Public Safety Committee on May 29th, 2007

[Paul E. Kennedy]

I agree with you on that point. The issue I put to you—and it's been part of my concern since my appointment as chair—is what is the profile of the commission? Who knows about it? Who knows what their rights are? We've been having outreach to various marginalized communities, whether they're aboriginal or new immigrants to the country. What is people's sense that “there it is and I should use it”, and are there any inhibitors?

[Dave MacKenzie, Conservative, Oxford, ON]

But does that increase the number of complaints in dealing just with the Witness Protection Act? That's what we're studying.

[Paul E. Kennedy]

I can tell you that since my appointment there has been a 20% increase in requests for review. There's been an overall increase in complaints. That doesn't include your area, which is still a small one. I'm just saying there's a correlation between raising awareness and people using the process.

[The Chair, Conservative, Garry Breitkreuz]

I have nobody else on my list, but we can ask more questions.

Ms. Barnes, do you have another question?

[Sue Barnes, Liberal, London West, ON]

First of all, Mr. Chair, I would like the case material you brought today to be given to the clerk so it can be distributed. We'd like to look at that case.

I'll also point out for the record that I think it will be a mistake if we try to minimize the number of complaints. The fact is that in 2005-06 there were only 53 cases nationwide under the witness protection program, so I would not like to see getting one or two from a very small body minimized as an issue. I just want to put that in perspective, because you're getting complaints on a much broader range that involves actions of the RCMP on everything. I also want to point out the very small pool that goes into the witness protection program. That is factually correct, and I think the way it was phrased a couple of minutes ago might be misleading, as if there were thousands of cases to take from, and that's not true.

On your final page you list areas where, if you had a mandate that had more teeth or more investigative power, it would assist you with witness protection. Perhaps you would like to go over some of those specific points.

My final question is whether or not you think the RCMP Act itself, with the prohibitions on disclosure from RCMP officers, in any way inhibits your work. I'm not advocating for wide-open disclosure, obviously, but I'd like to have that on the record.

[Paul E. Kennedy]

If you look at the list of powers I pointed out here, the challenge if you have a statute that doesn't have statutory prohibitions in terms of disclosure of information, disclosing directly or indirectly the identity of people in the program...clearly there is a very high public interest in the RCMP protecting those people.

[Sue Barnes, Liberal, London West, ON]

Absolutely.

[Paul E. Kennedy]

And that will not be given way to unless there is a statutory requirement for them to do so.

So what you have to do is provide a statutory vehicle that says you have to provide that, and then conversely, you have to put safeguards in place that say our access does not mean public access.

And by the way, as for the powers I'm asking for, you'll find exactly that same language in the CSIS Act for national security materials—access to everything except cabinet confidences. I think even the Auditor General can access cabinet confidences.

For a positive obligation on an officer to account for his duties or actions, currently under part VII, public complaints, the officer has no obligation to speak to us. He has no obligation to speak to the RCMP officer investigating the complaint. And the practice varies. I've seen officers—We have this complaint and we sit them down and say, just as you would do almost, unfortunately, with a criminal, “By the way, you have the right to remain silent. You don't have to provide any answers”, which I find remarkable in this day and age.

So I'm saying you have to create a positive obligation—you have unusual powers—to answer the questions that are put to you, otherwise we never know how the police are discharging their functions. That's why it should be there. So if you are doing any investigation to any program, it doesn't matter what it is, tell me, what did you do?

And I said you have to enlarge the scope of the review for retired officers or non-officers, because right now if someone retires before a complaint is filed, they're not subject to a part IV complaint. They're not even subject to a disciplinary complaint under part IV or part VII—none.

The nature of policing has changed as well. There are a good 5,000 or 6,000 civilians in the RCMP now—not civilian members, public servants. If you are doing a proceeds of crime case, you might need an accountant. So to get the true picture you have to find out from other people what they are doing, not to punish them but so that you can have a proper factual basis.

I said a new audit power. Ours is complaint-driven, so a specific complaint then constitutes the trigger to go and do an inquiry. If you really want to find out if the program is healthy, what you have to do is a periodic review. What are the national standards? How are they being trained? How are they used? Is it being properly applied or not? That does not exist currently. If I launched a complaint of that nature, because I can launch some complaints, the first thing I'd run into is, “We can't give it to you because it would disclose the identity of all these 700 other people who are part of the program.” So you'd be stopped in the water before you even started.

There are things beyond the work we normally do as a commission, which is complaint-driven, and what we think is appropriate to look at. There may be issues that come up with the minister. It may be helpful for the minister to say, “Well, I want to turn to that vehicle over there. It's a statutory vehicle. I want the commission to go and look at that and bring me back a special report.” And the minister then could table that with a committee of Parliament, because there is information you cannot get because it will be classified. Someone has to look at it. If no one is looking at it, nothing happens.

And then I pointed out that there have to be maybe two reports—classified and non-classified.

[The Chair, Conservative, Garry Breitkreuz]

This round is just about done. Have you anything else?

[Paul E. Kennedy]

I think I answered all the questions that were asked of me there.

[Sue Barnes, Liberal, London West, ON]

Yes, thank you.

[The Chair, Conservative, Garry Breitkreuz]

Okay.

Monsieur Ménard, did you have a further question? You have not indicated.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Not really.

[The Chair, Conservative, Garry Breitkreuz]

No? Okay.

Mr. Norlock.

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

May I have just a succinct answer? As precisely as possible, how many cases have you investigated since the legislation was enacted?

[Paul E. Kennedy]

I don't have that number. I can get it for you.

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

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Okay.

Are there any further questions from anyone? Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Kennedy, in terms of who can make a complaint—that is, who you can entertain a complaint from—again, I will come back to the B.C. case. If the family members wanted more information—or let's assume they were complaining about this individual ever having been allowed into the program. So if they wanted to make a complaint of that nature—“We don't believe this person who ultimately killed one of our family members should have been allowed into the program”—would you entertain that complaint?

[Paul E. Kennedy]

Currently under the legislation anyone can complain, including a third party. So if the family wanted to complain about the program or activities, they could do so.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I just want to pursue that a bit. So their lawyer, who has been quite upset by this, could have complained?

[Paul E. Kennedy]

Yes. The legislation says any person can complain. It doesn't require that they be particularly involved in some things. That will raise the issue, though, of what we can access, depending on what the complaint was and what we could get to respond to it.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Going to that point of what you can access, the complaint is of a nature that—they're saying this to you—they want you to conduct an investigation because they don't think this person should ever have been allowed into the witness protection program. Are you limited in what you're going to be able to get access to?

[Paul E. Kennedy]

We'd have to look at whether or not the complaint dealt with the conduct of a member, because that's how the statute is currently crafted. Anyone in the country can complain. It has to be about the conduct of a member. So what was the conduct in question? We'd have to tie in that conduct to what you're talking about. Letting a person into the program--

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Let me interrupt you in that regard, then. They don't know who the individual RCMP officer was who made the decision to allow this person into the program. Are you going to be able to get access to that information for them?