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LCJC - Standing Committee

Legal and Constitutional Affairs

Past Session: Past Session:
41-1 41st Parliament, 1st Session (June 2, 2011 - September 13, 2013)
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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 41 - Appendix - Exhibit 1120-04-02-4.1/L1-C-51, 41, "1''

June 13, 2013

Submissions to the Senate Standing Committee on Legal and Constitutional Affairs Regarding Bill C-51, An Act to Amend the Witness Protection Program Act And to Make a Consequential Amendment to Another Act

INTRODUCTION

There are a number of important amendments to the Witness Protection Program Act (WPPA) contained in Bill C-51, which will improve witness protection in Canada and which the Ontario Ministry of the Attorney has asked the federal government to consider for over ten years. We support these proposed changes and thank the federal government for acting. The Ministry of the Attorney General believes, however, that some significant problems remain, which can and should be corrected. These changes will reduce duplication, enhance the effectiveness of provincial witness protection programs and better ensure the safety of protected witnesses and the witness protection officers whose duty it is to work with them. The WPPA was enacted 15 years ago. The opportunity to amend the Act exists now. What the Ministry of the Attorney General proposes are minor adjustments, which will have a significant positive effect. We view the proposed amendments to the WPPA contained in Bill C-51 as creating an unnecessarily complex process. Rather than removing delays, Bill C-51 will institutionalize and compound the delays that already exist. The changes that are of greatest concern to Ontario can be summarized as follows:

  •  We are concerned with the designation process contemplated by the Bill for provincial programs. The Bill would enable Public Safety Canada to impose information, eligibility and other requirements on provincial programs and witnesses before a recommendation for designation would be made. These requirements may change over time. The Bill also provides the Minister of Public Safety with the authority to de-list a designated program, but the Bill does not speak to the process or criteria for determining the issue.

  •  The most important improvement that has been sought by the Ministry of the Attorney is direct access to federal departments for the provision of secure identity documents. This has not been afforded to provincial programs by the proposed legislation even though the primary legislative responsibility for name changes, including confidential ones, rests with the province and often all that is required for Ontario protectees is access to SIN cards and passports in their new names.

  •  While the prohibitions on the disclosure of information have been expanded to include provincial witness protection information, Bill C-51 restricts the ability of frontline witness protection officers to make protective arrangements by placing the authority to make disclosure decisions in the hands of the RCMP Commissioner or a designated provincial official. While some of the authority may be delegated, a significant portion of it cannot. This will hinder the ability of witness protection officers to make covert, informal decisions and arrangements where necessary.
  •  The proposed amendments to the WPPA contemplate a disclosure regime that is incompatible with the regime presently in place in Ontario. Bill C-51 sets a much higher threshold for disclosure (miscarriage of justice/innocence at stake) than the standard that has been employed in Ontario for over a decade. The incompatibility of these two thresholds will limit prosecutors’ authority and discretion respecting disclosure and will place police and prosecution officials in Ontario in an untenable position.

  • The amendments allow protected persons to disclose information about themselves provided that it does not result in substantial harm to any protected person. This raises the important question of who will make the substantial harm assessment. The proposed amendments are incompatible with the Ontario Witness Protection Program current practice, which prohibits protected persons from disclosing information about security measures without prior approval of witness protection officers. The Ministry of the Attorney General is concerned that ill-advised disclosure by a protected witness (even if unintended) will place the witness, other witnesses and the police who work with them at risk of harm.

  •  Bill C-51’s notice provisions will considerably delay the process of implementing operational plans and may result in the disclosure of sensitive and confidential information.

Ontario’s Witness Protection Program

For the past 30 years, the Ontario Ministry of the Attorney General has operated Ontario’s Witness Protection Program in cooperation with the Ontario Provincial Police and about 30 municipal police services in Ontario. Ontario’s program is one of the largest programs of its kind in Canada. It is called the Ontario Witness Protection Program. The Ontario Provincial Police operate a smaller, separate program, which deals only with witnesses in OPP drug investigations in need of protection. It is referred to as the OPP Witness Protection Program. The OPP operate this program directly because the Ministry of the Attorney General does not, in the normal course, prosecute drug cases. Those prosecutions are the responsibility of the Public Prosecution Service of Canada. There are only two provincial witness protection programs in Ontario and no municipal ones. Ontario witness protection programs have always functioned independently of the federal government and the RCMP program, and it is of great importance that this independence continue.

The Ministry of the Attorney General’s Ontario Witness Protection Program has provided funding in over 500 cases involving the prosecution of the most serious criminal offences in the province. Well over 60% of the cases have involved charges of murder or attempted murder. They often involve organized crime and the use of firearms. By way of example, in 2009, a protected witness testified against six members of the Bandidos motorcycle gang charged with first degree murder in the slaying of eight men in Shedden, Ontario. In 2011, another protected witness testified in the murder of Jane Creba, which resulted from a shoot-out between rival Toronto street gang members on Boxing Day on a busy downtown Toronto street.

Like the United States Department of Justice’s WITSEC program, and unlike the RCMP program, Ontario’s Witness Protection Program has always been administered by the Ministry of the Attorney General and managed by a small group of expert Crown counsel in the Ministry. Decisions respecting admission, funding, the development of policy, the drafting of protection agreements and the ending of a protectee’s participation in the program are made by senior Crown Attorneys and are based on the recommendation of specially-trained witness protection officers. The Deputy Attorney General personally authorizes funding in each witness protection case. The handling of witnesses accepted into Ontario’s Witness Protection Program, including the implementation of protective measures is the responsibility of provincial and municipal witness protection officers. Witness protection counsel in the Ministry and provincial and municipal witness protection officers operate independently of the investigation and prosecution of the underlying offence. Ontario’s program operates in a manner consistent with the first recommendation of the House of Commons Standing Committee on Public Safety and National Security contained in their 2008 report on the operation of the federal program.

Ontario’s program provides time-limited funding to assist in the maintenance and relocation of a witness and/or family members. The program does not provide rewards or benefits in return for testimony. Although funding is time-limited, the program’s intention is to put in place protective measures designed to last. In the event that the protective regime is later compromised, the Program will respond appropriately and additional funding and protective measures can and are routinely made available. In this sense, Ontario’s program does not operate differently from the U.S. Marshal’s WITSEC or the RCMP program, which also provide time-limited funding. None of these programs provide funding for life.

Ontario’s Witness Protection Program is primarily policy-based, and is largely governed by a Ministry of the Attorney General, Criminal Law Division Practice Memorandum, which is enclosed and marked as Appendix “A”. The Practice Memorandum is supported by provisions in Ontario’s Crown Witnesses Act and Change of Name Act, which are also included and are marked Appendix “B” and “C” respectively.

Recording a name change is a provincial responsibility. The Ontario Change of Name Act allows the Attorney General of Ontario or his or her designate to certify a confidential name change, which ensures that the name is changed and birth certificates issued without the usual notifications. The Ontario Crown Witnesses Act allows the Ministry to enter into confidential agreements with provincial and municipal government service providers that establish alternative mechanisms and criteria for the issuance of provincial identity documents and the delivery of benefits and services to those who have had a confidential name change.

Recently, the Ontario Legislature amended the Crown Witnesses Act. A statutory privilege was created to prohibit the disclosure of certain types of information relating to Ontario’s witness protection programs, subject to a number of limited exceptions and safeguards. Disclosure of the following information is prohibited: information relating to the location and identity of a confidential name change recipient; how protective assistance is provided; operational matters relating to protective assistance; and information about agreements established under the Act. A provincial offence was enacted prohibiting the disclosure of information, punishable by a $25,000 fine or one year in jail, or both. These amendments have not yet been proclaimed..

The privilege is subject to safeguards and exceptions that allow for the disclosure of information in circumstances where it is justified. Ontario’s disclosure regime is different from what is proposed in Bill C-51. It does not, with one exception, vest the authority to disclose in a particular designated individual (like the Commissioner of the RCMP or a designated provincial official) and then require a series of express approvals or delegations, which are themselves subject to conditions and exceptions. Ontario’s approach is, instead, conduct-based and provides front line witness protection officers, prosecutors, other justice participants and the Courts with the authority to disclose when the circumstances detailed in the safeguards and exceptions exist. Exceptions to the prohibition allow information to be disclosed: to provide protective assistance; if the information is important to the ability of the accused to make full answer and defence; if the information is essential to the administration of justice; with the consent of the Attorney General of Ontario or in any other circumstance prescribed by regulations made under the Act. The Crown Witnesses Act’s approach to disclosure codified what has been the position of the Ontario Witness Protection Program and Ontario Crown Attorneys for a long time through many serious prosecutions.

Federal/Provincial Challenges

In the vast majority of cases, the only assistance the Ontario Witness Protection Program and the OPP Witness Protection Program requires of the federal governmentis help in obtaining federal identity documents, like a SIN card or passport, and the secure transfer of federal benefits and liabilities, following a confidential provincial name change.

Before 1996, Ontario’s Witness Protection Program routinely dealt directly with federal departments in obtaining new federal identity documents. When the assistance of the RCMP was requested by the Ontario Witness Protection Program, it was generally provided informally and in a manner which met the Ministry of the Attorney General’s and witnesses’ needs. Since the enactment of the federal Witness Protection Program Act in 1996, the relationship between the Ministry of the Attorney General, Ontario witness protection officers and the RCMP's Witness Protection Program has been subject to challenges. The root cause of concern with the RCMP's assistance was a legal interpretation that the RCMP adopted in relation to their Act. It has been the RCMP and the federal Department of Justice’s view that any assistance given to a provincially protected witness, no matter how minor or procedural, required that the witness be formally enrolled into the RCMP’s federal program in accordance with the WPPA.

In practical terms, the interpretation adopted by the RCMP and the federal Department of Justice meant that when Ontario’s Witness Protection Program seeks to obtain a SIN card or passport for one of its protected witnesses after a provincial confidential name change, a complicated application form and enrolment procedure had to be completed. Notwithstanding that the case fell exclusively within provincial jurisdiction and the witness had been previously accepted into Ontario’s program by Ontario’s Deputy Attorney General, the RCMP insisted that they independently review the suitability of the witness for witness protection on the basis of the criteria in the federal WPPA and then admit or not admit the witness into their program. Significant delays and additional expenditures routinely resulted.

This interpretation was contrary to federal assurances made to Ontario when the legislation was introduced. These assurances were set out in a letter dated March 23, 1995, from the Honourable Herb Gray, who was at that time the Solicitor General of Canada, to the then Solicitor General and Minister of Correctional Services of Ontario, the Honourable David Christopherson. In the letter, Ontario was assured that the new legislation would not “replace or encroach upon existing provincial and municipal witness protection programs.”

Disagreement and dissatisfaction with the RCMP's interpretation of its legislation has not been confined to Ontario. In June 2005, Madame Boisvert, the Dean of the University of Montréal's Faculty of Law, formally reported to Québec's Minister of Public Safety that the RCMP's “excessive" (i.e. erroneous) interpretation of its legislation had caused many delays and administrative problems for that province's Witness Protection Program.

The House of Common’s Standing Committee on Public Safety and National Security undertook a review of the federal witness protection program. In March of 2008, the Committee released a report that called for significant changes, including a recommendation for steps to be taken to enter into agreements with provincial governments in order to accelerate the processing of witness protection applications. In June of 2010, the Commission of Inquiry into the Investigation of the Bombing of Air India released its final report, which in part criticized the operation of the RCMP Witness Protection Program. The need for better and more effective protection for witnesses was recognized.

Ontario’s concerns with the WPPA have been conveyed to Public Safety Canada and the RCMP repeatedly over the years, at a variety of executive, management and operational levels, orally and in writing. The Ministry of the Attorney General has asked that the WPPA be amended to allow Ontario programs direct access to federal departments for federal identity documents. We have requested that all federal departments be encouraged to provide meaningful co-operation to all witness protection programs, not just the RCMP, with a view to ensuring the timely transfer of secure documents and benefits to a protected witness’ secure name. Ontario has also asked that the Act be changed and the RCMP be allowed to provide secondary assistance to a provincial witness protection program without having the provincial witness formally become a member of the RCMP’s witness protection program. The Ministry of the Attorney General has requested that the protection provided by s.11 of the WPPA be expanded so that it applies to all protected witnesses, not just those who have been formally entered into the RCMP’s program.

In 2011, Public Safety Canada distributed a consultation document outlining proposals for amending the WPPA. The consultation document addressed a number of Ontario’s concerns and much of what was proposed was an improvement. However, some significant problems remained and what was proposed created a number of new concerns.

Senior officials in Ontario responded to the consultation document and expressed concern that the proposed changes would not facilitate direct access to federal departments. A variety of other concerns were also expressed, which largely related to the manner in which the proposed prohibition on the disclosure of confidential witness protection information (and its exceptions) would conflict with Ontario’s witness protection practice and the provisions of Ontario’s Crown Witnesses Act, which have been passed by the legislature but not yet proclaimed.

In February 2013, a working group consisting of frontline witness protection officers from the OPP and a number of police services in Ontario was convened for a day-long meeting to discuss the operational impact of Bill C-51. During the consultation, the frontline witness protection officers confirmed that they shared the concerns identified by the Ministry. They also identified a number of additional concerns and consequences of the amendments. The Ministry of the Attorney General confirmed these concerns with Public Safety Canada officials in April 2013 at a Federal/Provincial/Territorial officials’ meeting.

Ontario’s Concerns Regarding the Proposed Amendments

The Ministry of the Attorney General would like to bring a number of its concerns about the proposed amendments in Bill C-51 to the attention of the Committee.

Eligibility

In order for a witness protection program to be recognized by the WPPA, the provincial Minister responsible for the program must request that the program be added to a schedule. Consideration of a request for inclusion in the schedule will necessarily involve an assessment of information requested by Public Safety Canada and provided by the requesting province against some sort of criteria. The Minister of Public Safety would then make a recommendation.

In the criminal law context, where the federal government provides the province with a discretion on whether or not to have a federal law apply to a provincial program, what the province is normally required to do is notify Ottawa of its interest. Sections 736 (fine option), 722 (victim impact statement), and 259 (ignition interlock device program) are a few examples of where a province can “opt in” simply by giving appropriate notice.
We are concerned with the designation process contemplated by the Bill for provincial programs. The Bill would enable Public Safety Canada to impose information, eligibility and other requirements on provincial programs and witnesses before a recommendation for designation would be made. These requirements are not articulated in the legislation and indeed may change over time. The Bill also provides the Minister of Public Safety with the authority to recommend the de-listing of a designated provincial program, but the Bill does not speak to the process or criteria for doing so.

We have been told that the relevant federal departments will deal only with the RCMP. In the circumstances, it may be that Ontario’s options in obtaining federal identity documents are to either have participants in Ontario’s witness protection programs formally enter the RCMP’s program or to submit to the alternate regime detailed in Bill C-51. At present, there seems to be no other way to obtain a SIN card in a secure fashion. Ontario sees no reason why the federal program, or the legislation that governs it, should impose itself on the operation of a provincial program in this way.

Direct Access

The Bill does not deliver the single most significant improvement that Ontario’s programs have been seeking for many years – direct access to federal departments for the provision of new federal identity documents. This is so despite the fact that the primary legislative responsibility for recording name changes rests with the province and often all that is needed from federal government agencies is a SIN card and/or a passport.

Protected witnesses, by virtue of their status as Canadian citizens or permanent residents, presumptively have a right to direct access to the provision of services by federal departments and do not normally have to go through the RCMP to obtain a passport or SIN card. Requiring provincial programs to deal through the RCMP when obtaining federal identity documents has resulted in continuing, compounding delays in obtaining federal identity documents. Federal documents often take up to six months to receive, but delays in excess of one year have also been experienced. These delays are not just inconvenient and costly - they undermine the ability of Ontario’s witness protection programs to effectively and expeditiously implement protective measures which enable their protected witnesses and families to get on with their lives, settle into new locations, find work and enrol in school. Delays put protected witnesses and their families “on hold.” This is not a best practice. It causes uncertainty and increased anxiety in some protected witnesses and their families. It is often very hard on the children and it is not necessary.

It should be noted that Ontario has direct access to secure SIN cards following a provincial confidential name change for members of the federal Confidential Service for Victims of Abuse program managed by Service Canada. These victims of abuse have confidentially changed their names to hide from their abusers. In these circumstances direct access has been available, and the requisite identity cards have been obtained conveniently and reasonably quickly but, for some reason, the option is not available to members of Ontario’s witness protection programs or their families. We see no reason for this inconsistent approach by the federal government.

Confidentially creating a new identity involves not just a provincial confidential name change but the issuance of provincial identity documents including driver’s licenses and health cards. These are provided by provincial Ministries. The RCMP (like any other police service in Ontario) has always been offered the opportunity to deal directly with provincial Ministries, including the Ministry of Health and the Ministry of Transportation, when they need provincial identity documents for a member of their program who is not a member of Ontario’s programs. Ontario has not required that the RCMP go through the OPP or the Ministry of the Attorney General. Ontario has not set up an eligibility process with a right to de-list and has not required the RCMP to otherwise comply with provisions of the Crown Witnesses Act. The Ministry of the Attorney General simply seeks the same access to the federal departments we have provided to provincial departments.

Removing the Discretion of Frontline Officers

Another concern Ontario has with the proposed legislation is its effect on the discretion which frontline expert witness protection officers presently have to disclose witness protection information in order to do their jobs safely and effectively. Bill C-51 places the authority to make decisions respecting presumptively protected witness protection information largely in the hands of the Commissioner of the RCMP and a designated provincial official. Section 15.1 of Bill C-51 provides the Commissioner of the RCMP and the designated provincial official with the authority to delegate some, but not all of their authority to disclose to other provincial and municipal officials. The Bill does not address the issue of how widely this authority can be delegated, but does say that the power to disclose information about identity and location in order to protect a witness can be delegated. That, however, does not end the matter. Witness protection officers are also involved in facilitating changes of identity. Section 11.2 of Bill C-51 authorizes the Commissioner of the RCMP to make disclosures respecting identity and location to facilitate a change of identity, but this authority is not provided to the designated provincial official under section 11.3. Accordingly, it cannot be delegated to frontline provincial or municipal officers under section 11.5. To do their job in this area, these officers may require approval and it may well be that approval may have to come directly from the Commissioner of the RCMP. It would seem appropriate to underscore that Ontario’s Witness Protection Program is managed by the Ministry of the Attorney General and the designated provincial official for the program would necessarily be a member of the Ministry, which is to say – a Crown Attorney not a serving police officer.

Section 15.1 expressly precludes a provincial official from delegating the authority to determine whether to disclose information under ss. 11.3(2)(b) and (c) and 11.3(3). This provision is capable of being understood in the context of a witness protection program managed by the police, but it is difficult to discern how it will apply to a provincial official who is a member of the Ministry of the Attorney General, and this is especially so in the context of a disclosure respecting the investigation of a serious offence or preventing the commission of a serious offence. These decisions should be made by frontline police officers and the disclosure provisions should reflect this. The proposed amendments hinder the ability of witness protection officers to make covert, informed decisions and arrangements where necessary.

Incompatible Disclosure Regimes

A further difficulty with the proposed legislation is that it contemplates a disclosure regime that is incompatible with the regime presently in place in Ontario. In large measure, the same information prohibited from disclosure in the Crown Witnesses Act is covered by the prohibitions in Bill C-51. However the new federal legislation sets a higher threshold for disclosure (miscarriage of justice/innocence at stake) than the standard which has been employed in Ontario for over a decade, continues to be used in Ontario by police and Crown prosecutors, and is set out in Ontario’s Crown Witnesses Act - which asks whether disclosure is important to make full answer and defence.

The incompatibility of the two thresholds will limit prosecutors’ authority and discretion respecting disclosure and will place police and prosecution officials in Ontario in an untenable position. The prosecutor or designated provincial official, for instance, may conclude that the threshold employed for over a decade of Crown practice in the Courts of Ontario and now contained in Ontario’s Crown Witnesses Act has been met, thereby warranting disclosure; however such disclosure would be a violation of the federal Act because the higher threshold has not been met. A simple example involving an allegation of serious police misconduct in respect of the methods and means used to protect a witness illustrates the problem. In such a case, disclosure would normally be made under the principles of the provincial regime1. However, the evidence would not rise to the higher threshold involving innocence at stake and could not be disclosed under the federal Act.

Under Bill C-51 frontline Crown prosecutors would no longer have the ability to decide disclosure-related issues based on settled legal principles but would instead be required to obtain the consent of the designated provincial official, or his or her designate, in certain defined circumstances, or have the provincial official’s authority to disclose expressly delegated. Even where consent to disclose has been granted, the Court and prosecuting Crown may not have the discretion to disseminate the information they believe is required in their cases.

A Protected Witness’ Ability to Disclose

The disclosure regime detailed in Bill C-51 also permits disclosure by a protected person of certain information about him or herself provided it does not result in substantial harm to any protected person. Not only does this raise the important question of who will make the substantial harm assessment, but on a more fundamental level, it is incompatible with the system presently in place in Ontario, which prohibits witnesses from disclosing the nature and content of their secure arrangements unless expressly authorized to do so by the police. The rationale for this prohibition relates to the potential for harm that could result from the disclosure of information concerning confidential name changes, the location of those receiving assistance from Ontario’s Witness Protection Program or other details of the protective measures in place. In the normal course, witnesses simply do not have sufficient knowledge or the expertise to evaluate harm. Individuals to whom they may subsequently disclose this information to may have even less expertise or knowledge. Inappropriate disclosure of this type of information (even if it is unintended) may place the protected witness, other protected witnesses and their police handlers at risk and may result in the disclosure of witness protection tradecraft - which is a shared tradecraft. This undermines the integrity of witness protection programs.

Notice to Protectees

The Ministry of the Attorney General is also concerned with the notice provisions of the Bill. In many circumstances, reasonable steps to notify the protected person must be taken before the RCMP Commissioner or the designated provincial official can make disclosure. Protected persons must also be given the opportunity to make representations regarding the contemplated disclosure.

The notice provisions contemplated by Bill C-51 will result in significant delays in the implementation and maintenance of protective measures. The Ministry of the Attorney General, which does not now operate with these types of notice requirements, is also concerned that the provision of notice contemplated under the Bill may also result in sensitive and confidential information being disclosed during the process of providing notice to the protected person. We recognize that subsection 11.3(5) contemplates situations where notice need not be given, but the provisions are complex and may be difficult to apply. Again, in most cases, all Ontario’s witness protection programs will be seeking from the federal government are federal identity documents. The information the Bill requires a provincial official to give notice in respect of extends beyond anything to do with federal identity documents to matters which have little to do with the RCMP or the federal government. We see no reason why the federal government or the legislation that governs it should impose itself on the operation of provincial programs in this way.

RECOMMENDATIONS

Ontario urges the Committee to decelerate the passage of Bill C-51 so that a more thorough consideration can be given to the concerns addressed in these submissions.

The Ministry of the Attorney General asks the Committee to consider recommending amendments, which would address some of the concerns outlined. The changes sought include the following:

  • Amend s.10.3 - Authorizing federal departments to accept a request for assistance with a change of identity for a program protectee from a designated provincial official.

  • Amend s.11.3 - Allowing for the disclosure of witness protection information respecting a provincial program and provincial protectees in accordance with provincial legislation where it exists. If it does not exist, then the provisions of Bill C-51 would apply.

Ontario is supportive of legislation that strengthens witness protection in this country. Bill C-51 can, however, be improved and the opportunity to do so should not be lost. Further consultations and discussions are required. Officials from the Ministry of the Attorney General and the OPP have scheduled a meeting with Public Safety officials on June 19, 2013.

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1 The information would be vetted to ensure that it did not reveal any trace leads.

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