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