Public Safety Committee on May 31st, 2007

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

Thank you, Mr. Chair.

I'd ask both of you, in the situation where someone has been terminated from the program for criminal activity on their own part, have you had any experiences where that individual then did suffer consequences, either death or serious injury, from the group that we originally were attempting to protect them from? Are you aware of any?

[Prof. Nick Fyfe]

I'm not aware of any cases of that kind, no.

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

Okay.

This one is going to be a somewhat difficult question, because it's one I've been struggling with, and I know it's a bit nebulous. But the question is, does the program--and again I'm thinking back to the particular case that triggered this investigation here in Canada--by relocating an individual who has had a long criminal history out of their community, where they may be known by the local police forces, where they may be under some ongoing surveillance by them, either direct or indirect, into another community provide them with some shelter to commit crimes more easily than they would if they had been left in their own community?

Professor Fyfe, maybe I'll start with you, because with the research you've done you may be able to comment on that, but I'd like your comments, Mr. Shur as well.

[Prof. Nick Fyfe]

We didn't specifically look at that, and I suppose one would hope not, in the sense that clearly the police in the community to which these people are being moved have been informed about their presence and would maintain some level of surveillance on their activities. So yes, one would hope not.

Can I make just one other point? It's a slightly different point, but one of the things we came across when we were discussing the relocation of witnesses was the way communities felt. The people who have agreed to give evidence are, in this country, talked about as “grasses”, people who have broken a kind of local code of having no contact with the police, and by giving evidence and becoming witnesses they have broken that local code. A couple of people said to us, by relocating those witnesses, in a way, the intimidators have won. They have led to these people being excluded from that community.

To put it in slightly more graphic terms, in a sense they've purified those communities of these people who they view as grasses, as people who are prepared to give evidence against other people within the community. That was something that we thought was quite interesting. To some groups, it might be seen that relocating witnesses was actually a victory of sorts for certain groups within the original community.

[Gerald Shur]

To the last point, that the intimidators have won, our experience is that the intimidators wind up in prison. We have an 89% conviction rate in cases in which relocated witnesses testify.

In a study that was done some years ago, I think it was in the 1990s, we found that in federal cases where relocated witnesses had testified, the sentences were longer for the defendants than in like cases against like defendants. That was a byproduct, certainly not an intent of ours. It just happened.

As far as relocating people from their community to another community is concerned, and giving them the opportunity to commit crime again, we do several things. You can look at it, in one way, that we have provided them with what I think social workers would recommend. We've removed them from an area of people they've committed crimes with, and they are now with people who are not committing crimes. We've given them a new opportunity. We're supplying them with psychologists. We have a WITSEC inspector where they are, helping them get a job, taking them to the grocery store, getting into doctors and such, and getting their children enrolled in school. They are getting to see a lifetime of non-criminal behaviour.

Some of them have to make real adjustments, in that they're not used to going to work at 8:30 in the morning, and home at 5. They're used to going to work at 8:30 at night and home at 5 in the morning. It's quite different. They're used to not telling their wife where they've been, but now they're in a community where things have changed.

Having been removed from these other influences is a plus, I think, in addition to that psychological assistance. Again, I have to restate that you have up to 18% recidivism, so we're not going to be perfect at it.

[The Vice-Chair, Liberal, Roy Cullen]

Thank you, Mr. Comartin.

Mr. Ménard, do you have a question?

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

First, I would like to say how much I appreciated your cooperation and the documents you sent us. They will be very useful to us.

Professor Fyfe, I'm going to cite one of the criticisms contained in the brief you sent us:

Creating an environment in which providing 'substantial assistance' is the main way informant witnesses get reduced sentences also risks the so-called 'co-operation paradox' whereby “kingpins” receive lower sentences than their underlings because the “singlepins” have more information to exchange for a 'substantial assistance' recommendation.

The fact that you wrote that means you have thought about the matter. What do you think about it now?

[Prof. Nick Fyfe]

I suppose the point we were making about bigger bosses on occasion getting lower sentences was related to the issue of these people having more valuable information for the police and the prosecuting authorities to plea bargain with. They could therefore use their status and the fact that they had this information to get lesser sentences, whereas people lower down in these criminal organizations might be more vulnerable. It's the context in which we made that particular point.

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

Professor Fyfe is obviously not satisfied with the legal framework in which he must operate, whereas Mr. Shur does seem satisfied with it, although there is still room for improvement.

Another legal framework concerns me: that of criminal procedure obligations. Do you see any legal barriers to the system's utility? One of the obstacles is the absolute obligation, in common law, whether it be in the United States, England or Canada, for the jury to know all the benefits that have been given to witnesses, whereas that is not the case in other European jurisdictions.

Personally, are you satisfied with this second legal framework, not the framework of the protection system, but rather the one you rely on in order to get convictions?

[Prof. Nick Fyfe]

I'm sorry. Could you restate the question? I missed part of it during the translation.

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

I'll restate an example that you will understand. In the Canadian and American systems of law, jury members must absolutely know all the benefits that have been given to protected witnesses. Some other systems do not have that obligation. Do you think these legal obligations should be changed, or are you satisfied with the heavy burden that the Crown must bear when it uses these witnesses?

[Prof. Nick Fyfe]

It's an interesting question. I would probably say it is important to be as transparent as possible in this process. The court should therefore know as much as possible about the protection that witnesses are being given, in ways that don't obviously compromise the security of the witness.

It's a difficult one for me. I don't really feel qualified to answer that one.

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

I've seen the system start from scratch and develop up to the current rules. I've seen the Crown allow certain protected witnesses to lie about the benefits they have received. I believe that, under the Italian system that you describe, they are not compelled to disclose the benefits they have received. From what I understand, we can grant those benefits following the testimony, whereas, under the Canadian and American systems, we have to give witnesses all benefits before they appear.

[The Vice-Chair, Liberal, Roy Cullen]

Thank you.

Is there a short answer?

[Prof. Nick Fyfe]

It seems to be a sensible approach.

[The Vice-Chair, Liberal, Roy Cullen]

Thank you.

We're getting close to the end here. We have Ms. Barnes, and then Mr. Comartin, and that will probably be it.

[Sue Barnes, Liberal, London West, ON]

Perhaps I'll just ask one question and give my colleague time.

I'd like to hear from you, Professor Fyfe. In the interviews you did with people in protection, what were some of the recurring themes that they mentioned, either positively or negatively, about their program? Was there any constant, or was every case different?

[Prof. Nick Fyfe]

There were some constants. Most people said they wouldn't be there, they wouldn't be alive, if they hadn't been put under protection, and they wouldn't have been able to give the evidence they gave unless they'd been under protection. They recognized how important the protection process had been.

The other constant was a continuing sense of anxiety and of the difficulties of rebuilding their lives. One of the things that was really striking about these people is that in their day-to-day lives, if the telephone rang or a car pulled up outside their house or a letter came through their letterbox, they suffered chronic anxiety. If they walked down a street, they always felt somebody might be watching them. They found it very difficult to live what we would think of as normal lives.

One of the other real difficulties a lot of them spoke about was that it is incredibly difficult to form new social relationships when you cannot talk about your past biography. Developing any kind of social trust or intimate social relationship involves sharing aspects of your past, and when you have to create a fictional account of your past in order to exist in this new community, it puts huge psychological challenges in front of these people.

So you have this tension between these people saying that they appreciate everything these programs have done in terms of their physical safety, but in terms of their mental state and social well-being, they live with this chronic sense of anxiety. They thought it would fade, but in most of the cases we dealt with, it didn't fade; it just continued with them.

[Sue Barnes, Liberal, London West, ON]

Thank you very much, both of you. Probably that answer is as close as this committee is going to get to a real witness, and that's one of the problems when you're doing this type of study.

I'll pass back, Mr. Chair.

[The Vice-Chair, Liberal, Roy Cullen]

Thank you, Ms. Barnes.

Go ahead, Mr. Comartin.

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

Thank you.

Professor Fyfe, at the end of your written brief you talked about the necessity of transparent legislative guidelines. Could you point this committee to any jurisdiction in which you feel they have accomplished that result, a jurisdiction where there are transparent legislative guidelines?

[Prof. Nick Fyfe]

I suppose the particular point we were making there was that in the U.K. we don't have that kind of transparency. We looked at, say, the situation in Australia, where they're publishing annual reports by the federal witness protection program. It was basically having access to that kind of information that we felt was vital in order to secure the legitimacy and credibility of these programs--that there was information in the public domain about how these programs were operating, how much was being spent, how many witnesses were involved, and what kinds of cases they were participating in.

In our study, we were unable to look in detail at what happened in other European countries, so one would have to return to their legislation to see under law what they're required to report about their protection programs. Certainly we feel that the U.K. is a long way behind the Canadian and Australian situations, in that there is very little information in the public domain about witness protection.

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

Have either one of you looked at the operation manual for the RCMP here in Canada as to how the program here should function and as to whether that is adequate, if you have had a chance to look at it?

[Gerald Shur]

I have not.

[Prof. Nick Fyfe]

I haven't seen the operational manual either.