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

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Mr. Speaker, if my hon. friend reads the testimony of the other police forces as well, this individual seems to be somewhat in the minority in that respect because much of this is an enhanced program. As we heard from one of the other hon. colleagues, the province, the federal government and municipalities have a funding formula that they work out.

In the case of the RCMP, it feels that it has enough resources. I know through my own time in the military when things like this came up, not an exact template, often there would be administrative changes with respect to the way we operated and the way we conducted the procedures, but that does not often come with a price tag.

I think all levels of government would be able to review this as the bill is passed and goes forward and, if there are any changes down the road, those levels of government could reallocate funds that are downloaded from the federal government.

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

Mr. Speaker, I rise in the House today to speak about Bill C-51, something that I am genuinely concerned about.

This bill contains measures that have long been called for by the NDP. It proposes a better process to support provincial witness protection programs. It applies the program to other agencies with responsibilities for national security. The bill will broaden the eligibility criteria for the protection program to include repentant members of street gangs who are willing to testify against others in their gang.

Federal departments and agencies that have a national security and public safety mandate may also suggest witnesses for the program. The bill will extend the emergency protection period and will eliminate a number of technical problems relating to the coordination of provincial programs. It is a necessary bill, and one that addresses flaws that were identified a long time ago.

The NDP has been demanding the expansion of witness eligibility for protection programs for nearly two decades now.

In 1996, this House passed the Witness Protection Program Act. In 1999, the NDP voted for Bill C-223 to broaden witness protection in cases of domestic violence. This bill was overturned by the then Liberal majority.

Since then, the fundamental issues of eligibility, coordination and funding have never been dealt with by Canada’s successive governments.

Since 2007, members of the NDP have been calling for changes to be made to the witness protection program. It has taken the Conservatives six years to finally respond to our requests.

The issue is real, however. Close relatives and the various stakeholders have said for a long time now that the program must be expanded. In May 2010, the RCMP submitted a report to the Minister of Public Safety in which it asked that the witness protection program be strengthened.

As we know, in order to fight back against investigations into their activities, street gangs have no qualms about intimidating the families of witnesses. They want to stop witnesses from speaking out against them. Street gangs are very violent and quick to use intimidation to avoid going to jail.

Members of street gangs are afraid of speaking out against their accomplices, because they know they will not be protected. However, in cases involving street gangs, the best witnesses are gang members themselves. Members of street gangs who want to get out of crime and are willing to testify against their associates must be allowed into the witness protection program.

My colleagues have pointed this out on a number of occasions this year. I repeat it again this evening. In 2012, only 30 of the 108 applications for protection were accepted. The program served only 30% of those who were asking for help.

Bill C-51 will solve this particular issue, because it raises the level of protection for witnesses and informants who assist our police officers, in addition to expanding the use of these information sources. We will be able to fight directly against street gangs, which are becoming ever more common in Canada’s suburbs.

That is not all. If the Conservatives really want to improve the witness protection program, they must also commit the money for it to happen. It is fine to talk about protecting victims in order to appeal to voters, but the government needs to walk the walk.

I would like to remind the House that it costs $300,000 to protect each witness. If the definition of “witness” is expanded, as Bill C-51 aims to do, we will be sticking taxpayers with a bigger bill.

We support the bill, but we condemn the fact that the Conservative government has refused to commit additional funding.

Once again, it will be up to the municipalities and police forces to absorb the higher costs. They already have tight budgets. The commissioner of the Canadian Association of Police Boards said this on March 7:

...sometimes the cost of protecting witnesses hinders the investigations, especially for small law enforcement agencies that have a tight budget.

She also said this:

[The government must] ensure that legislation passed...does not result in a downloading of additional costs to the municipal police services that we represent.

The government cut nearly $190 million from the RCMP and more than $140 million from the Canada Border Services Agency. Investigations into drugs and crime in areas of federal jurisdiction are handled by the RCMP. However, the RCMP bills local police forces for the cost of protecting witnesses even though the local forces often cannot afford it.

Recently, the Conservatives announced that they would no longer fund recruiting programs for local police forces. A $400 million envelope was earmarked for the police officers recruitment fund, but the Conservatives decided not to renew it for 2013. That is appalling. These cuts will impact how effective Bill C-51 can be.

I commend the intention behind this bill. However, I hope that the federal government will allocate a significant budget to this bill and not make the municipalities and provinces cover the cost. The government is certainly not short on money: it gives $1.2 billion a year to the oil sands industry and forked out $70 million to celebrate the war of 1812. I want to remind the government that it has a responsibility to ensure that its laws do not increase the burden on the provinces.

In closing, although I am not happy about the lack of funding, I think that strengthening the witness protection program will improve public safety. After so many years, we are pleased that the government is finally making the changes that we have been calling for.

I therefore support Bill C-51 at third reading so that it can be passed. I support it on behalf of all the people, agencies and associations that want this bill passed. I am supporting this bill so that those who want to blow the whistle and testify can do so without fearing for their safety and that of their families. Bill C-51 will allow them to be better protected. I also hope that the government will increase the budget so that the municipalities will not have to foot the bill.

The NDP is once again building safer communities by giving the police more tools to help them fight street gangs and organized crime.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I would like my colleague to tell us about the government's lack of will to enforce the law. It is all well and good to pass legislation, but the government must ensure that it can be enforced on the ground.

The following appears on the RCMP's website:

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

Indeed, even the RCMP's website mentions the funding problem. Would my hon. colleague comment on the fact that enforcing the law and passing legislation in Parliament are two completely different things?

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

Mr. Speaker, I would like to thank my colleague for her question, which as always is very pertinent.

In the case of Air India, the commissioner lamented the fact that the RCMP had a problem with accountability. However, there is also the problem of funding, or should I say underfunding. The RCMP delivers the witness protection program, but passes the bill for it on to the municipalities, which are already overwhelmed.

In my riding, there are about 40 small municipalities. I know that they work very hard to balance their budgets and they are unable to do so because of this kind of thing.

In addition, because my riding borders on Vermont, I know that a pilot project is being carried out to replace border services officers with automated crossings.

This is not something that is going to solve the crime problem in Quebec and in Canada.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, one of the things that is troubling to the official opposition is the fact that the government has not adopted the recommendations of the Air India commission, and I believe the member mentioned this.

The commission recommended the creation of a new position, the national security witness protection coordinator, to be independent of the police and prosecution and be a person who inspires public confidence and has experience in criminal justice, national security and witness protection matters.

I wonder if the member could speak to that and to why we support that recommendation.

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

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

The Air India Commission recommended that there be more transparency and greater accountability. As one of my colleagues said in an earlier speech, there is often an underlying conflict of interest. The RCMP often wears two hats: it conducts investigations and it provides witness protection services. To promote greater accountability, the government must heed the Air India Commission's recommendation.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I am pleased to rise today to discuss Bill C-51, the safer witnesses act. Witness protection is one of the most important tools law enforcement has at its disposal to combat criminal activity. An effective witness protection program is particularly valuable in the fight against organized crime and terrorism.

Witness protection has been informally available in Canada since the 1970s to protect persons who are deemed to be at risk because they provided assistance to law enforcement or because they provided testimony in criminal matters. The testimony or co-operation of these individuals can be vital to the success of law enforcement operations. In 1996, the Witness Protection Program Act officially established the federal witness protection program in an effort to ensure consistency in protection practices across Canada and, at the same time, to establish greater accountability. While the witness protection program is serving the criminal justice system well, it has not been changed significantly since 1996.

In the last 17 years, crime, and specifically organized crime, has evolved substantially and is now more global than ever in nature. The safer witnesses act, which we are discussing today, would help to further strengthen the federal witness protection program and help to ensure it is appropriate to meet the ever-evolving nature of crime. Administrated by the RCMP, this program provides a gamut of protective measures. These can range from temporary protective services to relocation with a name change.

The RCMP is required by statute to use a number of criteria to assess if an individual should be placed in the program. For example, this includes examining the risk to the witness and taking into consideration the danger to the community if the person were to be admitted into the program. It includes looking into the nature of the inquiry and the importance of the witness in the matter. The criteria also include taking into consideration the value of the information and evidence to be given by the witness and the likelihood the witness can adjust to the program.

In addition, factors such as the cost of maintaining the witness in the program and alternate methods of protection available and other factors deemed to be relevant are all taken into account. Currently, there are approximately 800 protectees in the federal witness protection program, and new persons are admitted into the program every year. Admission numbers fluctuate yearly due to changes such as the number of cases being investigated or the size of the witnesses' families.

Of note, there were more than 100 cases referred for admission into the federal witness protection program in 2011-2012 alone. Of those cases, 30 individuals were accepted into the program, with 23 of these individuals being granted a secure identity change. The difference between the number of referrals and the number accepted in the program is stems from various reasons. Some candidates may decide they are not interested in the program, while others may not meet all the criteria outlined, but rest assured that the individuals requiring protection will receive it.

Provincial governments are responsible for the administration of justice. The Provinces of Quebec, Ontario, Manitoba, Saskatchewan and Alberta have established their own witness protection programs, which differ from the federal program. These provincial programs provide a range of valuable services in support of those at risk. The interaction between provincial programs and the federal program, however, has not always been as efficient as it could be. For example, a protectee in a provincial program must now be admitted temporarily to the federal witness protection program in order to obtain the federal documents for a secure identity change. This can sometimes lead to delays in the process of securely obtaining new identities.

Bill C-51 aims to remedy this situation. It proposes to establish a process whereby provincial programs can become designated witness protection programs. The Governor in Council, on the recommendation of the Minister of Public Safety, would have the authority to make this designation at the request of the provincial authority. It would then no longer be necessary for witnesses to be temporarily admitted to the federal program to obtain federal identity documents for secure identity change.

Moreover, the provincial designation regime proposed in Bill C-51 would further streamline the process for obtaining federal identity documents. This would be achieved through a process whereby the provincial official representing a designated provincial witness protection program would then be the single point of contact for that program. The official can request federal identity documents from the RCMP, which would be the single federal point of contact. A provincial official acting on behalf of all law enforcement agencies within the designated program would limit the number of persons involved in the request to the RCMP, thus streamlining the process. Fewer individuals involved in the process would also ensure that it is more secure.

Another way that Bill C-51 would strengthen the security of witness protection regimes in Canada would be through changes to the current prohibitions against the disclosure of information.

The disclosure of information about the location and change of identity of protectees in the federal witness protection program is prohibited by the Witness Protection Program Act. Bill C-51 proposes to expand on this and prohibits the disclosure of information of individuals who provide or assist in providing protection for witnesses, as well as how the program operates. These prohibitions will also extend to designated provincial programs. This means that the disclosure of information regarding witnesses, the people who provide protection and information about the designated provincial programs themselves will be prohibited.

Bill C-51 also specifies that no one shall disclose any information, either directly or indirectly, that reveals the location or change of identity of a protected person or the information from which the location or change of identity may be inferred. Disclosing information directly could include situations such as telling someone that a protected person's name is whatever. Disclosing information indirectly could include leaving information about the protected person unguarded.

C-51 also seeks to expand the categories of witnesses who may be referred for admission into the federal witness protection program to include persons who assist federal departments, agencies or services that have national security, national defence or public safety mandates and who may require protection as a result.

As chair of the Standing Committee on National Defence, our committee often hears about acts of terrorism, acts of war by a government on its own people, people who witness genocide, acts of war and terrorism. These people often require protection. They could be somebody who is employed by the Department of National Defence or they could be members of the Canadian Armed Forces. They could be fearful for their lives because so many foreign states and the leaders of those states have the ability to implement assassinations. Therefore, these individuals would be intimidated from ever testifying in a court in Canada or in an international court such as the Hague, where it tries so many war crimes.

Expanding the category of witnesses who are eligible also addresses one of this government's commitments under the 2010 Air India inquiry action plan. In terms of funding, the federal witness protection program is currently funded from the RCMP's existing operational resources. That would continue under Bill C-51. Because the system is more efficient, it would not require any extra resources.

In conclusion, Bill C-51 addresses a number of operational issues based on experiences gained in administrating the current program over the past 15 years. It would modernize the Witness Protection Program Act, improve interactions between the federal and provincial witness protection programs and ensure better protection of information.

Bill C-51 responds to many of the needs of provincial and territorial governments and to the needs of law enforcement officials and other stakeholders involved in the criminal justice system.

By building on our efforts to combat organized crime and terrorist activities, Bill C-51 would help us continue to fulfill our commitment to build safer streets and communities for all Canadians.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, on April 5, the Barreau du Québec sent a letter to the Minister of Justice. The letter is easy to find, since it has been made public.

The letter contained recommendations, including an amendment to Bill C-51 in relation to the Canadian Charter of Rights and Freedoms. I will list a few of them.

These questions have to do with the terms for lifting the protection granted to witnesses, the circumstances that allow an individual to maintain that he or someone else has always had the same identity, and the disclosure and communication of confidential information in relation to the witness with the right of the accused to make a full answer in defence, in accordance with the Canadian Charter of Rights and Freedoms.

Were the Barreau du Québec's recommendations to the Minister of Justice taken into consideration?

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I am sure the committee and the government considered all these things when designing the bill, when we had testimony. There were a number of great testimonies at committee. One of the quotes that is quite relevant is from the British Columbia assistant deputy minister, Mr. Pecknold, who said:

Based on our analysis, the amendments in Bill C-51 appear responsive to the specific needs of law enforcement in British Columbia and to the issues raised by our partners and stakeholders, including the broadening of the disclosure prohibition to include information on the program's methods for providing protection, extension of the emergency period beyond 90 days, and a process for voluntary termination.

Definitely the Province of B.C. at committee was very satisfied with the bill and with everything that was included in it. We know that on the information the amendments would authorize disclosure of otherwise prohibited information for the purpose of providing protection to a protectee and for matters relating to national security or national defence. Other exemptions would permit federal and provincial institutions to share prohibited information for the purpose of public safety or the administration of justice. Therefore, it is about co-operation and cohesiveness of the systems across Canada.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, it is always a pleasure to hear my colleague across speak. I miss being at committee with him. He was a fabulous chair.

However, I noticed that my hon. friend did not fully quote the representative from the British Columbia ministry of justice, who also advised the committee that he would be watching carefully to ensure the program was appropriately funded and that they had a voice in the level of funding. He said that from this perspective, the program would not be effective and efficiently administered unless it was adequately funded and the costs were not downloaded to municipalities.

Could the member speak to that?

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, the committee heard from a number of different witnesses, including the RCMP. The assistant commissioner from the RCMP in charge of federal and international operations said, “As a result of the designation regime” and the way the program is going to work “the RCMP will deal directly with the designated official for the provincial witness protection program”. He said, “This will promote efficiencies in services provided to the provinces and will further enhance the security of both the federal and the provincial program”.

Because of the gains and the efficiencies that are inherent in Bill C-51, there will be a savings that will be able to fund all the concerns that have been raised by the different provincial partners.

[Stella Ambler, Conservative, Mississauga South, ON]

Mr. Speaker, it is my pleasure this evening to speak to the safer witnesses act. As members may know by now, it is a product of extensive input from knowledgeable parties across the country. Indeed, I am pleased to note that the proposed legislation has earned plaudits from several provinces and law enforcement agencies. This positive reaction speaks volumes about the thoroughness and timeliness of Bill C-51.

Members may recall that in March 2008, the Standing Committee on Public Safety and National Security produced a review of the witness protection program. The government responded in July of that year. The review was certainly a key reference document for the policymakers who developed Bill C-51.

For my part in today's debate, I would like to identify how the proposed legislation responds to the review's nine recommendations.

The committee heard from many witnesses who stated unequivocally that the federal witness protection program was an essential tool in the fight against serious crime, organized crime and terrorism. Nevertheless, witnesses had some concerns, including four recommendations to promote greater fairness and efficiency in the management of the program.

First, the committee recommended moving the witness protection program out of the RCMP's hands and into an independent office within the Department of Justice. Through its own consultations, this government confirmed that the RCMP should continue to manage the witness protection program. For one, the justice department simply does not have the expertise to protect witnesses or deliver the programs; it is not what it does. Moreover, simply the physical moving of the administration of the program to justice could create potential security risks.

This government is embracing the intent of this recommendation, which is to ensure objectivity of witness protection matters. The RCMP is developing a reporting structure that separates its investigative and protective functions.

Second, to ensure a good fit between participants and the program, the committee recommended automatic psychological assessments of candidates over the age of 18, including family members. The government concurs that not everyone is a good candidate for the witness protection program. The RCMP now has psychologists who assess candidates and offer counselling to both candidates and protectees. I would stress the word “offer” because the decision to accept counselling belongs to candidates and protectees and is not imposed upon them.

The third recommendation is of a similar nature. The committee proposed to automatically offer legal counsel for candidates during negotiations for entry into the witness protection program. The RCMP continues to offer legal counsel to both candidates and protectees. Again, however, legal counsel is offered rather than imposed.

In its fourth recommendation, to improve fairness and efficiency in the witness protection program, the committee called upon the Commission for Public Complaints Against the RCMP, or CPC, to handle complaints from candidates and protectees as required. The government agrees with the intent of this recommendation and, as all hon. members know, we are currently working to pass Bill C-42, the enhancing Royal Canadian Mounted Police accountability act.

Under that legislation, the CPC would be replaced by a new civilian review and complaints commission. Amendments to the RCMP Act under Bill C-42, would give this new civilian oversight body limited and secure access to information about protectees.

The committee's fifth and sixth recommendations fall under the theme of facilitating access to the witness protection program. The committee called for federal, provincial and territorial ministers for justice and public safety to develop a funding agreement for participation in the witness protection program. It is believed that this recommendation was predicated on a national witness protection program with minimum national standards. Following consultations again, the government did not accept this recommendation. There is no funding in the fiscal framework to support such an agreement.

The sixth recommendation also touches on relationships between and among jurisdictions. It is recommended that the body responsible for the witness protection program enter into agreements with provincial and territorial governments. The goal would be to accelerate the processing of witness protection files.

The government recognizes that in some instances, it can take too long to process secure identity changes for provincial witnesses. That is why it has introduced amendments through Bill C-51 to improve the process, and as such, those proposed agreements are no longer necessary.

The committee's seventh recommendation revolved around establishing minimum standards for the witness protection program. The government considered this idea, but as I indicated earlier, the provinces objected, because the administration of justice falls within their jurisdiction, and national standards were reviewed as an encroachment. Consequently, the government did not accept this recommendation.

The final two recommendations related to promoting transparency within the witness protection program. The committee suggested that independent research into witness protection be permitted and encouraged. I am pleased to say that Public Safety Canada has already undertaken some comparative research. RCMP psychologists may also pursue limited secure research.

While the government agrees on the value of research, it sounds a note of warning. Researchers and risk management experts must take the necessary precautions to maintain the privacy and security of protectees and the program. They must not let their quest for knowledge trump concerns about the release of information.

Finally, the committee recommended more and better information in the annual report of the witness protection program. Since the release of the committee's review, the annual report has, in fact, been enhanced to account more thoroughly for expenses. The Minister of Public Safety reserves the right to request more information at any time, of course.

In summary, the government appreciates the hard work of the standing committee in preparing its review of the witness protection program.

The government consulted stakeholders about nine recommendations and gave them serious consideration in the preparation of Bill C-51. Indeed, most recommendations have found direct or indirect expression in the bill in changes to the RCMP Act or administratively within the federal program.

Through its own extensive consultations, the government believes that it has developed a solid and coherent approach to improving the witness protection program. Given the positive response so far from key stakeholders, I am convinced that Bill C-51 and administrative changes would continue to achieve the intent of the committee's recommendations in the areas of fairness and efficiency, greater access and transparency.

I thus invite all hon. members to join me in supporting Bill C-51, the safer witnesses act.

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

Mr. Speaker, I thank my hon. colleague for her speech.

I wonder if she could comment on the testimony given in committee by Alok Mukherjee, president of the Canadian Association of Police Boards, on March 19, 2013. I will read a short excerpt from his speech:

Our conclusion has been that there needs to be more funding available than currently is the case. Without the availability of sufficient funding, our ability to take advantage of the program will be limited. In places like Toronto, that's a big problem because, as you know, we're dealing with serious violent crimes and often rely on witnesses from the community, not informants and others but witnesses from the community. Their needs may not be significant, as was mentioned. All they may need is a little bit of protection, but that requires that sufficient funding be available for us to be able to do it. That, for us, is a problem.

[Stella Ambler, Conservative, Mississauga South, ON]

Mr. Speaker, I am aware that on March 19 at committee meeting 76, Dr. Mukherjee, president of the Canadian Association of Police Boards, said that both he and his colleague support the principle of the legislation.

I think the hon. member's concerns regarding resources are unfounded. In fact, the RCMP Assistant Commissioner of federal and international operations, Assistant Commissioner Todd Shean, said,

[w]ith 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

He also said,

It's not a question of resources; it's a question of the assessment that's done. Once the assessment is completed...during the assessment process the person may decide that they dodo not want to enter into the program...or...that they are not suitable for the program.

However, the RCMP has clearly said that resources are not the issue.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, I am pleased to hear my colleague speaking on an issue that a lot of us are interested in.

When we talk about the RCMP or other police forces having the resources to carry out important responsibilities, I have to tell the member that I have dealt with those budgets. If we tell them that they have to find it within their resources, they will do what they can, limited as that may be.

I cannot quite understand why we are all here debating this important piece of legislation at 9:30 at night, at $50,000 an hour, when we all agree that it is a good bill and that we want it passed. I am sure that my colleague has better things to do at this time of night as well. It is not as if anybody disagrees with the legislation, so why are we debating something that all members in the House agree with?