Public Safety Committee on May 29th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I would like to bring this meeting to order. This is meeting 46 of the Standing Committee on Public Safety and National Security.

This morning we are dealing with a review of the witness protection program. From the Commission for Public Complaints Against the Royal Canadian Mounted Police, we have Mr. Paul Kennedy, the chair, and Mr. Brooke McNabb, the vice-chair. We welcome you and we look forward to the information you will be giving us.

I would like all portable media to please vacate the room. I would like to advise the committee that we had very short notice here from the CBC that they would like to tape this session, so I'm just advising you of that.

Without further ado, Mr. Kennedy, are you going to lead off with a statement? You have approximately ten minutes, if you wish.

[Paul E. Kennedy, Chair, Commission for Public Complaints Against the Royal Canadian Mounted Police]

Thank you very much, Mr. Chairman. With your kind indulgence, I would like to make a brief opening statement of approximately ten minutes.

The Commission for Public Complaints Against the RCMP was created by Parliament in October 1988. Under part VII of the RCMP Act, a member of the public may file a complaint regarding the conduct of either a regular member or a civilian member of the RCMP in the performance of any duty or function under the RCMP Act or the Witness Protection Program Act. The bulk of the commission's work concerns complaints. If we look at more general issues such as programs, operations, operational policies, guidelines, and training, it would be to the extent that they are intertwined with the substance of the complaint.

Since its creation in 1988, the commission has received 27 complaints concerning the witness protection program. It had occasion to conduct nine reviews of the disposition by the RCMP in the first instance of those complaints. By the way, under the statute the RCMP does the investigation and then they make the resolution in the first instance.

One individual complainant was the source of three of the reviews. The majority of the complaints and reviews related to denial of access to the program, dissatisfaction with compensation provided, and perceived improper disclosure of information by the RCMP relating to a person in the program. Overall the commission was satisfied with the RCMP's disposition of the complaints.

Two cases resulted in comprehensive recommendations relating to the program. The first such case resulted in a public hearing held by the commission in 1992. I should point out that the program has been in place since 1984 but legislation was not passed until approximately 1995, I believe. This case was dealing with the program, not with any instance that was post-introduction of legislation. The individual who had testified on behalf of the Crown in a number of trials expressed dissatisfaction with the financial award and claimed that the RCMP had told her that she would be dropped from the program if she did not accept this offer.

The commission made 21 recommendations concerning the program. Those included assessing the ability to relocate and protect sources prior to exposing their identities; analyzing relocation and re-establishment potential from the time it becomes apparent that exposure is likely and danger is probable; informing the source of difficulties in protecting or relocating him or her and documenting conditions of relocation and protection in writing; providing training to handlers to recognize indicators of the changing needs of relocated witnesses; and providing counselling, as required, to relocated witnesses.

The second case arose in 1992. A woman who had been relocated complained that the RCMP demonstrated a lack of attention and concern in her regard. The commission found that the RCMP had mishandled the woman's relocation and name change. It recommended that RCMP policy relating to relocations be addressed, that a clearly defined memorandum of understanding be established between affected parties, that assistance of various social agencies be solicited, that the need to be circumspect and discreet be reinforced, and the maintenance of a diary date system to ensure that action is taken in an expedited manner.

Review bodies such as our commission are creatures of statute. The nature and scope of the review we perform is dictated by the powers given by Parliament. The mandate of the commission is expressed in a 1988 act of Parliament. Its powers are less robust than those provided to other review bodies such as the Privacy Commissioner in 1981, or the Security Intelligence Review Committee in 1984.

Some of the difficulties encountered by the commission, particularly as they relate to access to sensitive information held by the RCMP, are directly attributable to weaknesses in its legislative mandate. By operation of law, the RCMP may deny the commission access to a range of documents that fall into the following categories: significant damage to ongoing investigations; confidential human sources; investigative techniques not known to the public; solicitor-client privilege; litigation privilege; and section 38 of the Canada Evidence Act, which is a protection where there's a perceived harm to national security, national defence, or international relations.

There is a myriad of other statutory prohibitions. There's the Youth Criminal Justice Act. There can also be part VI of the Criminal Code dealing with wiretaps; that's protected. So there are other recognized privileges.

In the majority of cases, the commission does not require access to such information to discharge its review function. Where information is withheld, the RCMP, pursuant to a directive from the former commissioner dated February 15, 2006, is required to advise us of that fact and to state upon which legal basis it is denying access. I merely point out that this was in February 2006. The commission has been in place since 1988, but the directive was issued in 2006. I would then discuss with the RCMP an approach to address our needs while meeting their concerns about unauthorized disclosure. The former commissioner urged his members to afford the commission large and liberal disclosure and to avoid limiting disclosure unless there are substantive reasons that can be articulated for so doing.

As a matter of principle, however, I believe that an effective and credible review body ought to have access, as of right, to all information in the possession of the RCMP, but for cabinet confidences. There would be a need for checks and balances to ensure that such access did not result in the waiver of any existing privilege. I believe that the need to protect sensitive information from unauthorized disclosure and the need for an effective and credible review body can be accommodated.

There has been much focus recently on the RCMP's activities in respect of national security investigations. We've heard reference to the fact that there are some 300 regular members engaged in such investigations. There are, however, over 18,500 regular members, maybe even approaching 20,000, throughout Canada, and in a host of criminal investigations at the national, provincial, and municipal levels.

Some of the work at those levels would, for example, include investigations of national and international organized crime and crimes on the Internet. Some of those crimes would be investigated through joint force operations with other police forces or through standing integrated units such as the integrated border enforcement teams, IBETs; the integrated market enforcement teams, IMETs; and the integrated proceeds of crime teams, IPOCs, just to name a few. These units are multi-jurisdictional and multi-departmental in nature and employ long-term covert investigative techniques not unlike the cooperation and investigative techniques that characterize national security investigations.

In my opinion, there is a need to enhance the current legislative review model for activities undertaken by the RCMP generally. Following my appointment on October 24, 2005, I called for such action. I have provided the clerk with copies of speaking notes for a presentation I made to Justice O'Connor on November 17, 2005.

In my annual report for 2005-06, I restated my call for an enhanced legislative mandate to address not only national security investigations but all RCMP investigative activities. In October 2006, at the annual meeting of the Canadian Association of Civilian Oversight of Law Enforcement, which is called CACOLE, I outlined the key attributes of civilian oversight of policing.

It is important to provide Canadians with a national standard of civilian review of policing activities. As the RCMP is present throughout Canada, from sea to sea to sea, such a standard is all the more important. I have provided as well a copy of a deck that I used at that time, giving details of the presentation I made.

I fully realize the difficulties of envisaging what legislation embodying those key elements would actually look like. Accordingly, I have taken the liberty of having a proposed draft legislative model prepared that would be a straw man for further public discussions in this important area. I've provided you with a copy of that legislative model. I do not pretend that it is a perfect solution; however, based on over 33 years of experience in public safety issues, I believe it is balanced, effective, credible, and cost-efficient.

Features of the draft legislation that will be useful in examination of the witness protection program would be those that provide unfettered access, as of right, to all information but for cabinet confidences subject to the appropriate safeguards; create a positive obligation on law enforcement officers to account for their actions; enlarge the scope of review to include actions of retired law enforcement officers and non-officers who act under the direction or supervision of such officers; create a new audit review power and a new right of complaint about the inadequacies or inappropriateness of the policies, procedures, guidelines, and the ability to respond or provide a service or training program; provide the Minister of Public Safety with the right to request special reports concerning any matter; and allow for the creation of more than one report, i.e. a classified and a non-classified report.

The draft legislative model, I believe, has all the powers required to provide effective and credible civilian oversight review of RCMP activities and would be of great use to the minister and to members of Parliament in the discharge of their respective duties to the Canadian public.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Before we go to the official opposition here, there's one thing you have omitted from your presentation: the number of cases that are pending right now before the commission. And are you able to provide any details on those? It seems you've omitted that.

[Paul E. Kennedy]

There is one case currently that has been appealed to our commission for review. The ruling was given, I believe, in 2006 at the first instance, and we're currently conducting discussions with the RCMP in terms of access to the information relevant to hearing that appeal.

There clearly are difficulties. You're aware, from other witnesses who appeared before you, that there are secrecy provisions. I talked about statutory bars. There would be a bar. So in theory you can appeal or complain to us; however, section 11, I believe, says it's a limited offence to disclose. So for some of the information, what they're doing at the current time is speaking with the individual to see if the individual will consent to the disclosure of information.

So that's where we're at. That is the only active file we have. We had one recently that was disposed of, but that's the only active file.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

The usual practice is to begin with the official opposition, with a round of questioning for seven minutes.

Ms. Barnes, please.

[Sue Barnes, Liberal, London West, ON]

Thank you very much. I appreciate your attendance here.

As you know, we are studying the witness protection program, and a lot of your presentation today focused on broader issues. Perhaps I'll just start with the broader issues here.

You have asked for a new legislative model to expand your mandate. I just wonder, at this point in time, what reaction you have received, either from the minister or the authorities inside his department, on this model.

[Paul E. Kennedy]

I've shared that with everyone. I have not at this point in time, obviously, received any feedback on my model. I think I've appeared before numerous groups and talked about it. A lot of people seem to be supportive of that theory, but clearly the minister will have to speak for the department in terms of the policy initiative and what his plans are.

[Sue Barnes, Liberal, London West, ON]

Okay.

Let's go back now to the subject matter here, which is the witness protection program—twenty-seven complaints. One of the things that I couldn't get from this material was the geographic distribution. Were there any anomalies? Did they come from one area of the country in particular, or was this widespread?

[Paul E. Kennedy]

I'd have to look and see. We didn't analyze it for that purpose. I pointed out that the cases go back prior to this legislation being put in place. As a matter of fact, the two that I referred to in specific were both, I think, in 1991 and 1992. Regarding the 27 that are complaints, we could undertake to get back to you to see if we can identify what part of the country they came from and possibly break it down for you chronologically, if that would be of assistance.

[Sue Barnes, Liberal, London West, ON]

I'd appreciate that, and if it could go to the clerk of the committee, then it could be distributed to everybody, please. It's important to know, because obviously the RCMP operate differently in different areas of the country.

As for the 21 recommendations the commission made regarding the program, you've outlined some of the areas in the brief here, but that was done some time ago, and I'd like your comments. What actions were taken with respect to any of these recommendations? You can make recommendations until the cows come home, and if nobody acts on them, they're not very useful.

[Paul E. Kennedy]

Yes, it's fair to say. And I indicated that the recommendations were made in 1992--the legislation was 1995--and part of the challenge at that time was the articulation of criteria and so on. In June 1996, the legislation was passed. It mapped out criteria and so on. That certainly helped a bit, and I think it's fair to say that over time policies have been put in place to regularize it a bit.

The formal response at the time, and certainly of the nature you have indicated, which is that recommendations are not binding, they're merely advisory.... We could give you an edited version of the response that came back with reference to the recommendations itemized in detail, but it was very much that they were to be taken under advisement.

[Sue Barnes, Liberal, London West, ON]

Again, Mr. Chair, perhaps I could ask that those get tabled with the clerk and distributed to all members of the committee.

[The Chair, Conservative, Garry Breitkreuz]

To clarify, we're looking for the recommendations and the response.

[Sue Barnes, Liberal, London West, ON]

Absolutely. The recommendations he's briefly outlined here, but—

[The Chair, Conservative, Garry Breitkreuz]

Just to be clear.

[Paul E. Kennedy]

Part of the challenge we have is that some of them were obviously generic in nature. I pointed out in my submission that we don't have an audit or review power generally, so for you to find out if they've been implemented, you would have to go and look in a broader base to see if those policies were put in place and, if so, how they are being distributed. So when we make those things, they're one-off to that case, but we can at least tell you what they were.

[Sue Barnes, Liberal, London West, ON]

You have argued that to be an effective and credible review body, you should have as a right an access to all information in the possession of the RCMP except for cabinet confidences. I'd like you to enhance that statement: your reason for so saying and potentially some of the arguments that were made or are contra to that position.

[Paul E. Kennedy]

One of the ironies is that this legislation was put in place in October 1988, which was six years after the access and privacy legislation was in place and four years after SIRC was put in place. Their powers are quite similar. As a matter of fact, SIRC's powers were almost copied from those of the access and privacy commissioners.

Ours came later, and for some reason or other those powers were not put in there. It has been a point of frustration. It actually resulted in the commission going to the Federal Court to get access to information. The court in the first instance held that, yes, the RCMP had to provide access to the commission. They went to the Federal Court of Appeal, and the court said, no, unfortunately, your statute is weaker and doesn't provide that; the RCMP is allowed, in respect of any information to which privilege applies, to raise that privilege and to prevent access to it.

There actually was a ministerial directive issued, as I pointed out, by the former commissioner, that says try to cooperate, obviously, and give full and frank disclosure. But then it has an appendix, and the appendix is a good page long, with an itemized list of all the things that would be subject to privilege.

The only advantage we got, I think, from the decision of the court was that they at least had to tell us they were holding something back. So we knew that there was something we weren't getting and what the rationale was for not getting it.

In my experience, I have found that the RCMP in many instances want to cooperate with us. They will say to me, for example, “Paul, I'd like to share that with you because it would be to our advantage to have you more informed, but part VI of the Criminal Code dealing with wiretaps says you can't disclose information.” So they're not able to share the information and we're all caught in this catch-22. Even on an ad hoc basis, to the extent that they want to cooperate with me, if there is some other kind of statutory prohibition, it's used. So in my experience, I have found goodwill but a statutory impediment.

The other challenge is that if you look at SIRC's legislation, they can hear information in camera. They can protect information in camera. People would be concerned if they gave information to us that is classified and then someone else could access it from us under ATIP or privacy or subpoena, and the privilege might be waived.

I also spent five years as general counsel to the intelligence agency, and I know the dynamic in terms of concerns of the institution vis-à-vis oversight. So when I put this model in place, I learned the lessons of all the things that worked or didn't work in that venue. I have put in here that we have to have access to that information, but our access in law does not constitute a waiver of that privilege. Conversely, if information is given, if it's identified as being privileged, we will look at it and consider it, but we will not disclose it necessarily in our decision. But at least the public would know that we'd had access to everything.

I put a model in place that has those checks and balances in it that would give the RCMP comfort that there would not be damage to ongoing investigations nor a waiver by sharing it with us that would in fact constitute public disclosure. I have also talked in terms of being able to make two reports—a confidential report, classified when it needs to be, to the minister and to the commissioner, as well as one that would be public. Sometimes, by not having that detail in, it would be hard to persuade the commissioner or the minister that action should be taken.

The whole thing is put in there as a series of safeguards. I've done the same thing vis-à-vis witnesses. One of my arguments is that witnesses have to account for their actions. Police officers have unusual powers. In a lot of jurisdictions across this country, they have to account for the usual powers. Our model doesn't provide that. I'm saying that you have to, but conversely, for whatever you tell us, there is a privilege. It cannot be used in any other administrative, criminal, or civil proceeding. The reason is that our purpose is different. That way, a compulsion to testify would be with accompanying protection for the officer.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Before we go to the Bloc Québécois, you referred to an RCMP directive. Can you give a copy of that to the committee or not?

[Paul E. Kennedy]

Yes. I have it with me. As I read my notes this morning, I thought somebody was probably going to ask for that.

[The Chair, Conservative, Garry Breitkreuz]

Okay, I asked for it. You are able to provide it?

[Paul E. Kennedy]

Yes. We have copies in both official languages that we'll share with you.

[The Chair, Conservative, Garry Breitkreuz]

Okay.

Monsieur Ménard.

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

I am pleased to hear from you here. It is not the first time, either; I heard you recently at the Press Club.

You are not happy with the law that sets limits on your power and your responsibilities, and you make an eloquent case that changes should be made. But you are here primarily to provide evidence on the RCMP's witness protection program. You say that you have obtained sufficient authority to conduct your inquiries under the program and that, in the vast majority of cases, you were satisfied with the RCMP's conduct. But in two cases, you made specific recommendations to improve the witness protection program.

Could you sum up those recommendations for us in a few words? Could you also send us a copy of the recommendations, unless those documents are protected by one of the countless confidential privileges that you referred to in your brief?

[Paul E. Kennedy]

I wasn't merely speaking in terms of the need for enhanced powers just for that purpose. I spoke to those powers because I think it relates directly to the efficacy of the commission to look at the program you're looking at.

When I look at the Hansards back in 1995-96, when the legislation was put forward, there was all sorts of discussion at that time as to whether we could look at the program and whether there would be in camera hearings before committees and things of that nature, because parliamentarians were concerned about making sure of the efficacy of the program.

What I'm indicating to you is that when there's a complaint to us, the nature and scope of our inquiry is dictated by the complaint. So if a person says that he or she has a concern about financial compensation, the issue that is looked at and investigated is strictly the issue of financial compensation. And most of the complaints tend to be of that narrow nature. You cannot tell how the program is working, even vis-à-vis that individual, because you're only looking at the subject matter of the complaint and the relevant material concerning that particular complaint.

Therefore, the indication of our satisfaction with the resolution was in the context of the person complaining about money and what the information was relative to whether the person got the money over the promises in terms of compensation. It had nothing to do with how the program itself functioned or anything else that might have come out in terms of the uniformity of application of that program across the country. They are very narrow in terms of scope. That was the only context in which I put my comment.

In terms of the recommendations we made in the two cases I responded to—those are the ones I indicated were back around 1991-92—they're very detailed in terms of guidance as to whether they should have assessed the person for suitability for the program and things of that nature. I've undertaken that we will provide you with our specific recommendations and the response we got in both of those cases.

The current case I have before me, clearly, I can't discuss, because we don't yet have the relevant information that allows us to go ahead and make a determination. That's the one case I indicated was outstanding.

I wanted to contextualize that.