Bill C-51 (Historical)

Safer Witnesses Act

An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act

This enactment amends the Witness Protection Program Act to, among other things,
(a) provide for the designation of a provincial or municipal witness protection program so that certain provisions of that Act apply to such a program;
(b) authorize the Commissioner of the Royal Canadian Mounted Police to coordinate, at the request of an official of a designated provincial or municipal program, the activities of federal departments, agencies and services in order to facilitate a change of identity for persons admitted to the designated program;
(c) add prohibitions on the disclosure of information relating to persons admitted to designated provincial and municipal programs, to the means and methods by which witnesses are protected and to persons who provide or assist in providing protection;
(d) specify the circumstances under which disclosure of protected information is nevertheless permitted;
(e) exempt a person from any liability or other punishment for stating that they do not provide or assist in providing protection to witnesses or that they do not know that a person is protected under a witness protection program;
(f) expand the categories of witnesses who may be admitted to the federal Witness Protection Program to include persons who assist federal departments, agencies or services that have a national security, national defence or public safety mandate and who may require protection as a result;
(g) allow witnesses in the federal Witness Protection Program to end their protection voluntarily;
(h) extend the period during which protection may, in an emergency, be provided to a person who has not been admitted to the federal Witness Protection Program; and
(i) make a consequential amendment to another Act.

Safer Witnesses Act

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I want to thank my colleague for her question.

In my speech, I may have forgotten to mention a change that affects designated programs. It is an important component of Bill C-51, which modifies the Witness Protection Program Act.

The bill allows for better information sharing with designated provincial and municipal programs.

Obviously, this was difficult recently. Because of bureaucracy, information was not always shared as it should have been. In some cases, this kept witness protection agencies from acting effectively. It interfered with procedures.

The bill creates a better alignment with provincial and municipal agencies, so that information can be shared while remaining well protected.

If I remember correctly, all these changes applied to section 11 and the subsequent sections, 11.1 to 11.3. All the processes are being greatly simplified and harmonized, to eliminate the red tape agencies were faced with previously.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I thank my colleague for a top-notch speech.

If I understand correctly, the NDP is determined to build safer communities. One can achieve this by improving the witness protection program and by giving police forces the added tools they need to deal with street gangs.

I would like my colleague to comment on what I read on the RCMP's website, which says:

There are instances when the costs of witness protection may impede investigations, particularly for smaller law enforcement agencies.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my colleague for the question.

I totally agree with its premise, namely the NDP's commitment to make our communities safer for all Canadians.

The member also asked about something he found on the RCMP's website. It is undoubtedly true that the cost of witness protection sometimes impedes the work of local and provincial police forces. It is appalling to learn that some organizations charged with protecting our communities are unable to adequately protect witnesses.

Whenever a witness refuses to co-operate with police, investigators or a judge for fear of reprisals, law enforcement may be unable to obtain the necessary information to lay criminal charges.

It is very important that every witness feel safe and free to supply information without fear.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, it is a great pleasure to rise to speak to this bill today. I have found the debate and all the preparatory work that we have done in my office in advance of me speaking today very interesting.

Many of the impressions we have about witness protection come from south of the border. We have watched American television and American crime shows for so long that we are very familiar with the concept of witness protection. Most Canadians probably think the system in Canada is as robust, well-developed and tightly coordinated as it appears to be in the United States through those representations we have seen on television.

I was very curious to discover that the program was not that old. I thought I would do a little rundown of the history of the program in Canada, just to give some background to the debate.

At the federal level, the witness protection program only began in 1984 as a series of internal RCMP guidelines and policies. It was designed at a time when the fight against drug trafficking had become a major priority. Its intent was to encourage the co-operation of witnesses who could provide information on organized crime. We can see that the witness protection program is tightly associated with the rise or further expansion of organized crime, specifically in relation to the drug trade.

There were protective measures for those who co-operated with law enforcement in the provinces. Some provinces and municipalities, including British Columbia, Ontario and Quebec already had their own witness protection programs that provided a variety of protection measures, such as relocation for the duration of a trial, for example. However, admission to the federal witness protection program, which is run by the RCMP today, was, and still is, an extreme measure only used in the most severe cases.

The first legislative basis for the witness protection program came with the passing of Bill C-13, Witness Protection Program Act in 1996. The bill sought to strengthen the program by including a clear definition of admission criteria for witnesses and a more public and accountable structure for the management of the program. It provided clearer lines of authority than existed in the program prior to the legislation, which, as I mentioned, was essentially a policy, making the witness protection program the clear responsibility of the RCMP commissioner.

According to 2008 data, there were approximately 1,000 protectees in witness protection program; 700 managed by the RCMP and 300 by other law enforcement agencies. About 30% of these protectees had not themselves acted as witnesses, interestingly, but were in the program because of their relationship to a witness.

Under the Witness Protection Program Act, the commissioner is required to conduct an annual report, outlining statistics about the program, without disclosing details that could compromise its integrity or the identity of protected witnesses.

The 2011-12 annual report showed that of 108 individuals considered for admission to the witness protection program during that period, 30 were accepted, which surprises me. I thought the rate of acceptance would be higher. Twenty-six of the thirty came from RCMP investigations, while four were admitted on behalf of other Canadian law enforcement agencies. The total cost of the program, including RCMP and public servant compensation, totalled $9.1 million.

Under the current Witness Protection Program Act, the RCMP is responsible for making all decisions related to admission and all potential protectees must be recommended by either a law enforcement agency, namely the RCMP, or a provincial or municipal force.

Individuals are admitted to the program based on a number of considerations outlined in the legislation such as: the nature of the risk to the security of the witness; the likelihood of the witness being able to adjust to the program; the cost of maintaining the witness in the program; and whether alternative methods of protecting the witness are available. Once it has been determined that the witness protection program is the best option, a protection agreement is be signed between the RCMP and the protectee, outlining the obligations of both parties. Admission to the program involves a total identity change and relocation. Therefore, when individuals are admitted to the program, it is assumed that they will remain lifelong protectees.

However, protection can be terminated by the RCMP if the conditions of the protection agreement are not met, such as, for example, if the protectee commits a crime, associates with gang members or uses drugs. Protectees can also choose to terminate their protection voluntarily. In either case, their families continue to be protected. It cannot be stressed enough that admission to the witness protection program is the last resort.

There have been some controversies in recent years surrounding the program. In 2008 the House of Commons Standing Committee on Public Safety and National Security conducted a review of the federal witness protection program. A few years later, an entire chapter of the Air India inquiry conducted by Commissioner John Major focused on the need for adapting the witness protection program to terrorism cases. Essentially, this bill would update a system that began before the advent of terrorism or before terrorism became an issue in our country and on our continent. This is why it is important that we update the program to take account of these new realities.

Under Bill C-51, recommendations for admission to the program could also be made by federal departments, agencies or services. Bill C-51 would make it possible for federal agencies or services other than the RCMP that might be involved in national security, national defence or public safety to make recommendations for admitting individuals to the program. However, under Bill C-51, the power to determine whether a witness should be admitted to the program and the type of protection to be provided would remain with the RCMP commissioner. This very important change would address the urgent need for the protection of witnesses involved in the investigation and prosecution of terrorist offences.

The need for organizations such as CSIS to be able to offer protection to witnesses was made abundantly clear during the investigation into the 1985 Air India bombing, as outlined in Commissioner Major's 2010 report. The report highlighted the issues surrounding the reluctance of witnesses in the Air India inquiry to co-operate with CSIS investigators who, under the Witness Protection Program Act, could not offer them adequate protection. This bill obviously comes from a recommendation from that inquiry, which is significant in the history of our country and has spurred many changes to public security legislation.

The other interesting aspect of this bill is that it would provide for better coordination with police forces other than the RCMP. This seems to be a recurring theme in the area of public safety, namely the idea that it is becoming more and more important in this complex world in which we live and in this complex reality, that police forces across the spectrum work closely with each other. That has not always been the case, but there is a recognition today that more and more this is part of the need to create a seamless web of national and public security in Canada.

Clause 11 of Bill C-51 states that the Governor-in-Council may, by regulation, add to the schedule of the bill a provincial or municipal program that facilitates the protection of witnesses. Once it is listed in the schedule, this program will become a designated program. By becoming a designated program, it means the federal government can better coordinate the activities of federal departments and agencies whose co-operation is required to provide the protectee, for example, with the proper papers, a new identity and so on. This is a very important part of updating our witness protection regime in Canada and making it much more efficient and effective.

Bill C-51, interestingly, would also extend the period of time during which the commissioner might grant emergency protection to a witness who had not been admitted to the witness protection program. Therefore, there are cases where it is obviously important to provide some kind of interim protection to a witness and by virtue of the bill, the commissioner will be able to offer longer interim protection. Under the current provisions of the Witness Protection Program Act, emergency protection may be granted for no more than 90 days, but Bill C-51 would allow for an extension of that time period by another 90 days, bringing the total time of interim coverage to 180 days.

This is a good bill but there are some issues in it that have not been properly addressed and I would like to outline a couple of those.

Both the Air India inquiry and the 2008 House of Commons committee report on the subject of witness protection recommended that decisions relating to the admission of witnesses to the program and the resolution of disputes arising between protectees and the RCMP be handled by an independent body. In other words, the objective was to provide a third-party view to resolve any disputes between these two parties. In the Air India inquiry, this was envisioned to be in the form of a new position, a national security witness protection coordinator, whose mandate would include assessing the risks to potential protectees, who would work with relevant partners to provide the best form of protection based on the situation and to resolve disputes between the protectee and the program, as I mentioned earlier.

The 2008 committee report recommended that this body be an independent office within the Department of Justice, consisting of a multidisciplinary team that could include police officers, crown attorneys and criminologists. In other words, as in many areas of public policy or many areas of life today, we are moving toward a more holistic approach to issues, which allows us to deal with the many sides of a particular situation using many different kinds of specialists. This office within the Department of Justice, as I mentioned, would have a multidisciplinary team.

Another of the recommendations in the 2008 House of Commons committee report was that potential candidates for admission to the witness protection plan be offered the aid of legal counsel during the negotiation of the admission and the signing of the protection contract. This recommendation arose from testimony about the powerlessness of many prospective protectees when it comes to negotiating their protection agreement. Protection agreements have a huge impact on the lives of protectees or their families and, at present, are negotiated between the RCMP, which has years of experience in such negotiations, and protectees who are unfamiliar with the process and may not understand the implications and scope of the document they are signing. The House of Commons committee therefore felt that the presence of a lawyer would help ensure that negotiations are more fair and equitable.

These are two reasonable recommendations that fit within the widely accepted view that people need support when they are dealing with such complicated issues. One can just imagine the stress that someone contemplating going into the witness protection program would feel. He or she may not be thinking clearly about the issue, may not be familiar with that side of police work because of their always being on the other side of the police-criminal divide. It would seem to me that having the person negotiate without support would leave him or her somewhat helpless, and that is not the Canadian way. We believe in counter-balancing situations so that things are not entirely one-sided. In that perspective, this recommendation makes a fair amount of sense.

Like the NDP we will be supporting the bill. It is really a housekeeping matter in some ways and it would help build another defence against the threat of terrorism. The witness protection program in its current form has provided an effective tool to fight organized crime but it has not been updated to take into consideration cases involving terrorist threats. There is other legislation before the House today, Bill S-7, that is also meant to update our defences against terrorism. This bill connects very well and very logically with that other initiative and with the general vigilance that we are exhibiting in our society to make sure that our communities are safe and secure.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, I am happy that the Liberal critic for public safety has indicated that his party will be supporting this very important piece of legislation. I would once again remind the House that we have been working on this since a previous Parliament, so it is good that we finally get something done. That means quite a bit.

I know the member talked about where some of the issues have emanated from, that being the Air India inquiry. Here I will refer to some of the comments that I do not think I heard the hon. member mention in his speech, one by the Minister of Justice and Attorney General of British Columbia, who stated:

In the fight against crime, protecting witnesses effectively is essential. We look forward to reviewing the amendments and working constructively with our Federal counterparts to ensure that any changes minimize the risk to witnesses.

I think this piece of legislation does that.

As well, Tom Stamatakis, President of the Canadian Police Association, on behalf of the over 50,000 law enforcement personnel the association represents across Canada, encouraged us to pass the bill quickly and said that he looks upon it as a positive step, as does William Blair, Chief of Police in Toronto.

Does the member have any comments on some of the positive things he has heard regarding this piece of legislation? I did hear him mention that there were some housekeeping perspectives to this, so I wonder if he could elaborate.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, in fact the hon. member quoted some very authoritative voices in the policing world, which is very important because our police officers and police agencies need to work together. If police agencies across the country are suggesting or saying quite explicitly that this is needed, I do not see any reason why we should not give a lot of credence to their statements. Obviously, this bill is needed because Police Chief Stamatakis has spoken in support of the bill and so on.

Within the context of our study at the public safety committee on the cost of policing, again I go back to what the witnesses said at committee, that more and more police forces need to work together. This is one good avenue for encouraging collaboration among our law enforcement officers and agencies.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, I would like to hear my colleague on the costs of implementing this bill.

As regards witness protection, with the new technologies that facilitate communications and access to information all over the world, increasingly better coverage is needed to protect witnesses, because information can travel very quickly.

Is it fair to say that, even if this bill had not been implemented, witness protection costs would still have increased, because better coverage is required? Is it logical to think that increasing eligibility will most certainly push up costs?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, indeed, as technology evolves and society becomes more complex, whether we are talking about the security industry, if we can call it that way, or the health care system, costs are skyrocketing. Therefore, I do not see why witness protection services would be immune from this trend.

I assume that more resources will have to be allocated to this initiative to ensure that people are adequately protected. Otherwise, a lack of funding would undermine the system's effectiveness and make society less safe.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I know this issue has been canvassed, but I do find it disturbing that even on the current RCMP website, it says there are instances when the cost of witness protection may impede investigations, particularly for smaller law enforcement agencies. Provincial witness protection programs do not apply if the crime is federal in nature, involving drugs for example. The RCMP takes over those cases and charges the local police departments with the full cost. That is disturbing.

In the last year ending March 2012, only 30 people out of a total of 108 considered for the witness protection program actually got to benefit from it.

These seem to be significant problems. Is the member convinced that this legislation solves those problems?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That is a very interesting point, Mr. Speaker. Resources can always be a constraint on the proper functioning of any kind of system. I was surprised as well that out of 108 requests by individuals to be considered for admission to the program, only 30 were accepted, according to the 2011-2012 annual report. I look forward to discussing that issue at committee, because if the reason people are not getting the protection they need is the cost and if that is impeding law enforcement, then it would be incumbent upon the government, which obviously claims to care so much about police forces and pretends to be so supportive of our police forces, to consider ensuring that adequate resources are available so that the program can be as effective as it can be.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, organized crime is a serious issue in many communities, large and small, across the country. Many jurisdictions look at the potential of the witness protection program to help or assist in addressing some of the issues that organized crime brings to our communities and streets. The program will have a direct impact on that.

Could my colleague comment on how this particular program could benefit police in fighting organized crime?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, as the program currently exists, it is tailored to the fight against organized crime.

As I mentioned in my speech, one of the objectives of the bill is to bring the fight against terrorism into the purview of the bill. The way it helps to fight organized crime is by making it easier for the local police forces who are fighting organized crime and who may have a person they would like to see protected to do the paperwork they need to do at the federal level. That is because the bill has a coordinating mechanism that would make it easier for all the federal departments whose co-operation is required to come together and get the paperwork done quickly so that the person can obtain their new identity.

By making the system more efficient, it helps fight organized crime all the way down the line in communities large and small across our great land.

[The Deputy Speaker, NDP, Joe Comartin]

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the member for Vancouver Kingsway, Foreign Investment; the member for LaSalle—Émard, Foreign Investment.

Resuming debate. The member for Châteauguay—Saint-Constant.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I will be sharing my time with the hon. member for Scarborough—Rouge River.

Today, I am very pleased to be debating a bill to amend the Witness Protection Program Act. It will be somewhat of a change to debate a public safety bill that, unlike what the government has brought in since the beginning of this Parliament, will not increase sentences. It is good to introduce other types of legislation.

Today, we are debating a bill that will give our public safety officers other tools to fight crime. We have to protect people, but we also have to protect repentant former criminals who want to leave crime behind and who, because of their knowledge of the criminal world, give our peace officers information needed to conduct investigations and, ultimately, prosecute criminals.

Make no mistake: if we do not enhance the witness protection program, we will unfortunately reduce our chances of enlisting important witnesses, which unfortunately has happened in the past.

Some people wonder why they should testify if their life is in danger and they are not offered any protection. That is a good question. That is why, in November 2012, my colleague from Trinity—Spadina rose in this House to demand more funding for the federal witness protection program.

For a few years now, the NDP has been calling on the government to expand the eligibility criteria for witnesses in protection programs to guarantee safety for all Canadians who bear witness and who are potentially in danger. We are also calling for better coordination between the federal and provincial programs, but most importantly for increased overall funding for the witness protection program.

In May 2010, the RCMP gave the Minister of Public Safety a report calling for the witness protection program to be enhanced. The government unfortunately waited quite a while before taking action. It is unfortunate that the government did not consider the budgetary implications of expanding the witness protection program.

I think it was the RCMP that best explained that sometimes the costs of witness protection may impede investigations, most specifically in the case of small law enforcement agencies. The government should acknowledge these budgetary implications.

In the case of drug-related crimes, for example, the RCMP takes over the case and charges the local police force for the whole thing. The government needs to understand that offloading these problems onto the provinces only impedes their ability to deliver programs such as the witness protection program.

This is not the way to go about protecting our communities or strengthening ties among federal agencies and provincial and municipal police forces.

True to form, the government decided to take action as soon as the issue started blowing up, instead of acting pre-emptively, before any problems came up.

The federal witness protection program has been the subject of criticism for several years as a result of its strict eligibility criteria, poor coordination with federal programs and the small number of witnesses who are accepted to the program.

I would remind members that in 2012, only 30 out of 108 applications that were examined were accepted. So we have to wonder: did the 78 applications that were rejected have a negative impact on the related legal cases? That would be an interesting question to look at. If these witnesses had been protected, would we have had more convictions?

Since the Witness Protection Program Act was passed in 1996, the Liberal and Conservative governments have done very little to address criticisms of the system. The basic issues of admissibility, coordination and funding have never been addressed.

As a number of my colleagues said earlier, we will support this bill. However, we are extremely disappointed that the government has decided not to provide new funding for the program.

Bill C-51 proposes a better process for supporting provincial witness protection programs. The bill would also make the program available to other organizations with national security roles, such as CSIS and the defence department.

We should remember that, during the Air India investigation, attempts were made against the lives of some witnesses. The law did not permit groups of witnesses for national security cases to be admitted to the program. One witness, Tara Singh Hayer, was assassinated in 1998, and the sworn statement he had given the RCMP a few years earlier was ruled inadmissible. Two other witnesses subsequently refused to appear at the Air India inquiry in 2007 because, unfortunately, they feared for their safety.

At the time, Justice Major had already admitted that he was unable to provide the protection needed by these witnesses. This must never happen again. We must be able to guarantee the safety of our witnesses. Otherwise, our sources of information will dry up, and not enough witnesses will have the courage to testify in court. In such cases, it often takes courage to testify at a criminal trial relating to national security. Therefore, we have to provide them with adequate protection.

This bill will expand eligibility criteria for the protection program to include members of street gangs, which are increasingly prevalent in our large cities. Including them in the witness protection program will give our police another tool to eliminate this scourge.

Federal departments and agencies responsible for national security, national defence or public safety will also be able to refer witnesses to the program, which could help avoid problems such as the ones encountered during the Air India inquiry.

Another important point was raised by the RCMP during the Air India inquiry, and Justice O'Connor made a related recommendation in his report. The bill does not include any provisions that would allow an independent body to oversee the program as per the recommendations made in the Air India report.

A transparent program eligibility process that requires more accountability is another important aspect to highlight and implement. Even the governments recognize that this is a serious problem, although they have not tackled it yet.

An independent body would help prevent any conflict of interest within the RCMP, while supporting a transparent process. There could be a conflict of interest within the RCMP given that it would continue to assume responsibility for the program, which could place it in a conflict of interest situation in the future, since it would be both the investigating body and the one to decide who benefits from protection.

In late 2009 and early 2010, the federal government consulted the provinces and territories regarding the witness protection program. Some of the provinces expressed their concerns at that time. Many provinces have their own witness protection programs. However, for budgetary reasons, they can provide only short-term protection.

As I mentioned, this is a huge expense for the provinces. As we so often hear these days, we have to do more with less. Furthermore, for legal reasons, the provinces need the RCMP in order to obtain new identification documents for the people being protected. Thus, there is a lack of coordination and we really hope to be able to resolve this situation when this bill is examined at committee.

So, one important aspect that this bill will improve is coordination with provincial witness protection programs.

In closing, we are pleased that the government has finally taken a serious look at this problem and that it is responding not only to the RCMP's calls, but also the NDP's calls regarding this matter. We have been calling for these changes since 2007. This bill is not perfect, but it is very good and we will support it so it can be sent to committee for a thorough examination.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, once again, I hear members from across the way. First, I want to thank them for supporting the bill. It is something we have been working on. As we previously mentioned not too long ago to another member, this matter was before this House in a previous Parliament. For the edification of my friend, there is something called an election that slowed things down in that regard. This just follows up on that.

With regard to his party taking credit for all the good things in the bill but not the bad, I recall very clearly sitting on committee. It was as a result of some problems identified with the program through the RCMP that we all, as parliamentarians, agreed that we had to do something about it.

If I were the member I would be a little more hesitant before heaping praise on themselves. Sometimes we just do the right thing. Sometimes we just roll up our sleeves and work together in the right direction.

He talked about whether there is sufficient funding. I have been around this place for seven short years. Quite frankly, no matter what the government does, it is never enough. If the government spends too much, the criticism is that it is irresponsible and is throwing money at everything. If the government does not spend enough, according to the opposition, it is too stingy.

Let us dampen this and let us be fair with one another. This is a good piece of legislation. It addresses the inadequacies found in a previous government. We heard from witnesses, and not only Canadian witnesses but also witnesses from the United States. We looked at the American witness protection program and at others.

I wonder whether the member read the debate that occurred at committee concerning this bill and read the positive observations made by witnesses from other jurisdictions, not Canada, that we were moving in the right direction. Maybe he could comment on his observations after having read the testimony of those witnesses.