Public Safety Committee on May 8th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is meeting 43 of the Standing Committee on Public Safety and National Security. Today we are reviewing the witness protection program.

We would like to welcome the three witnesses who are with us. From the Canadian Association of Chiefs of Police we have Mike McDonell, assistant commissioner and chair of the counter-terrorism and national security committee. From the Winnipeg Police Service we have Mr. Gordon B. Schumacher, superintendent of the support branch. From the Toronto Police Service we have Steve Izzett, staff inspector.

Welcome, gentlemen. We look forward to the information you will give us.

I believe, Mr. Schumacher, you have agreed to make the opening comments. The other two witnesses can add anything they like after you're done.

Go ahead, sir.

[Superintendent Gordon B. Schumacher, Support Branch, Winnipeg Police Service]

Thank you, sir.

On behalf of the Canadian Association of Chiefs of Police, I would like to take this opportunity to thank members of the committee for allowing us to come before you today. We realize the important role you play, and we are very pleased you have allowed us to contribute.

Before I go too far, I'd like to identify exactly who we are. The Canadian Association of Chiefs of Police is a non-profit organization. We were founded in 1905 and are dedicated to the support and promotion of efficient law enforcement and the protection and security of the people of Canada.

The association is national in character. Its interests and concerns have relevance to police at all levels, including municipal, regional, provincial, and federal. The board of directors includes chiefs, commissioners, and directors of police services representative of the widespread regions of Canada.

Through its member police chiefs and other senior executives, the CACP represents in excess of 90% of the police community in Canada.

Understanding who we are hopefully will underscore why we are here. We represent policing in a broad sense, from the very small police forces in many of our provinces to the largest organizations in our major cities. One of my main goals this morning will be to talk frankly about our country's witness protection abilities and how many municipal, regional, and provincial agencies deal with witness protection issues.

I would like to premise my comments with an acknowledgement that the operation of the national witness protection program in its current form is good, and it is appropriate that the existing national program is being run and coordinated by the RCMP.

My comments of concern will focus on cost and process. There is no question that the cost of altering someone's life, in some cases the lives of entire families, is tremendously high. While acknowledging the cost, we need to find a way to enable local police agencies to access the program.

Organized crime activity in Canada is continuing to rise, and with that comes the responsibility, when necessary, of protecting prosecution witnesses. The witness protection program has afforded witnesses the confidence to provide information with the knowledge that they will be safe from all forms of reprisal.

Witness protection is an extremely important tool for law enforcement, allowing us to gain insight and assistance in dealing with the most dangerous of criminals. In furtherance of that protection, police agencies are being required to utilize various forms of witness protection. One of those, the federal program--the national witness protection program, created under the Witness Protection Program Act--has a mandate or purpose referred to under section 3:

...to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters in relation to

--and continuing in paragraph 3(b)--

activities conducted by any law enforcement agency...in respect of which an agreement or arrangement has been entered into under section 14.

Section 14, in essence, is the cost-recovery section, which I'll be talking about in a few minutes.

When police agencies first look at the national program for help with witness relocation and witness protection, they find substantial difficulties that have to be overcome, not the least of which is cost. The cost of placing an individual into the national program can be substantial and can be beyond the means of most Canadian police agencies.

The national Witness Protection Program Act has been interpreted to direct that only police agencies can submit applications to the RCMP to have a witness accepted into the national program. This is under paragraph 6(1)(a), for reference purposes, where it says that a witness or a spouse shall not be admitted to the program unless a recommendation for the admission has been made by a law enforcement agency.

Section 14 then talks specifically about the agreements. Logistically, section 6 and section 14 do cause us some difficulties, because the agreement to fund the witness protection must be made with another police agency. In most cases, police agencies can't afford it, and before they enter into such an agreement, they have to enter into a supplemental agreement with the specific province they're from to pay the costs of the witness being entered into the program.

The Witness Protection Program Act does not allow for a province to contract directly with the RCMP specifically for witness costs.

After agreements are in place, the RCMP facilitate, approve, and control the program's operation. They subsequently bill that cost back to the requesting agency. I can't emphasize that point enough, as it's one of the main problems with the federal act. It's simply unaffordable.

In some provinces like Manitoba, Ontario, Quebec, and British Columbia--where I understand there has been some recent movement--there are provincial protocols that may assist or at least provide alternatives to the national program. These were created out of necessity to fill the void left from the accessibility and cost implications of the national program.

In other provinces there is nothing, leaving it to the local police agencies to make at times difficult decisions in determining the direction of certain investigations. Some of their choices could include protecting a witness and paying the national program bills out of their operational budget, asking for outside agency assistance by turning over all or part of the investigation, or discontinuing or altering the investigation to exclude a situation where witness protection issues may arise. That could mean not pursuing an investigation as vigorously as they otherwise might.

Even in the provinces that have some provincial assistance, there may still be a void when an accused is charged solely with a federal offence like drug trafficking. Provincial programs will generally not help if there is a witness in need of protection in this case, leaving the federal witness program as the only alternative. As I mentioned and will continue to mention, it is unaffordable. The costs to all involved in putting someone in the national program are substantial and cannot possibly be sustained without some form of assistance from the federal government.

Over the past number of years we have seen the number of witness protection applications rise, and there's no indication that this trend is going to stop. This issue has been on the national agenda for some time now across the country. In 2005, both the Canadian Association of Chiefs of Police and the Manitoba Association of Chiefs of Police put forward resolutions to provincial and federal ministers of justice looking for a national witness protection funding regime that was in keeping with an integrated response to organized and serious crime and the desire to provide equal access to the processes of witness protection to all levels of police in Canada.

A report was also filed with the Solicitor General in 2005 after a substantive study was completed by the Province of Quebec. Witness protection regimes around the world were studied. This again suggested there be a more inclusive program with sustainable funding. I'm also aware that this issue was brought up at an FPT meeting in 2004. A working group was formed out of the national coordinating committee on organized crime to examine this specific issue. I know some work has been done, but I'm not aware that any substantive solution has come from that process yet.

The message from the CACP is that we need a restructured, more inclusive witness protection program with federal funding, from which all police agencies in this country, big or small, can draw.

Organized crime, serious crime, does not discriminate relative to geographic boundaries. It can be found in every province, city, and town throughout Canada. Failure to attack these groups in small communities creates safe havens; therefore, programs such as witness protection must be made available if we are to stay one step ahead of criminal organizations and those who commit serious crimes against the people of Canada.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We look forward to you elaborating on your recommendation that it be more structured and inclusive. I think we'd like to know what you have in mind when you say that.

Mr. McDonell, do you have some remarks you'd like to make?

[Assistant Commissioner Mike McDonell, Chair of the Counter-terrorism and National Security Committee, Canadian Association of Chiefs of Police]

Yes, I do, Mr. Chair, if I may.

[The Chair, Conservative, Garry Breitkreuz]

Go ahead.

[A/Commr Mike McDonell]

Good morning, Mr. Chairman and honourable members of this committee. I thank you very much for inviting us here today.

I am pleased to be here before you. My title is assistant commissioner of national security criminal investigations, and I am currently responsible for all aspects of national security criminal investigations, including investigational requirements, training needs, policy, national security, legislative affairs, and the implementation of the recommendations from the O'Connor inquiry.

I am here today as a representative of the Canadian Association of Chiefs of Police. I am currently the chair of the counter-terrorism and national security committee. Prior to that I was a member of the law amendments committee.

If I may, I would like to start out by making a few general comments about the modern security environment facing Canada. The threat landscape looks like this: Canada is the only one of the five countries named as a target by al Qaeda that has not yet been attacked, and as such, we face a real and significant terrorist threat. I see no reason to disagree with the consensus opinion expressed by those like former MI-5 Chief Dame Eliza Manningham-Buller, who asserted that the threat is generational and will be with us long after today's cadet is a commissioner.

Allow me to repeat the cliche. This issue is not about knowing whether an attack will occur but rather when. The threat is there, lurking at the very heart of our society. Local extremism does exist in Canada. We've seen it among the 18 individuals arrested in Toronto last June. We had also seen it in the individual arrested in Ottawa in 2004.

Both cases are before the courts.

As was the case in the 7/7 bombings in London, these were individuals who lived, worked, and participated as members of the society they targeted--our society. We must never forget that terrorism, at its root, is about criminal activity, targeting the state through its citizens, whether it be by inflicting mass casualties or creating mass fear. People who intend to harm our citizens and our country must be stopped, and they must be stopped using methods that do not undermine our core values. Invariably this is a job for law enforcement, and we are evolving to do that job effectively.

The Canadian Association of Chiefs of Police counter-terrorism and national security committee, which I chair, recently developed and adopted eight key principles on national security that clearly lay out the roles and responsibilities of all layers of law enforcement in national security criminal investigations. While we have not yet specifically discussed witness protection as a committee, there is one idea that runs through the key principles: the need to apply every tool available, including the witness protection program, to the fight against terrorism.

As explained to you previously by the assistant commissioner of federal and international operations, Raf Souccar, the witness protection program is an extremely important tool for law enforcement. In Canada, as in many other countries around the world, a good and reliable witness protection program has proven its value in the fight against crime, especially organized crime and terrorism. High-profile informants and key witnesses are more willing to testify knowing that a program is available to protect them against retaliations. However, it should be noted that in the witness protection program it does not confer immunity to these individuals from a responsibility for criminal actions, either before or after they enter the witness protection program. As is the case for every other citizen of our country, individuals in the witness protection program are accountable for their actions.

Ladies and gentlemen, I thank you for allowing me to make these opening comments, and I will be pleased to answer your questions.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Now, from the Toronto Police Service, we have Mr. Izzett.

[Staff Inspector Steve Izzett, Staff Inspector, Toronto Police Service]

Good morning, Mr. Chair and honourable members of the committee. Thank you for taking the time to hear from the CACP on this very important issue.

I'm here representing Chief of Police William Blair, who is co-chair of the organized crime committee for the CACP but is unable to attend today.

My name is Steve Izzett, and I'm a police officer with the Toronto Police Service. I hold the rank of staff inspector and I'm currently assigned as the unit commander responsible for intelligence services. Part of my responsibility includes carrying out the delegated authority of the chief of police in the delivery of the witness protection program for the Toronto Police Service.

One of the pillars of law enforcement, and the main ingredient of maintaining a healthy, vibrant, and safe community, is the participation of members of the community in dealing with issues of crime and disorder. This participation must be supported by the community at large, including the police, the crowns, and all levels of government. Individuals must feel free to come out openly and assist the police without fear of reprisal or intimidation.

Unfortunately, it has been our experience that this is not always the case; there are some groups or individuals who malign, intimidate, or strike out at those very witnesses who come forward, thus creating a perpetual cycle of fear and a disincentive to cooperation. This adversely impacts upon our ability to detect and prevent crime, while permitting the continued perpetration of violence by the very individuals who have escaped justice and are invoking that same fear and intimidation upon potential witnesses.

While you respectfully contemplate the current Witness Protection Program Act, it is my desire with this testimony to provide you with a full perspective from the local municipal law enforcement level. In order to do this, I will be referring to the program we have the most experience with, the witness protection program fully funded and administered by the Ministry of the Attorney General for the Province of Ontario. As you move forward, you may consider some of the points I raise here today and can perhaps place them in the proper context with the current federal witness protection program. This is an on-the-ground perspective; all officers administering this program within the city of Toronto work directly for me, and all the paperwork relating to this program is reviewed and approved by me.

The most important distinction I would like to make here today is that the delivery of witness protection should not be limited in perspective to your stereotypical witness who provided key testimony in securing a conviction of a major organized crime figure and who required relocation, a new identity, and placement for life. At the municipal level, it can be much more local in nature but have an equally devastating impact upon a community if not investigated and properly resolved by the police. A viable and effective witness protection program must have the capacity and flexibility to deal with issues at all levels of criminality.

Another important distinction is that not all witnesses desire to be relocated with full protection and identity changes. Some have no interest in even signing up for the conditions of the program but may be interested in a one-time relocation for their own protection. There must be flexibility in satisfying the needs of a witness, to the point where they feel they are no longer in harm's way. This flexibility improves the trust and cooperation of individuals with the police and restores and builds their faith in the justice system. They represent actions that pay dividends long after the entire process has concluded.

In the mid-1990s, the Toronto Police Service began to regularly encounter investigations wherein gunshots were fired in the middle of a public venue, with 300 or so onlookers, and with a deceased person lying on the ground and homicide investigators facing the 300 or so onlookers, all claiming to have been in the washroom, an area three feet by three feet. This is not an exaggeration, and, sadly, it did not happen just once or twice; unfortunately, it is still a challenge we face from time to time. It is symptomatic of the mindset individuals have when contemplating participation in the process of justice. There was, and continues to be, this persistent wall of silence.

Our goal has been, and always will be, to gain the trust and confidence of members within these communities, with assurances that protection will be afforded to them if they can come forward and provide testimony. We have made advances towards this end but still have much work ahead of us. We cannot do it alone; we do not have the financial wherewithal or the infrastructure to carry out this function on our own.

The Toronto Police Service first formed a witness protection unit in 1980. This program has evolved and developed through the cooperation and partnership forged between our service and the Ministry of the Attorney General in the Province of Ontario, who had the foresight and conviction to develop and fund a program, working closely with local law enforcement in the development process. This program has evolved over the years and is continually improving through the conscientious desire and commitment of all those involved in its delivery and administration.

This program deals specifically with provincial matters falling within the prosecutorial jurisdiction of the Ministry of the Attorney General for the Province of Ontario. It does not include federal prosecutions.

The process is very simple and streamlined. The infrastructure and support for protecting witnesses from all levels of criminality, ranging from homicides to domestic violence to organized crime, is in place. There is no middle tier of decision-making in the process, no bureaucracy, no red tape, and no lengthy delay while awaiting approval. Officers assigned to witness protection speak directly with the decision-makers at the ministry.

In order for a candidate to be accepted into the program, he or she must first agree to a number of conditions. Not all accept these terms and conditions, and as a result, they may decide not to enter the program while still providing testimony.

The officers assigned to witness protection are in constant contact with ministry staff and review each case to determine whether individuals are suitable for the program. This assessment period is very short and does not preclude temporary protection while steps are being taken to ensure that all the terms and conditions are met for admittance to the program. Notwithstanding this review process, there is an understanding that if officers require an immediate temporary relocation for safety reasons, provided they are acting in good faith, all expenses will be covered in relation to that relocation, even if the individual is not ultimately accepted into the program.

It is this flexibility and autonomy and decision-making at 2 o'clock in the morning that makes the process credible and inspires trust among members of the community. All expenses in relation to relocation, including travel that may be required, are paid for by the ministry, while all salaries for the officers and clerical staff are covered by the Toronto Police Service.

The ingredients that make the Ontario witness protection program successful include unencumbered access to emergency funds for placement, autonomous decision-making, and the lack of tiers in the decision-making process. Alternatively, when we look at our experience with the federal Witness Protection Program Act of 1996, we really have had few experiences to draw from where Toronto assumed responsibility for protecting a witness in a federal prosecution.

The Toronto Police Service has had a longstanding and excellent working relationship with the Royal Canadian Mounted Police on many successful joint forces investigations and other related and equally compelling projects. It has been during these joint forces investigations, where there has been a need identified to protect the witness in a federal prosecution, that the RCMP, as a partner in the investigation, has accepted responsibility. Without this sponsorship or assumption of responsibility, if you will, by the RCMP, the process would require that each individual law enforcement agency cover all expenses in relation to a witness protected for a federal prosecution. These costs, depending upon the situation, can prove to be daunting for local police services, and as a result, there have been very few federal witnesses placed in the witness protection program by the Toronto Police Service. While we appreciate and value our relationship with the RCMP, we cannot possibly partner on each and every investigation we undertake when in most instances we are expected to go it alone in terms of absorbing all costs associated with witness protection and the relocation of federal prosecutions.

The majority of these joint forces operations involve drug importation investigations. The major challenges facing the City of Toronto, which are the subject of constant enforcement and interdiction under our current Toronto anti-violence intervention strategy, are the open-air drug markets at both the street level and the mid-level. Can you imagine the added dimension of enforcement we could exploit if we could afford proper protection for witnesses involved in federal prosecutions? It would significantly enhance our ability to disrupt and dismantle some of the criminal organizations causing havoc within our communities.

In closing, the concept of witness protection facilitates the free flow of information to the police and supports witnesses, who are the foundation of our justice system. People should feel free to come forward and provide witness information. The success of the provincial witness protection program in the province of Ontario has provided the Toronto Police Service with an ability to gain trust in communities that have little faith in the police or in the justice system. It brings integrity into the justice system.

The current system in Ontario is a model that should be replicated. The Province of Ontario fully acknowledges and accepts responsibility for dealing with witnesses in a manner that facilitates cooperation and enables the police to fully protect individual witnesses, if required. Consideration should be given to augmenting the existing provincial program to enable federal prosecutions to be coordinated through the existing infrastructure that is already housed within this model.

Those are my comments.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, Mr. Izzett.

You've all given us a good overview.

As is the usual practice at our committee, we'll now go to questions and comments. We will start with the official opposition, the Liberal Party.

We'll go to Ms. Barnes for seven minutes, please.

[Sue Barnes, Liberal, London West, ON]

Before I start, we asked for protocols from some of the other witnesses a couple of weeks ago. I haven't received any.

We haven't got them back. Okay.

If any of you have protocols for your programs, would you please send them in to us? They'll be distributed to all the members, because they may be different from the RCMP programs. I'm specifically talking about the City of Toronto.

Maybe I'll start with you, Mr. Izzett.

You mentioned the example of somebody witnessing a gun crime and not wishing to testify. The witness protection program would permanently remove the person from the current situation. Do you really think that is...?

Let me put it this way. I would think that the witness who is more likely to come in would be somebody who is knowledgeable about an organized crime or is some insider, and you're protecting that person. But the people who just happen to be at the wrong place at the wrong time and see something I don't think, logically, will seek protection for the rest of their lives and want to change their identities. Is that something you're suggesting could be happening?

[S/Insp Steve Izzett]

I'm not only suggesting it, I'm telling you that it's occurring. It is occurring right now. That's how we have some of our successful prosecutions. That enables us to gain trust within some of these communities that are very tightly knit and that frown upon speaking with the police.

[Sue Barnes, Liberal, London West, ON]

Thank you for clarifying that point.

Perhaps you would like to add something, Mr. Schumacher.

[Supt Gordon B. Schumacher]

Yes, I can add that Staff Inspector Izzett is quite correct. In those provinces that do have provincial protocols, that almost establishes a second tier of witness protection and will include those types of people you mentioned.

[Sue Barnes, Liberal, London West, ON]

That's not something the RCMP at the national level, though, envisages at all, because that's something totally different from what we've heard testimony on before.

[Supt Gordon B. Schumacher]

That's correct.

[Sue Barnes, Liberal, London West, ON]

Okay.

Mr. Izzett, has this been replicated in other cities across the country, to your knowledge?

[S/Insp Steve Izzett]

I'm not sure. I can't answer that.

[Sue Barnes, Liberal, London West, ON]

Okay, thank you.

Mr. Schumacher, you said that the main problem with the federal act was one of affordability and you were asking for federal funding. Do you not envision in your request some provincial contribution? Are you suggesting it should be all federal funding?

[Supt Gordon B. Schumacher]

Well, we're looking to the federal government to take a lead role in establishing a process that works for everybody. The reality is that the void left from the national program had to be filled. The way it has been filled is the provinces, Ontario, Quebec, and, as I mentioned, British Columbia, are now coming into it, have stepped in and said, “We have to deal with this issue; we'll pay for it.” In Manitoba they certainly do not believe it's a provincial responsibility to pay for it, but they are, because there's the void.

[Sue Barnes, Liberal, London West, ON]

You've said section 6 and section 14 give you some cause for concern and are problematic. Do you have any recommendations for this committee as to how they should be changed?

[Supt Gordon B. Schumacher]

Well, certainly. The legislation itself will not allow the RCMP to agree specifically with a provincial government to fund. So in Manitoba, for instance, if Winnipeg has a person we'd like to put into federal witness protection, we have to go to the RCMP and discuss it with them. Before any agreement is made, we then have to go to the province to secure their willingness to pay for it. In a nutshell, what happens is the RCMP provides us with a contract to the Winnipeg Police Service, saying, “You will pay the costs.” This is no fault of the RCMP, of course; this is the way the act is set out: you will pay for this particular witness to go into the program, which can be well over $100,000 and beyond. The Winnipeg Police Service can't do that, so then we turn to the province for help. The province will then say to us, “All right, we agree that this person should go into the program. We agree to enter into a supplemental agreement with you, Winnipeg, to pay any bills that you are obligated to pay as a result of your agreement with the RCMP.” It's kind of a long way around making an agreement to pay for specific witnesses.

If there's an amendment to that, clearly an amendment to allow the RCMP to contract directly with provincial representatives, that would be useful. Then, hand in hand with that, section 14 on the agreements, by allowing them to make the agreement with the province, would allow the money to flow.

[Sue Barnes, Liberal, London West, ON]

Often there's a spouse or other dependants involved in your witness protection program. We've talked about the conditions that have to be acknowledged. What do you do? Do you have a condition protocol or a side agreement with those spouses or dependants? Obviously, one person can't contract for another. What happens there?

[Supt Gordon B. Schumacher]

Well, that happens quite often. Families members get pulled into the web of witness protection a lot. Certainly, they have to sign on the dotted line as well. They are being provided with protection. Trying to create a new life for them in another part of the country is tremendously difficult, so they have to be committed to the program themselves. That's on the national side.

On the provincial side, it's a little bit different, in the sense that provincial programs--I think Ontario is the same, and Staff Inspector Izzett can correct me on this--are more of a witness management program, in the sense that certainly they're protecting the witnesses but it's not anticipated that that protection will last for years.

[Sue Barnes, Liberal, London West, ON]

My time is limited.

Mr. McDonell, you tell us you haven't directly dealt with witness protection in your meetings. Is it on the agenda for any upcoming meetings? Are you planning on dealing with this subject?

[A/Commr Mike McDonell]

Not in the immediate future. We're trying to get a resolution through, defining the roles and responsibilities of all police levels in national security. The other big project we have under way is the training of front-line officers. So it's down a little on the priority list.