length at the committee hearings. Originally, the bill would have made it an offence for the person to reveal the information that was given to him. However, the committee felt that it would be a limitation on the freedom of the media to do their job. If I, as a witness, go to the media and say, "This was my name and my location," and I am not penalized, then the person to whom I am giving the information should be able to reveal it, as long as that individual is not endangering my safety or the safety of another witness, and as long as the integrity of the program is not being damaged. There are safeguards kept in the bill. There are limitations.
Senator Gigantès: There are ethical journalists and there are unethical journalists. There are ethical newspapers and unethical newspapers. There are some reporters who I would not trust with anything. I am a former reporter myself. I think you are endangering the witness with such a provision. I find it perturbing.
Senator Milne: I have a list of questions for which I think we should get the answers on the record.
First, is this witness protection program intended to replace all other similar programs in Canada, for example, the ones run by cities and provinces?
Mr. Warren: No, it is not. In fact, unknown to many there are probably more witnesses relocated and protected by municipal police departments than there are by the RCMP. Those programs will continue. The only assistance cases which are being looked after by a municipal police department would be those which require an identity change, in which case they will have to come to the RCMP. However, they can also continue with those cases which they will do without an identity change, of which they do many. Not all witness protection cases involve an identity change. About 30 per cent or less involve an identity change.
Senator Milne: How does someone become eligible for inclusion in this program?
Ms Banulescu: As I mentioned previously, there are admission criteria listed. They can be found in clause 7. To run through them, the RCMP will have to consider the risk to the security of the person; the danger to the community of taking this person into the system; the nature of the inquiry and the investigation or the prosecution; the value of the information or evidence and the ability of the person to adjust to the program; and any other relevant factors. Those are the criteria that must be run through before taking someone into the program.
Senator Milne: Why is this program under the responsibility of the commissioner of the RCMP rather than directly under the responsibility of the Solicitor General?
Ms Banulescu: The bill tries to maintain a balance between allowing the commissioner sufficient flexibility to run the day-to-day operations of the RCMP while at the same time maintaining enough accountability to Parliament and the public. You can see that in terms of the annual report that must be tabled and in one of the clauses which requires the commissioner to take notice of any instructions from the Solicitor General in terms of the administration of the program. It is a bit of a balancing act. However, it was felt more appropriate for the commissioner to become involved in the day-to-day operations while the minister is accountable, ultimately, to Parliament and the public.
Senator Milne: It is in effect holding Parliament, through the Solicitor General, one further step away, rather than just at arm's length?
Ms Banulescu: Yes.
Senator Milne: Under what circumstances would a foreign national be admitted into the program?
Ms Banulescu: You can find provision for that in clause 14(2) of the bill. It is not a clause which we expect will be used frequently. That is why it requires that two ministers of the Crown approve a foreign national coming into the program. The approval of the Solicitor General of Canada would be required to get the person into the program. As well, the approval of the Minister of Citizenship and Immigration would be required to approve the person actually coming into the country.
Senator Milne: How does this initiative help protected persons become self-sufficient members of society and not be permanently on the dole?
Mr. Warren: Senator, each relocation plan has a lifespan of approximately six months during which time we will assist in supporting these individuals in their day-to-day expenses. At the same time, we remove them from the oftentimes criminal element in which they have been involved, in many cases all their lives. We provide job training assistance in terms of finances to allow them to get further job training. We give them an environment that many of these people have never experienced before whereby they are not subjected to criminals on a day-to-day basis.
This legislation will provide the formal platform to enable us to continue doing that. There is a lifespan on our plans. They know when the plan will end. They are encouraged, in fact almost forced, to become self-sustaining, usually within six months at best. Oftentimes, it might last for one year. At the end of that time, basically, the support payments are no longer there. During that year they have had time to gain extra training.
Senator Lewis: Madam Chair, I have two matters. The first concerns the bill itself and the other is more of a practical matter.
I refer to clause 8(b)(iii), the obligations on the part of the protectee. The protectee must:
...meet all legal obligations incurred by the protectee, including any obligations regarding the custody and maintenance of children.
I am wondering about the spouse.
Ms Banulescu: What about the spouse?
Senator Lewis: You refer to the children.
Ms Banulescu: As you can see it says, "including any obligations regarding..." It is not exclusive. There may be other obligations. However, the committee felt that it was important to give an example, and the example they gave was the custody and maintenance of children. It does not exclude any others.
Senator Lewis: Any legal obligation is included, is that right?
Ms Banulescu: That is right.
Senator Lewis: My next question deals with identity. As I understand it, the person is admitted to the program but it may be for only a period of time and that period may be terminated. During that period, they would have a new identity. If they are taken off the program by the commissioner, the person would revert, I presume, to their original identity, would they not?
Mr. Warren: They would continue in their new identity. The life of the program, if you will, the six months or one year, primarily refers to financial support. I will use the word "financial" generically here but it is the support based on a day-to-day, ongoing basis. In terms of their identity, that continues for the rest of their life unless they choose themselves to revert back to their old identity. We would strongly discourage that. The new identity should continue for the rest of their life.
Senator Lewis: From a practical point of view, when you refer to identity, presumably that means a change of name.
Mr. Warren: Yes, among other things.
Senator Lewis: Name change probably falls under provincial jurisdiction, does it not?
Mr. Warren: It does.
Senator Lewis: What follows then in terms of provincial records?
Mr. Warren: Generally speaking, the provincial records are the first link in the chain. Once all the provincial records are changed, be it driver's licence, birth certificate, change-of-name certificate, which is all through the vital statistics departments of each province, then the next link in the chain is the federal identity part. That is when we in Ottawa become involved. We facilitate things like income tax, Revenue Canada, social insurance numbers, passports and citizenship. There are about 30 federal departments with which we deal from time to time. Indian treaty cards are another example.
The provincial side is the first step. We have protocols in place with the provinces for security.
Senator Lewis: That is what I was wondering. Will the federal authorities contact the provincial authorities and arrange a change of vital statistics there?
Mr. Warren: In fact, it is the police agency in the province which deals with the provincial agencies, be it vital statistics or the ministry of transportation for driver's licences. The police agencies and the attorneys general of the provinces deal with those provincial departments.
Once those documents are acquired and collected, they then come to us. We, the RCMP, facilitate the federal side of it by liaising with the 30 various departments which I mentioned previously.
Senator Lewis: Consider a provincial vital statistics record of birth and that sort of thing, would there be some change made in their records? If there is not, I could go into a provincial department and order a birth certificate or find an identity. If the change is recorded on the records, would that change show up there?
Mr. Warren: In fact, the changes are not recorded on the records which would be accessible through the provisions of access to information legislation, for example. Our cases, those of the Ontario Provincial Police or the Sûreté du Québec are withdrawn from the normal chain of records, be they electronic or paper. They are stored securely by the various contacts in the different departments in the different provinces. They are taken out of the system, if you will.
Senator Lewis: Someone could not go in and say, "I want to find out what happened to this person. I know he may have been a witness. I want to trace down whether he has changed his name." Would that be possible?
Mr. Warren: Those records are removed from the loop. The only information they will get is anything referring to the original identity. Anything to do with the new identity has been removed from the loop in terms of the normal record-keeping systems.
Senator Lewis: I presume then, too, that this change of identity would apply to the person's family, the wife and children.
Mr. Warren: It does.
Senator Lewis: All that is followed through, is it?
Mr. Warren: It is, yes.
Senator Doyle: I am still concerned about the areas about which Senator Lewis was speaking. In the first place, you have a number of people who are now living under this protection. They have been in the program for a considerable amount of time.
Were any of them consulted in the writing of this legislation? I am thinking specifically of the area in which their protection might be taken away from them. Did someone give you advice on what should be in place? I am not suggesting you would be told what to do, but I would think that a person living in the system would be inclined to tell you what really did worry him, his wife or his children.
Ms Banulescu: Probably one of the most effective spokes- people on behalf of people not happy with the program is a lawyer by the name of Barry Swadron. He appeared before the committee and made an excellent presentation. As a result of his testimony, the government decided to eliminate a clause which would have precluded individuals from suing the government so long as the RCMP acted in good faith.
He was probably the best advocate for people who had been in the system or who had been rejected by it and who had concerns. The government listened to his presentation and, as a result, changed the bill. Now people can go not only to the Royal Canadian Mounted Police Public Complaints Commission, but if they are not happy with the results they can go to the courts for redress.
Senator Doyle: I have great respect for Mr. Swadron. However, I am not sure that he would be sensitive to all the peculiar anxieties of a fugitive, and I refer not to a fugitive from justice but a fugitive from one's own identity.
Would there be no appeal in the name of the commissioner? If the RCMP has said, "You are out," is there nowhere that that person can turn to say, "I need protection for my own very good reasons, and I deserve another hearing"?
Mr. Warren Black, Senior General Counsel, Department of the Solicitor General of Canada: Senator, first, subclause 9(2) requires that before removing anyone from the program the commissioner notify the protectee and allow him or her to make representations.
Senator Doyle: They make representations to him, not to any other party.
Mr. Black: No, to the commissioner. While there is no formal appeal from the commissioner's decision, if in any way that decision was taken unfairly, I believe an application for judicial review could be brought in the Federal Court. It is not a formal appeal. However, you can always ask the courts to review the decisions of government officials who act unfairly.
Senator Doyle: Very frequently it is difficult to have any outside party review a case where provision for that review is not stated in the law.
Forgive me here for having seen too many movies in my time. However, I see the purpose of the police is to find out whether the law is being broken. They are constantly searching for the bad guys -- and should be -- but let us take a situation where they have had someone who has assisted them in a case and who has earned his hidden identity. Let us assume the police have reason to believe that that fellow may also know something about another crime down the line and that they go to him and say, "Charlie, you did not tell us what was going on down here. Let us hear what you have to say about that." He says, "No, I do not know anything about that." Then the police say, "Well, because of failure to disclose information, you lose your membership in the club." I am not saying that would happen. I am only saying that perhaps it would be discreet to make sure it does not. There should be some limitation on how long they can expect one source of information to continue to supply information. Am I unnecessarily raising a bogeyman here?
Mr. Warren: In terms of being a source of information, I will not say that never happens. However, it is rare that any of our clients in the program are used as an informant following admission to the program or, even more strongly, used as an agent. When we take someone into the program it is our greatest desire to remove them entirely from the criminal milieu. We do not encourage them to be informants. Nor do we encourage them while they are in the program to be agents.
In fact, some authorities at very high levels have to be given in order to use a protectee as a formal agent where we would actually task them. As I say, our greatest wish is that they will not be giving us information on criminal activity, or at least seeking out that information to give to us in return for money, for example. There seems to be a perception that they will continue to be an informant after they are in the program, unless I am misunderstanding part of your question.
Senator Doyle: I was not trying to say that there was something wrong with the practice of pursuing a normal piece of police work. I was simply wondering whether there should be some protection for the party concerned, not perhaps in a situation where he failed to disclose information about the case in which he had been involved and so had not been admitted into the program, but something that would stipulate that the failure to disclose would not be attached to a case that did not involve his coming under the program in the first place. Do you have my meaning?
Mr. Warren: I am not sure I do. Are you speaking about the disclosure of the fact that a person is on the program during court proceedings, for example, surrounding the case that resulted in his being on the program?
Senator Doyle: The bill states "or failed to disclose information." I wonder if there would be protection for the client in those circumstances.
Mr. Warren: At which clause are you looking, senator?
Senator Doyle: I am reading from our summary of the bill with regard to clauses 8 to 10. It says that the commissioner would be allowed to terminate protection if "in the opinion of the commissioner" the witness had materially misrepresented or failed to disclose information. Is that a correct assessment?
Senator Pearson: It would have to be relevant to the admission to the program.
Mr. Warren: If we sign someone up for the program, we will ask him what his financial liabilities are, or how much money he owes, which is a concern of ours because we sometimes become responsible for those debts. If he tells us in our interviews during the application-processing phase of the operation that he does not owe any money and we then find out three months down the road that he has all the bill collectors in British Columbia looking for him because he owes a half a million dollars, then that, conceivably, could be grounds for termination.
Failing to disclose their backgrounds is what we are speaking of here -- financial, medical, family responsibilities, criminal backgrounds, any of a number of things. That is the kind of disclosure we are contemplating, not disclosure about crime that had been going on, or about criminal activities.
Senator Doyle: Are you saying, then, that if there was an attempt by the RCMP to toss the person out of the program for failing to give information that they believed he had about another crime, that that would never occur?
Mr. Warren: Not in my experience, no. I am not saying that it could not happen, but it certainly has not, to my knowledge, in the four years that I have been involved full time in working on the program, nor could I anticipate something like that happening.
Senator Doyle: The only way you could anticipate it would be if someone in the program had ever been questioned about a second incident of criminal behaviour.
Mr. Warren: One that they had been involved in, for example?
Senator Doyle: Maybe other than the case that had led to their being taken into the program in the first place.
Mr. Warren: Knowing what that subsection was intended to do, I am having a difficult time envisioning such a situation surfacing. From past experience, I just cannot see that happening. I certainly cannot see their failure to give us information about other criminal activities, for example, being grounds for termination. We do not force any of our informants to give us information. It is all supposed to be voluntary.
Senator Doyle: You are simply talking about their personal status, are you?
Mr. Warren: That is correct.
Senator Doyle: Could it not say "information about their personal circumstances"?
Senator Pearson: The phrase "information relevant to the admission of the protectee to the Program" seems to cover that; does it not?
Mr. Warren: We thought that it did.
Senator Doyle: I find those words, "to disclose information," standing alone --
Senator Pearson: They do not stand alone.
Senator Doyle: There is an "or" before you get to anything else.
Mr. Warren: Information that they might have pertaining to other criminal activity would not be relevant to their admission to the program. It is not one of the things that we would weigh as an entry requirement.
Senator Doyle: We are talking here about termination.
Senator Pearson: It does not stand alone in the bill.
Senator Gigantès: Following up briefly on what Senator Doyle said, am I to understand that you may suspect that someone who is about to enter the program might have been involved in some other criminal activity and you turn a blind eye because it is, in your view, to the advantage of justice to forget that particular activity of theirs in order to get them to testify in a big case?
Mr. Warren: Absolutely not, senator. In fact, we have taken people on to the program who are, when admitted to the program, still facing charges before the court. They have already been charged for crimes in which they have participated. We have to work within that. If it turns out that they go to jail as a result of being convicted of the crime with which they are charged, we will work with Correctional Services Canada to offer them protection while doing time. We definitely do not turn our back on it.
Fairly extensive interviews are conducted. Generally speaking, we know in what they have been involved. Some of them are certainly not choir boys, by any stretch of the imagination, but we do not turn a blind eye to it. In fact, part of the agreement which we currently sign with our protectees includes a clause stating that if anything surfaces during their life on the program we will follow up on it very earnestly, and they agree to that at the start.
Senator Gigantès: What happens in the case of an inheritance? If you have taken Mr. Jones off the street and changed his name to Smith, and Mr. Jones' rich old uncle dies and leaves him $1 million, then what happens?
Mr. Warren: The possibility exists that he will not be found under his new identity and he will lose out on his inheritance. I have not seen such a situation before.
Senator Gigantès: Is there any mechanism by which the new Mr. Smith would not be deprived of his inheritance?
Mr. Warren: One would hope that during the course of attempting to find him the responsible parties would speak with the police who have jurisdiction in the area where he is from. One would hope that that police agency would find out that he was on a witness protection program, be it the program of the RCMP or the Metropolitan Toronto Police, and turn the information over to the appropriate people in order that he could be found and therefore be eligible to gain his inheritance. It is conceivable that he could miss out on the inheritance, although I have not seen such a situation.
Senator Gigantès: By the way, Senator Lewis, if a couple adopts a legitimately born child in Quebec, then the record of that child's birth is changed. The birth certificate says that the adoptive parents are the natural parents.
If you are a gangster who would like to put a bullet in the head of Mr. Jones because he squealed during a trial, and you find out that he has a rich uncle, you wait for the rich uncle to die, or you kill the rich uncle, and then you find Mr. Jones and put a bullet in his head.
Senator Bryden: My questions are mostly for clarification. The definition of "witness" is an interesting one. "Witness" is defined as a person who requires protection because of risk to the security of that person due to assisting in an investigation, for example, as well as a person who is related to that person.
It appears that the protection available to spouses or children arises from the risk to the original person. If the original person is shot while leaving court after giving evidence, there is no risk left to him, but there may be considerable risk to his wife or children. Since there is no risk left to him, how do you, under this definition, bring the wife or children under protection? Another situation would be that the original person is so intimidating, for whatever reason, that no one will touch him; therefore there is no risk to him.
Ms Banulescu: The bill is not intended to cover that. Subclause (b) under "witness" states:
a person who, because of their relationship to or association with a person referred to in paragraph (a), may also require protection ...
I do not think it is meant to exclude that just because the original person is no longer at risk because they may have died; it is not that the family members are not intended to be covered, they are.
Senator Bryden: I have no doubt that that is the intention. My question is whether in fact that definition covers that situation. As we all know, the first place you get the intention of an act is from reading the words of it. If every one is satisfied that that is so, then I do not have any problem with it.
To move on from that definition, it is intended that "witness" includes the person providing the information and also that person's dependents. Under clause 6 of the bill, a witness is not admitted to the program unless certain things happen. One of those things is that they enter into an agreement.
Since "witness" includes spouse and dependents, do you anticipate there will be separate agreements for those persons as well?
Mr. Warren: We currently do it that way now, senator, for anyone over the age of majority. We enter into separate agreements with the spouse and any children who are over the age of 18. I cannot imagine that that will change. In terms of our program I expect that we will continue to do it that way and have separate agreements with each of the participants over the age of majority.
Senator Bryden: Under clause 8(b)(i), "protection" is deemed to include an obligation on the part of the protectee -- it is interesting that we are using the word "protectee" here instead of "witness" -- to give the information or evidence or participate as required in relation to the inquiry, investigation or prosecution to which the protection relates.
Under the definition of "witness," once again, if there is a family member, suppose a spouse, who has information, or if the police have reasonable and probable grounds to believe that that spouse also has information, when she enters into her agreement in order to get the protection, which presumably she is getting because her husband is at risk, is that witness or protectee required to divulge whatever information she or he may have about the incident, since they must sign the same agreement?
Mr. Warren: In fact, they would be two separate agreements.
Senator Bryden: However, the obligation would be there, would it not?
Mr. Warren: Let us assume that the husband is the potential protectee. The way I read this, the obligation to give the information falls on the shoulders of the protectee, the husband, but that does not automatically or necessarily carry over to the spouse if you learn after the fact that she may have some information. One would hope that she would any way. She has nothing to lose if she is on the program, and the threat should not increase by her strengthening the Crown's case, for example, in the scenario you have laid out, senator.
From reading this provision, I would say that the protectee himself, but not necessarily his spouse, would be required to give that information.
Senator Bryden: "Protectee" is defined as a person who is receiving protection under the program. If this person is receiving protection under the program, then presumably they get that protection by carrying out the obligations specified in the act. I do not expect you to come up with an answer instantaneously to that inquiry.
Senator Gigantès: May I ask a supplementary question on this point?
Senator Bryden: Certainly.
Senator Gigantès: To come back to the case of the husband and wife when the husband is your source of information, if in such case you have some reason to believe that the wife might have additional information, would you feel that she is obliged to reveal it before she signs the agreement to be herself a protectee?
Senator Bryden: I thought that is what I asked. You phrased it much better, Senator Gigantès.
Mr. Warren: In practical terms, I would like to think that she would be obliged. Having said that, we have no means of forcing her to do that.
Senator Gigantès: Except to say you will not take her into the program. Are you obliged to take her into the program, or would the clause specifying that the commissioner can remove someone from the program for good reasons be a threat you could use to make her talk?
The Chair: Surely, we could carry this logical thought to the extreme. She is in the program because she is the spouse of the protectee, not for her own sake. Would she not therefore have two ways of entering the program? She could enter the program as a witness herself, or she could enter the program as the spouse of the witness, and, in that case, would the obligations not be somewhat different?
Mr. Warren: I would say yes, absolutely. It is a scenario to which I must admit I have difficulty relating. I have not seen it. Normally, in a situation like that, the wife coming onto the program with her husband will give voluntarily that information, as I said earlier, in the hopes of strengthening the Crown's case. I cannot imagine a scenario where we would have to even consider applying any pressure to force her to do that. I am not saying it could not happen, but I certainly have not seen it.
Senator Bryden: As I read this, not only is she probably acting in her best interests and in the best interests of the Crown to do that, but she does not have any choice in the way the bill is written.
Senator Gigantès: She does not have any choice but to give extra information supplementary to what her husband has.
Senator Bryden: That is right, if she is to truthfully fulfil the obligations that are required under the agreement.
Senator Lewis: I make one observation there. Clause 8 states a protection agreement is deemed to include an obligation, so it presumes that there would be an agreement. In other words, if a spouse is included because of the previous provisions, she would not have these obligations unless --
Senator Bryden: She has to sign the protection agreement.
Senator Lewis: If she does not sign the protection agreement, she is not under these obligations.
Senator Bryden: She cannot be protected if she does not sign the protection agreement.
Senator Milne: In that case, she can probably be protected any way, because by not protecting her you would be then putting her husband, the major witness, at risk, as well as the children. Therefore, whether she said what she had to say or not, she would still have to be protected.
Mr. Warren: Perhaps I should make mention that in a practical sense the current agreements we sign with our protectees make no mention whatsoever to them giving evidence. They deal with the obligations of the protectee in terms of not divulging their identity and not committing wilful acts that will result in their identity or location being known. They talk about how much they will receive each month for their rent, telephone, hydro, et cetera. They talk about our obligations and that we will do certain things in terms of providing a handler to be there, a shoulder to cry on, if you will.
Nowhere in the agreement does it make mention of obligations or what may be perceived to be an obligation to give evidence.
Senator Bryden: We had a lesson yesterday in the Senate on what "deemed" means. I accept everything you have said about the way you are operating now and that there is no requirement. However, this bill states that a protection agreement is deemed to include an obligation. Therefore, after this bill is passed, you cannot enter into a protection agreement that is not deemed to include these obligations.
The freedom you are talking about now, and that which you now have, all these obligations are deemed to be in every protection agreement that you will enter into in the future.
Senator Gigantès: According to clause 8(b)(i), if the wife has information in addition to that of the husband, then she is obliged to produce it. If one finds that she has not produced it, is that sufficient cause for the commissioner to throw her out of the program, thereby possibly endangering the children?
Senator Milne: The answer would have to be "no." If the commissioner threw her out of the program, he would in effect be throwing the husband out of the program.
Senator Bryden: Clause 6(2), which provision was added to the bill after your appearance before the Commons committee, states:
...the Commissioner may, in the case of emergency, and for not more than ninety days, provide protection to a person who has not entered into a protection agreement.
Why do we use the term "person" here where we use "witness" throughout? "Witness" is broadly defined. Is this a new category? Is there a hierarchy? Do you start with a person, then become a witness and then a protectee?
Ms Banulescu: The terminology "protectee" was intended for drafting purposes to mean someone who is receiving protection or someone who has been approved and is in the program. "Witness" was used to cover someone who is a candidate and has not signed the agreement yet.
You raise an interesting point, senator. Obviously, if someone has not entered into a protection agreement, they are a witness. Perhaps that was overlooked as a result of drafting this quickly. It is certainly intended not to cover "protectee." It is someone who is a potential candidate, has not gone through the process, yet is under a threat. The committee felt there should be a provision to provide protective services for a set period of time.
Senator Lewis: It might be, I presume, during an investigation into the person you are interviewing.
Mr. Warren: You may be evaluating as to whether in fact they will be a credible or effective witness.
Senator Bryden: I will not belabour the point, but if you go back to look at the definition of "witness," I do not know what is left out.
Clause 7 sets out factors to be considered in determining whether a witness should be admitted to the program. I find one of the factors interesting. Clause 7(b) states:
(b) the danger to the community if the witness is admitted to the Program;
Can someone tell me under what circumstances the community would be in greater danger if a person is admitted to the program? What community are we talking about? Is it the one he is leaving, or the one he is going to?
Mr. Warren: One scenario is a situation in which a protectee is addicted to drugs and you decide to put him in a community of 400 people with no access whatsoever to drug treatment programs. In that scenario, the absence of treatment programs could cause serious harm in that community, whereas if you moved that person to Vancouver, he or she would not necessarily be a danger to the community. There are drug treatment programs in Vancouver to keep things under control. That is one example.
Senator Bryden: Clause 8 stipulates the following:
8. A protection agreement is deemed to include an obligation
(a) on the part of the Commissioner, to take such reasonable steps as are necessary to provide the protection...
I am concerned about whether that is strong enough and whether the obligation should not be "all necessary steps." You can go all the way and say "all possible steps," which can probably never be fulfilled. However, with respect to "all reasonable steps," presumably if you were to question the commissioner as to whether he was being reasonable, we would get into the definition of a "reasonable man." This notion wanders throughout our law books. Was any consideration given to making that provision closer to "all necessary steps" or something a little tougher?
Ms Banulescu: There is a difficulty with that clause and the type of protection you are talking about. If you refer to the interpretation section, the definition of "protection" includes relocation, accommodation, change of identity and counselling. In some cases, you are changing somebody's life totally and turning it upside down.
What is reasonable accommodation to me is one thing, but it may mean something completely different to someone else. The commissioner must have some flexibility when we talk about changing someone's complete lifestyle. I think the obligation should be "take reasonable steps." If it is "all necessary steps" and if you are talking about lifestyle, what I consider necessary might not be what the commissioner considers necessary. It is meant to give some flexibility because of the type of protection being provided, which is very broad.
Senator Bryden: It is my understanding that the procedure in this bill is used when there is considerable risk to the person or to his or her dependents. The principal thing that happens besides retraining is to attempt to protect the person from that risk. What is necessary to protect that person and what may be deemed reasonable to protect that person are probably quite different in terms of interpretation. That is to say, does the person reasonably require a 24-hour guard for whatever period of time, or in his estimation is it necessary that he have such a guard? I find that reasonableness is not a high standard for the commission.
Ms Banulescu: I see your concern, but the program exists for the protection of the individual. I am sure Corporal Warren will tell you that he has never lost a witness.
Mr. Warren: We have not lost any yet.
Many of our protectees feel it is reasonable to relocate them to Hawaii rather than Saskatchewan, for example, but the commissioner would not agree, nor would I.
Senator Bryden: How are these contractual obligations enforced?
Mr. Warren: I am not sure I understand the question. For example, one of the obligations in the standard agreement we now sign deals with the witness not undertaking any wilful or negligent acts which are likely to result in their identity or location being made known. We usually find out about it after the fact. I am thinking of a particular case where the protectee chose to write a letter identifying their new identity, their new social insurance number and their current location. They did it unilaterally and did not advise their handler. We found out after the fact. Consideration is now being given to terminating them from the program if they continue to do that type of thing.
Senator Bryden: My concern is the other side of the coin. I do not have any concerns about the RCMP being able to enforce its side of the agreement. My concern is when you enter into a particular agreement with a protectee and his or her family. The agreement is basically to cover an adjustment period and the costs for a year and a half.
Let us assume that agreement is entered into on March 15, the new budget comes down and you have to cut your budget. You cannot do it for 18 months -- the commissioner does not have the money. Let us say he cuts it back to 12 months. How does the protectee enforce his side of the agreement? We made a deal. I said I would give you this information. You made a deal that you would house me in Saskatchewan, et cetera. Those are the obligations of the Crown. How does the protectee enforce the agreement?
Mr. Warren: Under the current system, the first step would be that the protectee would complain to his or her handler. The handler would then take that complaint to his regional headquarters in the province. From there it would move up to headquarters, potentially to the commissioner's desk. Some have arrived at Commissioner Murray's desk.
If a resolution satisfactory to the protectee cannot be reached, the only other two available options are going to the RCMP Public Complaints Commission or commencing a lawsuit. We get involved in a few of those as well.
Senator Bryden: I find it rather interesting that someone whom you are trying to protect might find himself in the position of having to go to the courts -- where all the documentation is public -- to make an application to enforce his protection agreement. He is trying to keep his identity secret. Yet, you are saying that you have situations where that occurs.
Mr. Warren: Yes. In the hearings and proceedings before the Public Complaints Commission in which I have been involved because of my involvement with the program and/or lawsuits, there are procedural steps taken to protect the identity of the individual. I think of one case in particular where the participants in the lawsuit, for example, were given pseudonyms so that any transcript contained words to the effect of "Officer A", "Officer B," "Mrs. X" or "Mrs. Y." Locations were not mentioned.
As well, we have had in camera hearings. Identity and locations are protected.
Senator Bryden: Without questioning the good faith of anyone, I have a bit of a problem with one of the contracting parties being the person who is the judge, which leads me to another question.
When the commissioner decides to terminate the protection under the legislation, the protectee is then allowed to make representation concerning the matter. Once again, I take it that once he has made representation to the commissioner, there is no appeal. There is no ombudsman. Nor is there provision where, for example, the Solicitor General could name a judge of the Federal Court to hear this in camera, and so on, is there? In other words, there is no appeal from the commissioner's decision.
Ms Banulescu: As Corporal Warren stated, the route would be going to the Public Complaints Commission. The minister is made aware of the decision of the commission. Of course, that goes to the commissioner himself. He does not have to change his mind; however, the minister is certainly alerted to that. Ultimately, the person can go to the courts. Hopefully, it is resolved before then.
There should be a chance for the RCMP to solve that problem internally first and then move to the Public Complaints Commission or, ultimately, the courts.
Senator Bryden: I am not questioning the internal steps that should be followed, et cetera. It still comes down to the fact that one of the contracting parties, the commissioner, ends up also being the final arbiter. Perhaps that is the way it must be. I find it difficult to think that someone who is in the situation and who is complaining that his contract has been broken will make an application to the courts.
My next point is found in clause 11, where a person "knowingly discloses" the location, et cetera. Was any consideration given to the reckless disclosure of such information? I refer to someone who, without due care and attention, "knowingly disclosed." That is intent; you used those words when you were explaining this bill. Intent is hard to prove, as we all know.
Mr. Black: I must admit that I do not think we considered that particular point.
Ms Banulescu: If I am sitting with a number of friends and I inadvertently, because I am aware of a case, let something slip, the intent is not to put me on the hook for the offence because I did not intend to do that. It must be a situation where someone is deliberately and knowingly putting someone at risk in terms of disclosing a location or change of identity. It is then up to the Crown to lay charges, if they feel they can make a case. I agree with you; intent is hard to prove.
Senator Bryden: Concerning the provisions in clause 11(3), I am interested in the paragraph where it states:
(d) in criminal proceedings where the disclosure is essential to establish the innocence of a person.
That presents whoever makes that decision with a rather interesting ethical call. You will put someone at risk in order to establish the innocence of someone else.
Ms Banulescu: Clearly, that is the case. That is one of the reasons why this particular decision-making process must be undertaken by the commissioner himself. It is not delegated because of the sensitivity. It is a balancing act. If the name has to be revealed in order to establish the innocence of the person, the commissioner must have the discretion to do so.
Senator Bryden: Is the protectee aware of that when he decides to spill his guts?
Mr. Warren: In subclause (5) it also requires that the commissioner, prior to making that disclosure, notify the protectee or "take reasonable steps to notify" the protectee. Subclause (6) states that subclause (5) will not apply if the result of notifying the person might impede an investigation of an offence. I suspect that would happen fairly rarely. However, that should not come as a surprise to the protectee. Prior to it happening, steps should be taken such that the person is told, "We must disclose your name, Mr. Protectee, but here is what we will do to protect you after that happens." Logically, that is how I could see it happen. He will know that up front.
Mr. Black: Presumably, this would be done with the court being involved. The court would have the power to impose controls on the further dissemination of that information, if necessary.
Senator Bryden: If I were an advocate for a protectee, I would feel more comfortable if it were included in the act. That is to say, with the approval of the court the name of the protectee may be disclosed to establish the innocence of another person. I am not attempting in any way to accuse anyone of bad faith in administering this. People normally enter into a contract because everything is fine and because it will continue to be fine. However, you need a contract at some point if things do not work in exactly that way. To a large extent that is what this piece of legislation is doing. It is establishing the terms under which a person can come forward to give evidence, putting himself or herself at risk. It is the Crown's basic obligation to protect that person.
There is no question that the Crown has preserved its discretion and ability to manoeuvre, except insofar as some of the things that are deemed in this bill. I am not absolutely convinced that the other side has been looked after as well.
Senator Gigantès: Could you take Mr. Jones, who has become Mr. Smith, into court with a hood and say, "This is Mr. Jones. He was present. He is a witness."? He could then give his information and be whisked out after so doing. No one will have seen his face. Not even the court will know where he lives. Is that possible?
Mr. Warren: To my knowledge, senator, a hood has not been used.
Senator Gigantès: One was used in the Gouzenko case.
Mr. Warren: That was before my time, senator. In my days in this program, we have not had to resort to the use of hoods. We have had to resort to some fairly high levels of security while the witness is in the danger site, if you will. That could include large numbers of RCMP members.
Senator Gigantès: When you say you do not use hoods, does that also mean you have not altered surgically facial features?
Mr. Warren: We have not.
Senator Beaudoin: Section 7 of the Charter regarding security of the person causes me some concern. Has this bill been checked by the Department of Justice in order to know whether it complies with section 7 of the Charter?
Mr. Black: Senator, we spent a lot of time with experts from Justice, as well as experts on the Charter, in respect of this clause. It was carefully examined.
Senator Beaudoin: You are legalizing now what you have been doing so far. Did you have any trouble before?
Mr. Warren: We have not lost any protected witnesses up until today. We have been sued a few times. We have been criticized from time to time by the RCMP Public Complaints Commission.
In my personal opinion, one of the larger lawsuits resulted in an out-of-court settlement largely because we had to put too much on the table to defend ourselves and the program. We chose to make an out-of-court settlement. We have had some problems and we have been criticized.
Senator Bryden: That same clause 11(5) states:
The Commissioner shall, before disclosing information about a person in the circumstances referred to...take reasonable steps to notify the person and allow the person to make representations...
Once again, I do not know where the word "person" comes from. Who is included here other than a protectee, a witness or a dependent of a protectee? Not to put too fine a point on it, if you give a lawyer the opportunity to read a bill which refers to a certain term in three different ways, then presumably the lawyer will say, "You cannot possibly be referring to the same situation or else you would have used the same term in all three instances."
Lawyers make their living splitting these sorts of hairs. This is not a show-stopper, but it should be well written. Obviously, huge amounts of thought and research have gone into this bill. It would be a shame to have some lawyer shoot holes in it because the terminology is vague.
Senator Pearson: I am not a lawyer. As a result, I will not ask these long and fascinating questions.
I am delighted to have the opportunity to pose the type of question one usually never gets the opportunity to pose. How many people are we talking about here?
Mr. Warren: On average, we put approximately 50 people per year into the program. That figure does not include extended families. In fact, it could be up to 60 or 70 with multiple family members. That does not include cases where the witness does not want to be on the program, where he says, "Give me a bagful of money and I will hit the road and take care of myself."
Senator Pearson: That is cumulative because once they are on the program, while you are no longer giving them the financial support, they have in fact changed their identity.
Mr. Warren: Attrition kicks in, too. While new ones are coming on, other ones are dropping off. Generally, the contracts or agreements run for six months to one year. We do not hear from them after that.
Senator Pearson: Is it very often that they are terminated?
Mr. Warren: No, it is rare.
Senator Pearson: Obviously, it is a useful program or we would not have such legislation. It is a necessary program. I presume that for many of the people involved it provides a chance for a new life which they would not have otherwise.
Mr. Warren: Absolutely.
Senator Pearson: In that sense, it is a good program. Last week, as you know, there was a documentary on Gouzenko. It was interesting to see in a similar situation how a family's life has been lived out. It raises legal questions and interesting problems.
Senator Doyle: I understand from what you have said thus far that you do not anticipate anything in what we used to call "brown paper bag innovation." That is to say where a witness in the program will walk in and out. As he sells his biography, his memoirs or his interview on radio, he may want to revert to his original name and then go back into hiding after it is over. Are you anticipating or providing for anything of that kind?
Mr. Warren: In our experience, senator, some of our clients have attempted to write mini-biographies. Generally speaking, by that time they are no longer in the program. Usually, by that time, the life of their contract has long since expired. If they go out and get on the CBC or publish a book with their photograph on the back dust cover, they likely will not be allowed back into the program. We could never be responsible for them. We would not take them back into the program once they have jeopardized their own security.
Senator Doyle: That would suggest that while they were on the program you would not be escorting them to the broadcast studios and walking away with them afterward?
Mr. Warren: Absolutely not. They are on their own.
Senator Doyle: I am returning briefly to clause 9 where, after the commissioner has considered a case, he throws a person out of the program. Where does it say that the commissioner will himself not disclose where that person is at that time and what his new name is, or that he will not turn to someone from The Toronto Star and say, "You can find John Doe; he is now John Smith living in Cambridge"?
Mr. Black: Senator, the commissioner would have committed an offence under clause 11 if he were to do that. Everyone, including the commissioner, is bound by subsection 11(1).
Senator Doyle: Do you mean to say even after he has thrown the person out of the program?
Mr. Black: As long as there was no disclosure of the former protectees, as is stated there. Any question of disclosing information means information relating to the location or the change of identity. However, that applies to a former protectee as well. Everyone is bound by that provision.
Senator Doyle: A moment ago, one of you said we have had some problems. I dare say you have, as would any police department or government department. Senator Bryden has mentioned something, at least as I interpret it, in an attempt to save you some problems by adding to the bill, where needed, some authorities other than just the force itself.
I have gone through the clauses about which we were talking before and I cannot escape the thought: The Lord giveth and the Lord taketh away. There is no other source of comfort here other than, as you say, the courts. If one feels badly done by, one can sue, but that is not something about which the ordinary man on the street would think. There may well be people in your program who are totally unlearned in the law or people who are quite innocent of any criminal offence, people who do not think in those narrow terms. However, I think that they would like to know that there is a point at which, if they feel their dealings with the force are not going well, that they could reach outside to some other person, some ombudsman, for example. They could do so without creating a great storm by going into court and having to pay a lawyer and all of that.
I do not think the words "a material misrepresentation" are very precise. You could argue two days in court over what the word "material" means. Certainly, one of the most imprecise words ever to cross into a courtroom is the word "relevant." What is "relevant"? I think you could even argue over the definition of the word "program."
If we are to have that kind of language, I see this as an area in which there must be some lawful avenue, or a turning point, for the person who is in the program. Do you feel any sense of that anxiety on my part?
Ms Banulescu: We do, senator. You spoke of the ombudsman function. The body which we consider to have that role is the RCMP Public Complaints Commission. Hopefully, that would happen before the courts become involved. I take your point that not everyone is familiar with how the system works, nor should they necessarily go to the time and expense of going to court to resolve their problems. That is why the Public Complaints Commission is there.
The other thing you have to consider in terms of administration is how many layers do you want in the act. It was felt that a person could go informally to the Public Complaints Commission. If that did not work, then they could go to the courts. It was considered that the safeguards are built in for the person who is in the program.
Senator Doyle: The only safeguard in here for the layman is the commissioner.
Mr. Warren: I suppose, senator, that is probably not unlike the many other law-enforcement initiatives in which the RCMP is involved across the country. From time to time, our members do some rather ill-advised things, be it using a firearm or a police car unsafely. Normally, a complaint has to work its way up through the RCMP, first through Internal Affairs, then to the Public Complaints Commission, followed perhaps by a lawsuit or even a criminal action, depending on what that ill-advised act was. Our witness protection program is just one more of the many programs in which the RCMP is involved on a day-to-day basis, some of which, unfortunately, result in complaints.
I am not certain why this one should have special dispensation, in terms of an ombudsman-type role, when we do not have such a role in our other activities.
Senator Doyle: Perhaps at this moment some of us are particularly sensitive to the rights of individuals because of the terrible drama we are all witnessing with the military. It is not to suggest for a moment that the RCMP is likely to face similar troubles. However, it does make one think that institutions should be so instructed that it should not take Royal Commissions and endless hearings to get to the bottom of why someone got from here to there.
Senator Bryden: Could you tell us who is on the Public Complaints Commission, and briefly how it functions?
Ms Banulescu: This is a commission that was set up a number of years ago. Even though it is called the RCMP Public Complaints Commission, it is at arm's length from the RCMP. If I am not mistaken, Governor in Council appointees sit on the board. I believe the current chairman is a former judge. Anyone can make a complaint in relation to the RCMP to this body. There were complaints on witness protection in the past. However, we wanted to make it clear in the bill. Therefore, you will find a provision to go to the PCC in this bill. We also changed their mandate slightly so that, as Corporal Jeff Warren was saying, you can go in camera, if need be, with a witness protection case.
Senator Bryden: The people on the board are not necessarily lay people, nor would they be former members of the force, would they?
Ms Banulescu: To the best of my knowledge, no, they are not.
Senator Beaudoin: I am somewhat concerned with the division of powers here. Identity and change of family name are provincial matters. In the past, did you have any problem with the provinces?
Mr. Warren: None whatsoever, senator.
Senator Beaudoin: What about with Quebec?
Mr. Warren: I would not call it a problem. However, because of the way legislation regarding change of name and so on is applied in the province of Quebec, we do not get changes of name done in that province. That is not because of any problem that has arisen; it is a simple matter of the way the laws are written, in terms of publication of the notice of the change of name, et cetera. We are able to do it in other provinces, such as New Brunswick and Ontario.
Senator Beaudoin: What do you do if the person is from Quebec?
Mr. Warren: If it is a protectee from the province of Quebec, we will get the name change done in New Brunswick, Ontario, B.C. or Saskatchewan.
Senator Beaudoin: What do you mean by that? If the person is in Montreal, and doing his or her job in Montreal, you cannot change the name in New Brunswick, can you?
Mr. Warren: Yes, sir, absolutely. I am Jeff Warren currently living in Ottawa. I happen to have been born in Ottawa as well, but I could have been born in British Columbia. I could go to any province in the country to change my name -- even to Quebec if I were not too concerned about getting the name change published. Where I am or where I was born has no bearing on it.
The Chair: For the sake of clarity, I assume you are not doing this without the approval of the authorities in Quebec.
Mr. Warren: If I am a resident of Montreal and I decide I want to go to New Brunswick and become Elvis Presley, there is nothing to stop me from going there and applying to the Department of Vital Statistics of New Brunswick to have my name changed to Elvis Presley.
Senator Beaudoin: Do you not have to live in New Brunswick?
Mr. Warren: There are certain rules regarding length of residency and, through our protocols which vary from province to province, we are sometimes able to bypass the residency requirement. I do not like to use the word "bypass." It is done under the legislation; however, the residency provisions in those provinces are by-passed, in some cases with the approval of the vital statistics departments of the provinces. They are done through affidavits, usually from the attorneys general of the provinces and according to the vital statistics legislation of that province.
Senator Beaudoin: That does not change a marriage contract. Suppose I am married in Montreal and I have a contract in Montreal. I cannot go to New Brunswick and say that I am not Mr. Beaudoin; I am Mr. Smith.
Mr. Warren: On occasion, for a variety of reasons, we have had to obtain new marriage certificates for couples. Once again, we have been able to obtain a new marriage certificate in every other province, with the exception of the province of Quebec because of the legislation in that province.
Senator Beaudoin: I am astonished.
Senator Pearson: I am sure it is in the interests of the province of Quebec that you use these methods. They are interested in having this witness protection program as well.
Mr. Warren: It is in the interests of the province and it is also within the legislation. We are not breaking or bending the rules. Depending on the province, it is sometimes required that we go before a judge to get certain documents obtained from the judge giving authority to do certain things in order to by-pass residency requirements and publication of the name change. However, it is done. In some provinces it is a more lengthy process to get it done.
We are anxious to develop a procedure for the province of Quebec because we do a fair number of cases out of Montreal and Quebec City. Unfortunately, because of the current legislation it is difficult, if not impossible. Therefore, we go outside the province.
Senator Pearson: They know that, do they not?
Mr. Warren: Yes.
Senator Beaudoin: What about the Quebec police?
Mr. Warren: We do a lot of cases for the Sûreté du Québec and the MUC.
Senator Beaudoin: Do you change the names of their witnesses?
Mr. Warren: Yes, we do, senator. We do it for them. We have the contacts and the means of doing it.
Senator Beaudoin: I would like to think about this, Madam Chair.
The Chair: Honourable senators, is it your wish to deal with clause-by-clause study of the bill now or to put it off until another day?
Senator Milne: I move that the bill be reported to the Senate without amendment.
The Chair: Before I take a vote on the motion, honourable senators, is there unease with passing this bill at this particular point in time? If there is, I see no reason why we cannot come back on another day.
Senator Beaudoin: Unless there is an emergency, I do not see why we do not wait until next week.
The Chair: We will meet again next Wednesday and Thursday. Therefore, I would like to put Senator Milne's motion on hold until we have had a good night's sleep on this bill.
Senator Losier-Cool: Perhaps, as well, we could have a clear answer on the concerns expressed by Senator Bryden.
The Chair: Perhaps the witnesses could send us that information by letter as opposed to appearing again before the committee.
Senator Bryden: Something that would help me, Madam Chair, if it is available, is the make-up, and not necessarily the names, but the positions of those who sit on the public board. It is a point to which I did not pay enough attention. If the same procedure is available to protectees as is available to other complaints of mishandling, it may be adequate.
The Chair: Perhaps we can have that information provided to us for next week. I will have our Clerk get in touch with the witnesses in that regard.
Ms Banulescu: Thank you, Madam Chair.
The committee adjourned.