Public Safety Committee on May 31st, 2007

[Prof. Nick Fyfe]

Yes, let me deal with those questions as well.

As Mr. Shur said, certainly jury members would know about the protection arrangements that witnesses have been put under.

In terms of innocent witnesses, my experience from looking at these programs in the U.K. is that they form a relatively small proportion of the total number of witnesses who go into the programs. But clearly they create particular challenges for witness protection programs, particularly if these are people in various forms of employment who, if they're going to be relocated, may have to find new employment in areas to which they're moving.

In terms of physical protection, my experience is very similar to what Mr. Shur has said: that witnesses who have followed the instructions and regulations of the protection programs they're on have remained safe.

One issue around this is that, certainly from my experience of interviewing witnesses on protection programs, it's not just their physical security that is important; it is their sense of social well-being, their sense of identity, their mental state, which is in some cases almost as important.

I think one of the ironies of witness protection is that in some cases where witnesses have been harmed, it's because they're harming themselves; they've committed suicide. Certainly, the evidence I've seen is that the suicide rate among protected witnesses is higher than it is more generally among the population. This is a reflection of the mental and psychological challenges these people face in trying to develop new lives in new communities.

I suppose in a way that links to the last point you raised, about what might be the best system. I don't think one could point to any one country and say it had the ideal system, but if you were to look at different protection programs, you could ask what the elements of good practice are that we could learn from and perhaps build on to form a good protection program.

That's partly connected with the issues of welfare and support for witnesses, both in the short term and long term. It goes back, again, to points Mr. Shur made earlier on in his evidence about screening witnesses effectively at the outset to make sure they are people who can cope with some of the pressures they will be subject to.

It's also about having a very robust legal framework within which witness protection takes place. One of the difficulties in the U.K. is that we have very little information about witness protection, because it doesn't occur within a clearly defined statutory framework. And this should cover things such as the appeals process that we discussed earlier.

I suppose the one other area where I think there is different practice is in who takes those decisions about who is included and who is excluded from programs. The tradition, in Canada, as in the U.K., is that it is a chief police officer who makes that decision. But there's clearly a very different practice in other parts of Europe, where those decisions are taken away from the police and are given to another body, which might involve representatives of the judiciary, experts on organized crime, and other individuals.

It may be that having that kind of group taking those decisions, one that is slightly removed from the police, may offer a more independent and perhaps more dispassionate view of whom it is appropriate to protect and who would be included and who should be excluded from those programs.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Shur, do you have a further comment?

[Gerald Shur]

May I?

As to the suicide rate, I think it's a very interesting point.

In the seventies, we did a study. I was concerned about suicides happening. The study reflected a different result than the one Mr. Fyfe found. Probably, we are doomed to do another study. Our results showed no increase in the witness population over the regular population. But I think now, with a much larger database, we should do that study again.

When witnesses are relocated, to help relieve the stress they undergo, whether they're innocent witnesses or not, or family members of prisoners who are witnesses themselves, we arrange for all of them, if they wish, to go to psychologists and psychiatrists. It's just part of the routine that they do that.

[The Chair, Conservative, Garry Breitkreuz]

Okay. Thank you both.

We'll now go back over to the government side.

Mr. Norlock, just give a brief introduction before you pose your questions.

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

Thank you.

My name is Rick Norlock. I'm the member of Parliament for Northumberland—Quinte West. In a previous life I was a police officer for 30 years, with the equivalent of the state police.

I'd just like to carry on a little bit further and make a comment with regard to Crime Stoppers, which actually is used very often by police forces, specifically in Ontario. It is highly successful. Just to let you know, it was founded or conceived by a Canadian who was resident in Albuquerque, New Mexico.

I would like to explore best practices a little further vis-à-vis whether the decision-making program should be resident with police forces or someone other than police forces. I guess I'll put my little comment in and then leave it up to you two gentlemen to explore this further.

What we're looking for here are best practices. What we've heard from the RCMP in particular and some other police professionals and members of the bureaucracy who deal with the program is that it's relatively successful in Canada. As a matter of fact, I would have to say, based on the negative comments, it's highly successful. But we shouldn't rely on our laurels, as perhaps there's something better. That's where my question goes: is it going towards best practices?

We heard the professor indicate that in some jurisdictions the decision-making process is resident with people associated with the judiciary, or lawyers, etc. We've been discussing some of the social welfare issues surrounding this. So I guess my question would be to ask both of you gentlemen to explore further the differences you perceive, or the negatives and positives, of taking it out of the hands of the police.

I must say—not because of my prior occupation, but because of the observations I've made, both from your testimony and previous testimony from Canadians experts and those managing the system, in particular the Royal Canadian Mounted Police—that my experience is that the more links you put in, the more separations you put in, the more difficult the process becomes. But that's just my interpretation, and I leave it to you two gentlemen to respond to that.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Fyfe, would you like to go first this time?

[Prof. Nick Fyfe]

Right. I'll make one general observation, which is that there is so little research in this area around issues of effectiveness that what we actually know is very limited. Clearly, there are practitioners who have a lot of direct experience—and Mr. Shur has demonstrated that very clearly—but I suppose what tends to be missing is any independent evaluation and research into witness protection programs. I think that's why we're working with relatively little in terms of a secure, independent evidence base. I just make that as an initial statement.

The issue about who is best placed to make those decisions about inclusion and exclusion I think is a very difficult one. There are issues partly about the speed at which these decisions need to be taken, and also about the fact that often you need to monitor the way in which the threat to witnesses may rise and fall. The risk to witnesses tends to be a dynamic phenomenon; it isn't just a one-off thing. They might be more at risk at some times than others.

Certainly from the work we did in looking across Europe, there was some surprise that in some jurisdictions it was the police who were allowed to take this decision. It was felt they were perhaps too close to the whole investigation process and that you needed some people who had some distance from that, who perhaps could take a wider view as to whether that witness was essential to the prosecution and the investigation. I think there was a feeling in some cases that perhaps the police were too ready to take witnesses into protection programs, because it would allow the investigations to proceed more quickly. But clearly that was going to involve huge disruptions in those people's lives.

Certainly the opinions we heard tended to be of the view that it was perhaps better to take that decision out of the hands of the police and to allow a more independent assessment, perhaps, of the evidence the witness could provide, within a broader context.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Shur.

[Gerald Shur]

Mr. Fyfe is correct I think in his statements with regard to having a separate group making a determination as to who should enter the witness program, rather than the arresting officer or his particular precinct or department and such.

Of course, my experience goes to federal investigative agencies, so I was confronted with the problem of the FBI, the DEA, the Secret Service, and 26 federal investigative agencies that might have witnesses. I didn't like the idea of agents handing money to potential witnesses. I think it would look bad in court, and I thought if we had an independent group, such as the U.S. Marshals Service, that was not competitive, it would work much better.

I also could not see the DEA turning its witnesses over to the FBI for protection, or the FBI turning its witnesses over to the DEA or the Secret Service or whatever, again because of the competition. So I looked for a neutral agency that would do that. Nobody has a problem with the Marshal Service because they are not competing with them in any way, so that would be useful.

In our country, I think there are four people in the federal system who can determine who shall enter the witness protection program. It is the attorney general, the deputy attorney general, the assistant attorney general, criminal division, and one other person designated by the attorney general. I was the one other person.

It allows a standard to be established as to what types of cases you will put into the program. And you are more efficient with respect to money, you're more efficient with respect to investigations, and you're more efficient with respect to prosecutions when you have the judgment made centrally, where that group reflects the views of the highest law enforcement officer--the attorney general, in our case--as far as what cases you will go on.

So if we were to have someone from the Fish and Wildlife Service call us up and say that someone had shot three rabbits and they wanted to put the witness in the witness protection program, it might be a truly important case to that particular agent but not one that I would find deserving of a $100,000 expenditure and the movement of 24 people. So there is a standard that can be applied by having an independent judgment made from the investigators.

Now, you don't have to have a separate office, as I did with the U.S. Marshal Service. And if I may, without knowledge, dip into your area, if you had a separate group within the RCMP and their sole function was witness protection and making judgment, and there was a precise individual or individuals responsible for exercising that judgment, you could achieve the same results that I think we achieved in our program.

One other thing that Mr. Fyfe said, which has to be said by me, is that all witness protection programs need improvement. No matter how good they think they are, we need a lot of improvement.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Are there any loose ends there? I find interesting your comment on the three rabbits. The animal rights people obviously don't have the same influence in the U.S. as they do in Canada.

We'll now go over to the other side of the table.

Ms. Barnes, do you have further questions?

[Sue Barnes, Liberal, London West, ON]

Thank you. I do.

I noted the difference in your internal analysis on the suicide, and I'm not a suicide expert, but one of the things that often occurs is isolation of individuals. My understanding, prior to your testimony, was that the isolation from relatives is a determinant over time of people returning and taking themselves out of the program.

I was really shocked, actually, when you said you had up to 25 people, because I thought our experience in Canada was that it's a very limited group of people; it would be, I think for the most part, the immediate family, so spouse, child, but certainly not grandparents.

I understood you saying, Mr. Shur, that you will take anyone in that grouping who is at risk. I only want to clarify that point so there is no misunderstanding here. The wide grouping on the family is not because you're taking all of the extended family; it's because that particular extended family had great risk to itself as a unit. Is that correct?

[Gerald Shur]

Yes, that's correct, but there is an exception. As with everything I say, there's an exception. But if grandparents were close to the family and the family would suffer considerable trauma, or the grandparents might suffer considerable trauma, we might then relocate them. But the case usually is that they want to stay where they are.

[Sue Barnes, Liberal, London West, ON]

Professor, in most of the analysis that you've done on international programs such as they exist currently, is it like in Canada, where it's a very limited family unit that would be moved into an isolated position or another community?

[Prof. Nick Fyfe]

Yes, that's right. It would be a relatively small group of just the immediate family of the witness.

[Sue Barnes, Liberal, London West, ON]

The other thing I found, something we should hear, is the difficulty it would have for social science and humanity research in this area, just because of the required secrecy. So what you have, really, is research done by the people who are immersed in the programs, internal research that's the current level of....

What I'm getting at here is that we would have peer-reviewed research. Is that a difficult thing to do in this area?

I'd like separate answers from you, and I'd also like to know, is all the research that has currently been done internal to the programs themselves?

[Prof. Nick Fyfe]

Shall I answer that first?

[The Chair, Conservative, Garry Breitkreuz]

Mr. Fyfe, go ahead.

[Prof. Nick Fyfe]

Going back to an earlier point, there is very little independent research in this area. The research that we did in Scotland was commissioned by the Scottish government. So they funded it and they then negotiated access for us to the police officers on the protection program, and then those officers facilitated access for us to witnesses who were protected, so that we could actually interview those witnesses in secure settings and get their story about their experiences of being on these protection programs.

Certainly, to my knowledge, I think that was the first and still the only independent piece of research that looked at both sides of the picture. It looked at the challenges and stresses the police service was under in terms of trying to protect these witnesses—and I think it's important not to underestimate that, that the officers who are working on these programs are under huge stress and there are all sorts of issues around the training of those officers and the support for those officers—but at the same time, by interviewing relocated witnesses and their families, you get an insight into just how disruptive and how difficult it is for these people to rebuild their lives and why some of them simply cannot cope with the pressures of the program and therefore return to their home areas.

I suppose I would say this because I'm involved in research, but I think it is an area that is crying out for more independent research that can look at the whole process and all the different agencies involved.

One of the other things we looked at was the role of housing associations that were trying to find homes for these witnesses. We talked to people from benefits offices and from health authorities, because there is a whole range of other agencies that are also required to supply information and help with the relocation process. Again, it puts big pressures on those other agencies, non-law enforcement agencies, and there were concerns among people within housing authorities and health authorities about the risks they might be putting themselves at by being involved in this process.

So I really think there is a need for some kind of research that addresses that bigger context in terms of all the different individuals and agencies that are involved in the witness protection process.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Shur.

[Gerald Shur]

I believe that research would be continuing in this type of program. We do have independent research. I think it could be better than it is. It's done by the General Accounting Office, which represents the Congress. It has done research into the program and has looked at complaints of witnesses and how efficiently the program has operated.

The Office of the Inspector General is an independent body within the Department of Justice that has also investigated the witness program on more than one occasion.

There was one other group I can't recall that has done independent research in the program.

When I say “has done it”, I don't mean one time in 30 years, but at various times.

[Sue Barnes, Liberal, London West, ON]

But they're all inside government?

[Gerald Shur]

They're all inside government, but there is—

[Sue Barnes, Liberal, London West, ON]

I'm talking about outside government.

[Gerald Shur]

No, they're all inside government. I don't see how you could have an outside government researcher visit with a significant number of relocated witnesses.

[Sue Barnes, Liberal, London West, ON]

In actual fact, Professor Fyfe just told us that he did.