Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 41 - Evidence - June 18, 2013
OTTAWA, Tuesday, June 18, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act, met this day at 8:32 a.m. to give clause-by-clause consideration to the bill.
Senator Joan Fraser (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning, honourable senators. We have gathered, as previously agreed, to conclude our work on Bill C-51. We have received a submission from the Government of Ontario and we can afford to take a minute to look at it if you so desire. Is it your wish that we proceed, honourable senators?
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
[Translation]
The Deputy Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
[English]
Shall clause 8 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 9 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 10 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
[Translation]
Shall clause 11 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 12 carry?
[English]
Senator Baker: I think clause 12 is the one that —
The Deputy Chair: Let me say that clause 11 is carried.
Senator Baker: I thought you said clause 12.
The Deputy Chair: Maybe I did.
Senator Baker: This is the clause that I think is in question as far as the Government of Ontario is concerned and the Information Commissioner. There was considerable discussion here as to what this particular section meant as it relates to disclosure of what information. We had testimony from the OPP that was very thorough regarding the Stinchcombe requirements and some comments by Senator White of this committee concerning the same.
When the minister appeared before this committee, he was at a loss to understand why this section was being questioned by the Government of Ontario and the Information Commissioner. I thought it would be of benefit to the committee to read one sentence in paragraph 20 from a judgment of the Queen's Bench of Alberta, in R. v. McKay. It says:
In summary, the statute does not authorize the Commissioner to withhold personal information of a protectee, nor to withhold information identifying police techniques or ongoing investigations.
That is what this bill seeks to remedy as far as the wording of this particular clause is concerned.
I also note that some five or six years ago Rothstein, J., made a judgment in which he concluded — and I do not have the citation — that this information should not be disclosed as it relates to this particular type of information. In other words, in the case of R. v. McKay, you have the accused of a substantial robbery case seeking information regarding the protectee; and that, the accused says, should be disclosed. Of course the court is saying, look, there is nothing in the statute to say that it cannot be disclosed. It is up to the commissioner to provide further reasons for its non-disclosure.
I have concluded — and I do not know how other honourable senators feel about it — that under normal circumstances, as the OPP pointed out to our committee, police methods are disclosed in normal criminal proceedings but the actual techniques are not disclosed. The warrant is disclosed to put the listening device in the car, yes, but how they get it in the car is not disclosed in normal criminal proceedings. I do not know the case where the police have been ordered to say, "Well, we put the listening device there because we asked the customs department to take the car for 24 hours to check its IDs and we put it in while they had it." There are certain methods used by the police that are not disclosed.
I think this goes down the same road; the minister is right. They have not explained. In their recommendations, the Government of Ontario makes reference to 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. The Government of Ontario is suggesting that provincial legislation would trump federal legislation as far as disclosure is concerned in criminal matters. I do not think that is a legitimate response.
It is a thorough response given by the Government of Ontario; I have read it. I do not agree with it and I would look to other senators to express an opinion as well.
Senator White: You are absolutely right, Senator Baker. I think Senator Joyal probably put it best around the small "p" politics that I felt were being played with this. For me, this is about protecting witnesses, and I would say the best program in Canada is one program for all Canadians. The fact we have more than one makes it problematic, and I think giving any consideration to the response from the province makes it problematic for us. I agree that the response from the province is not helpful to what we are trying to do here today.
The Deputy Chair: You do not agree with this response, but historically this committee has always requested input from provinces if the legislation we were considering had any impact.
Senator White: I think we should demand it, to be fair, but acknowledgment does not always mean agreement, I guess.
Senator Joyal: At the opening of our meeting, we did not propose that the answer of the Ontario government be appended.
The Deputy Chair: When we finish clause-by-clause consideration, perhaps you could make that motion.
Senator Joyal: I think it is important. With all respect, as you said, since we seek to get provincial input into our work, it is fair to have it in our minutes.
The Deputy Chair: I think that would be an appropriate motion when we are finished with clause by clause.
Shall clause 12 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 13 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 14 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
[Translation]
Shall clause 15 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 16 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 17 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 18 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 19 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
[English]
Shall clause 20 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 21 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 22 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 23 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 24 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the schedule carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
Shall the bill carry?
Some Hon. Senators: Agreed.
The Deputy Chair: Carried.
Does the committee wish to discuss appending observations? No.
Is it agreed that I shall report this bill to the Senate?
Hon. Senators: Agreed.
The Deputy Chair: Carried.
That concludes clause-by-clause consideration of Bill C-51.
Senator Joyal, make your motion.
Senator Joyal: I move that the submission to the Standing Senate Committee on Legal and Constitutional Affairs regarding Bill C-51 made by the Government of Ontario be appended in the minutes of our proceedings today.
The Deputy Chair: Discussion? All in favour?
Hon. Senators: Agreed.
The Deputy Chair: Opposed?
Carried.
I think that concludes this morning's business, honourable senators. This committee will meet again at the call of the chair. Just in case the chair does not call, if you will permit, I will wish everybody a delightful summer — hoping we get there — and express our thanks, in particular, to all the staff who do such a wonderful job for us.
Senator Joyal: Senator Runciman, you are the sponsor of this bill. When you are introducing the report on this bill, I wonder if you could mention that the Ontario government was not heard in the House of Commons when they debated in committee. I believe that submission was made by the representative of the Ontario Provincial Police, and I think it is an important element in the context of the submission that expressed their views. They are serious views. We might disagree, but they are serious views. I think it is fair in relation to such an important province, in relation to the age of Witness Protection Program in Ontario and in relation to the experience of the Ontario government. I am not from Ontario; you are from Ontario. If it were from Quebec, I would do it of course.
Senator Runciman: I would be pleased to do that. My understanding was, as we heard in testimony, that the Ontario officials did contact the government to congratulate them on the tabling of the legislation, so there was an awareness that the legislation was before the house. Whether they were formally invited or asked for their input, as this committee has done, I am not sure, but I certainly will reference it. My own suspicion is that they are late to the game here, but, in any event, I will acknowledge the fact that they did not either have the opportunity or did not avail themselves of the opportunity to appear there.
While I have the floor, Madam Deputy Chair, I wanted to also concur with your commendations to all members of the committee. I think we have had an excellent session of camaraderie and teamwork, if you will, despite the differing views on issues. I think this committee stands in good stead with the performance of other committees that I have had the opportunity to sit with. Certainly, we have outstanding staff contributing to the job that we are able to do. I very much appreciate that.
I want to note something that Senator Jaffer has mentioned to me on a couple of occasions. If any members are interested in visiting the Secure Treatment Unit, St. Lawrence Valley, at some point in late August or early September, let my office know. If there are enough of us and the staff, as well, who may have an interest in the visit, we will try to arrange something. It has to go through the Minister of Community Safety and Correctional Services to get approval. We will try to have a little notice. If you could give me, if you are interested, a range of dates that would fit into your schedules, that would be appreciated.
The Deputy Chair: Thank you very much. Congratulations on all you have done as chair.
In connection with the Ontario government, they actually wrote us to express appreciation for the fact that this committee was at pains to take their views into account. Even if, in the end, we have not agreed, we did give them every opportunity that we could to make their case.
(The committee adjourned.)