Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 40 - Evidence for June 13, 2013
OTTAWA, Thursday, June 13, 2013
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:30 a.m. to study Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act.
Senator Joan Fraser (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Good morning, honourable senators and all our television viewers. We are continuing our study of Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act.
[English]
Our first panel of witnesses this morning consists of, from the Ontario Provincial Police, Deputy Commissioner Scott Tod, Investigations and Organized Crime command; as an individual, Mr. Richard Dupuis; and by video conference from Vancouver, from the Canadian Police Association, Mr. Tom Stamatakis, who is the president of the association. Welcome back to the committee, Mr. Stamatakis.
I believe you have an opening statement, Mr. Tod, then Mr. Dupuis and then Mr. Stamatakis.
Deputy Commissioner Scott Tod, Investigations and Organized Crime, Ontario Provincial Police: Good morning, members of the Senate. It is my pleasure to appear before you today. We are thankful for the opportunity to present the opinions of the Ontario Provincial Police and Commissioner Lewis about the impacts of Bill C-51 and on behalf of the serving men and women who are specifically trained and responsible for the protection of witnesses from dangerous criminals. Similar to the anonymous tip submission program that you know as Crime Stoppers, which has now been in place in Ontario for more than 30 years, we value the investigative information and leads provided to us by witnesses who require protection prior to, during and after they provide their information to police and testify before the courts.
The OPP meets regularly with its law enforcement partners across North America to discuss witness protection matters to ensure protected witnesses participate in the judicial process. Protected witnesses are vital to the administration of justice and maintaining public safety, especially when it comes to organized crime. Our regular consultations include members of the U.S. Marshals Service, with whom the OPP has had a great relationship through border security, related initiatives and other complex multi-jurisdictional investigations.
The U.S. Marshals office also has what we consider to be the gold standard upon which Ontario's two witness protection programs are modelled. The primary program, Ontario's Witness Protection Program, is managed by the Ministry of the Attorney General for Ontario. The second program is authorized for use by the OPP drug enforcement officers and is contained within the Ontario Provincial Police.
The OPP has concerns with the operational impact and consequences that Bill C-51 will have on the Witness Protection Program. These concerns were expressed with the support of the Ontario Association of Chiefs of Police in direct correspondence to the Minister of Public Safety in March of this year. After consultations with the Ministry of the Attorney General and other Ontario police services, we jointly believe that Bill C-51 creates a cumbersome and highly bureaucratic system that fails to permit the Ministry of the Attorney General in Ontario and police agencies in Ontario direct access to federal government departments to obtain new identity documents for and the transfer of witnesses.
My understanding is that the clerk has been provided with the correspondence; I will not repeat it verbatim. However, I would like to reiterate a few key points for your consideration and more directly put our position to this committee for consideration.
For almost years 30 years, the Ontario Ministry of the Attorney General, in cooperation with Ontario Police Services, has operated a witness protection program. The program represents one of the most significant initiatives in our battle against organized crime and dangerous offenders. It also functions as an important tool in the investigation and prosecution of some of the most serious crimes ever committed in Ontario.
The OPP has a full-time, dedicated Witness Protection and Informant Control Unit. It is housed within the Provincial Operations Intelligence Bureau, under the command of which I have the duty and responsibility to serve. We have five members — one sergeant and four constables — in the OPP witness protection unit. For obvious operational and safety reasons, I cannot reveal specifically how many individuals have participated in Ontario's two witness protection programs. What I can say is that a significant percentage of the total number of witnesses listed as members of the RCMP program are in fact members of Ontario's witness protection program or the Ontario Provincial Police program who have been referred to the RCMP for the purposes of obtaining federal documents, namely a social insurance number and/or a passport. These are witnesses of crimes that have occurred in Ontario, investigated by Ontario Police Services and, in the vast majority of cases, prosecuted by the Ministry of the Attorney General in Ontario.
Handling protected witnesses is a specialized craft. Our officers require specialized training, expertise, knowledge, policies and talent to handle witnesses as a full-time duty. I personally have experience in dealing with protected witnesses and fully understand the importance of their safety, as well as the safety of the police handlers.
First, we have enormous concern, likely shared by our law enforcement counterparts in Canada, North America and internationally, that the disclosure regime described in Bill C-51 could or would reveal the trade craft for use of protected witnesses and thereby undermine investigations and the use of other police operational techniques. In essence, using a football analogy, it could be provide the criminal element with our playbook and put witnesses, their police handlers and their respective families in jeopardy.
Second, Bill C-51 requires Ontario, the Ministry of the Attorney General and Ontario Police Services to continue to go through the Royal Canadian Mounted Police to obtain and secure federal documents instead of direct access to federal departments. This added layer of bureaucracy, in our opinion, imposes restrictions and obligations on Ontario's witness program that will compound further delays that already exist in obtaining federal documents. Are these steps really needed when the OPP only requires timely federal assistance with obtaining a social insurance number, card and sometimes a passport?
By the same token, under the provisions as written, the RCMP may face similar hurdles to acquire provincial documentation at the very root of an identity change, a birth certificate, a driver's licence or an Ontario health card.
It is our considered opinion that Bill C-51 places too many unnecessary restrictions that can have an impact on investigations and on a successful conclusion, not to mention public and officer safety. It encourages non- communication when what we need to do is work collaboratively and more often together.
OPP Commissioner Emeritus Tom O'Grady once said that no one police service has the expertise and resources to fight organized crime on their own. We owe it to the taxpayer to work together. You can apply Commissioner O'Grady's statement and the integration concept into everything we do. Successful relations are paramount to our shared goal of public safety. We must work with law enforcement agencies and justice sector stakeholders at all levels in order to be successful. By working together and supporting each other, we are all much stronger.
The OPP experience with protected witnesses has been very positive in terms of investigative outcomes. Our relationships are important because organized crime knows no boundaries and respects no jurisdictions. Establishing and building upon our best practices and procedures helps to ensure a consistent approach to witness protection issues as they arise. If we can accomplish these things, we will be successful in meeting all our respective obligations and in achieving our shared public safety goals.
The OPP enforces laws, we do not make them. We support any legislative change that provides law enforcement with the tools and resources to maintain public safety, including an effective witness protection program. An effective witness protection program is extremely valuable in the fight against crime, especially when we investigate the activities of criminal organizations. We believe Bill C-51 requires changes to better support law enforcement and those whom the program is designed to protect.
The OPP is pleased to make a contribution as you consider Bill C-51. I would be happy to answer any questions you may have.
The Deputy Chair: Thank you very much, Deputy Commissioner Tod
[Translation]
Mr. Dupuis, I know that you are appearing before us as an individual, but could you tell us why you are here and what your area of expertise is?
Richard Dupuis, as an individual: Ladies and gentlemen members of the committee, thank you for the invitation to appear before you to speak to Bill C-51.
I worked for the Montreal police force for 30 years. I was in charge of the Witness Protection Program within that department over the last three years of my career. So I am pleased to see that the committee has decided to update and modernize the Witness Protection Program Act.
I think it is especially helpful that law enforcement agencies with a witness protection program can request an identity change — and the RCMP's collaboration in that endeavour — without the witness necessarily being part of the federal program. That provision will respect provincial and municipal autonomy in the management of their witnesses and reduce certain irritants for officials from various witness protection programs.
In addition, making the program accessible to other law-enforcement or intelligence-gathering organizations — such as CSIS, National Defence and National Security — demonstrates the commitment to legislative effectiveness in the fight against organized crime and terrorism.
Opening the program to collaborators of justice — such as informants — could prove to be very useful in certain cases, given the role those individuals play and the risks stemming from their activities.
The legislative provisions on the disclosure of certain elements of the protection program are rendered more useful because, in addition to protecting the program and the participants, they also guarantee the safety of police officers involved in witness protection. We can only hope that these provisions will provide the judiciary with guidance in decisions pertaining to evidence disclosure.
In closing, although I recognize the soundness of the amendments proposed in Bill C-51, I do not believe they will significantly affect the number of people benefitting from the Witness Protection Program. Witness protection often has more to do with high-level investigations and the criminals they target.
It would be my pleasure to answer your questions — either on the operations of the witness protection unit within the Montreal police force or any other aspects. Thank you.
[English]
The Deputy Chair: Mr. Stamatakis, good morning.
Tom Stamatakis, President, Canadian Police Association: Thank you and good morning, Madam Chair. Can you hear me?
The Deputy Chair: Yes, proceed.
Mr. Stamatakis: I appreciate the opportunity to appear this morning to discuss Bill C-51, legislation that my organization, the Canadian Police Association, strongly endorses. I have made a number of appearances before this committee so I know most of you are familiar with the Canadian Police Association, but I should note briefly that I have the privilege of representing over 54,000 front-line police personnel from across Canada, including officers and civilians serving in almost every federal, provincial and municipal police service in this country.
Organized crime is one of the biggest challenges facing front-line police personnel, and I cannot possibly emphasize the term "organized" nearly enough. Groups that engage in serious criminal offences, particularly drug trafficking, will often go to great lengths to conceal their activities, frequently relying on violence and intimidation to keep associates from cooperating with law enforcement. Law enforcement often has to rely on witnesses putting their own safety, as well as the safety of their families, in jeopardy when they come forward with information that is used to prosecute these dangerous offenders. This legislation will help provide and, perhaps more importantly, modernize the tools we use to protect these informants.
As police officers, one issue we regularly have to deal with is the enforcement of legislation that was written 10, 20 and sometimes even 30 or more years ago and that has rarely been kept up to date. This can often be a significant challenge to our members, as criminals are rarely as slow to adapt to modern technology as our laws can sometimes be.
The Witness Protection Program Act is one of these particular laws. While the act itself is only 17 years old, having come into force in 1996, technology has progressed in leaps and bounds during that time. One of the most important aspects of this legislation, particularly for our members, is around the disclosure of information about people participating in the program, as well as those who provide the protection necessary under this act.
When the act was originally brought into force, it probably made sense that the only information that was protected was the change of name and location. However, in today's information age, that simply is not sufficient, and I appreciate the steps in this bill that broaden the scope of information that will be protected from disclosure.
Further on that point, the specific changes in this legislation that exempt a person from any liability or punishment for stating that they do not provide or assist in providing protection to witnesses will be a direct benefit to the law enforcement community in Canada that is tasked with these particular responsibilities.
I should also note that parts of this legislation which deal with extending the authority to designate provincial or municipal programs — and not just the federal program — remind me of some of the testimony I recently gave to the House of Commons Standing Committee on Public Safety and National Security. It was regarding the economics of policing and the need for us to adopt and embrace operational efficiencies in order to deliver the best possible community protection at a reasonable cost to the Canadian taxpayer.
Red tape, in this case where a provincial request had to be filed with the RCMP and then processed accordingly before any changes to identity or location could be finalized, is precisely where the costs to the system increase. I believe this legislation will have an impact on streamlining that work. I can only hope we will see more of that in future bills coming forward.
In conclusion, Bill C-51 is an example of legislation that will help better coordinate efforts across various levels of law enforcement, provide better protection to the men and women who serve as police personnel in this country, help our members crack down on organized crime and gang activity and promote at least some efficiencies in a system that is badly in need of reform. On those three levels, the Canadian Police Association supports adoption of the bill. I would certainly welcome any questions you might have.
The Deputy Chair: Thank you very much. We have a growing list. We will begin with Senator Runciman.
Senator Runciman: Thank you, gentlemen, for taking time out of your schedules to assist us today. My initial question is to the deputy commissioner. I am looking at a June 5 reply from Minister Toews to Commissioner Lewis:
. . . officials from both Public Safety and the RCMP have met officials from all provinces. Numerous consultations on the proposed amendments to the federal WPPA were held, both in person and by telephone, with the office of the Ontario Attorney General. In fact, following the December 2012 tabling of the Bill, I understand that departmental officials received a message from Ontario officials congratulating the government on its tabling.
How does that square with what you are telling us today?
Mr. Tod: Thank you for the question, senator. For the past two years or more I have been involved with discussions with Public Safety Canada officials and other law enforcement officials across Canada. In regard to Ontario's opinion about changes to the Witness Protection Program Act, our concerns on the legislation have been voiced on a number of occasions — two conference calls in which I have participated in, and a focus group discussion. We shared our concerns. Prior to 1996, Ontario policing officials had direct access to the federal government in terms of accessing documentation such as a SIN card and passport.
In 1996, with the passage of the federal legislation, Ontario officials had to develop two things. One was our own program in accordance with the permissions of the legislation from 1996 onwards. We also had to coordinate our access in and out of the federal government program for access to documents. Those are our primary concerns that have been shared since 2011, since I have been in this position. Those have been shared at every meeting we have had with them. It is not so much the proposed legislation in Bill C-51 that we find concerning, but the fact that we believe the bill does not provide us the provisions, both within the Ontario Provincial Police for the Witness Protection Program we control and also for the Ministry of the Attorney General. I do not speak on behalf of the ministry, but on the dialogue we have had with them. They share a similar concern that we would like to maintain our two programs in Ontario with direct access to federal government documents. We believe our program is similar to the federal program as it had to have been in 1996 to be accepted into the Witness Protection Program Act.
Those are our concerns, which have been voiced at all of these meetings.
Senator Runciman: The existing process allows for the provincial attorney general or law enforcement agent to request that the RCMP commissioner have someone referred to the federal program. I am quoting from Mr. Trevor Bhupsingh from the Ministry of Public Safety Canada. That is still an option in terms of getting federal identification documents.
That is somewhat perplexing. The letter from Commissioner Lewis to the minister expressed concern about the provisions on disclosure and indicated that they may conflict with Ontario's yet-to-be-proclaimed Crown witness act. That seems to suggest that the federal government should not pass a bill that has the potential, in my view and that of the Canadian Police Association and many others, to enhance public safety because it may conflict with legislation in a single province — legislation passed in 2009 — that has been sitting on a shelf for four years. I will not get into why that could be, but is that not like the tail trying to wag the dog? That is the way it strikes me.
Mr. Tod: We value our program in Ontario very much — both the program we share with the Ministry of the Attorney General and the only program outside the RCMP; we are the only police service I am aware of that has its own witness protection program. We have valued that program since 1996 and the controls that have been put in place. The program has independence and is not contained or controlled within the police services but controlled by the Ministry of the Attorney General. At the Attorney General's level, it is a unit or branch dedicated to witness protection and does not involve the prosecution side of the Ministry of the Attorney General. We believe it has independence and accountability.
The Ministry of the Attorney General holds the OPP to the same standard they have in their witness protection program. We also must meet the similar policy requirements and accountabilities that the Ministry of the Attorney General has in Ontario. We believe those two programs have been successful.
We also support the legislation that is on the books, as you mentioned, the Crown witness protection act in Ontario, which is not yet proclaimed. There are probably a lot of discussions back and forth awaiting constitutional decisions in respect of this bill, but we find that the disclosure regime and the protection regime contained within that act are suitable for Ontario for the current programs we function within. I hope that answers your question.
Senator Baker: I would like to congratulate Mr. Tom Stamatakis for the excellent job he is doing on behalf of police officers in this country and the way in which he has presented the case on behalf of police officers. Certainly, he won the last argument we were involved in before this committee. I also want to congratulate the deputy commissioner for the great job he is doing.
As Senator Runciman, the former Solicitor General of Ontario, pointed out, the committee has correspondence from a province that says that the disclosure of information requirements of this proposed legislation competes as incompatible with certain provincial acts. In explaining the reasons, the Information Commissioner has written a letter to Senator Runciman, Chair of the Standing Senate Committee on Legal and Constitutional Affairs. The letter explicitly states that clause 12 of Bill C-51 proposes to amend section 11 of the Witness Protection Program Act and that this prohibition of disclosure includes information about covert operational methods used to provide protection as well as covert administrative methods used for protection. The letter continues and says that clause 22 of the bill proposes further mandatory class-based exemptions. The Information Commissioner then says that the combined effects of these proposed amendments will, in her opinion, reduce government transparency unnecessarily by expanding the scope of information that is susceptible to being withheld and by making that information the subject of a mandatory non-injury-based and unlimited-in-time exemption.
I would like the witnesses to comment and to explain to the committee how the author of this letter could be so wrong in her statement. Why are the disclosure requirements in this bill necessary and to whom will they be offensive? Is it the public of Canada or is it defence counsel in asking for disclosure during a trial? Where is the damage created in this proposed legislation, as you see it, Mr. Tod, followed by Mr. Stamatakis?
Mr. Tod: I cannot speak on behalf of our commissioner's letter as I have not read it completely, although I am aware of the comments.
Senator Baker: The letter is from the federal Information Commissioner.
Mr. Tod: I will start with your last question about information disclosure. A concern we share in Ontario is the threshold of the sharing of information for a court process. Bill C-51 allows disclosure of information in a hierarchical situation, such that the commissioner may appoint provincial officials and they may appoint municipal and other officials to release information. From a disclosure standpoint in the Stinchcombe decision, by which we abide in Ontario, we see a separate threshold from the current practices we have in our witness protection programs versus the one at the stake of innocence, as you describe within the federal bill, such that the decision to disclose may be made to prove stake of innocence.
In Ontario legislation, the threshold within both our legislation and our practice under Stinchcombe deals more with a different standard of disclosure regarding full answer in defence. I cannot speak for other provinces and territories across Canada, but in Ontario we provide full answer — we provide as much investigative information as is necessary to allow full answer in defence. The police provide all information to the Crown, and the Crown is at the discretion of what they provide to defence counsel. We see a different threshold versus the stake of innocence and the full answer in defence issue in Ontario.
That may be semantics in the application of the additional sections in Bill C-51 that talk about the administration of justice. However, that is not quite clear to us, and neither is it clear what the courts are allowed and whether the full answer in defence falls within the disclosure clauses for the courts. That is the second part of your question about what we see as the difference. In context, Ontario's Witness Protection Program is managed by the OPP and the Ministry of the Attorney General, as well as the laws we are guided by in Ontario for our courts.
I really cannot answer the first part of the question about how the Information Commissioner got it wrong. In the context of Ontario, we see a hierarchical regime for approval to release information. Our concern about the release of information is the fact that it allows the protected person the opportunity to disclose information or allows us to disclose information but at the permission of the protected person. We are not quite sure within the construct of that because although the protected person is allowed to disclose certain information to other people and other people are prevented from disclosing that information, allowing the protected person to disclose information may inflict harm upon our trade craft, as I said in my opening comments — the actual how of what police services and police officers do. We believe there is a possibility for harm to occur, without stricter clarification in the proposed legislation on the restrictions of what can and cannot be done.
Mr. Stamatakis: I am also not familiar with the letter you are referring to; but if I understand your question correctly, it is around the threshold for disclosing information. From my perspective and a front-line policing perspective, the threshold should be high so that those front-line police officers engaged in protecting witnesses coming forward to assist the police receive all the protections available so that they can maintain their own safety and so that their families are not placed in any jeopardy because of the work they do.
The second part is we need to create a regime where the threshold is high so that citizens who see people engaged in serious and complex organized crime feel comfortable that if they do come forward and try to assist the police they will be protected.
That is how I understood your question. I hope I did not misunderstand.
Senator Baker: No. Finally, the deputy commissioner mentioned the Stinchcombe requirements, which all committees understand. In criminal matters, full disclosure is the highlight. In actual fact, however, police methods need not be disclosed during a trial if it exposes a method of investigation that should not be disclosed in actual reality. This is the first time I have seen in legislation that it says police methods shall not be disclosed. In actual practice, it appears to me as if it is not disclosed anyway.
Do you see any step that we are taking here in this legislation that is beyond the normal practice of disclosure or non-disclosure of information or police methods? That is my main question.
Mr. Tod: I am not a Crown counsel within the province of Ontario, but I am an experienced police officer. There may be a time when means and methods of how we do our job are actually disclosed where, as a result of the full, fair and frank part of Stinchcombe, there is a questionable lawfulness behind a police technique that has been used. That may be disclosed.
Senator Baker: Now it will not be disclosed.
Mr. Tod: In the criminal trial process, I do not think there should be an absolute exemption to sit here and emphatically say there is an absolute exemption. If the police are guilty or are alleged to be guilty of misconduct, I think they are answerable to that misconduct.
There are provisions for certain types of in camera hearings within the court system.
Senator Baker: Ex parte.
Mr. Tod: Yes, correct. In that way, the courts can actually protect some of the information that is presented. In fact this legislation has protection for the courts in the duty not to disclose. Personally and professionally I would not like to see legislation that would totally exempt police from ever disclosing all of their techniques.
Senator Baker: This does.
The Deputy Chair: Senator Baker, you had your round. I would like to hear Mr. Stamatakis on this, but I will ask everybody to keep their questions and answers as concise as possible, please.
An Hon. Senator: It is important.
The Deputy Chair: I know it is important.
Mr. Stamatakis, did you want to comment?
Mr. Stamatakis: This legislation appropriately goes a bit further in terms of protecting certain information, and I think there are mechanisms built into the legislation that would provide for disclosure in certain circumstances. The fact is, though, generally speaking, with the way the disclosure rules are, so to speak, police are regularly disclosing their tactics in court when an accused is defending himself or herself.
A good example of this is the "Mr. Big scenario" we hear so much about, where police are disclosing all of their tactics because of the disclosure regime that we operate under in this country, which in my view has gone a bit further than the Supreme Court ever intended in any case.
[Translation]
Mr. Dupuis: Here is how things work on the streets. When a protected witness is involved and a disclosure must be made, what the defence attorney wants to hear is a statement from the person who monitored the protected individual. In such cases, the safety of the police officers engaged in witness protection may be compromised.
In Quebec, lately — when I was working — we would be asked if we had completed the individual's risk assessment report. So they were asking us to disclose certain aspects and methods. Among other things, we were asked to provide a budget breakdown. Had we not protested, the defense lawyers would have found out where the protected witness was kept in emergency situations, what the identity used to reserve a hotel was, what transportation company was used and what psychiatrist or psychologist assessed the individual. The information obtained could be of key importance. That kind of information is crucial for organized crime.
The information commissioner's letter is twofold. We, the police officers, are more interested in court decisions on disclosure, and the information commissioner is much more interested in the Access to Information Act.
As the saying goes, it is better to be safe than sorry. More protection is better than less protection.
The Deputy Chair: Thank you.
[English]
Senator Jaffer: Thank you to all three of you for your presentations. My question is to the deputy commissioner.
You have the idea that we have some letters from you and from your police force and from your attorney general and then we have some responses from the federal minister.
Yesterday we received a letter from the Attorney General of Ontario and also from the Minister of Community Safety for Ontario. The letter characterized the process of obtaining federal identity documents under the bill as cumbersome and highly bureaucratic. However, Public Safety and the RCMP stated that the bill is streamlining the process. You tried to clarify earlier on, but I am still trying to look for some clarification from you.
On page 7 of your presentation you did state that you are looking for direct access to federal departments. Can you clarify why you need direct access to federal departments?
Mr. Tod: Thank you for the question, senator. Again, prior to 1996 and the enactment of the federal WPPA, Ontario had direct access to federal government documents for the purposes of a witness protection program.
In 1996, in compliance with the legislation, the Ministry of the Attorney General program and the Ontario Provincial Police created witness protection programs in accordance with the legislation and in agreement between ministers from Ontario and the federal level that we would be allowed to do so.
I believe it was Minister Gray and Minister Harnick who were the federal and provincial ministers at the time. The programs were put into effect. We have administered the program since then. After 1996, we went into the in-out portions of our witness protection programs. As I said, two federal government documents are the most key ones we need. We had to put our witnesses in the RCMP program. Once they were at pain, we pulled them out of the program. We find the process continues to be about six months in order for us to secure identity. Prior to 1996, it was not that long.
With great respect to the legislation and with great respect to process, I see nothing within the legislation administration-wise that will actually reduce the six months. I am not assured by the legislation that we will have an effective functioning and better access to federal government documents.
From an Ontario standpoint, we would like to have our own program that has direct access to federal government documents. I cannot assure you it will take less than six months because we have not had the opportunity yet. We would like the opportunity to have our own program within the province of Ontario through the Ministry of the Attorney General, and for the Ontario Provincial Police to have its own program and have direct access to federal government documents.
The ability to change name constitutionalized within the province, through the legislation — the actual name change occurs within the province through a ministry there, in the identification of a birth certificate, or through a change of name through the legislation that is provided.
We would like to have those powers reside within the province and some means and opportunity within the legislation. I am not criticizing the legislation from a standpoint that it is ineffective or will not work for witness protection. I will not speak on behalf the Ministry of the Attorney General, but I will speak on behalf of my conversations with representatives of the Ministry of the Attorney General, and myself and the commissioner who actually run our Witness Protection Program. We feel that in today's world of technology and security and with what we can put in place with rapid communication, we should be able to have access to federal government documents. Again, it is two simple documents that we believe are the foundation documents to allow protected witness to go on and resume normal lives if they can, to the limit they are allowed.
The Deputy Chair: I am going to ask you to tighten up those answers. They are fascinating, but we have time limits.
Mr. Tod: My apologies.
[Translation]
Senator Boisvenu: Mr. Dupuis, thank you for joining us. I know that you have a very busy schedule despite being retired. Your experience in criminal investigations is not strictly limited to the Witness Protection Program management you were tasked with at the end of your career. When we met in 2004, you were a commander in a major crimes unit in Montreal. Right?
Mr. Dupuis: Yes.
Senator Boisvenu: You also coordinated the integrated team for combatting organized crime — including biker gangs. Correct?
Mr. Dupuis: The Montreal regional task force.
Senator Boisvenu: That action did lead to hundreds and hundreds of arrests and charges.
Mr. Dupuis: Yes, indeed.
Senator Boisvenu: Were you then part of the federal Witness Protection Program or the provincial one?
Mr. Dupuis: The provincial program, but you should understand that, in Quebec — be it in Montreal or in Quebec City — we come under the jurisdiction of the Director of Criminal and Penal Prosecutions, who has an assistant. That individual authorizes, signs and validates proposals concerning collaborators of justice and protection measures.
When we have a witness to protect — we do say a witness to protect — the emergency measures are entrusted to the police service from the outset and then, very quickly, the witness protection people meet with the individual and establish their profile. They then submit the profile to the assistant of the Director of Criminal and Penal Prosecutions of Quebec, who authorizes more permanent protection measures.
However, those measures are used to authorize and budget that aspect, but in terms of the application, the task is entrusted to the witness protection people. In any given year, we have three to four people assigned to that task in Montreal. In the city of Montreal alone, about 50 people benefit from the protection program. About 15 of them are more active, and 35 receive some form of protection monitoring.
Senator Boisvenu: You said that Bill C-51 will not increase the number of individuals protected or the costs?
Mr. Dupuis: I do not think that these amendments will lead to an increase in the number of people using this program. The investigations and the targeted criminals will be much more affected. It should also be understood that, when it comes to protection measures, the federal government is only involved in exceptional situations requiring new identities — as we do not deal with the RCMP or the national program in any other situations. We are fully capable — whether we are talking about Sûreté du Québec, my counterpart from the OPP or the City of Montreal — of handling protection measures. This really only applies to identity changes.
I want to point out that this is an exceptional measure. I can tell you from personal experience that changes of identity are not always successful. The process is unduly difficult, and I think that leads to problems with the protection measures provided. The system is very effective when it is used to make people disappear. They can be provided with a new identity, but they cannot be built a new résumé.
I, Richard Dupuis, could be called Tod Scott tomorrow, but I would not have a school diploma, previous work experience or references for getting an apartment. That is where the major issue lies, especially when it comes to a change of identity for someone who is a collaborator of justice and must also serve a prison sentence.
Senator Boisvenu: According to you, this is a problematic aspect. Is that due to legislation or strictly due to the context of creating new identities?
Mr. Dupuis: It has to do with the context of establishing a new identity. In the past, we encouraged the creation of an independent team that would manage all tasks related to witness protection. That team could be supplied with various mechanisms. Can every police force implement mechanisms to rebuild an individual's past? I must say that would be a very tall order.
Senator Dagenais: Thank you very much, Madam Deputy Chair. I want to thank our witnesses.
My question is for Mr. Stamatakis. As a former police officer, I have always felt that investigation success hinged on the collaboration among different police forces, and also on the standardization of investigation methods. I understand where Mr. Dupuis is coming from.
As you represent 54,000 police officers in Canada, you know what is going on in the country. Could you tell me what kind of value added police officers will obtain through this bill? You did say that this is a solid piece of legislation. So I would like to hear your thoughts on the concrete value added for police officers.
[English]
Mr. Stamatakis: I realize that the deputy talked about pre-1996, but in terms of this specific legislation, one of the significant changes is around removing the requirement that the witness participate in the federal program before anything can happen.
I also agree with Mr. Dupuis that an actual name change is rare; most witnesses are managed without having to go to that extent. However, in my mind, removing that hurdle is a significant improvement and it makes the process more efficient. It means that police agencies in any province, through whoever the designated person is, can make application to the Commissioner of the RCMP, or his or her designate, to go to that extent if they need to.
That is one significant improvement, in my mind, whereas in the past — and we heard testimony today — you have to move the witness into the federal program to be able to get access to federal agencies in terms of getting a new SIN, changing a birth certificate or that kind of thing. That is a significant improvement.
From our front-line perspective, the other piece is the protections that the new legislation provides in terms of disclosure. I am specifically concerned about front-line police officers, particularly in this day and age of social media and technology, where it is easy to do open-source searches where you can identify people, even with just a little bit of information. This bill goes a bit further in terms of protecting the kind of information that in the past might have been disclosed.
Of equal importance is that we want to create a regime where the public — witnesses — are willing to come forward to assist the police with some of these complex investigations we get involved in, particularly around organized crime.
Senator Joyal: Mr. Tod, I listened carefully to the explanation you gave in relation to your reluctance to go to the RCMP. I understand the way you have answered that it is mainly on the basis of delay.
When I was reading your brief and listening to you, I was asking myself — and I will be very candid with you — is it a fight over turf — the Ontario police turf and the RCMP turf? We know that exists sometimes. I do not say it is for the good of the overall objective, but we know it does exist.
I was trying to read between the lines and say to myself that they have a program that works well, so far as I have been giving credence to your statement about how the program has been operating for the last 30 years in Ontario. You have experience, conclusions, a way of doing, and it seems to be working well, as far as I can read it.
However, I had difficulty to really catch your point. In terms of giving effect to your recommendation that you should have direct access to Human Resources or Citizenship and Immigration Canada to rebuild the identity of somebody, is it helpful that the RCMP acts as a clearing house of that information you request and need; or is it just another way for the RCMP to affirm its control over the nation?
Could you comment on that? Am I really, as we say in French, totally derailed, or am I onto something that exists and has to be taken into account?
Mr. Tod: One of my hesitations today was appearing before the committee and discussing in reference to the RCMP. I would like to say I sit on a number of national committees with the deputy commissioners of the RCMP. I have great respect for the organization, its men, women, people, history and traditions, and more important, the work that it does across Canada in law enforcement. I do not see this as a turf war at all.
Regretfully, the word "RCMP" is mentioned because I think we have a great relationship in the world of organized crime and in the world of capturing dangerous criminals from across Ontario from our relationship with them. I regard many of the RCMP senior commanders as my friends. The friendship will not be harmed by any comments made here today. It is not directed towards the organizations or my friends themselves.
It is the fact that the program resides within the RCMP. If it was somewhere else within another bureaucracy, my argument would be the same, namely, that the six-month delay is what impairs the program that is working with Ontario.
I prefaced my comments by saying that we are proud of the programs we have in Ontario and proud of the program that the Ontario Provincial Police manages. It is nothing to do with turf war. It has to do with fact that we are proud of the program. We believe we have the capability to run a program that is similar, as effective and safe as what is proposed in the federal legislation with access to federal government documents. I do not see this at all in regard to an us-versus-them attitude at all. As I said in my comments, whatever legislation gets enacted, we will follow, sir.
Senator Joyal: I understand that. It is to your credit. Do you not see any added value in the fact that the RCMP would act as a clearing house of those requests for information?
Mr. Tod: I do not. I started my opening comments talking about the structure built upon hierarchy where it is another approval that is necessary by another agency by another department. We would like to have that function happen within the Ministry of the Attorney General's office in Ontario and the organization of the OPP.
[Translation]
Senator Joyal: Mr. Dupuis, do you share Mr. Tod's opinion and overall attitude?
Mr. Dupuis: Before Bill C-51 was introduced, a major irritant had to do with the fact that, when the provinces would grant the status of protected witness to an individual, they needed the federal government's approval to change their identity. That was an obstacle because the provinces had accepted that individual and the protection measures. This is a formality. I agree with Mr. Tod with regard to that. Do we really need another level of authority when we could issue those contracts directly? It is no secret that few documents are provided by the federal government — just a social security card.
Senator Joyal: A passport.
Mr. Dupuis: People can always obtain a passport if they have an identity. Mr. Tod talked about efficiency and, unfortunately, as in any organization, a single individual may delay the process. If everyone involved invests the effort needed — at any step of the process — the goal can be achieved. As Mr. Stamatakis was saying, a change of identity is very rare. The important thing is for everyone to work together. If time frames are reduced, and the RCMP does not relegate the bill — if there is a bill — to the provinces, everyone will be happy.
[English]
Senator White: Thank you for being here today, and, Mr. Stamatakis, by distance.
Deputy commissioner, today you have to go through an in-and-out process, entering a witness into the RCMP program to obtain the federal documents.
If this bill passes tomorrow, you will have to deal directly with the commissioner but not have to enter them into the RCMP program to obtain the documents. Is that how it would work, if I understand?
Mr. Tod: That is correct. If our programs are approved and designated by the commissioner; that is correct.
Senator White: I know your program. It is spectacular. I am not concerned about that.
Your issue is not that it will be more cumbersome in the future. Your issue is it will not be less cumbersome.
Mr. Tod: Correct. I have not been reassured by anything within the legislation here.
Senator White: You are not saying that this will be more difficult, but the best program would be one where you could go directly to HR. Your program could deal with the federal agencies, not that this will make it more difficult for you. The commissioner will be obligated to provide documentation, and the obligations are quite clear. You will not have to put them in the RCMP program. You will keep it in your own if it is designated and make the request through the RCMP.
Mr. Tod: That would be our desire, yes, that we have direct access.
Senator Batters: Did the Ontario Provincial Police make representations to the House of Commons committee when they considered this legislation?
Mr. Tod: We did not.
Senator Batters: Did you make representations directly to members of the federal opposition parties in the House of Commons?
Mr. Tod: We did not.
Senator Batters: You may be aware that this bill passed unanimously in the House of Commons. Did you know that?
Mr. Tod: I am aware.
Senator Batters: Thank you.
The Deputy Chair: Senator McIntyre.
Senator McIntyre: Thank you, Madam Chair. My question has to do with protecting witnesses and change of identity. We all know the change of identity is an extreme protective measure. It is difficult to carry out. It is hard on protectees and their families. Changing identity often means lying about one's origins and past life.
Would most witnesses admitted to the federal Witness Protection Program have ties to the criminal underworld before cooperating with law enforcement agencies?
Mr. Tod: I cannot comment on most witnesses. Many do. There are different areas in which people can enter into the program. One would be an agent, or, in investigative terms, a person who provides assistance to the state for the purpose of obtaining information that would allow testimony to successful prosecution. That is one way.
Another way is a person who is actually in harm as a result of being a witness, who is not associated with any criminal organization at all but would be a witness.
I cannot comment on the numbers, whether there are more people associated with criminal organizations or not, but I know there are some. To say "many," I am not sure, but there are some in that plan. Yes, there are.
Senator McIntyre: My second question has to do with protecting witnesses. We know that protecting witnesses also means taking protective measures on the part of police services, measures such as police escorts in court, in home or at work, surveillance of the witness's home, temporarily or permanently relocating the witness and family members.
I also know that section 486 of the code already calls for protective measures, such as testifying via closed circuit TV or from behind a screen.
However, notwithstanding all of this, it is possible for a determined person to learn the identity of a witness.
My question is this: Amid all those protective measures, how often is the identity of witnesses revealed, either by accident, by negligence, or by intent?
Mr. Tod: I cannot answer how often, sir, at all. I do not have that in front of me.
Senator McIntyre: That would be confidential information.
Mr. Tod: No, it is not that all. I just do not have the knowledge of it, but should it ever happen, there is an obligation on the witness protection program they entered to re-establish a new identity, again, in those extreme cases.
Senator McIntyre: Mr. Stamatakis, would you like to add to that?
Mr. Stamatakis: I cannot tell you how often, either. I can tell you that it does happen. I have spoken to colleagues who are involved in activities around protecting witnesses. I have had experience myself. In my experience, typically, it is the witnesses themselves that either intentionally or inadvertently do things. They contact old acquaintances, family members, and then through those contacts, information becomes known, and their new whereabouts become known or that kind of thing happens. It does happen.
I am no expert by any means, but I know from speaking with colleagues that managing witnesses is a labour- intensive, ongoing activity. These are difficult people, often, because of their lifestyle, the nature of what they are doing. It is quite labour-intensive.
The Deputy Chair: As you know, we have two more sets of witnesses to hear from this morning. We also have a list of four names for people who want to be on second round. I will give you two minutes each for question and answer.
Senator Runciman: Mr. Stamatakis, could you speak to proposed subsection 13.1, the area dealing with providing protection, the provisions to help protect persons who help or assist in providing protection and who, if they reveal their role, may be at risk of serious harm? Under this provision, these people will be able to claim that they do not play that role or know a protected person or know a person is someone who has changed his identity and is a protected person. From your perspective, how important is that inclusion in this legislation?
Mr. Stamatakis: In my view, from a front-line policing perspective it is one of the most important provisions in the legislation because that will allow those officers engaged in these activities to avoid having to disclose information that might jeopardize the safety of an operation or that could put them and, more important, their families in some jeopardy. It is a critically important provision in the legislation.
Senator Baker: This is just a notation, and if you want to comment on it, that is fine. During our previous discussion, the Information Commissioner takes exception to withholding information concerning covert operational methods and covert administrative methods. I would suggest that even under Stinchcombe, yes, the warrant that gives them the permission to put a listening device in a car, that is disclosed, but the covert operational method of doing it is not. I do not see the objection of the Information Commissioner to the withholding of covert administration or methods used by the police. I do not know if you want to comment on that.
Mr. Tod: I agree with the fact that we would prefer non-disclosure of those techniques. However, should there be an allegation in full answer of defence in regard to a witness protection means and method used — that it perhaps was illegal or misconduct was involved — it is up to the Crown in Ontario whether or not that would be disclosed and to give full, fair and frank disclosure, so full answer in defence can happen.
Senator Jaffer: Could you expand on the challenges created by technology? When you are talking about disclosure of witness information on social media sites, is it a concern that the vast amount of information can be found on the Internet? Mr. Dupuis and Mr. Stamatakis could talk about the challenges operationally.
[Translation]
Mr. Dupuis: It is true that social networks do not facilitate police officers' work. Even if we change an individual's identity, they are the only ones who can reactivate their profile on social networks.
Yes, that is an additional complication, and that is why I am reiterating that identity change is an exceptional measure. Even when we relocate someone, experience indicates that they are highly likely to return to their town.
[English]
The Deputy Chair: Mr. Stamatakis, did you want to respond to Senator Jaffer's question?
Mr. Stamatakis: I was going to add that social media will be one of the biggest challenges for law enforcement going forward into the future, both in terms of our law enforcement activities but also internally. We have now a generation of police officers coming into policing who are heavily involved in social media, and then later as police officers they are becoming involved in covert activities. That is creating a huge challenge, given the availability of open-source information. As I said in my opening comments, the criminals we deal with are very adept at using modern technology to further their enterprises.
Senator Joyal: Mr. Tod, is there a different level of disclosure in the case of an undercover agent that might have been infiltrated, for instance in a gang, in order to ensure that the investigation produces results when it is brought to light that he or she might have been a police agent?
In my opinion, the consequences for the disclosure of the identity of that person, especially in relation to the police, might terminate their work within the police; it might be the end of his or her career. That seems to be very important in terms of the disclosure of the information. What is the past experience you have had in relation to that?
Mr. Tod: In regard to agents of the state, in other words people used by the police, non-police officers, I think that is what your question is asking —
Senator Joyal: Or police officers.
Mr. Tod: You are asking about undercover police officers?
Senator Joyal: Yes.
Mr. Tod: They are required to testify in court, and as a result of that, they are required to discuss their operations as an undercover officer. The activity we undertook was lawful and ethically correct, and what we applied in the undercover techniques. I think it has been referred to by other witnesses with regard to the Mr. Big plays, which are widely publicized in the media, the press and explained throughout the courts. At one time, that was an undercover police technique and a well-guarded and well-kept secret until the mid-2000s.
[Translation]
Mr. Dupuis: I want to clarify something for everyone. When police officers go undercover, I think all police forces know that their infiltration cannot last longer than two or three years. It is extremely difficult for a police officer to manage that double workload, so they are pulled out after two years of infiltration to ensure that they are not psychologically affected.
So yes, they will be asked to testify, but will that tarnish their whole career? I do not think so. They will be given another assignment after two or three years, at the most.
Senator Joyal: But you do have to change their identity? Their life could be in danger. Right?
Mr. Dupuis: No, not necessarily. In my experience, Montreal police officers do not receive new identities — even if they are double agents or undercover agents — regardless of their duties within the Montreal police force.
[English]
Senator White: The Mr. Big scenario was raised a couple of times and has been around since the late 1980s or early 1990s. The reason that is disclosed is because the court has an expectation that the defendant has an opportunity to answer a defence. The reason it is important to protect the identity and the trade craft is because we are protecting the witness. Our goal is not to provide anything to the defendant; this is about protecting a witness or families, officers involved in protecting those witnesses and families. That is the difference we are trying to talk about here when separating the two. Is that not correct?
Mr. Tod: You are correct, senator. In fact, the Mr. Big play is an operational investigative technique used. The trade craft I was referring to is the actual means and methods police officers use to secure protected persons or witnesses. The operational and the protection should never mix.
Senator White: There has never been an expectation, never a court in Canada that stated it should be disclosed when protecting a witness?
Mr. Tod: Not to my knowledge.
The Deputy Chair: Thank you all very much. Mr. Stamatakis, we are getting used to seeing you on the big screen, you know. Deputy Commissioner Tod, Mr. Dupuis, thank you very much indeed.
Honourable senators, I will give you fair warning right now. As you know, we have two more sets of witnesses to hear from. Then, after conclusion of the second round, I will ask senators to stay for a five-minute but very important in camera meeting to discuss future business of the committee. It is very important, so please all stay.
Now we are pleased to welcome as our next witness the Interim Chair of the Commission for Public Complaints Against the RCMP, Mr. Ian McPhail. He is accompanied by Ms. Joanne Gibb, Senior Policy Advisor, Operations; and Ms. Lisa-Marie Inman, Director, Reviews and Investigations. This is a high-powered panel.
I think you have a statement, Mr. McPhail.
Ian McPhail, Interim Chair, Commission for Public Complaints Against the RCMP: Honourable senators, thank you for the opportunity to appear before you today to discuss Bill C-51, An Act to amend the Witness Protection Program Act.
[Translation]
Thank you for inviting me to appear today.
[English]
The Commission for Public Complaints Against the RCMP has an important role in the accountability framework of the federal Witness Protection Program. Pursuant to the Royal Canadian Mounted Police Act, the commission's current mandate includes investigating, reviewing and conducting hearings into public complaints concerning the program. The commission can also initiate its own complaint and public interest investigation into any matter relating to RCMP member conduct, including matters relating to the Witness Protection Program. To date, the commission has not seen the need to initiate any such complaints.
Since 1996, when the Witness Protection Program Act was enacted by Parliament, the commission has received approximately 30 public complaints relating to the program. Slightly more than half of the complaints have related to a perceived lack of assistance from RCMP members while a complainant is in the program. For example, many complainants cited difficulties in acquiring documents, and some cited difficulties in obtaining housing or employment. Approximately one quarter of complainants wanted further financial compensation for being in the program. A further 12 complainants were upset that they were not admitted to the program.
The commission has also conducted 12 reviews to date in cases where complainants were not satisfied with the RCMP's initial response to their complaints. The commission was satisfied with the measures taken in response to complainants by the RCMP in all but one case since the coming into force of the current Witness Protection Program Act. In that one case, the commission made a recommendation that policy be implemented to promote access by protectees to legal counsel in appropriate circumstances.
Once Bill C-42, An Act to amend the Royal Canadian Mounted Police Act receives Royal Assent and comes into force, the mandate of the new civilian review and complaints commission will also include reviews of specified activities to ensure the activities of the force are carried out in accordance with the RCMP Act or the Witness Protection Program Act.
With this new authority, the CRCC could initiate a systemic review of the Witness Protection Program if deemed necessary. Such a review could include an examination of the program's policies, procedures and compliance with the legislation.
In conclusion, Bill C-51 does not affect the commission's role in relation to the Witness Protection Program, as our mandate is derived from the RCMP Act. Both the current commission and its successor will continue to be well suited to provide the independent and external review required. To that end, the commission will be closely monitoring the implementation of this bill.
The Deputy Chair: Thank you very much, Mr. McPhail.
Senator Runciman: Thank you all for being here. Mr. McPhail, you are described as the interim chair for the Commission for Public Complaints Against the RCMP.
Mr. McPhail: That is correct.
Senator Runciman: How long have you been interim chair?
Mr. McPhail: About three and a half years.
Senator Runciman: In your opening statement, you talked about your current mandate. I was under the impression that to look into a complaint it had to be referred to you by the Commissioner of the RCMP. I am incorrect in that, I gather?
Mr. McPhail: Yes, senator. A complaint can come, and indeed the vast majority of them come, from individuals. As chair you also have the authority to initiate a complaint if, in your opinion, there is an issue that warrants investigation.
Senator Runciman: The new legislation is broadening your ability to keep an eye on the program versus what is currently the case?
Mr. McPhail: Very much so. The new legislation, Bill C-42, gives the new commission the power to embark on systemic reviews as to how any particular program or aspect of RCMP actions is working.
For example, harassment has been very much front of mind in recent months. As a commission we conducted a review, based specifically as a chair-initiated complaint, with the new authorities granted by Bill C-42. The new commission will have the authority, should it deem appropriate, to revisit that issue in the future in order to measure progress.
Senator Runciman: If you have been reading about the bill and the hearings in the other place, one of the issues was lack of independent oversight. Do you see the role of your organization as addressing, to some degree anyway, that concern?
Mr. McPhail: In my opinion, senator, the existing commission and the new commission, to an even greater extent, will provide very robust oversight.
I know that there have been issues as to whether the administration of the Witness Protection Program should be in the hands of the RCMP or the Department of Justice. In my opinion, the capabilities of the existing commission, with approximately 60 experienced and trained analysts and investigators, make the commission the best place, with the best resources, to perform that function.
Senator Runciman: I want to briefly take this opportunity to commend you on the outstanding job you have been doing. I hope that interim connotation is removed in the near future.
The Deputy Chair: You took the words right out of Senator Baker's mouth.
Senator Runciman: I know.
Senator Baker: You are the commissioner, the interim chair of the Commission for Public Complaints Against the RCMP. You said there are some 30 complaints relating to the subject matter of this legislation we are dealing with today.
One of the most dramatic changes in disclosure of the behaviour of RCMP officers in our history was a judgment of the Supreme Court of Canada called the McNeil case or McNeil disclosure. Since you have become interim chair, the Supreme Court of Canada made that decision and now, for every case tried before the courts in this country, there is a procedure that the Crown has to consider any disciplinary actions that have taken place against an RCMP officer or any police officer who is involved as a witness in that particular case. In other words, it must be disclosed if it arrives at a certain level of seriousness, that is, if it questions the RCMP's impartiality or their credibility.
We now have this legislation that places a restriction on disclosure of information involving the actions of RCMP officers if they are covert operations. You see where I am going with this? If you have new restrictions placed in law that say this is not to be disclosed and you are operating on a complaint — you have already had 30 — that perhaps encompasses one of these restrictions we are passing under this new legislation, then you are not permitted to disclose it, presumably, publicly. How would this operate then under the new McNeil disclosure requirements of the courts today in Canada? Would this restrict your operations, and will you have to be very careful in disclosing information that is now regarded under this bill as not to be disclosed, or am I being overly broad in my interpretation?
Mr. McPhail: No, I do not think you are being overly broad. As a matter of course, the commission, often and regularly, receives confidential information from the RCMP, which we take great care not to disclose.
For example, there may be privileged information, which should not be made public. We are working actively now with the RCMP to develop a memorandum of understanding that will, among many other things, determine how the exchange of privileged and confidential information is to be handled. We have not completed that yet, but I can tell you that the discussions are going very well. We are confident that, as a commission, we will have access to all necessary information.
In terms of our reports, obviously we will respect both privilege and confidentiality, whether legislated or otherwise.
Senator Baker: When a criminal case is being tried today in Canada, and the Crown is responsible for disclosing any information relating to an RCMP officer that could be interpreted to question the person's credibility, the Crown must make a decision as to whether or not to disclose the information. If that was the case that came before you, the Crown would have to seek out the information and make a decision on whether or not to disclose it.
Have you found this new requirement of disclosure of the behaviour of police officers a major change in your operations, or do you take this as being just another requirement? Are you asked quite often by Crown to disclose certain information that you have adjudicated?
Mr. McPhail: Actually, I do not believe we have ever been asked by a Crown to disclose information, nor would we if that information were privileged or subject to legislative confidentiality requirements.
Senator Baker: Interesting; thank you.
Senator Jaffer: Thank you for your presentation. I want to set a bit of background and say that we know when a person is taken out of the community and placed in a witness protection program obviously it creates stress and emotional stress. Dispute resolution in this kind of environment is very important. In the Air India commission it was noted that your job as the Commissioner for Public Complaints Against the RCMP was not effective, if I understood correctly, as a dispute resolution mechanism.
The reason was that the Commission for Public Complaints did not receive full access to documents, and I have heard a little differently just now, if required to render a decision. I understand that Bill C-51 coordinates with the amendments in Bill C-42 to expand the scope of the information you will get. In your view of this expanded role, will that give you all the information you will require?
Mr. McPhail: The short answer, senator, is yes. Bill C-42 gives the commission a legal right of access to all information it deems relevant and necessary. I should mention also that Bill C-42 expands the ability of the commission to engage in dispute resolution mechanisms, which I believe can be very helpful.
As a practical matter, since I have been serving as interim chair of the commission, I believe that we have established a reputation with the RCMP of mutual trust, so there is very little reluctance on the part of the RCMP to disclose information to us, which might not always have been the case in the past.
Senator Jaffer: That is very good to hear. The Air India commission also stated another shortfall of the old complaints commission was that the decisions of the commission were not binding on the RCMP. Essentially, the RCMP commissioner could substitute your findings and ignore your decision.
Does this bill address that?
Mr. McPhail: The commissioner cannot ignore our findings. Now, I happen to believe that the findings of the commission should not be binding for several reasons.
First, the Commissioner of the RCMP has the authority, and that authority should remain with the commissioner, to manage the RCMP. It is not that the commissioner can just disregard a finding or a recommendation; the commissioner must respond in writing as to why he or she disputes such a finding or recommendation.
I should tell you that in roughly three quarters of the cases that we have reviewed, we found that RCMP members have acted properly. In those cases where we have made adverse findings or recommendations, the commissioner has agreed with us approximately 85 per cent of the time. The number of occasions where there is disagreement is relatively few.
I can also tell you that since I have become the interim chair, rather than both sides simply stating a position, we have engaged in more of a dialogue in both writing with respect to specific instances and in regular meetings so that we have exchanged views. I will freely admit there have been occasions, not too many, where when I have been persuaded by the commissioner to revisit some of our findings and recommendations. I am pleased to advise that likewise the commissioner has also been persuaded on occasion.
Senator Jaffer: It is laudable that there is dialogue and a good working relationship. Are you not concerned that your role could get compromised by a too-cozy relationship? Are you worried about conflict of interest?
Mr. McPhail: I have not seen any issue of conflict of interest; and I would not describe the relationship as unduly cozy. On occasion, the commissioner has felt somewhat uncomfortable, and he has made that clear.
Nonetheless, I have found that from the commissioner on down, the RCMP increasingly not only respects but also values civilian review and oversight because we provide an independent voice — an independent means by which actions of the RCMP can be reviewed. I believe that adds to the credibility of many decisions and actions of the RCMP.
[Translation]
Senator Boisvenu: I have a few very technical questions. Do you deal with complainants directly, or through the RCMP?
[English]
Mr. McPhail: That will vary. Complainants can appeal to the commission directly. Typically, we will review the RCMP file on a matter. If a complaint has been lodged first with the RCMP, we may review how the RCMP dealt with that complaint. Depending on the circumstances, we may conduct an independent investigation and review.
[Translation]
Senator Boisvenu: There are two types of clients, if I may use that term, that benefit from the program. There are informers — criminals who at some point decide to collaborate with the police. There are also victim witnesses or ordinary citizens. Do more of your complaints come from informers or witnesses seeking protection? How are your 30 complaints broken down?
[English]
Mr. McPhail: You can appreciate that as we have had relatively few complaints during the entire life of the program, it is difficult for me to answer that question.
Ms. Inman has been with the commission and in her position longer than I have, so I would ask her to comment on that part of your question.
Lisa-Marie Inman, Director, Reviews and Investigations, Commission for Public Complaints Against the RCMP: I can speak to it a little bit but not directly to the detail of all of our files. We have received 30 complaints, but we have done fewer reviews than that. In a typical complaint, we would not get that much information right away because we have only what the complainant is telling us. It goes to the RCMP and is investigated and a letter is issued. I can speak to this only on the basis of the reviews we have done. We get more information on those cases because the complainant asked us to look into it further.
Whether it is people who have been involved in crime in some way or people who have been victims of crime, I would say generally that we have had at least a couple of both. I cannot give you an exact number, but we definitely have had some people who have been involved in crime, but not necessarily organized crime, and are now in the program.
At least one was more a peer witness as opposed to someone who was involved in an operation who went into a witness protection.
Senator Joyal: I will quote the famous sentence from a former Auditor General of Canada that goes to the relationship that you might have with the RCMP. It was in the 1970s. I asked him: "What is your relationship with the Treasury Board chairman?" He said: "My relationship is cozy but not cordial." I wonder if that would qualify your relationship with the RCMP.
More seriously, sir, my question was in relation to section 10 of the Witness Protection Program Act, not Bill C-51, but the original act passed in 1996, especially section 10(b) of the act, which is that a decision might be taken to terminate protection without the consent of the protectee. In that case, the commissioner shall provide the protectee with written reasons in order to enable the protectee to understand the basis for the decision.
Have you had a complaint in relation to the termination of the Witness Protection Program from somebody who had benefited from it?
Mr. McPhail: We have had complaints from people who were not admitted to the program. I do not recall a complaint from someone who was involuntarily —
Senator Joyal: Excluded.
Mr. McPhail: — excluded from the program. Certainly, our mandate would allow us to review such a case.
Senator Joyal: Yes. To your recollection, nobody that was part of the program made a complaint because the program was terminated?
Mr. McPhail: That is correct.
Senator Joyal: Generally, what happens in terms of the running of your operation if you begin an investigation and there are illegal proceedings being taken in court? Do you stop your investigation pending the court procedure, or would you conduct your review in parallel to court litigation?
Mr. McPhail: We could conduct our investigation and review parallel to a court matter, but it would be our practice to hold off until other processes have been completed.
Senator Joyal: Has it happened in the past wherein you were faced with such a circumstance?
Mr. McPhail: Yes, and we have held off because the benefit to the commission of a completed court review of a matter is that a great deal of evidence is brought to the fore, which we might not necessarily have.
Senator Joyal: You do not have the power to search and seize like the court may grant?
Mr. McPhail: Actually, Bill C-42 does give us greater authority to compel witnesses and evidence, which is an authority the commission did not have in the past.
Senator Joyal: In relation to that, can you outline for us what the main difference is between your status and that of an ombudsman, for instance? In what situations would you conclude you have greater power than an ombudsman?
Mr. McPhail: I believe the commission has greater power than an ombudsman in several ways. While the new commission will be able to conduct systemic reviews as an ombudsman can, I think the commission can zero in on individual cases to a greater extent than an ombudsman would.
Senator Joyal: Therefore, it is in terms of the scope of the investigation but not in terms of the recommendation that you can make. You can make recommendations, but you cannot order an action to be taken. Is that correct?
Mr. McPhail: That is correct.
Senator Joyal: For instance, as you mentioned in your presentation, in a case whereby the person was complaining about housing or employment difficulties, you cannot order the Witness Protection Program to increase the indemnity that person should have. Is that correct?
Mr. McPhail: We cannot make an order.
Senator Joyal: You can recommend —
Mr. McPhail: We can recommend.
Senator Joyal: — but you cannot make an order.
The Deputy Chair: Thank you, Senator Joyal.
Senator Joyal: I am sorry; I was trying to understand.
The Deputy Chair: We are all trying to understand, and it is the burden of the committee to try to get a deep understanding in very little time.
Mr. McPhail: I appreciate that it is a complex matter. I simply go back to the point I made earlier that the great majority of our recommendations are accepted and implemented.
Senator McIntyre: Thank you. My question is in relation to section 12 of the bill.
As I understand it, the RCMP commissioner is authorized to disclose protected information under specified circumstances. I note that section 12 of Bill C-51 now allows provincial officials, other parties and the courts to disclose confidential information in specified circumstances.
I understand that these amendments will facilitate the sharing of information required for protection purposes. However, I am concerned in the sense that we appear to be taking authority away from the commissioner and sharing it with others by allowing provincial officials, other parties and the courts into the picture. What are your thoughts on this? Are we walking on dangerous ground with this amendment?
Mr. McPhail: I do not think I would characterize that as being dangerous ground. Nonetheless, I think we all understand that there is information that has to be treated with great care. For example, there might be information that could compromise an ongoing criminal investigation. That is the sort of information, as I said earlier, privileged information, which should be and is, certainly insofar as the commission is concerned, kept strictly confidential. It can be used to inform decisions of the commission, but we take very seriously the necessity to observe those restrictions.
Senator McIntyre: In that sense, I find that proposed section 11.2(1)(b) is an important one because it states clearly that only the commissioner may disclose the witness' new identity, either to facilitate a change of identity or when it is essential for the purpose of national security or national defence. I feel confident as far as that clause is concerned and as it relates to the powers of the commissioner.
Mr. McPhail: Yes, I would share your confidence, senator. I believe that the act — and this is going beyond, of course, the specific mandate of the commission — recognizes and preserves the commissioner's necessary authority in that area.
Senator McIntyre: Thank you.
Senator Batters: Thank you very much for coming to our committee today.
I note that in response to my colleague Senator Runciman you referred to the fact that you have very robust oversight in this regard. I also note from the comments that you made in your opening statement where you refer to what appears to be an excellent track record of matters dealing with the Witness Protection Program Act and the RCMP, where you say that the commission was satisfied with the measures taken in response to complaints by the RCMP in all but one case since the coming into force of the current Witness Protection Program Act.
Given that, would you agree that this seems to be a system that is currently working pretty well?
Mr. McPhail: I think the system does indeed work well. I cannot speak from the policing perspective, of course, but I can speak from the oversight perspective and the ability of protectees to gain an independent hearing and review of their problems.
In fact, if I have any surprise, it is that we do not receive more complaints.
Senator Batters: Thank you very much.
The Deputy Chair: Thank you, Senator Batters. Maybe I can ask a question.
Your mandate, I gather, is to investigate public complaints. Those would be from individuals, basically, that is, non- police people.
Mr. McPhail: Correct. Although a member of a police service could make a complaint.
The Deputy Chair: That was my question. We have heard testimony from the Ontario Provincial Police, who, though full of praise for the RCMP and the individuals in the RCMP and whatnot, have expressed frustration with delays.
Now, if the OPP wanted to lay a complaint about delays, would it come to you?
Mr. McPhail: That is an interesting question, senator. It has never occurred, but, subject to any disagreement from my colleagues, I do not see why it could not.
The Deputy Chair: Thank you. On a second round, we do have time for questions. Senator Joyal.
Senator Joyal: This is in relation to the answer you just gave to the deputy chair, and, believe me, there was no plot between the two of us to ask that question. I read the new section 45.35 in Bill C-42, which refers specifically to an arrangement between the minister and the government of a province, whereby the RCMP acts as a provincial police force. That would give you the authority, in that case, to investigate quite clearly, as I read the bill, the issue that the deputy chair has been asking you.
I think that your power will certainly be enhanced, on that aspect, with the passage of Bill C-42.
Mr. McPhail: You are quite correct, senator. In fact, Bill C-42 enhances the authorities of the commission in a number of different areas.
Senator Joyal: The only concern I have with that bill is in relation to you and the Witness Protection Program Act, which is referred to in section 45.34. Certainly, you are familiar with that section of Bill C-42, where the Witness Protection Program Act is mentioned specifically as falling under your scope of jurisdiction.
Mr. McPhail: Correct.
Senator Joyal: The only condition that puzzles me is the one in subsection 2(a), whereby, before you conduct such a review, as you have mentioned in your brief, at the bottom of page 1, sufficient resources must exist for conducting the review. Everything has the right intention, but show me the money. Would it not be an impairment, in fact, in your efficiency?
Mr. McPhail: Senator, I believe that any organization, whether government or non-government, should be financially responsible. As a matter of fact, I can tell you that, in anticipation of the new mandate that we are examining, which will result in increased costs to the commission, we are examining our internal operations very closely and have already been able to identify a lot of potential savings.
It is not my opinion that we will face financial constraints unless there is some major unforeseen investigation we might have to undertake or might be called upon to undertake, in which case it would be necessary for the commission to apply for additional funding, in any event.
Senator Joyal: I am thinking of a case. It does not mean that I am trying to scare you, but suppose there is a complaint about the way that the RCMP has been dealing with the murder of Aboriginal women, which, as you know, is at an astounding number and has remained more or less unresolved, generally.
Such an investigation would be a major investigation, and I wonder if that is where, in fact, you could be impaired.
Mr. McPhail: I take it you are referring to the report from Human Rights Watch, which was referred to the commission by the Minister of Public Safety.
We have commenced our investigation into that report, and I am confident that we will have the financial resources to do a thorough and extensive investigation, as needed.
Senator Joyal: Thank you for your answer.
Senator Boisvenu: I would like to know how witnesses are informed that they can make a complaint to your office.
Mr. McPhail: It is a good question, senator. I am not aware that witnesses are specifically advised that they can complain to our office.
We attempt, through the commission's website, our reports and outreach, to convey to individual Canadians, everywhere in Canada, that they do have that ability.
Before the creation of the commission in the 1980s, almost all public complaints — and I am referring just to complaints against the RCMP — came to the RCMP first. Now, approximately 75 per cent of all public complaints come first to the commission. I would suggest that that would indicate a significant public awareness of that ability.
Senator Boisvenu: Does that mean that you did not do any survey of those people as to how they get in touch with you or how they have the information that they can make a complaint?
Mr. McPhail: I am sorry; I did not —
[Translation]
Senator Boisvenu: When people submit a complaint to your organization, do you ask them how they found out about you?
Ms. Inman: I am not sure, but I would say that we usually do not ask them that.
[English]
The Deputy Chair: Mr. McPhail, Ms. Inman and Ms. Gibb, thank you very much for being here. It is very helpful. We are grateful to you.
We are continuing our study of Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act.
[Translation]
We will now hear from Yvon Dandurand, Criminologist, School of Criminology and Criminal Justice, University of the Fraser Valley.
Yvon Dandurand, Criminologist, School of Criminology and Criminal Justice, University of the Fraser Valley, as an individual: I want to begin by thanking you for the opportunity to appear before you today.
I think that Bill C-51 will help increase the effectiveness of the federal Witness Protection Program. It will also help improve the effectiveness of any existing provincial programs. I applaud the changes proposed concerning the voluntary abandonment of protection and the extension of the period during which emergency protection may be provided.
I think these are positive changes that were due.
You probably know that the government and the RCMP have announced organizational changes that will lead to a centralized and more standardized management of the program. We have been told that a new admission protocol has been developed. I think that those changes will produce the desired effects and thus address some of the problems identified by me, others and, of course, the Major Commission.
I think it would be important to provide the Witness Protection Program with an independent monitoring mechanism. Once again, although the government is proposing a modest solution, it is headed in the right direction. I am told that the government is planning to create an advisory committee attached to the Witness Protection Program. That committee would report to the commissioner or their delegate. I think this is a step in the right direction, but only time will tell how that advisory committee will operate and whether it will be able to do its job properly.
[English]
It is important also to address the need for an effective complaint and redress mechanism for witnesses at risk and for protected witness who are endangered or whose rights may be abused as a result of poor witness protection practices.
Bill C-42, as the committee and the senators know, will establish a new civilian complaint commission, and amendments contained in that bill and in Bill C-51 will allow the commission access to the information it needs to perform its function. In my view, this is very positive.
You have heard a short while ago from Mr. McPhail that complaints are very rare. Mr. McPhail has expressed some surprise at the fact that these complaints are rare.
I would invite the committee to approach the question from the point of view of the people in the Witness Protection Program or people who have been denied protection. These are people who rely on the RCMP or the police force involved for their protection, possibly their survival. The likelihood that they would take exceptional steps to complain against those protecting them is very small. Contrary to the opinion expressed earlier, I am not surprised, and most people who work in the area of victim protection would not be surprised by the fact that there are few complaints.
The amendments that have been brought forward are particularly important. I believe they are positive; I am not criticizing them. I just wonder whether they will be sufficient. I noted a question asked by a senator earlier to the effect that we do not have information about what the experience of these protectees is. There are no surveys. There has not really been research on that in Canada, although there has been elsewhere. I would submit to you that there is a voice missing in these discussions, and that is the voice of the people being protected.
I understand that the Major commission had received information basically based on an informal survey. I do not know all the details, but the Major commission, the commission that looked at the Air India incident, had some information about the situation and problems encountered by people in the witness protection program. I therefore give a lot of credit and importance to the recommendations made by that commission because it is one of the rare groups in Canada that have had that first-hand experience and information of the experience of people in the protection program.
The other issue that I would like to raise is not a major one. There are things in the bill that address it, but there are unresolved questions, and I am referring to the new wording concerning the protection of information found in clause 12 of the bill, which relates to section 11 of the current law.
I raised that issue earlier in other fora, but, in particular, raised it with the House of Commons committee that was studying the bill. I understand, as the senators will understand, the protection of information is at the very heart of the whole Witness Protection Program. Therefore, it is probably one of the most serious and important parts of the program.
On the one hand, I am very pleased that the proposed amendments will enhance the safety of those who provide protection. That was missing and is missing in the current law. This is a very important change and long overdue.
On the other hand, I am worried that this new section may negatively affect the situation and the rights of the beneficiaries themselves, people in the protection program, and make them more vulnerable.
The modified wording of section 11, contained in clause 12 of the bill, only provides a limited exception for protectees to the prohibition against disclosure. That exception, in my view, is worded in a much narrower way than it is in the current law. It puts protectees in a very difficult situation. Keep in mind, if you would, that the protectees are not just the informants and the witnesses, but also members of their families. Members of their families might be adolescents, children and others. Think of adolescents using social media, and more or less inadvertently directly or indirectly revealing information that might put people at risk.
I do not have alternative language to suggest to the committee, I am not a drafter, but I believe the way these new provisions have been drafted may create difficulties in the future, and I would urge the committee to study this as carefully as it can under the time constraints.
I will conclude my remarks with a reminder also of the need for greater transparency into the management of witness protection activities and programs. I understand transparency is an issue when talking about a program that, by definition, has to be secretive, but that is sometimes used as an excuse for limited transparency that is quite possible. I have, in some of my other publications, argued for instance that if the federal marshal program in the U.S. can allow researchers to do research on the situation of witnesses under protection, there is no reason why the Canadian government cannot organize the same kind of research and make information about the program more widely available.
I understand that some steps have been taken and are being taken to increase the transparency of the program. I think the RCMP is taking this issue very seriously, but it must be reminded and encouraged to move in that direction. I thank you for your attention.
The Deputy Chair: Thank you very much, very interesting.
Senator Runciman: Thank you, sir, for appearing here. Did you appear before the house committee as well on this legislation?
Mr. Dandurand: Yes, I did.
Senator Runciman: You talked earlier about separating the reporting function with respect to providing greater independence between the investigating and decision making for the Witness Protection Program. You also referenced the advisory committee. The advisory committee will, as I understand it, be appointed by the RCMP. How do you view that with respect to ensuring the independence of the way this is dealt with?
Mr. Dandurand: Thank you, senator. My view is that this is definitely a step in the right direction. It is less than what had been recommended previously, both by the House of Commons committee and by the Air India commission. It is a step in the right direction. It could probably address most of the issues that have been raised in the past.
The question is one of seeing whether these new mechanisms being proposed will function as they should or as we expect them to, and I would link that to my question about transparency. If there is no real data readily available on how the program functions, it is hard to determine whether the mechanisms in place function or not.
Senator Runciman: The only way, in your view, in terms of monitoring the effectiveness is through maximum transparency, with respect to this.
Mr. Dandurand: Yes.
Senator Runciman: Air India recommended creating a parallel program with respect to terrorism cases. I know the government has deemed that to be too costly, given the limited number of potential inductees. Do you have any concerns about that direction, or are you satisfied with the response of the government?
Mr. Dandurand: I am satisfied with the response in the sense that it goes in the right direction. I will suspend judgment in terms of whether it goes far enough. I would want to give the benefit of the doubt to the current program provided, particularly if that program will be monitored carefully.
It is a best practice, and that is why I was not surprised to see it recommended by the Air India commissioner. It is the best practice to have this autonomy or division of responsibility. It is a best practice that is recognized internationally, but there are different ways to achieve that objective, and it may well be that what is being proposed currently will achieve that level of independence. We will have to see how it is implemented. That is the best I can say to you, senator.
Senator Runciman: Do you have any view on the decision to allow referrals from national defence and security entities?
Mr. Dandurand: I believe that is a very positive step. I think it was required. I am very glad to see this was included in the proposed legislation.
Senator Baker: I am interested in your reference to the fact that you believe that perhaps the wording of this bill could be to the detriment of those people who the bill is trying to protect, compared to the old act.
I have a great respect for your knowledge. You are quoted many times for your writings concerning firearms and guns and so on, and about six months ago you were recognized as an expert by the Supreme Court of British Columbia that was dealing with the wording of section 117 of the Immigration Act and declared it overly broad. You were declared an expert in that proceeding to give evidence on behalf of the Crown.
Where is the wording that you just referred to in which you claim that this bill could perhaps operate the other way and not provide the protection that the present act provides. Where is the wording?
Mr. Dandurand: Thank you, senator. You will find it in clause 12 of the bill, referring to section 11.1. The current law creates an exception for people who are protectees because they are in a very different situation from everybody else and might have access to that information.
The current law defines this in a broader way. Here we have a definition that requires a fairly sophisticated interpretation on the part of the protectee. I use the word "protectee" not just for the actual witness but other people, usually in his or her family, who might be part of the program. That might include children, a spouse, parents or relatives. All of these people fall under this exception.
Since the exemption is narrower than in the past and requires people to make the judgment in terms of whether that information can possibly create serious harm, you are asking ordinary people, children, possibly, adolescents, to make a judgment call that is very complicated, as opposed to using the words we currently have, which basically say "knowingly."
In testimony, I know that the replacement of the word "knowingly" by the current text we have here was explained as a simple clarification of the language by certain witnesses. Members of the committee will know more about this than I do, but "knowingly" is often interpreted by the courts as something that also speaks to the motive, the intention and not just the knowledge. Saying that someone does not knowingly do something speaks not just to the knowledge this person might have but to the intention this person might have.
The Deputy Chair: For the benefit of anyone trying to follow this on television, I will read what I believe to be the section you are talking about. It says that the ban on disclosure — the requirement to keep everything secret — does not apply to:
. . . a protected person who discloses information about themselves, if the disclosure could not result in substantial harm to any protected person . . .
It is a bit convoluted, but that is what it says.
Senator Baker: The explanation that the department would give to this is that "knowingly" has been removed and the word "know" has been inserted later on.
Mr. Dandurand: Yes.
Senator Baker: Your point is that "knowingly" goes beyond "know."
Mr. Dandurand: That is true.
Senator Baker: It captures a much broader spectrum, and by removing that you narrow the field to include a smaller group than would originally be covered.
Mr. Dandurand: That is my point, senator, yes. The last part of the subsection read by Madam Chair refers to if the disclosure would not result in substantial harm.
The Deputy Chair: Could not.
Mr. Dandurand: Could not, but that is a matter of interpretation. The section above says release, communicate information "directly or indirectly," so we are really talking about various shades of nuances there, and you are asking ordinary people to try to assess all of this in terms of disclosing information.
I will give an example, and it is a little bit of a caricature so forgive me. Imagine a 16-year-old on social media revealing that last night she went to see a Rolling Stones concert in Montreal and it was nice because she was in walking distance and did not have to take a cab. That information can reveal where the whole family is and can possibly put people in danger. I am making this up, you understand, but on the surface it would be an innocuous kind of communication that a young person would make about something he or she did. One could say serious harm could result, but there is no way that this young person would have known that and done so knowingly in the sense we currently have in the law.
Again, I am not an expert in legal drafting so I am leaving that to members of this committee who know more about this, but it seems to me that this is very restrictive. You can see, senator, I am speaking here from the point of view of thinking of witnesses and their families as vulnerable people. They are very vulnerable in that situation. That is why we want to protect them and not to create an exception that makes them feel that they are not that vulnerable I think would be very important.
I would also argue, and I think others have, that there has not been a case presented to this committee, or others, that there is something wrong with the current wording. Maybe there is something wrong with the current wording, but I honestly have not heard what is not satisfactory with the current wording.
Senator Baker: Maybe the argument is that it is overly broad. You are cutting me off again? Okay, Madam Chair, you are the boss.
The Deputy Chair: Think how much nicer it will be when Senator Runciman comes back.
Senator Jaffer: Welcome, Mr. Dandurand. I read your testimony in the house, and I am furthering what we were saying about "knowingly." You were speaking about a young person who is under the protection, not with his family, but because of what he or she has done. You were saying they may do something, as you said, using technology and unintentionally do something on Facebook or Twitter that could result in substantial harm, if I correctly understood you. Here you said that the removal of the word "knowingly" would be interpreted as making inadvertent disclosure an offence. I put this to Mr. Bradley and he, if I understood him correctly, informed me that 11(1)(b) would cover it. Do you agree with that?
Mr. Dandurand: I do not know for sure, but I understand the word "knowingly" to refer as well to the intention, not just the knowledge that the person has. If I am correct in making that assumption, then clearly the proposed new wording would offer less protection in that particular case.
Senator Jaffer: The Air India commission found that rather than terminating protection it would be useful for witnesses to have access to independent dispute resolution. The Air India commission felt that the old Commission for Public Complaints Against the RCMP was not effective as a dispute resolution mechanism. There are changes now to the bill, so in your view does the new civilian review commission address the concerns around the independent dispute resolution?
Mr. Dandurand: Thank you, senator. I believe the new commission has new powers, new authority and a mandate to engage in dispute resolution. We do not know how this is going to happen. I do not believe there has been a case yet that would have involved a person under the Witness Protection Program.
I suppose we will have to suspend judgment and wait to see whether that works, but certainly the disposition of C-42 seemed to have addressed, in my view, the recommendation of the Major commission.
Senator Jaffer: Can I ask another question?
The Deputy Chair: If we have a second round, yes, of course.
[Translation]
Senator Dagenais: Police force members testified this morning. One of them claimed that Bill C-51 could add red tape to their investigation procedures. In your testimony, you talked about creating an independent commission. Do you not think that an independent commission could make the process more onerous?
Mr. Dandurand: Such a commission could add unnecessary administrative burdens. We have to see how that independent commission will be established, what its rules will be, how it will operate and what its mandate will consist of. Regardless of the solution chosen — be it the solution proposed by the government or another solution — the risk of red tape will always be there. This is not just a matter of academics or theory, but rather of practicality. When witnesses have to be provided with immediate and effective protection, red tape is not only a theoretical principle. It can have an immediate impact on those involved. Their lives may be in danger. In addition, the investigations and the ensuing prosecutions may be compromised. Red tape may seem to be a matter of bureaucracy. However, it is important to try to avoid it in practice.
[English]
Senator Plett: When Commissioner McPhail was here earlier, he spoke about people not being admitted into the program. You did as well. I passed it off when the commissioner was here, but since you specifically raised it as well, my question is around that. What would be reasons for people not being admitted into the program?
Mr. Dandurand: Thank you for the question. If you look at the current laws, the criteria for admission are specified. There is quite a long list of criteria, and some of them would be that the person is unsuitable, unwilling or not willing to agree to the conditions that would be attached to the protection program. There may be reasons to believe that the person's mental health is such that they would not function under the program. Basically, it is with reference to those criteria that are specified in the legislation. That has to be part of the assessment.
Senator Plett: Does Bill C-51 address concerns that people would have easier access or does it not really speak to that?
Mr. Dandurand: I do not think that one of the immediate impacts of the new bill is to increase access and it is not the main purpose of the bill. The access would possibly remain the same with one big exception: Access may now be provided more readily through the provincial program. In that sense, there might be more access because people may access the program through the provincial programs more readily, easily. I do not think the bill itself is attempting to increase access to the program.
Senator White: Thank you for being here, professor. I appreciate it. You referred to a potential case earlier where a young person attends a Rolling Stones concert — it would not be the concert I would go to, but that is okay — and discloses information and there could be ramifications.
You were not referring to ramifications around the disclosure and potential criminal charges.
Mr. Dandurand: No, not in that case.
Senator White: You were talking about possible removal from the program as a result of accidental disclosure. Okay.
The second question I have is if you look at the U.S. federal witness protection program, they have one large program. A couple of states have programs as well. There have been questions raised in the United States that state programs do not provide the same level of service that the national program provides, and, in fact, maybe are not as good a program. In fact, I think that is probably clearly what it says.
From your experience — because you do not have any skin in the game to be fair, you are not representing a police agency here — do you see that we would have a better program in Canada if we had one national program as we do with criminal records, CPIC, fingerprint bureau, National Police Services and I could go on and on. Would it be better with one program that oversaw all witness protection across this country versus any other provinces or police agencies having their own program?
Mr. Dandurand: Thank you, senator, for that question. I hesitate to answer because there are advantages and disadvantages on both sides, centralization, decentralization. To some extent, the bill currently increases a level of centralization in access to the program, while opening it up more to provincial programs.
I think this is a valid compromise.
I would also add, as you know because of your professional experience, that providing security for witnesses usually involves a range of measures. It is not just relocation. Relocation is the heaviest measure that can be taken.
It makes sense in everyday life for all police forces to be able to offer a range of protection services to witnesses. If all of a sudden they have to stop at a certain type of protection and say, "Well, from this point on you have to deal with a central agency," it may not be totally justifiable.
You are right if what you were suggesting by reference to the U.S. Marshals Service program was that if you have a specialized agency, they can develop policies, procedures, training, expertise and so on, which may not be accessible to smaller police forces or provincial programs that do not necessarily have the same resources or range of services. There are advantages to centralization.
Senator White: It is not uncommon for the U.S. model to actually use local agencies to carry out some their actions, to get to the certain level, as you say, rather than the full gamut. You have answered my question. Thank you very much. I appreciate it.
[Translation]
Senator Joyal: Mr. Dandurand, thank you for your contribution. I would like to come back to your comments on the lack of information on the program' effectiveness — or information that could help assess its effectiveness. Am I to understand that section 16 of the current legislation — which obligates the minister to submit a report on program operations — does not contain, according to you, information that could be used to ensure balanced oversight of how objectives are met?
Mr. Dandurand: The annual report that is submitted does provide useful information. However, it is typically very limited. That report provides little information on the activities. In addition, we are not necessarily talking about an independent report. You probably know that the RCMP is planning to create a much more complex database that will cover its program, the beneficiaries and the decisions.
That database will make it possible to conduct analyses that could not have been conducted thus far. It would appear that the RCMP has already taken measures to acquire capacities to produce a more accurate and detailed report. It may also allow third parties — qualified researchers — to have access to those databases without the information that identifies individuals, so they can carry out more comprehensive analyses. Some measures have been taken to implement this plan, but so far, the program has not been transparent, nor has it produced much information for the public.
Senator Joyal: Was that not inevitable for a relatively young program? The legislation was adopted in 1996, and by the time it was implemented, Ontario and Quebec already had provincial programs in place. Was it not caution that led to this way of dealing with information accessibility to ensure that the door would not be opened so much that protected witnesses could be identified?
Mr. Dandurand: You are probably right. A number of those decisions were based on caution. My comments were not meant to criticize the RCMP or any past actions. There is room for improvement, and transparency is important for all sorts of reasons, but also for the program's credibility.
We want a credible program because, without such a program, it will be difficult to carry out successful criminal prosecutions. The program's credibility is essential and can be created in many different ways — including through some form of transparency.
You are right. Of course, in the past, the government may have been careful, but I think that things can be taken much further. I am not only speculating, as programs in other countries are often more transparent than what we are used to in Canada.
Senator Joyal: What aspect involves the most transparency? Program efficiency consists in ensuring that the witness's identity is not revealed. Once an individual is admitted to the program, no one should be able to identify them. Initially, it is almost a matter of being condemned to secrecy.
You know what we talked about yesterday. We were told how many people could be involved, what the average costs were and whether we are talking about undercover operations agents. We were also told that no one had to quit their job. We were provided with that information in an open discussion. That kind of information guarantees the secret's absolute safety because, at the end of the day, that is what is important.
Mr. Dandurand: I can only agree with you. This is a delicate issue, but things could be taken further when it comes to information disclosure, and that must be done carefully. Proof of that lies in the fact that, when a committee like this one studies the issue, the information suddenly becomes available. There is no reason for that information not to be made available more routinely. There is no reason to wait for a commission of inquiry on Air India or the consideration of a bill by a senate committee for that information to be made public. I am telling you this while keeping in mind that the RCMP is already creating a database that will enable it to produce more complete reports on the program's operations.
I applaud that initiative, and we will obviously have to wait for the results, but I think those in charge can take things further, while at the same time being extremely careful not to disclose information that could compromise the program, the witnesses or even the ongoing investigations.
Senator McIntyre: Thank you, Professor Dandurand. I would like to come back to section 7 of the Witness Protection Program Act. As you so aptly pointed out, section 7 provides a list of factors the commissioner must take into consideration when determining whether a witness should be admitted to the program. That being said, the amendment to subsection 7(2) of Bill C-51 reads as follows:
7. (2) Paragraphs 7(c) and (d) of the Act are replaced by the following:
(c) the nature of the inquiry, investigation or prosecution involving the witness — or the nature of the assistance given or agreed to be given by the witness to a federal security, defence or safety organization — and the importance of the witness in the matter;
How significant is this amendment to section 7?
Mr. Dandurand: The first part concerns cases that would be referred by other agencies; that is not necessarily a problem. The application of the other criteria is more complicated. Financial pressures are causing problems for the existing programs and for the provinces. All police forces that manage those programs are trying to cut costs. The criteria on reformulating the usefulness of testimony suggest that, what takes precedence is not only the need to protect the witness, but also its usefulness.
That puts a witness in an odd situation. If Madam Deputy Chair will allow it, I would like to give a quick example. A witness may be very useful during the investigation — even at some point in the trial — and then, suddenly, the evidence that was supposed to be provided by that witness may be declared inadmissible by the court.
All of a sudden, that witness's testimony becomes useless, and, based on these criteria, the commissioner may decide to no longer provide protection to individuals who have already put themselves at risk by agreeing to collaborate with the police. I am not suggesting that the commissioner would make that decision — as we can rely on their good judgment — but that kind of criteria interpretation may cause problems.
What is always most important is deciding whether the individual's testimony is essential to a prosecution or not, and at what point of the process the decision would be made.
Senator Boisvenu: To your knowledge, are federal and provincial police forces in contact with their American colleagues — marshals — when it comes to witness protection, or does everything happen in a vacuum?
Mr. Dandurand: This may be one of the issues that are not always made public for good reason. However, we do know that Canada has agreements with other countries when it comes to international collaboration in witness protection. For fairly obvious reasons, the nature of those agreements cannot always be disclosed, as that could compromise operations. However, in cases where international co-operation is required, countries often collaborate in criminal prosecutions or prosecutions against terrorists.
Senator Boisvenu: Do the two countries share expertise on witness protection programs?
Mr. Dandurand: I have no first-hand knowledge, but I assume that they do. I know that protection agency officers meet on an international scale to exchange their experiences and lessons learned. That kind of collaboration does exist, but as in the case of everything else, some secrecy is always involved.
[English]
The Deputy Chair: Professor Dandurand, before I let you go, I should clarify for the record that when you and Senator Baker were talking, you were talking about proposed subsection 11(1). What I read out was part of proposed section 11.1.
An Honourable Senator: It was still interesting.
The Deputy Chair: It was. It has all kinds of things we should be considering, but that is for the record.
[Translation]
Thank you so much. Your comments were very insightful. You have come a long way, and we thank you for that.
[English]
Senators and staff, please stay put; everyone else, please leave the room. We have a brief in-camera meeting to conduct.
(The committee continued in camera.)