Public Safety Committee on May 31st, 2007

[Prof. Nick Fyfe]

It's the same situation in the U.K. as well; there would be no immunity.

Just quickly going back to the previous point, again, in relation to the U.K. system, which as I've described is a fairly ad hoc system or witness protection program, in my interviews with police officers who are running the program in Strathclyde the thing they were probably most concerned about was making sure witnesses didn't materially benefit as a result of relocation, because they were very concerned that their evidence would then be seen to have been tainted or bought by the police and prosecution authorities.

In terms of setting people up in new communities and giving them support, it was an absolute rule that they were never given any financial payments to assist them, that there was no giving of cash payments to witnesses, because they were concerned that these could be used by the defence in any criminal trial to suggest that their evidence had been bought.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Shur.

[Gerald Shur]

We've encountered that problem and we believe we've found a solution. It's been working for about 30 years now. That is, when a witness is about to testify, we notify the court, the judge, and the defence counsel of exactly what moneys we have paid the witness and what the moneys were paid for, and the defence counsel is put under a burden of trying to make a point of the fact that we gave $8,000 last year for food and paid $11,000 for medical care and so on. The courts are advised and the defence counsel is advised of all the moneys that are given.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll now come over to the other side. Mr. Cullen, just give a brief introduction and then you can pose your questions.

[Roy Cullen, Liberal, Etobicoke North, ON]

Sure. Thank you very much, Mr. Chair.

Thank you, Professor Fyfe and Mr. Shur. My name is Roy Cullen. I'm a member of Parliament from the Toronto area, and I'm vice-chair of this committee. This will sound strange to Professor Fyfe, but Oxford, London, and Windsor are bedroom communities of Toronto. So you can see our British roots.

We've been talking about the traditional witness protection programs. Typically a criminal person is relocated, with identity changed, etc. But let me tell you a bit about my part of Toronto, where we've had a lot of gun-related crime and gangs and drugs. In fact, in my area they arrested 120-odd people in a big swoop a year or so ago, so there's been less of it, but we're still very concerned.

We've had in my area drive-by shootings, shootings in daylight, and no witnesses coming forward. The police are struggling with this constantly. You might have upright, honest citizens who have witnessed these events. They're not criminals. They probably don't want to move to Florida, notwithstanding the lovely climate there, sir, but the way the justice system works in Canada, though I'm not a lawyer myself, you cannot really do anonymous testimony, because at a discovery it becomes a public matter.

So I'm wondering whether there are other models that have been looked at, or whether you've had any experience with working on witness protection programs that are dealing with, let's say, normally honest citizens who have witnessed crimes but are absolutely petrified to come forward because of possible retribution.

Are there ways to deal with that, or are we stuck with the kind of model you've described and that is the traditional witness protection program?

[The Chair, Conservative, Garry Breitkreuz]

Who would like to reply first? Mr. Shur.

[Gerald Shur]

Unfortunately, we've had that experience too, and we are going through it right now, as a matter of fact. There's a rise in shootings.

We have two other types of programs. One is called the short-term relocation program, and this is one that started in Washington, D.C., where we had drive-by shootings and shootings where people who live on one block shoot somebody on the second block. They're not farther away than that. We remove them for a short term so that the witnesses who come forward know they can be kept safe for a short term, and in our judgment they would be safe going home again.

So that was one program. They would be gone typically 90 days, 120 days, perhaps till after the trial was over, and when that defendant went to jail, the threat was gone.

Then there is a third program in which the United States attorney can determine that his or her witness simply needs up to $4,000 to move to a hotel someplace three blocks away or 30 blocks away, and I'll supply some money to get that person out of town for a short period of time. In other words, the person doesn't need a new identity, doesn't need job help, doesn't need help with doctors, that sort of thing, and that would be the third way.

The witness program that we're talking about is meant for organizations that have the capability of chasing after witnesses and finding them, and in drive-by shootings, those typically are not the types of people who have that strength.

[The Chair, Conservative, Garry Breitkreuz]

Professor Fyfe, did you want to speak?

[Prof. Nick Fyfe]

Yes. I think that last point made by Mr. Shur is a very important one, and it means that a lot of emphasis needs to be put on the risk assessment that is made of witnesses. Do the criminals actually have the capacity to pursue these people, and therefore is some short of short-term relocation going to be sufficient in order to ensure their safety?

I suppose the other thing we've been developing in the U.K.--this has been enshrined in legislation--is all sorts of special measures that are being introduced into the courtroom in order to protect the identity of witnesses. That ranges from live television links, video recorded pre-trial cross- and re-examination, giving evidence from outside the courtroom via some live television link, using screens within the courtroom, and so on. So a lot of policy emphasis over recent years has focused on trying to make the courtroom a more secure environment within which witnesses can give evidence and their identities can remain hidden from the accused and their associates.

[The Chair, Conservative, Garry Breitkreuz]

Do you have a follow-up question?

[Roy Cullen, Liberal, Etobicoke North, ON]

Yes, I'd be interested in more information about that.

We have in Canada these Crime Stoppers, anonymous tip lines, but they're rarely used, often not used as well, which sometimes baffles me. People must feel so intimidated or be so mistrusting that they wouldn't phone even an anonymous tip line. Do you have any thoughts on that? Have you ever looked at the psychology of that or how it works?

Secondly, Mr. Shur, your point about those programs....as Professor Fyfe indicated, they'd have to be very targeted and focused because people leaving the community, in small communities.... There are a couple of areas in my riding where there is a lot of criminal activity, and I think they know pretty much when someone is out of town for four months that there's something fishy. Could you comment on that, because my time is just about up?

[Gerald Shur]

When someone is going to be out of town for four months and come back and be in danger, then this is not the program for them. Then they need the long-term program. That would be a key factor.

It is a difficult program. It's difficult to get witnesses to come forward in these smaller communities. There is a great sense of fear that you cannot overcome. It's very different from organized crime. The communities they come from are ordinary communities, so you're overcoming that.

Crime Stoppers is wonderful as long as it can remain anonymous, and anonymous doesn't give you a witness, but it gives you a tip, a place to go to make an arrest.

We have not found any better way yet than the three different ways I have mentioned, but we share the problem.

[The Chair, Conservative, Garry Breitkreuz]

Professor Fyfe, do you have a comment?

[Prof. Nick Fyfe]

I'd simply echo what Mr. Shur has said. This year, Crime Stoppers and other initiatives.... You probably have similar programs, but we have Crimewatch in the U.K., where people can phone in after they've seen reconstructions of events and so on.

Again, I'm not aware of any work that's been done on how many people respond to those kinds of initiatives, but it would be an interesting area to look at.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We're now going to go back to Monsieur Ménard, who was the first questioner.

Go ahead, sir.

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

Thank you. I see that I did not introduce myself otherwise than by pointing out to you that I was a member of a sister party of the Scottish National Party. I am a member of the Bloc québécois in the House of Commons. Before entering politics, I spent my entire career practising criminal law. When I started out in politics, I was minister of the Quebec government for nine years, mainly in public security and as Attorney General. I saw these programs come into the world. They did not exist in 1966, when I started practising law. These programs were created to meet needs, and now there is an act that provides a framework for these programs.

Is the physical protection of witnesses effective? Have witnesses been attacked or killed while they were under protection? I also wanted to ask Professor Fyfe whether he was able to compare the quite different systems that exist in Europe. What, in his view, is the best system, the one we should base ours on?

I said that the lives of innocent witnesses, that is to say people who have witnessed a serious crime or a murder committed by organized crime, might be in danger if they testified. Receiving this kind of protection is definitely a considerable weight for witnesses who have not carried on criminal activities. What is the percentage of innocent witnesses?

Lastly, I would like to know whether, in your jurisdictions, jury members know all the benefits that have been given to the people who come and testify before them?

[The Chair, Conservative, Garry Breitkreuz]

We can take turns as we go through the questions or you can deal with all four, depending on how you want to handle it.

Mr. Shur, would you like to go first?

[Gerald Shur]

Sure.

How about we just go through all four?

[The Chair, Conservative, Garry Breitkreuz]

Sure. Go ahead.

[Gerald Shur]

Do jury members know all about the witnesses? Yes.

What they don't know is the person's new name, and they do not know where he lives. But they will know everything about his criminal background, whatever may exist in his background.

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

What about the benefits?

[The Chair, Conservative, Garry Breitkreuz]

Monsieur Ménard.

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

What about the benefits that he has received?

Are there any advantages?

[Gerald Shur]

I wish I had paid more attention to my high school French. Yes, all the benefits are explained to him.

As to physical protection and whether it is effective, our belief is that protection is best done through what we call “protection by anonymity”. That is, witnesses are relocated to a new area. Nobody knows where they're going, where they will live, and they do not need physical protection around them. The only time they would need physical protection is when they're brought back to the danger area, which is where they're going to testify. And that has been totally effective.

I should point out that since this program began in the late 1960s, not a single witness who has followed our rules has been killed. We've been very fortunate in that respect.

Let's see...protecting innocent witnesses. The number of witnesses who have entered this program who I would say are totally innocent--standing on a street corner, seeing the crime--would not be 5%. So it's not a major issue in the sense of the total program, but it is a major problem with those 3% or 4%--a major problem whereby they have to give up their entire careers and their lives.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Professor Fyfe.