Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 40 - Evidence for June 12, 2013
OTTAWA, Wednesday, June 12, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act; and Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders), met this day at 3:18 p.m. to give consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome colleagues, invited guests, members of the general public following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
We were scheduled to begin our hearings on Bill C-51 at this moment with the minister. We have been informed the minister is delayed in the other place, as a result of a series of votes, I understand. Perhaps, once we deal with the next item, then, we can have a bit of a discussion about where we proceed from that point onward.
I have suggested, and we have an agreement of the steering committee, that we will take this opportunity to deal with another bill that we have had hearings on, and that is Bill C-350 and clause-by-clause consideration.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders)?
Senator White: If I may, I would like to put forward a motion to defer.
Senator Batters: I will second that motion.
The Chair: Is there any discussion?
Senator Joyal: Can the honourable senator explain, if it is deferred, deferred to when? The bill was to go through clause-by-clause today. As a member of the committee, I would like to have an idea.
Senator White: I appreciate that. I am not prepared to deal with the bill at this point in time. I think I need to look at it further. Rather than rush into it, I would much rather just defer the bill until there is a point in time where we feel it is appropriate.
Senator Fraser: I would concur with that. I think that the evidence we have heard raised a number of quite significant questions that go to the heart of what this bill is all about. I would agree that it would be a good idea to postpone this committee's final consideration of this bill until we have had further research done.
The Chair: Senator White has moved that we defer clause-by-clause consideration of Bill C-350 until a future date. Are we agreed?
Some Hon. Senators: Agreed.
The Chair: Agreed. Thank you. We will recess for a few moments, but before we do that —
Senator Joyal: Before we recess, maybe I am too big of a stick, but as I understand, it is a private member's bill by the number, Bill C-350. You are the sponsor of the bill.
Senator White: No, I am.
Senator Joyal: I was going to say since it is a private member's bill and not a government bill, normally the first witness would be the sponsor of the bill and the minister would come as the second witness. It is not that I lack deference to ministers, I respect them very much, but that is why I thought we should hear first, if we have time, from the sponsor of the bill.
Senator Fraser: We did. Maybe you were away for that particular moment. Mr. Lauzon from the House of Commons appeared before us.
Senator White: Perhaps he is referring to the next bill, Bill C-51, and that is a government bill.
The Chair: That is what I wanted to briefly discuss. The minister has been delayed, and we are not really clear on what time he may arrive. The officials are here. I know it is not the usual process that the committee follows, but the officials are prepared to answer questions at this stage. Rather than simply recess for an unknown period of time because we are not sure when the minister will arrive, I am looking for agreement from the committee that, at the outset, we hear from the officials until such time as the minister does arrive.
Some Hon. Senators: Agreed.
Senator Joan Fraser (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Welcome, everyone. Today we are starting our study on Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act.
As you know, our first witness is usually the minister, but he is currently voting in the House of Commons.
[English]
While we await the minister's arrival, which will be when he can get away from the votes in the House of Commons, we are fortunate to have with us officials who can talk to us about this bill. We welcome, therefore, from Public Safety Canada, Mr. Trevor Bhupsingh, Director General, Law Enforcement and Border Strategies Directorate; from the Royal Canadian Mounted Police, Superintendent Stephen Foster, Director, Witness Protection Program; and Mr. Ian Bradley, Counsel, Legal Services, also at the Royal Canadian Mounted Police.
Gentlemen, did you have any statements that you wanted to make? No, you were going to leave that to the minister? I shall turn immediately to the sponsor of the bill, Senator Runciman.
Senator Runciman: Welcome, gentlemen. I appreciate your attendance today.
All the members of the committee have received, I believe, a copy of a letter from the Ontario government from the Attorney General and the Minister of Community Safety, outlining what we will call reservations about the bill. I was also advised that Quebec has expressed somewhat similar reservations. I have not seen any correspondence from the Province of Quebec. We know these are the only two provinces with their own provincial police services. I am not sure if that has something to do with their reservations. Could you speak to those concerns? How are they being addressed, or are they being addressed, and how do you see this moving forward with respect to the two largest provinces having concerns?
Trevor Bhupsingh, Director General, Law Enforcement and Border Strategies Directorate, Public Safety Canada: Thank you for the question, senator. As you know, we have been working on this particular proposal for a long time. We have been in consultation with all of the provinces with regard to this, including Ontario and Quebec.
Yes, there have been some concerns around the proposal before you, but I would just say that, with Bill C-51, we are trying to do a couple of things. We want to have a safe and secure and efficient program. There have not been any significant changes to the Witness Protection Program Act since 1996, so it was really in need of some changes to the program.
With that in mind, ultimately there were some concerns from Ontario and Quebec in terms of dealing directly with federal government departments, and that is to say that when they were requesting secure identity changes for witnesses, they wanted a very efficient process obviously, because timeliness is important in terms of providing protection to protectees. Having said that, I know there was some concern raised from Ontario about getting those documents directly from federal departments.
We are proposing in Bill C-51 to have a single point of contact through the RCMP. That made sense to us in terms of simplifying the process and making it safe in the sense that we really wanted to limit the number of people who were dealing with witness protection information. By having the RCMP as a single point of contact, we would limit the number of individuals who would have access to the program. It makes sense to us in terms of efficiency to have the program lead, which is the RCMP, as that single point of contact and dealing with all the requests for information from other federal departments. I would say that when we did speak to other federal government departments, they were all in agreement that the RCMP should be the single point of contact for other provincial programs to get information and federal documents. That was one concern.
There were some other concerns. Some of them were largely information requests. There are some changes around broadening the prohibitions for disclosure. Really, we have been talking with Ontario and Quebec officials over the last month, and will be speaking with them going forward, to explain some of the details around the prohibitions themselves. We have suggested that, through Bill C-51, we will broaden some of the prohibitions to include not just witness information and protecting information, but also those that are providing protection and also those that are helping to administer those provincial programs. All that is to say that some of the concerns coming out of Ontario and Quebec were really about providing greater detail about how the programs would be integrated.
The last thing I will say, to conclude, is that with the designated program and process itself, it is a new process that is being proposed. We did get some questions from Ontario and Quebec about how that would work and how the designation would take place. I can go into some detail about that, if you like, but again there were largely a lot of information requests out of Ontario and Quebec. We are working with officials from both provinces to provide the information they require around the program.
Senator Runciman: Are you confident that will happen? I notice in the briefing book, page 3, tab 5, that legal options are being explored to determine if and how witnesses from non-designated programs may acquire secure federal identity documents, which suggests that you are looking at this from two perspectives, hopefully having them accept designation, or move into the program, but that there be a parallel path for them that could still accomplish the goals that their provincial programs are set out to achieve. Is that the path forward you are looking at?
Mr. Bhupsingh: We do not want to preclude any options but, under the existing legislation, section 14(1) allows for a provincial Attorney General or provincial law enforcement agent to request to the commissioner to have someone referred to the federal program. That is not stopping. That is still an option in terms of getting federal identity documents. What Bill C-51 is doing is obviously putting into place another option, which is the designated program. The provinces have those two options open to them as Bill C-51 goes forward. Outside of that, the provinces are able to use those two processes to secure the documents they need.
Senator Jaffer: Thank you for being here. I come from British Columbia. With Air India, the trial and the commission, many issues came out about the protection of witnesses. I do not want to put you on the spot but, if you are able to, I would like to ask you generally, especially after the commission came down with its recommendations, was there a major change in protection services? How did you deal with the recommendations made by the Air India commission?
Mr. Bhupsingh: Thank you, senator. One of the key recommendations coming out of the Air India inquiry was really around being able to deal appropriately with witnesses in a terrorist context. Bill C-51 is proposing to expand the mandate for those departments and agencies that can now make a referral into the program. We have expanded it from law enforcement agencies to National Security, National Defence and Public Safety. In that context, that key recommendation was accepted and is being proposed as part of this bill. That is a key recommendation.
One of the other recommendations that came out spoke to the independence with respect to the program and separating out admission decisions from investigations. There was a lot of talk about what would be the best way to do that. We looked at it, and we thought the best way to move forward would be to have the RCMP continue to manage a program that it has managed for over 17 years and has managed very well. What has happened is the RCMP internally has separated out admissions from the investigations piece to create independence.
Having said that, those are two key recommendations that were very important coming out of the Air India inquiry, and I would highlight those two as key recommendations that have been picked up in this bill.
Senator Jaffer: I am glad you said that, because that was going to be my question to the minister. When I speak to the people who have been involved or who have suffered, one of the concerns they have had is that the RCMP Commissioner is still the person in charge of both programs and he is still the final authority. There is a concern, and I know that the change was made. I cannot say a wall has been built, but the change is that investigation is separate from protection. Have I got that right?
Mr. Bhupsingh: The investigations and the admission decision are totally separate, being managed in two separate areas in the RCMP.
Superintendent Stephen Foster, Director, Witness Protection Program, Royal Canadian Mounted Police: That is correct. The operational investigative decisions have been removed from the witness protection decisions, and we are in the process of designating officers who are detached from the investigations across the country in the Witness Protection Program.
Senator Jaffer: One of the things that came up after the Air India Commission is that a change of identity and entering the Witness Protection Program, as someone involved said, was the most stressful thing that the protected witnesses and their families can possibly have to go through. It is a change of life. We accept that. I wanted to know what happens. I do not want to know about those cases, but generally, my question concerns children and the Witness Protection Program. In 2007, I understand the House of Commons Standing Committee on Public Safety and National Security was informed that there were around 1,000 protected witnesses in the federal program and, out of the 1,000, 30 per cent were admitted because of their relationship with witnesses. Do you know how many are admitted now and how many of them are children?
Mr. Foster: I do not have the breakdown of how many of those admitted were children. It varies from case to case. If there is a case that involves a family, it is the entire family that is considered for the Witness Protection Program. Our approach at this time is to involve psychologists and develop a case management plan for the entire family, not just the witness with the information. That plan is prepared in advance, during the evaluation process, and the psychologists, psychological assistants and other types of assistants are available to those witnesses who do enter the program.
Senator Jaffer: I take it from your answer that if children are admitted to this program, special care is taken in the protection of them?
Mr. Foster: Yes.
Senator Jaffer: And their special needs?
Mr. Foster: Yes. The family is evaluated as a whole.
Senator White: Thank you very much for being here today. It is great to see you.
Do protectees have a place where they can appeal or lodge a complaint internal to the RCMP and, if so, do they also have one external to the RCMP, at any stage or at all stages in the process of acceptance or onward through the program?
Mr. Bhupsingh: If there are issues that are not going well, the first level of conversation would be with the handler, and if there is not an acceptable resolution of an issue or problem it could be elevated to the commissioner or the assistant commissioner who manages the program within the RCMP.
There is, of course, the Commission for Public Complaints Against the RCMP, which is outside of that process, where a protectee could make a complaint. If Bill C-42 is passed, the Civilian Review and Complaints Commission would replace the Commission for Public Complaints Against the RCMP, so on a go-forward basis there would still be an external body to deal with any issues that witnesses may have.
Senator Joyal: I am trying to understand the answer that has been given to Senator White.
Senator White: It used to be the Commission for Public Complaints Against the RCMP. Under Bill C-42 it would be called something else.
Mr. Bhupsingh: The Civilian Review and Complaints Commission.
My point is that there is an external body now, and there will be going forward as well.
Senator White: If other agencies were to use your program, would there be a full costing back to them? If so, would that be the same for every province, or just for Ontario and Quebec where the RCMP is not the provincial police service?
Mr. Foster: My understanding is that the administration of the program would not be costed back. It would be the witness protection.
Senator White: The costing around the protectee?
Mr. Foster: The costing around the protectee would be costed back, but the administration of the program would be done by the RCMP and the expenses borne by the RCMP.
Senator White: Does that costing back also go to provinces that have the RCMP as a provincial police agency, such as New Brunswick, for example?
Mr. Foster: It does go back to the police of jurisdiction, yes. If it were of such a nature that a small detachment could not afford it, it would still be within the provincial policing of the division.
[Translation]
Senator Boisvenu: Thank you, gentlemen. I just have one question.
The federal Witness Protection Program often handles people who have committed serious crimes. Many informants are in the program. In 1999, Bill C-79 was introduced in Parliament to start a victim protection program. Earlier, you said that protected witnesses can include family members, even if they were not witnesses.
We often receive requests from victims who were not witnesses at the trial for the assault committed against them. However, once the criminal is released, they feel threatened. Could this program include those victims who often have to pay their own costs of changing their identities and places of residence? After all, it sometimes applies to criminals, even murderers, who are able to have benefits that the victims do not. Is the program open to those victims?
For example, I am talking about women who were victims of aggravated sexual assault or attempted murder in many cases. Once the criminal is released, they have no choice but to change everything so that they are not tracked down, so that they do not become the victims of a repeat offence.
[English]
Mr. Foster: Thank you for your question, senator. My understanding of victim protection and witness protection is that those are distinct programs. The Witness Protection Program is designed to assist investigations in the inquiry, investigative and prosecutorial stages. If a victim has been put into a position where they have to obtain a new residence and they worry for their own security, that is not part of this program as it is set up. Ideally, the victim would be a witness as well, and then they would be afforded that type of protection.
[Translation]
Senator Boisvenu: I understand your position. Once victims testify at the trial, they can benefit from the program. Victims who report their aggressors and do not go to the trial for fear of reprisal do not benefit from the program. There is something unbelievable about all that. I think this program should apply both to victims who report the act and testify and to victims who report but do not testify for their own protection. Something is wrong; I do not know.
[English]
Mr. Bhupsingh: In general, the program now has a number of criteria set out that the superintendent mentioned, including things like risk to the witness, danger to the community and the nature of the type of inquiry they are looking at. There is nothing specific on whether that is specifically targeted to victims. It does not preclude them from being referred to the program, but there is nothing specific that draws the link between victims specifically and this particular program.
[Translation]
Senator Boisvenu: Are there exceptional cases?
The Deputy Chair: Senator Boisvenu, we have the expert from the library who says that yes, in some cases, it is possible, but I am going to ask you to talk to her, because it is a different situation.
[English]
Senator Joyal: How many persons have benefited from the program since its inception in 1996?
Mr. Foster: I am sorry; I do not have that information available to me here today.
Senator Joyal: Can we have an order of magnitude? Are we talking about 100 persons, 500, 1,000?
Mr. Foster: I could give you an order of magnitude that would relate to the number of persons currently in the program. Those protectees who enter into the program are in the program for life, unless they are terminated from the program or voluntarily terminate; and the number of persons in the program at present is between 800 and 1,000.
Senator Joyal: I figured it would be in the thousands.
My second question is in relation to the agreement that you might have with various police groups to help in the implementation of the objective of the program, which is the protection of citizens. Do you have a formal agreement with the Quebec provincial police or the Ontario Provincial Police in that regard?
Mr. Foster: I understand if you refer to section 14 of the current Witness Protection Program Act, that that section covers the agreement under which services are provided to law enforcement or Attorneys General.
Senator Joyal: It would be with the Attorney General of a province that you would enter into an agreement. Do you have an agreement with the Attorney General of Quebec or Ontario? Those are two provinces that have provincial police.
Mr. Foster: Is your question whether there is a general —
Senator Joyal: No. Is there a specific agreement?
Mr. Foster: I am unsure with respect to whether we have a specific agreement. If there were a specific witness, that specific witness would be covered by an agreement if that witness was provided with a secure ID change under Federal Witness Protection Program.
Senator Joyal: In relation to section 10 of the original act, the one for which you have to give reasons if a person is refused to be admitted under the program — section 10(a) and then 10(b) if there is a decision to terminate the program — I can understand that if a person would see himself or herself refused to be admitted as a witness that the person should be provided with the reasons. As well, the body, the law enforcement agency that recommended the person, and sees the decision more or less set aside or refused by the commissioner, would want to know the reasons. There is a decision that has just been taken. However, in the case of the termination of the protection, it means that the person has already been accepted. If you provide that person with the reasons why the protection should cease, it seems to me they should have an immediate right to go back to the authority that decided on the protection in the first instance, instead of sending the person to the complaints commission of the RCMP. It is a totally different kind of decision.
To complain about the RCMP, in my opinion, is to complain about the behaviour of the RCMP, a specific officer in the circumstances. However, when the right of a person to be protected is terminated, for whatever reason — it might be good reason; I do not question that — the system should provide that person be heard by the body that decided in the first instance that they should be protected; there is at least a third body there that can adjudicate the reasons. It seems to me that it is putting the RCMP in the position of being judge and party at the same time, while the decision to protect the person is not a decision taken by the RCMP. You understand the difference, of course, that I want to outline in my question.
Ian Bradley, Counsel, Legal Services, Royal Canadian Mounted Police: When it goes to the decision of the commissioner to admit a referral from either a provincial Attorney General's recommendation or a request from a law enforcement agency, let us say a provincial one, the commissioner of the RCMP will undertake an analysis under section 7, which goes through factors. Since that decision is being made and if there is a reason to reject, there is a decision that can be made; the reasons should be known for that.
If there is a decision to terminate from the program in which there is a protection agreement signed by the Federal Witness Protection Program, then of course there will be reasons to cite for that, and that is required under the act. Whether or not there is a decision to terminate under the provincial program, it is for the decision maker in that program to decide. The requirement under the current Witness Protection Program Act, we are dealing with the commissioner's decision or the assistant commissioner's decision if it has been delegated downward. That decision is where the rate is to be heard out and the reason to be provided.
I hope you understand the distinction between that. It is because at one point they are a federal protectee and the decisions from that are based on the commissioner's decisions, and that is separate and apart from the provincial.
[Translation]
The Deputy Chair: Senator Joyal, I have to add you to the second round. I know you want to continue the discussion.
[English]
Senator Joyal: Yes, because he does not make that distinction.
[Translation]
The Deputy Chair: You can do so later.
[English]
Senator McIntyre: Gentlemen, thank you for your presentation. There are many clauses under Bill C-51 that deal with the protection of information, namely, clauses 3, 12, 13 —
[Translation]
The Deputy Chair: Senator McIntyre, I have to interrupt you because the minister has just arrived. Please hang on to your question; you will be able to ask it later on.
[English]
I have to tell the officials we are going to keep you, I think, after the minister is finished with us.
Minister, welcome. You have done all your voting for the day?
Hon. Vic Toews, P.C., M.P., Minister of Public Safety: There will probably be more. I think they are having a recount.
There may well be a vote called later this afternoon, so I may have to leave again. I am sorry about that.
Senator Plett: I think there will be on our part, too.
The Deputy Chair: The bells are not ringing.
Senator Plett: Not yet. The bells will start ringing in about 20 minutes.
The Deputy Chair: Minister, we have been trying to grill your officials, but you will give the opening statement.
Mr. Toews: That is good, because that is why I am here.
It is a pleasure to have this opportunity to highlight the enhancements we are making to witness protection in Canada. Bill C-51 will bring about some long-awaited amendments to the Witness Protection Program Act.
Through this bill, we will ensure that we have a Federal Witness Protection Program that is not only more responsive to the needs of law enforcement, but one that is also more effective for those whom it is designed to protect as well as more secure for those administering it.
This is a key moment in the history of witness protection in Canada. An effective and reliable witness program is an essential tool for police in the fight against crime, especially organized crime and terrorism, and with the passage of this legislation we will have an opportunity to provide them with just that. Essentially, this legislation is going to modernize the current system in a number of key ways. For example, it will simplify the administrative processes, it will expand disclosure prohibitions related to program information and it will double the amount of time for which emergency protection can be provided.
The changes we have proposed are the result of extensive consultations with the provinces and interested stakeholders, including law enforcement.
I will note, however, that we have not strayed from elements of the existing system that worked well and that made sense; namely, keeping the RCMP as the single point of contact to coordinate the provision of federal documents required by designated provincial programs for obtaining secure identity changes for their witnesses. Stakeholders' concerns and needs were heard and taken into account in the development of the legislation before you today.
It is certainly our view that we have struck the correct balance with these amendments. Generally speaking, Bill C-51 was developed to enhance the Federal Witness Protection Program and to improve service to other Witness Protection Programs in participating provinces. Committee members may well be aware that Ontario and Quebec have had Witness Protection Programs in place for several years. In addition, Manitoba, Saskatchewan and Alberta have more recently legislated their own Witness Protection Programs.
Given the existence of programs at the provincial level, it is therefore worthwhile to highlight that we have taken steps to improve the degree to which the two levels of government — federal and provincial — are able to coordinate efforts to protect witnesses.
I would now like to take this opportunity to elaborate on the work that has been done to protect sensitive information from disclosure and why this is such an essential part of the much-needed reforms to the current system. Those who facilitate the provision of protection to those in the witness protection plan include not only law enforcement personnel, but civilians as well. It is therefore critical that information about these civilian and law enforcement personnel who help protect or establish a secure new identity for an individual be prohibited from disclosure.
Currently, finding people is relatively easy. I think it is safe to say, given the extensive day-to-day use of information technology and the prevalence of social networking, that we must take extra precautions to better protect such information. As a result of this reality, protecting information from disclosure is more critical than ever when it comes to protecting witnesses and maintaining the credibility of Witness Protection Programs.
These measures protect those individuals who protect others. Certainly there was a need for this type of safeguard. That is why the President of the Canadian Police Association, Tom Stamatakis, came out strongly in support of these changes.
We also recognized there would need to be some defined exceptions to prohibitions of disclosure, and we have made it clear in the legislation what these exceptions would be. Naturally, any potential issue of national security would be one such example of a defined exception. Keeping in mind that the overriding duty of law enforcement is the protection of citizens, we were clear that exceptions to these prohibitions would be deemed appropriate in cases when disclosing the information could assist with issues of national security.
Exceptions would also apply when necessary to ensure the administration of justice. Similarly, they would apply to any cases when information disclosure could potentially stop a serious crime or protect someone. Essentially, these exceptions provide a way of ensuring that the program remains flexible in responding to the particular needs of law enforcement. We have clearly struck the right balance in terms of the protection of sensitive information from disclosure and the needs of law enforcement to do their job.
I would like to note here that individuals do not apply to Witness Protection Programs — not now or if the bill should pass. Rather, people in need of protection are referred to the program as deemed necessary by law enforcement. What will change under Bill C-51 is where those referrals come from. Referrals will no longer just be made by law enforcement and international court tribunals, as is the current practice. Now, other federal organizations with a mandate related to public safety, national defence and national security will be able to refer candidates. These agencies could include the Canadian Security Intelligence Service and the Department of National Defence, which will be able to refer people who have assisted them with issues related to issues of public safety, national defence and national security.
It is no secret that the majority of protectees are, in fact, involved in some manner of criminal activity, so it will likely be of no surprise to you that referrals could be made for gang members.
What I wish to underscore about this element of the bill, however, is the decision to admit someone into the program will be only made in accordance with a set of defined criteria laid out in the act. This practice holds through for gang members or any other referral.
I am confident that as you study this bill you will agree that these changes will enhance our collective efforts to combat organized crime and fight terrorism. Through the Safer Witnesses Bill, our government is improving the federal Witness Protection Program by making it more effective for those it is designed to protect and safer for those administering it. We are doing so without introducing additional cost to law enforcement; the RCMP has provided their assurance that this is the case. I am extremely proud of our government's record in providing law enforcement with the tools they need to do their most important job: combatting serious criminality and terrorism.
This legislation is another example of our unwavering commitment to keeping our streets and communities safe for all Canadians. I was especially pleased to see the Liberal Party in the other place strongly support this legislation.
I will be happy to take any questions you may have, or you can continue to question the officials as you have been doing.
The Deputy Chair: As we have the minister, there is a whole new list. We will revert to the list with the officials in due course. The list for you, minister, begins with Senator Runciman, the sponsor of the bill, followed by Senator Baker, the critic.
Senator Runciman: Thank you for being here. I compliment you on the legislation; I know it has been well received and I think you referenced unanimous support in the House of Commons for it. That is a pretty strong indicator of the wide support for the legislation.
We spoke with your officials earlier about the concerns from Ontario, and they have not been quite as specific in terms of what we have before us with respect to Quebec. I am assuming, since you talked about consultation, that this issue has been raised and discussed at FPT conferences over the past couple of years. How has this process evolved; could you give us background on that?
Mr. Toews: Generally speaking, it has been raised at provincial-territorial meetings, and there have been extensive consultations at the officials' level, so certainly the officials are very aware of the changes being proposed here. I think at the officials' level, this was met with wide-spread approval.
It really does not, in any way, interfere with an existing provincial program. It simply says — for example, in the situation of wanting to get individual appropriate federal documentation — that under the current system, a witness in the provincial protection program has to be deemed a witness then for the federal program. There must be some kind of an artificial transfer. Then the federal documents can be provided to them and then the person is transferred back into the provincial program.
What we are doing now is simply designating a particular program as being a recognized program, such as the Ontario one. That witness would no longer have to be made a witness in the federal protection program in order to receive the relevant federal documents. There will be one point of contact; the provincial program will not have to go to HRSDC or the various other departments that may provide the relevant documentation. They go to the RCMP, say, "These are the documents we want." The RCMP does the legwork, gets the documents, brings it back to that central point, sends it off to the provincial program and provides those documents to the witness.
From an administrative point of view, there is a lot of cost saving and the elimination of a lot of extra worry or even people involved in the development of these documents. I think it is very good from that point of view.
Senator Runciman: At some point, there were apparently concerns about the objectivity and admission criteria. I know we have heard that there were some changes with respect to the reporting structure within the RCMP that will create independence between the investigations and the decisions in terms of admission into the program.
Could you address that, as well the issue of the advisory committee that will advise the commissioner with respect to the administration of the program? Who makes those decisions with respect to the advisory committee? What kind of qualifications are you looking for?
Mr. Toews: I will deal with the issue of why it is important to make that division inside the RCMP between the investigators and the ones who are actually applying the objective criteria to determine whether someone should be a member of the witness program. There had been originally in the study the idea that this should somehow be taken off, hived off and put into the Department of Justice. It soon became very apparent that the people in the Department of Justice, as skilled as they are in other areas, simply did not have the expertise to deal with this; the appropriate place is the RCMP.
However, I think it was recognized that the investigations should be separate from the determination as to whether someone joins the program. That has been separated so that the investigators are not the ones making the determination as to whether someone comes into the program, but they will assist in making the appropriate applications to the administrators who actually make that determination.
Perhaps the superintendent could give you more detail in respect of the advisory committee.
Mr. Foster: The advisory committee is currently being set up. Invitations have been sent out for appointments to it. The purpose and mandate of the advisory committee is to provide a broad oversight of issues and address the integrity of the program, conduct periodic environmental assessments and assure that the program is adapting over time.
The advisory committee will also review funding schemes that facilitate the provision of protection and ensure that the program is viable into the future. It will be involved in national standards policies with respect to reviewing and making recommendations for amendments on how the Witness Protection Program operates and how it adheres to the Witness Protection Program Act.
Senator Runciman: Do you draw provincial representatives into this? What kind of people are you looking for who can perform this role?
Mr. Foster: The membership of the committee will change over time. It will be formed of a chair, a vice-chair, the assistant commissioner in charge of the Witness Protection Program and up to six other persons of various backgrounds and subject matter expertise. The subject matter expertise that will be covered is a law enforcement subject matter expert, a psychologist, someone with cultural understanding related to the different cultures in the Canadian society, a mental health and/or addictions expert, an academic researcher, someone with victim advocacy and someone with a legal background.
Senator Baker: It is quite different having the minister here than just having officials, because the minister brings with him his experience as a litigator and as a prosecutor, which is invaluable in looking at a subject such as this.
I have three short questions, minister. Three groups of people are adversely critical of this bill. We have a letter that was written to you by the Attorney General for Ontario two and a half months ago. Perhaps this has been corrected since then, but at the top of page 3 the Attorney General says, "We have attempted to resolve the difficulties and have made great efforts to discuss our concerns with the RCMP and the federal government. We had hoped that a mutually acceptable solution could be developed." It goes on to say, "We are very much concerned that Bill C-51 exacerbates the problems that have existed since the enactment of the WPPA." It further says, "The disclosure of information is incompatible with the regime set out in Ontario's enacted but not yet proclaimed Crown Witnesses Act."
The Attorney General goes on to say, "We would ask that you agree to have the relevant officials sit down with Ministry of the Attorney General and Ontario police representatives to find a mutually acceptable solution to these difficulties. This may well require some amendment or modification to Bill C-51."
Has anything transpired since that time or are you content to continue with the bill as it is?
Mr. Toews: I am content. I am struggling somewhat to see what the real objection is to the legislation. I hear the words, but I do not quite understand them. No one is forcing these individuals to participate in the federal program. If a provincial Attorney General says they are not participating, they do not have to participate. There is nothing that compels them to participate. The only thing that changes for them is the benefit that their witness will not have to come into the federal protection program in order to get the relevant federal documents that they get.
The issue of the non-disclosure of certain identities is very important in terms of protecting witnesses. For example, if someone knows who is in charge of a witness and they know where that person lives, they need only sit on their doorstep for a while, follow them, and hopefully be led to the witness. Therefore, the protection of those who are administering the program is often just as important as the protection of those who are actually protected, and the police are very supportive of this.
I have read the letter and I have responded to it. I have told my officials to be as cooperative as possible, but I do not understand what the problem is. I was accused the other day of not having sufficient intellectual capacity by a member of the New Democratic Party, and that may be the problem, so maybe I should just refer this to the RCMP.
The Deputy Chair: I am sure that was a fun little bit to slide in, but I know your time is limited. Senator Joyal has a short supplementary question.
Senator Joyal: Is it a question of cost, whereby there is a discrepancy between the impact on the provincial purse —
Mr. Toews: It should not cost them any more. In fact, the only thing that is different is that rather than going to many points in the federal government to get the documentation, you go to one. They do not have to participate in this artificial transfer of the witness who, in substance, does not change — he is the same person — from a provincially protected witness to a federally protected witness. The person would now stay in the provincial program and, as long as the program is a designated provincial program, the documents are easier to get and the paperwork is cut down.
If someone could explain to me clearly what the problem is, I could understand, but I do not understand what the concern is.
Senator Baker: The second criticism that is aimed at you is from the Information Commissioner of Canada in a letter to the Honourable Senator Runciman, former Solicitor General for the Province of Ontario and minister of every other ministry that exists in the Province of Ontario. In this letter the Information Commissioner is very critical of the disclosure restrictions. For example, she says, "This prohibition includes information about covert operational methods used to provide protection as well as covert administrative methods used to support the provision of protection."
How do you react to that? That is not disclosable in a normal criminal setting anyway. I am sure you have looked at this. Is the Information Commissioner correct that you are overly protecting the disclosure of police methods?
Mr. Toews: In fact, talking about police methods, even in a criminal trial the actual method of how information is obtained is often not disclosed. The results may be disclosed in a criminal trial, as a result of a number of Supreme Court of Canada decisions, but the actual mechanism should not be, because once you figure out the mechanism, you can find ways of subverting the process and perhaps getting the witness into trouble.
I disagree with the concern of the Privacy Commissioner here. There are very good, legitimate law enforcement reasons why the mechanisms should not be disclosed to individuals through ATIP or otherwise.
Senator Baker: Finally, the last criticism I note is a general criticism and observation. A retired Supreme Court of Canada judge made a recommendation that said the administration of the program should be independent from the RCMP. Two House of Commons committee reports recommended the same thing. You have not done that. You have already explained to the committee that there will be a difference between the investigation and the actual carrying out of the protection program. Is that your response to this general demand that has been made by the experts that you not take the route that you have gone in this bill?
Mr. Toews: When a retired judge of the Supreme Court and honourable committees of both houses make recommendations, you have to take the recommendations very seriously. However, we also have to look at what this looks like in practice. Will it enhance the administration of justice? Will it enhance the protection of a witness? It seemed to us, after consulting extensively with the RCMP, the Department of Justice and with Public Safety officials, that the Department of Justice really was not qualified to do that. As well-intentioned as the recommendation was, I do not think that the actual implementation of that recommendation would serve the interests of justice.
How do we then address the issue? Is it necessary that there be an independent organization outside of the RCMP to actually administer it? That was examined carefully, and there does not seem to be any significant principle that would demand that, as in the case of a judge, for example, issuing a warrant separate and apart from the police and the prosecutor. There simply was no overriding principle of that nature. The administration separately maintained by the RCMP was more than qualified and had the appropriate expertise to make that determination when the referral was made.
We never take these things lightly when we reject a recommendation. We take that recommendation and are mindful of it as we develop a process. I think we have the best of both worlds here. We have the requisite degree of independence and the necessary expertise.
The Deputy Chair: Before I turn to Senator Jaffer, the latest word is that we are not expecting a vote today in the Senate.
Senator Plett: Senator Dallaire did not make the amendment he told us he was going to make?
The Deputy Chair: I think he did, but the debate was adjourned. Some of us might wish to speak.
Senator Jaffer: Thank you, minister, for being here and for your remarks. As you know, I am from British Columbia. I followed the Air India trial and the commission very closely. One of the things that the Air India Commission found was that members of minority communities may face greater issues with regard to relocation and change of identity. There may be additional psychological stress and emotions from being separated from their own cultural group and community. The commission held that the witness program should be sensitive to accommodating concerns of minority groups. Have you given any consideration to that, and what has been put in place since Air India?
Mr. Toews: I think I will refer that to the RCMP because that is something that they have taken very seriously. The Department of Public Safety has considered that. I am not sure which one to turn to in terms of the expertise, but the RCMP is very mindful of that particular issue and it is an observation that was well-founded.
Mr. Foster: The current approach is very much focused on the witness, the witness's family — all of the persons being considered for the particular program. We have implemented an evaluation risk management/case management process involving clinical psychologists, so that assessment will take into account cultural considerations. As I mentioned with respect to the witness protection advisory committee, the committee members will also include someone with cultural sensitivity expertise.
Senator Jaffer: I have other questions on that, but I will wait until the minister leaves.
Minister, you have said that you were not sure where the Ontario Provincial Police were coming from with the letter and the remarks made. Maybe I can try again. One of the things that I see in the letter is that they have spoken about the delegation of authority. To be fair, just before you came, Mr. Bhupsingh spoke about how the RCMP Commissioner will separate the investigation part and the administration, so I do not want to leave on the table that that was not explained. Let me refer to what they say in their letter of March 14, 2013. The new legislation is problematic. Rather than providing front-line expert witness protection officers with the discretion to their jobs, and I am paraphrasing, they have to refer it to the RCMP Commissioner or designated official, and they do not see that as it precludes the delegation of this authority.
Mr. Toews: Again, I do not think the objection is well-founded. Perhaps Mr. Bradley can add to that.
Mr. Bradley: With respect to the proposed delegation scheme for those who become a designated program, if I can turn your attention to 15.1, that has a delegation scheme for what decisions may be made. Currently, under the Witness Protection Program Act, the commissioner makes the decision whether or not to disclose and that may not be delegated. Under the intake and then the termination, that can be delegated.
A similar scheme is adopted for provincial officials. When discussions were being had with provincial officials, there was some level of confusion dealing with front-line officers not being able to disclose prohibited information for the sake of providing protection. However, if you look at the delegation section, for the purposes of providing protection or with consent, that is something that may be delegated downward to provide the level and operating capacity of law enforcement officials. When that was pointed out at the time, for example, that is, permitted for the designated scene, one province was receptive to that answer and said, "Thank you for the clarification."
[Translation]
Senator Dagenais: Mr. Minister, thank you for being here. I am always pleased to see you because I know that your appearance before the committee will provide police officers with better tools for their investigations.
Am I to understand that, once the bill becomes law, it will apply in all provinces?
[English]
Mr. Toews: No, it does not apply mandatorily. If one wants to interact with the federal program, there are certain routes that they will have to go through. The contact will be the RCMP. If you want specific documents, you will go to the RCMP as a designated program and say, "We have this witness." You talk to the designated RCMP contact. That individual, then, or that office will be responsible for getting you all the requisite documents. Those documents are then provided to the provincial program, and the program then continues independently of the federal program. They will have to be designated, but the designation is simply recognition that this is an appropriate program.
[Translation]
Senator Dagenais: Earlier, we talked about street gangs. In Quebec, particularly in Montreal, there are major issues with street gangs, youth gangs. Will the Witness Protection Program apply to youth gangs?
[English]
Mr. Toews: Yes, it applies to youth and street gangs.
There seems to have been some confusion in the other place as to whether or not this would apply. This act does not change that. Those individuals are as likely to be accepted as witnesses under the old legislation as they are here. Nothing changes in that respect.
There are other challenges, as you well know, with youth and street gang members that may not be present with some of the old, more traditional organized criminal gangs. It is not that individuals would not be accepted; they are simply not suitable for the program for a raft of reasons that the experts in the RCMP can advise you on, if that is appropriate.
Senator McIntyre: Thank you, minister, for your presentation.
Minister, I note that when you first introduced Bill C-51 in the House of Commons, you stressed the importance of protecting witnesses in the fight against crime, especially organized crime and terrorism. In listening to your presentation today, it is clear that the focus remains unchanged.
Correct me if I am wrong but, in reading the documentation filed before this committee, I understand that Bill C-51 is responding to some of the concerns raised by the Air India Commission, and a request from the territories and provincial governments with their own Witness Protection Programs, which would allow witnesses to change identities without having to join the Federal Witness Protection Program. Am I correct in my assumption?
Mr. Toews: Yes, senator. You are correct on both of those issues.
As Senator Jaffer pointed out, some of the responses in respect of the cultural sensitivities of certain types of witnesses and the cultural background, that is, as the superintendent has pointed out, a very important aspect of fighting terrorism.
In respect of the provinces and their interaction with the federal government, it was noted that there were certain administrative inefficiencies, including that there had to be this artificial designation of a provincial witness as a federal witness before documentation could be provided to that individual. That change in status was simply an administrative tool in order to provide federal documents to these individuals. Now, with the recognition or the designation of the provincial program as a recognized program, that artificial step no longer needs to be taken, and there is one contact, which is the RCMP. They are responsible for getting those documents.
Administratively, it should be a benefit to the province. At the level of officials, I do not hear any concerns expressed about that. Again, I had some difficulty with the letter that was provided by the minister, but it could be an older letter, two and a half months old, and perhaps the officials there have dealt with those concerns. The provincial officials have dealt with those concerns of the minister as well.
Senator Joyal: Welcome, Mr. Minister. I would like to refer to section 14 of the original act, which is the one that allows you to enter into agreement, especially section 14(2).
The Minister may enter into a reciprocal arrangement with the government of a foreign jurisdiction . . .
Have you had such agreements in the past negotiated by you or your predecessors?
Mr. Toews: In fact, there are other agreements. I know I sign some of these witness protection designations from time to time in respect of individual witnesses. I do not want to get into any details, of course, but that is done. I do not recall ever signing an agreement with another country. It could be that all of them have been designated prior to my arrival as the Minister of Public Safety. I could stand corrected.
Are you familiar with anything I have signed over the last three years in this respect?
It would be on a case-by-case basis.
Senator Joyal: It is on a case-by-case basis?
Mr. Toews: Yes. There is no general agreement that I have signed with another country.
Senator Joyal: It is not an umbrella agreement, is it?
Mr. Toews: No. I have signed individuals from various countries.
Senator Joyal: Of course. Are those countries the ones that are identified by the Canadian government as being probably the safe countries, with which Canada has cooperated within NATO or within the G8 countries or among the countries whereby Canada has a tradition of reliability in terms of exchange of sensitive information?
Mr. Toews: The ones I have signed would fall into that category. I am somewhat at a loss to remember all the ones I have signed. There have not been that many but, as I understand it, without getting into too much detail, I believe all the ones I signed would have been from EU countries or northern European countries.
Senator Joyal: I would like to come back to a point in your presentation when you referred to the Canadian Security Intelligence Service. We are all aware of the difficulty of communications between the RCMP and CSIS in relation to Mr. Jeffrey Delisle in Nova Scotia, whereby the RCMP was informed by the FBI and not by CSIS about the activities of that gentleman.
How will you ensure that there is a working relationship between the RCMP and the other agencies that would be covered there? An agency might want to have one witness under protection, and the other body, because of an investigation going on, might not want to have the person immediately. Who would make the arbitration in such a case? I know it is a sensitive issue, but it is part of the reality.
Mr. Toews: On the Delisle case, there was no problem in that respect. There was a very deliberate protocol followed, and that protocol is necessary for a number of reasons. The suggestion somehow that the left hand did not know what the right hand was doing would only be true in a very specific sense, but they were well aware. All I will say at this point is there was a specific protocol followed for very necessary reasons, given our constitutional framework of government. That is all I want to say.
Senator Joyal: That is in relation to that one, but let us talk generally. You will understand my question, which is when an agency like CSIS or the RCMP would want to have someone under the protection program, the other one might not, for various reasons such as an ongoing investigation. Who would arbitrate in such a case when you have agencies within the same government that have different views?
Mr. Toews: I have not seen that kind of difficulty arise, and no arbitration to this point has been requested. I would imagine that if that kind of difficulty would come up, there are ways of resolving that. Essentially, the administration that determines the entry of these individuals into the program would make the decision. If there is a problem in that respect, which I have never seen, I imagine someone would alert me to it. It is not that I would get involved in the deliberation, but I would ensure, as my responsibilities as the Minister of Public Safety, that it be resolved in an appropriate fashion because ultimately I am responsible in Parliament for that kind of situation.
The Deputy Chair: Senator Joyal, if we have time for a second round you are on the list.
Mr. Toews: It is a good question.
Senator Joyal: It is a real question.
Mr. Toews: It is. I want to say that contrary to the impression that was left in that newspaper article, CSIS and the RCMP work very well together, but each understand that they have a very separate jurisdiction. That separate jurisdiction sometimes makes things look cumbersome when in fact they are not cumbersome. It is very deliberate and streamlined.
The Deputy Chair: Honourable senators, my understanding is that we have 12 minutes left with the minister, who has to go and vote thereafter. We have four names on the list. Please, everyone, govern yourselves accordingly.
Senator Batters: Minister, thank you very much for being here today.
First, earlier my colleague Senator Runciman was speaking about your collaboration with different provinces in this. The Minister of Justice from my home province of Saskatchewan, Gordon Wyant, said, about this particular bill:
These changes will help strengthen our criminal justice system by providing greater protection for witnesses. We support the proposed improvements to the Witness Protection Program Act as yet another step in making our communities safer.
I am pleased to see that.
My question to you is the following: In the other place, the Assistant Commissioner of the RCMP, Todd Shean, stated:
. . . with the changes this bill brings about, the RCMP is comfortable that we have the resources within our existing resources to run an effective Witness Protection Program.
Minister, could you confirm, then, that with the changes proposed, the RCMP will not require any additional resources for this?
Mr. Toews: I can confirm that, because that is what the RCMP told me on their own. As you know, inside the administration of government, it is quite rare that a department comes to you and says we do not need any more money to do this. In fact, that is more notable than when they say they do need money. I trust their judgment on this. In fact, that discussion on money I think was basically brought forward by the RCMP. They made that assurance and I am satisfied with it.
However, I asked one further question. That question was: And has any witness ever been denied protection because of a lack of money or perceived lack of money? They have assured me not only has it not happened, but it will not happen. That is what I am concerned about. I am sure that all Canadians would agree that some extra expenditures in areas as sensitive as this would be necessary if that situation ever arose. However, to this point, that situation has never arisen and they have assured me it will not.
Thank you for the comments from the Minister of Justice in Saskatchewan. Also, I would note for members opposite who talked about the Ontario Attorney General's letter that Chief Blair of the Toronto Police Services has said:
In Toronto, we have seen the fear caused by intimidation and threat of retaliation and gang investigations. Witnesses with valuable information are deterred from coming forward. We support the government's initiative as a valuable step in protecting public safety.
Here we have an officer working in the context of the Ontario program saying: We welcome these steps. That is all I can say.
Senator White: Thank you for being here today, minister. So I am clear, the program — and congratulations on the bill — is really meant to provide clarity and clear access to other police agencies as well. I know the officials have as well, but I want to make sure everyone understands. When you talk about access to documents, can you explain what "access to documents" is for the sake of those who may be watching or listening?
Mr. Toews: For example, as I understand it, if I need a new social insurance number, previously you would have to become a federally protected witness. The HRSDC, or whoever it is — I think it is HRSDC — would provide you with that document and then you are out of the program but you have your federal card. Now, because you are from a designated program, the appropriate official in that program simply goes to the RCMP and says, "This is our witness. This is what he or she needs."
Senator White: As well, in the past it is possible that relationships were required rather than in this case legislation to actually ensure the safety of a witness or a source. This way, it actually is very clear. The rules are in place, rather than anticipating that a police agency can develop those relationships.
Mr. Toews: That is right. You do not get what you need because of who you know.
Senator White: Now it is legislated.
Mr. Toews: There is a clear path. You go here and this is what you can get and why you get it from that individual.
[Translation]
Senator Rivest: I understand your efforts to improve the system through coordination. I just have a question for information purposes. Do protection measures often fail? By that I mean, could a protected witness be threatened or could the identity of a witness be disclosed? Does that happen often? Is it a serious problem?
[English]
Mr. Toews: I will defer to the RCMP in that respect. Generally speaking, the program works well; it has worked well. I think if there was something we could do legislatively to address that particular issue we would have seen it in this bill. I would have certainly encouraged it to be in this bill. I think the problem with any Witness Protection Program is people. People are not perfect, things happen and problems develop. Perhaps the RCMP can advise.
Mr. Foster: I am not aware of significant difficulties with compromise of protection. Where that does occur, it usually relates to breaches of security that relate to the protection agreement. If a protectee is not following the witness protection handler's instructions, not following the witness protection agreement, then you might see a situation where the security of the protectee is compromised or in danger of being compromised.
The Deputy Chair: I had a couple of quick questions for you, minister.
The first question has to do with this letter from the Attorney General and also from the Minister of Community Safety of Ontario. I should tell you that we have also received letters of similar tone and substance from the Ontario Association of Chiefs of Police and the Commissioner of the Ontario Provincial Police.
You said you had responded to the Ontario ministers.
Mr. Toews: Yes.
The Deputy Chair: If that was by letter, could we have a copy of that letter for this committee?
Mr. Toews: I do not see any difficulty with that. I would think that, given —
The Deputy Chair: Given that they sent us their letter.
Mr. Toews: Yes. It would only be appropriate that I respond publicly as well. Subject to any privacy concerns that the Ontario ministry might express, I have no objection to that. I believe I signed that letter about a month ago, perhaps.
The Deputy Chair: It would certainly be helpful to our work.
The second question I have is the following — I am trying to square a circle in my mind — the RCMP says they are not going to need any more money, which is always good news for the taxpayer, but as I understand it, this bill will admit more people to the program. How many more people are you expecting, and why will it not cost more?
Mr. Toews: Those are good questions. I know those were the questions that were asked because I asked them. Basically, it broadens the pool of those agencies that can make referrals, but it does not necessarily mean that there will be more people referred. If there are more people referred, the RCMP has advised me that their existing resources can handle it, so it is an issue of internal resources making up for any additional costs.
The Deputy Chair: It will be a loaves and fishes exercise.
Mr. Toews: It is remarkable, but it does happen, not only 2,000 years ago, but apparently here in the Government of Canada.
The Deputy Chair: Thank you very much, minister. I will liberate you two minutes earlier than you need to be because otherwise I will have to get into a very long second-round list. I am sure colleagues will understand if I do not want to play favourites on the second-round list.
Mr. Toews: I apologize again for the delay. Thank you for your indulgence.
The Deputy Chair: The officials, I am afraid, are not liberated. Welcome back.
Senator McIntyre: Gentlemen, there are many clauses under Bill C-51 that deal with the protection of information. It calls for new prohibitions against the disclosure of information. I note that any contravention of the prohibition provisions constitutes an offence under section 21 of the Witness Protection Program Act. Is this type of offence punishable summarily or by indictment?
Mr. Bradley: I would refer to section 21. That is both summary conviction or indictable, so it is a hybrid offence under section 21.
The Deputy Chair: That is section 21 of the old act or the new bill?
Mr. Bradley: It is section 21 of the old act.
Senator McIntyre: Clause 6 calls for an extension of the period of emergency protection from 90 to 180 days. Clause 9 calls for the termination of protection agreements. In both cases, emergency protection and termination of protection, how often does this happen?
Mr. Foster: I do not have any of the statistics related to the termination of protection or emergency protection, but emergency protection is an interim measure that could be used in relation to any of the witnesses who would be contemplated for admission to the program.
Senator McIntyre: Clause 14 calls for an exemption from liability or punishment with respect to persons providing protection or assisting in providing protection. Are you comfortable with this clause?
Mr. Bradley: For clarification, under the current act, section 13 provides that an individual who claims that their current name is their only name that they have had cannot face punishment or civil liability as a reason of that. The amendment under Bill C-51, under 13.1, is not an exemption that says that we invite you to do it, but it says that if you were forced to do it, that you will not be punished criminally or civilly for denying that you have provided protection or that you know the protectee.
The Deputy Chair: Just to refresh your memory, honourable senators, we are moving rapidly through the first-round list of questions for the officials and then we will go to a second round.
Senator Baker: With regard to the expansion of the program, the availability of the program, to what extent is the program being utilized by persons who are of assistance to the police relating to investigations concerning controlled drugs? Is that a fairly common reason?
Mr. Foster: Without providing any statistics, and on the basis of my experience, that is a fairly common occurrence.
Senator Baker: With the availability of reliable sources to the RCMP and to police forces across Canada, when you look at investigative documents that are under seal by the courts, usually search warrants for listening devices, interception of private communications, are riddled with source A, B, C, D, reliable sources who are paid for their information on a regular basis. A great many of them have criminal records. A great many of them use drugs. When payment is given to such sources or persons who are entering into the Witness Protection Program, is the payment given in cash or is there a record reported to Revenue Canada? Revenue Canada has agreements with practically every single other federal government department for disclosure of information relating to police investigations in the future. With the payment of money to these reliable sources, is there a report made to Revenue Canada as to their receipt of what appears to be fairly large sums of money during these investigations?
Mr. Foster: If I understand your question correctly, what you are describing is something that is operated outside of the Witness Protection Program. If you are an individual who has witness information and you are entering into the program, the program is designed to protect you for life. It is not compensation for providing specific information in relation to an investigation. What you are describing, I think, is more of an award related to persons who are not entering into the program.
Senator Baker: If a person was entering into the program, if it is necessary that the person enter into a program, if an agreement is being made up for the person to enter into the program, and that person is being provided with money to maintain himself or herself, is there a record kept of that money? Of course, you supply money for someone to live.
Senator Joyal: It is written in the act.
Senator Baker: Is there a record of that? It is just a general question. I look at the act and look at the activity and these warrants and the payment of money. I do not know if you can even answer this. You do not have to answer if you do not want to answer. It is just something that comes to mind.
Mr. Foster: Without relating it back to your information to obtain a warrant scenario, persons who are in the Witness Protection Program are provided with certain sums. A specific budget would be done for the individual or individuals and related persons who are being entered into the program. That budget will take into consideration accommodations and food, and psychological counselling and training if they are required on an ongoing basis, and financial counselling so that the individual can manage his or her own resources. It is not provided as a lump sum — here is cash.
The amounts with respect to the federal Witness Protection Program are kept track of. It is not just something that is doled out and not kept track of, of course.
With respect to how it is reported to Revenue Canada, I do not have information with respect to that. I understand that Revenue Canada does have arrangements with other departments with respect to disclosing in certain situations, but I am not familiar with how that operates.
[Translation]
Senator Dagenais: My question is for Mr. Foster. I was with the Sûreté du Québec and I am very familiar with how the Witness Protection Program works.
Could you give me concrete examples of how this bill will assist front-line police officers who have to deal with those types of witnesses, for instance?
[English]
Mr. Foster: I do not know that it changes the dealings of the front-line officer with respect to their day-to-day dealings. Overall, my understanding is that the Bill C-51 amendments are intended to increase the protection of the information with respect to the witness, so that it is less likely that they would be compromised if they are entered into the program.
With respect to providing the witnesses who will be evaluated for the program, it will not happen under Bill C-51. However, under our program they will get an assessment with respect to whether they can be entered into the program in relation to the criteria in the act. That is as opposed to there being any change there. The criteria will remain the same, so from that perspective, it does not change, but with respect to the disclosure of the information, it will change.
With respect to the officer dealing with the prospective protectee, that person, in relation to the protectee, would be able to consider their information related to that particular dealing should also not be able to be disclosed.
The Deputy Chair: We have 15 minutes left, and there are four more senators on my list.
Senator Runciman: With respect to Ontario — and we will have a representative of the OPP appearing before the committee at some point — there are about 30 municipalities in Ontario that have their own Witness Protection Programs. In dealing with the people who apply under the current system, are they all funneled through the OPP; is the application made through the RCMP to the OPP; or is it done through municipal organizations? What is your experience to date?
Mr. Foster: I have not had much experience with that to date. I had heard that there were a number of municipal- level Witness Protection Programs in Ontario. I am not sure that they are particularly busy in the witness protection area. However, I understand that they are out there and have that capability in the same way as the RCMP could provide that service at any of our detachments, except that, in the case of Ontario, it is operated at the municipal level, if I understand that correctly.
Senator Runciman: You are not sure whether the municipalities, if they are going for identification change in more complex issues, that they do that through the OPP or directly with the RCMP; you are not aware at this point?
Mr. Foster: I am not aware of that. My information is that, last year, there were 100 needs assessments and 30 admissions to the Witness Protection Program.
Senator Runciman: Thirty-eight, I was told. Regardless, do you have any breakdown as to whether most of those admissions or applications even — the 108 that you referenced — are from RCMP internal information, or are they coming from other jurisdictions?
Mr. Foster: Some of those are coming from other jurisdictions, but my experience thus far is that the majority of them are RCMP related. I should qualify that I have only been in this position since April 1 of this year.
Senator Runciman: I appreciate that. I have trouble with one of the concerns expressed by Ontario when talking about Bill C-51 exacerbating current problems, such as having cumbersome, unnecessary processes in order to obtain federally issued identity documents. It seems to me the legislation is addressing that.
Do you have any idea of the timelines currently required with respect to the application? Is there an average timeline that this legislation will dramatically improve? My view of this is that, if there will be an improvement in terms of the process itself, then Ontario's complaint really does not stand up with respect to exacerbating the current challenges.
Mr. Bhupsingh: We think by having the single point of contact through the RCMP, fewer people will be involved and the responsibilities will be clearer, senator. In that sense, I will let the RCMP speak to the time frames in terms of getting documents, but it is our view that the program will be more efficient with a single point of contact now to access a federal secure identity change. There are fewer people involved, the lines are clear and federal departments have told us they would like a single point of contact.
I think the concern coming from some of the provinces is that they will now be using different ways of getting documents. As we talked about some of those informal sorts of mechanisms in terms of getting documents, they will need to be stopped and go through the RCMP. Perhaps that is some of the explanation around why the process might be encumbering, at least initially. However, on a go-forward basis, we think it will be more safe, secure and efficient.
Mr. Foster: With respect to the timelines, the timelines vary widely depending upon the circumstances. I would not be able to provide you with a timeline; things might go relatively quickly or not so quickly.
With respect to providing secure ID from federal government departments, the RCMP already has MOUs in place with the federal departments to secure ID for protectees who require it; it is something that is already in place and streamlined. I see that as something that will operate more efficiently rather than less so.
Senator Runciman: We will have to ask Ontario for an explanation as to how it will be more cumbersome.
The Deputy Chair: You say "streamlined;" they say "cumbersome." This is why we hear from many witnesses. We will be hearing from the OPP tomorrow.
Senator Jaffer: I have a question for you, Mr. Bradley, if I may. At the House committee that studied this bill, and I am sure you know, Yvon Dandurand was concerned about changes on the issue of disclosure of information by people who are protected. He was certainly concerned about children. He put it that children who are seeking the protection for themselves and not part of the family and that they could send a tweet or post something on Facebook that could result in substantial harm.
In the bill, this concern surrounds the removal of the word "knowingly" from the bill, which could be interpreted as making inadvertent disclosure an offence. In your view, is this a concern and how would you deal with this type of situation if it arose?
Mr. Bradley: For greater clarification, for the prohibition element, the knowing is still there; it has just been moved down in the paragraph. For example, if you look at paragraph 11(1)(a) under the current Bill C-51, it says ". . .any information that reveals, or from which may be inferred, the location or a change of identity of a person that they know is a protected person."
Then you go down and the known component is still there — that they know is a protected person. It has been rejigged in a manner that makes more sense and is easier to read. That is why the change was made. There is still a knowledge component there in terms of whether you know the person is a protected person and you know you are giving away the location or the change of identity, whether indirectly or directly. That is the offence.
Senator Jaffer: I understand the RCMP will provide legal counsel to all persons being considered for admission into the program; is that correct?
Mr. Bradley: It will depend on the circumstances. It is a program change; it is outside of the terms of Bill C-51. I would let my colleagues speak to that, as it is a policy matter rather than a specific legal component.
Senator Jaffer: When you answer that, could you also say whether they would continue to have access to lawyers once they are in the program?
Mr. Bhupsingh: Initially, legal counsel is offered to people admitted into the program to ensure they understand the aspects of the program and what they are signing on to. That has always been the case. There was some misconception that it was not true, but I believe the assistant commissioner answered that quite clearly.
In terms of offering legal counsel, that will continue to happen going forward. I will turn to Superintendent Foster to answer the question about continuing legal service.
Mr. Foster: With respect to the case management plan for an individual, or individual and related members who are admitted to the program, the availability of legal counsel is there for issues that relate to the program. It is not there for issues that relate to private day-to-day lives, but for issues that relate to the program, legal counsel is still available.
Senator Joyal: Do I understand in reading the definition of "witness" in section 2 of the original act, that a police agent — whether he or she is a member of the RCMP, provincial police force or municipal police — would not be a witness in the context of the legislation? As a corollary, if there is an agent of the RCMP or any police personnel who needs protection because of the role he or she played in an investigation, would that person be protected by the police force in question — not under this act but under an internal program of the police force — or am I wrong and that person would fall under a witness definition under Bill C-51?
Senator Runciman: You should ask Senator White.
Senator Baker: Or Senator Dagenais.
Mr. Bradley: Without going into a specific confirmation, it would depend on the facts of each case whether or not such individuals, if you review the definition of witness there. If they would fall within it, then a referral could be made, both if they were under an Attorney General's referral under section 14 or under the law enforcement service. Of course, that would not preclude a law enforcement agency, apart from the RCMP, that operated its own witness protection service from offering its own protection. It would be outside of the Witness Protection Program Act, but that would be something that is available so there is a possibility. It depends on the circumstances and whether or not a referral had been made to the commissioner.
Senator Joyal: They could be covered by this act.
Mr. Bradley: It completely depends on the circumstances of how that individual fell within the definition, what their activity was and what they contributed. Without an absolute certainty given, it is a case-by-case basis.
Senator Joyal: When I read the definition, I wrestled with whether it is a third person beside the police force or a member of the police — an infiltrated agent into a gang, for instance — who participated in the prosecution as a witness, and he or she is directly involved. Does that person fall within the legislation? I was reading the definition and I was thinking yes and no.
Mr. Bradley: There is a clear distinction between the roles of human sources, agents, informants, et cetera. Even though it is easy to say this is an absolute answer, you would have to look at the role of that agent, the status and the actions to see whether it fell into the definition.
Senator Joyal: You answered my question. My second question is in relation to the cost. When you read the definition of "protection" in the original act, it states:
. . . in respect of a protectee, may include relocation, accommodation and change of identity as well as counselling and financial support for those or any other purposes in order to ensure the security of the protectee or to facilitate the protectee's re-establishment or becoming self-sufficient;
It is wide as a definition of protection. What is the highest cost that all that could incur for one person?
Mr. Foster: When Assistant Commissioner Shean appeared at the Standing Committee on Public Safety and National Security at the House of Commons, I understood his response — and he has seen many more of these than I would — as to the average cost for a family of four, was an answer of $60,000. It would depend upon how much assistance the person who met the admission criteria required and what their lifestyle was before they were admitted. It takes the individual's lifestyle into consideration. Individuals who have a relatively high lifestyle might require more.
Individuals who require significant retraining in order to assist them to become self-sufficient would also require more. Individuals who already have a trade, are psychologically stable, do not require that kind of counselling and are able to handle their own finances cost relatively less. The range could be quite great. It would depend upon the circumstances of the individual and how many persons were brought in at the same time, meaning the person being protected, as well as, say, the family members and other persons who might be admitted at the same time.
Senator Joyal: It is not limited to the one person. It is the social status of that person in relation to his or her family.
Mr. Foster: Yes.
Senator Joyal: In relation to that, and I do not want to become anecdotal, but when you say "change of identity," do you mean someone who incurs surgery to change their appearance?
Mr. Foster: I would say this is one of those occasions where, if I had information related to that and how things worked, this would be one of those investigative techniques where you should not be provided with the answer in order to protect that as a method which the police may or may not be using.
Senator Joyal: With today's ease with which someone's image is spread on the Internet, it comes to my mind that a person may need to change their facial appearance to provide some anonymity in the future. That is why I raised the question. I am sure any of us would have the same reaction.
Mr. Foster: I certainly understood your question.
Senator Joyal: I am not pushing for it. I am trying to get what I have in mind in relation to the act.
This is in relation to section 9 of the act, which is the notification of proposed termination. I come back to my first question. When you decide to terminate the protection, I understand in relation to section 9 that you inform the person of the reasons. Those reasons are in relation to reasons enumerated in section 8(b) of the act. You sign a contract with that person. You have an agreement of understanding of co-responsibility on both sides. However, if you decide to terminate that contract, it seems to me that you remain the arbitrator of the termination, while in fact that person may have been referred to you, as the act provides, by a criminal court or tribunal.
I have difficulty reconciling that you are judge and party on the termination because the person might feel that his life integrity may be at stake. When you read the elements for which the person subscribes an obligation, some of those are not, in my opinion, to a point whereby the life of the person should be threatened, for instance, to meet all legal obligations including regarding the custody and maintenance of children. There may be many reasons for which someone might decide not to stop payment or whatever. The end result of it — to terminate the protection — might be very serious in some cases. Since there is no appeal for that, it seems to me there is something difficult to reconcile with the principle of fundamental justice when the life of a person is at stake.
Mr. Bradley: There would be a few previously explored avenues by individuals where there has been a termination. There is some jurisprudence where there was a judicial review given over the decision to terminate. There is also now, as mentioned previously, external review bodies that may look into complaints. There is a procedural fairness mechanism built in, in which representations may be made. Your point is well taken, but there are avenues of recourse after that decision is made. I hope that provides you some assistance.
Senator White: Thank you again for your responses. This is a follow-up on Senator Baker's questions on source payments and taxable income. For clarity's sake we used to refer to the program as a source witness program, which we no longer refer to because we try to separate the investigative, which is the source; from the witness, which is the program we are here to talk about today. Any payments made as referred to by Senator Baker are source payments done by the investigative agency, which in some cases might be a different police agency totally. However, you are talking about the protection of the witness and the cost associated directly with the protection of the witness, which most times do not include source payments. Source payments were done at the investigative arm; is that not correct?
Senator McIntyre: I note that section 16 of the Witness Protection Program Act states there is an obligation to submit an annual report to Parliament on the operations of the program. Are we to understand that Bill C-51 does not bring any changes in that regard? In other words, that section will remain in force?
Mr. Foster: My understanding is that that annual report is still required.
Senator Baker: On a quick point of order, Superintendent Stephen Foster mentioned that he only assumed his position on April 1 of this year. I must say that he has given us careful, thoughtful, informative evidence before the committee, and I congratulate him for the excellent job that he has done here today.
The Deputy Chair: I would commiserate with all of you. You have been here longer than most witnesses who are subjected to our questions and you have survived. Congratulations to you all and thanks to you all.
Honourable senators, we shall meet again in this room tomorrow morning at 10:30, where we shall hear a series of witnesses from the police, the OPP and the Canadian Police Association Ð
[Translation]
Ð a former police officer from the City of Montreal.
[English]
We will also hear from the Chair of the Commission of Public Complaints against the RCMP. After that, we shall hear from Mr. Yvon Dandurand, a criminologist with some expertise in this field. Until then, thank you all.
(The committee adjourned.)