Public Safety Committee on June 5th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is the Standing Committee on Public Safety and National Security. This is meeting number 48. Today we are studying again the witness protection program.

I'd like to welcome our witnesses. We have in front of the committee as an individual Mr. Tom Bulmer, a barrister and solicitor; and also, via video conference from Toronto, Barry Swadron, a senior member with Swadron Associates.

Welcome, gentlemen. It's a pleasure to have you before the committee.

[Barry Swadron, Senior Member, Swadron Associates]

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

The usual practice at this committee is to allow you approximately 10 minutes for introductory comments, and then we begin a round of questions and comments for you. So I'm sure you're familiar with that routine.

We'll begin with Mr. Bulmer, first of all, who is present with us here in the room.

[Tom Bulmer, Barrister and Solicitor, As an Individual]

Thank you, Mr. Chairman. I'd like to thank this committee for inviting me. I'm very pleased to be here.

Just to give you a little bit of my background, I was called in 1991. My history has been one of being involved with law for quite some time. In fact, at the age of 17, I believe I was the youngest private investigator ever licensed in this country, if not in the free world. Then I went on into business, and business brought me to the House of Commons, where I worked for a number of years as a research assistant primarily in the transportation field, and on evenings and weekends I drove around in police cars. I was a member of the Ontario Provincial Police Auxiliary. I'm a criminal defence lawyer now, and have been so for about 16 years.

None of my comments, I want to say at the outset, should be construed as being in any way anti-police. In fact, defence lawyers don't have anything to do unless somebody gets arrested, so we're hardly anti-police. But I will be having to make some criticisms about how things transpired over the years 2000 to 2002, about which information has now just been partially released to the public, thanks to the tenacity of two young media personnel.

I'm going to give you a bit of a thumbnail sketch of what happened to me—in fact, what happened to you, what happened to the citizens of this country—by the intrusion and the breach of the solicitor-client privilege that the RCMP imposed upon my office. That will bring you to the current review.

I've also got some ideas on how to address the current Witness Protection Program Act to actually make it better. I've reviewed other acts in other jurisdictions. I've reviewed this act. I find it wanting. I find that it really needs to be reviewed, because there are holes in it you can drive a truck through. And I think there are positive ways that you can make this legislation more effective, because it's an important police tool. But we all have to understand that when you have an act like this, which doesn't allow freedom of speech and freedom of the press, it should infringe those rights and freedoms of Canadians as little as possible and in the most effective way on behalf of the program, and I don't believe that the current legislation does that.

I'm going to be calling for an update of the legislation, a review of the legislation, and my second best hope would be that it be given to the Supreme Court on a reference to see if this legislation could even stand up in its current wording. But in my view, there are many positive ways that you can review this legislation, amend this legislation, make it stronger, and yet make Canadians a little bit freer, because it does criminalize natural behaviour, conversation, pillow talk. It doesn't allow me to tell you certain things, so it supposedly says, which is absolutely ridiculous, because I speak on this in other jurisdictions.

One big hole in the Witness Protection Program Act is that it doesn't liaise with other programs in other jurisdictions so that you can cross-fertilize the efforts of the programs, export and import other people from other countries, and have other countries enforce your laws.

I was speaking to a private girls' high school law class in Australia just a few hours ago. I just came from there. And it offends my pride in this institution and in you that I was able to speak more freely to a bunch of grade 12 students than the law allows me to speak to you.

Accountability is a very major problem with this legislation. Who is it accountable to? Only one person.

The other thing the act needs to do is to be updated to reflect the reality of our current society, our current technological advances, and the technological advances of the future. I got dragged into this was because of the Internet. Somebody saw a heinous crime committed in this country and sent me the newspaper article. That's how I got dragged into this. Now, why is it that I can't tell this parliamentary committee which newspapers I read? I don't believe it's against the law to give you some information when an intelligent person, going out of their way, might be able to figure out who this person is. I don't believe that's breaking the law, and if we were in camera I would tell you much more.

The main reason I'm holding my tongue today is that there are live victims who don't know the true story. There are live victims who, if the press were to report much more information, would be able to figure out what happened. Two and two would be put together, and people would be severely injured.

They need and deserve to be told the truth. They need and deserve closure. But equally important, they should be told that they very much have a case of wrongful death against the Canadian government.

The crimes were preventable and predictable, not perhaps in the most heinous way that they unfolded. But I will tell you why any person who did any investigation into this particular rogue police officer, or rogue police agent, would have known that he was a danger to the public.

I don't know how much investigation they did. I don't know what they did to protect the public, if anything. I don't know what supervision there was. These are all important questions for somebody, and in my opinion, they would be important questions for you. But you would have to know certain details to be able to ask the proper questions.

But I can tell you that when I went into the Ontario Provincial Police's auxiliary policing program, following the police investigation on me, they knew all the people I knew. They knew all of my friends, they talked to people I hadn't seen in years, and they went back into my past.

Investigations like this happen when you want a liquor licence, for goodness sakes.

Anybody who scratched the surface after the rogue police agent was revealed in court, after the court ruled that he was a liar, and after he had obstructed justice—anyone who asked any questions in our little town of Victoria—would have found out what the press had found out. They would have found out what kind of person he was and what his phobias and passions were. You couldn't possibly find these out and not come to the conclusion that this man was dangerous. They should have known; they should have protected the public.

Now, it's a difficult task, because often people in the witness protection program are involved with crime. I'm not saying that you have to only bring saints into the program, but you should know the personality that you're bringing into the program. The statute says that you should. But what the statute doesn't say is to what extent Canadians should be protected.

You're taking people who are sometimes dangerous, giving them a clean slate, a new identity, and putting them next door to you. Your family deserves to be safe—because you can't tell who this person is. It's the retired shoe salesman, as far as you're concerned. It's the school teacher. It's somebody who has a completely new identity, completely new birth certificate, and lives next door to you.

I don't approve of it, but sometimes the police, when they release a person from the penitentiary, will make an open statement saying, beware, this person is dangerous, and then communities force them to move from one place to another. I don't condone that behaviour, but this is the opposite. This is taking people who have been involved with organized crime and putting them right in the public.

There was a case reported in the press, called Trudeau. I suppose that technically I'm breaking the law, but I'm just telling you that there was a newspaper article about a guy by the name of Trudeau in the program, and he was sent back to prison for a pedophilia incident. The judge in that case was out of the east—I can send it to you, if you don't already have it—and said that this man had killed more people in his life than all of the Canadian Forces in the Gulf War. He was in the community, and he hurt a child.

This person, who I ran into, hurt many people. You can close your eyes, think of the worst crime imaginable, and if a tear comes to your eye, you're pretty damn close—then multiply it, because there was more than one victim.

In my opinion, this man was told by the court; the RCMP was told by me, and if they had just scratched the surface and done any kind of cursory investigation, there was only one conclusion that you could come to: something bad was going to happen. I told the court that; I warned the court.

Of course I feel bad, because if you're ever involved in something like this, you always think, “I know there's nothing I could have done that I didn't do”, but you start to think in those terms.

The statute won't allow me to go to my law society and talk about it. The statute won't allow me to go to a psychologist and talk about it. The statute won't allow me to confide in any good friend or trusted individual. Well, I'm not going to play that game. But what the statute should do is put the mens rea of not informing other people of the location or the identity of a person in the program—link it to harm. Link it to trying to bring the security and safety of the individual into trouble, not criminalizing innocent speech.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, sir.

We'll now go to Toronto. Mr. Barry Swadron, if you are ready, sir.

[Barry Swadron]

I am, indeed.

I might start off by saying that I'm honoured to have been invited here today. I will note that I testified before the Standing Committee on Justice and Legal Affairs on the Witness Protection Program Act on the eve of its passage, and I'm grateful that some of my concerns were respected.

Of great interest to me is the fact that Mr. Bulmer gave you some indication of his background. I have a much longer background, not necessarily better or worse. I have been acting for vulnerable people for close to half a decade. It started off many years ago when I wrote mental health legislation for Ontario and for a number of other provinces, and served as a consultant for all the other provinces. So I'm very used to acting for vulnerable people.

Over the last two or three decades I've acted for witnesses who have been protected; witnesses who wanted to be protected but weren't; and witnesses who didn't want to be protected, but because of some negligence or error on the part of the police or administration, ended up being protected.

I would like to make one thing clear. Mr. Bulmer said—or I got the sense that he said—that protected witnesses were sometimes involved with crime. I have many cases of protected witnesses who are innocent. They were taken by the RCMP or by provincial or municipal police forces and protected, placed in the program, and they had nothing to do with crime. I've had abused women or persons who were extorted who went to the police, told on those people, and had to end up in the witness protection program. And let me tell you, in certain circumstances it's the innocent people who think they're dealt with like criminals.

Now, the first area I want to cover is that I think the Witness Protection Program Act should embrace all witness protection programs. Right now it embraces only the RCMP program, and I know there are some provincial programs and some municipal programs.

I agree with Mr. Bulmer that the existing act needs an overhaul. It could stand a lot of improvement. But I think the major thing now is that Parliament should address the concern of other witness protection programs. Apart from the Witness Protection Program Act of Parliament, there is no other legislation anywhere in Canada. I'm of the view that where there is no legislation, there are no minimum standards. I'm sure there are standards, but these standards might be substandard. Moreover, they could be changed at will.

There's no reason that Parliament cannot legislate across the board. It legislates the Criminal Code, and the Criminal Code is dealt with by the provinces and municipal police forces. It's my submission that there would be no problem legislating witness protection for all of Canada.

Now, I don't mean to say that those provinces or municipalities that don't have programs would be required to have programs. What I'm saying is that wherever there is a witness protection program, the province or municipality should have to subscribe and live up to minimum standards.

An example of that is that the Criminal Code embraces persons who are not convicted, who are found not criminally responsible, and each province has decided to have a review board dealing with those individuals who are found not criminally responsible, but the federal government legislates the standards.

Now, leaving that, I want to talk about legal advice to the person who would be protected. That is one of the most important areas, I think, that your committee should be discussing. There are many cases—and I'm thinking of several handfuls—in which I've been involved or my firm has been involved where the individual who enters the program does not have independent legal advice. That independent legal advice should be given as soon as possible, as soon as it's known that the person is a potential protectee. It sometimes happens that the police officer tells the potential protectee that the verbal promises that he or she is making to the potential protectee cannot be put in writing. He or she is saying, trust me, we can't put that in writing, and the potential protectee might be told, the reason we're not putting it in writing is that we don't want to compromise your ability to testify, so that defence counsel don't ask how much you were paid for testifying.

So there is a built-in problem. Sometimes the police officer tells the potential protectee that there's little or no time to consult a lawyer, and representations are made, and the individual who becomes protected is expecting a lot more than he or she is getting. That's very, very unfortunate, because if a lawyer were there and looked at what was being promised and what was put in writing, because generally there is a writing, the lawyer would advise the potential protectee that he or she was not getting what was promised. There would be fewer lawsuits if the legal advice was given right at the outset. And the law has, in its wisdom, said in the case of a husband who is mortgaging his property that he must get independent legal advice for his wife so she knows what she's signing. So these things aren't unknown to Anglo-American law. I think that if there were mandatory legal advice, then there would be much less litigation, and the people would know what they're bargaining for and what they might get.

Another problem is that the police officer who's making the representations or the promises is overzealous. He or she wants to get a conviction and will promise the sun, the moon, and the stars to the individual; but especially if there's a relocation across the country, the handler—the person who is expected to support the protectee at the new location—didn't make any promises; and there's a lot of friction that could be caused there.

So I think the legislation should be amended to make it mandatory for the police to ensure that the potential protectee gets independent legal advice. It could well be that the person can't afford it. I've had one or more situations where the police services come to me and ask me to advise a potential protectee, and they paid me. I think the legislation could certainly be improved in that way.

Am I getting out of time?

[The Chair, Conservative, Garry Breitkreuz]

If you could, wrap it up soon.

[Barry Swadron]

I will wrap it up.

I'll just touch on the two categories. The first one is conflict of interest. According to the legislation, the Witness Protection Program Act, there is a contract or an agreement in every case, one between the commissioner or his designate and the individual protectee. There's a conflict of interest there, because the commissioner or his designate can decide that there's been a breach by the individual and say, look, you're out of the program, and that becomes very unfair.

We had a case in our office where we went to the Federal Court and brought an application for a judicial review. I'll just read what the judge said. It will be very quick. This is Mr. Justice Phalen in the Federal Court:

Regard must be had for the potential consequences to the protectee of termination of protection. The protectee is in the most vulnerable state - his utility to the authorities is terminated, he is a burden to his protectors, yet he is dependent on that protection for his security. He has honoured his bargain and is now totally dependent on the protectors to fulfil their end of the bargain. Termination of protection potentially exposes him to physical harm. His life and security could be at risk. Therefore, the expectation and requirements of procedural fairness are high.

A protectee should not have to go to court to establish that. It should be built in.

Finally—and I'm skipping a couple of things—I want to say that I don't know how your committee can fairly assess the program, because enough information is not coming to you. I read the transcript of the police officers who gave testimony to you, and in many cases they wouldn't answer the question because they couldn't or they didn't know the answer, etc. Unless there is an independent study of the program with the RCMP, and the other programs, to see actually where the money is going and how it's spent, how can your committee fairly seize on what should be done?

I think I'll leave it there.

I have one final note. I'm going to say that in dealing with the case of the protectee who apparently committed murder and the RCMP's not being able to give the information, my reading of the act is that the RCMP is dead wrong; this comes within an exception, and they should be able to discuss the individual's identity.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much, sir.

If you have other information, you can maybe share it with us during the questions and comments. That's what the rest of this time is for. If you feel at the end of our session together that you still have more to share, you can always submit something in writing to the committee.

[Barry Swadron]

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

That applies to all of us.

We'll go to the official opposition. Ms. Barnes, please.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

And thank you, both.

What both of you have said is that there could be changes and should be changes to the act as it now stands, and both of you have different ideas.

For the record, I would like you to state what would be the circumstances or situations that you think, in your opinion, would have a protectee's identity revealed? Is it just in a murder-homicide situation? Is it just in a serious personal injury situation? And is that something you would see as a potential change in legislation?

Mr. Bulmer, first.

[Tom Bulmer]

Thank you.

I don't think the identity of the person is the issue. For instance, I care not who this man is. Now, they may have changed his name again. Certainly he's in no need of the witness protection program now, and never will be, so I don't care about who he is. I don't care where he is. I think what he did is information that you should know. It's information that the alive victims should know.

The RCMP are at least telling me—they flew from Ottawa to Victoria to tell me—that this person was in the witness protection program; thereby they broke the law telling me that, but they did so to warn me that I faced potential charges if I gave away too much information. Well, I don't believe that's the case either, and I agree with my friend in Toronto. That's not my reading of the act either. But who wants to flirt with an overzealous police force with blinders on? And who wants to bring attention to the unnecessary harm and grief caused to the victims?

I think the program, as it is in some of the jurisdictions, should be overseen by a board. Even that board doesn't need to know the names and locations of people, but they need to know who they are, what they've done, how they're doing in the community, what protections there are in the community. When something goes sideways, the public has a right to know. I agree, the program specifically states that if somebody acts in the community in a way that brings attention to themselves, the commissioner can disclose who that person is. If they contravene an act of Parliament—and murder certainly is one of them—then the commissioner can tell you who it is.

So they're really not looking at what power they already have in not answering your questions, because it exists. In my submission, from what happened, he shouldn't have been allowed in the program in the first place, because the criteria are things like the value of his evidence. Well, his evidence was all made up. He had committed obstruction of justice in the severest way before he went into the program. He was found to be unreliable by the Supreme Court, so he shouldn't have even got in. I think they're not reading their own statute. It should be reviewed.

I was asking today whether the reports in the press were true. The minister responsible asked to be briefed on my case, and I read in the press that the RCMP said he couldn't know the details of the case. Well, that's nonsense. It's absolute nonsense that he mustn't be able to be told at least the facts of the case. Where this person is, who cares? Call him Number One, but he's got to know.

I think the board should be the minister or his designate, perhaps somebody from the bench, perhaps somebody from the bar, and a couple of lay people. Again, they don't have to know all the details, but they need to know that things are being properly done.

In Australia the program has to report to the minister. The minister must table an annual report. In Canada the commissioner makes an annual report and the minister tables it. Well, the tail's wagging the dog.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Swadron, do you have a comment as well?

[Barry Swadron]

Thank you.

I agree with Mr. Bulmer. The police, particularly the RCMP, are not running this country; this country is run by Parliament. The RCMP answers to Parliament. I find it disgusting that the RCMP could hide under a veil.

The legislation as it is is okay, but I think it should not be the commissioner who is deciding what is in the public interest. Here is the exception to the disclosure: “if the disclosure is essential in the public interest”, and then it goes on. I don't think the commissioner should be deciding what's in the public interest; I think it should be elected members of Parliament or ministers in the cabinet. The commissioner will not necessarily decide what is in the public interest; he will decide what is in the police interest, because he has to be true to himself.

As Mr. Bulmer said, if there were an independent board that made some of these decisions, then we wouldn't have the police against the protectee; we would have the police and the protectee on an even keel. If someone else, some tribunal, is making those decisions, the innocent protectees wouldn't think of themselves as criminals and have the police against them. It's very nice for the police to get the help from informants and get the convictions, but they can't throw out the protectees afterwards.

In some cases where they were terminated, the court said, you shouldn't have done that; you should have used fairness. Hopefully the RCMP will get the message. If they don't, then I think Parliament has to take it out of the RCMP's hands. The police are not above the law. They can't decide the law. Parliament will.

[The Chair, Conservative, Garry Breitkreuz]

Thank you. We're over the seven minutes already.

[Barry Swadron]

That's probably my fault. I'm sorry.

[The Chair, Conservative, Garry Breitkreuz]

No. That's fine.

We'll now go to the Bloc Québecois. Mr. Ménard.

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

Obviously you are raising some of our concerns. However, I am having trouble understanding the solutions you are proposing and what they mean.

I know that the law is imperfect. I believe that an independent committee would certainly be an improvement. It seems to me, however, Mr. Bulmer, that you were saying at the beginning that the neighbours of these protected witnesses should be informed that the person now living in their neighbourhood is dangerous and thus informed of what the person has done. But if we do that, it seems to me that we are disclosing the identity, and the purpose of the program is precisely to give witnesses a new identity, because if we do not do that, in the most serious cases, they could be killed.

Do you really think that we should find a home for a protected witness and then inform the neighbours that he is dangerous, because he has killed several people in the past? First, there are not that many people in Canada who have killed several people. Very often, the kind of crime they committed—In a province like Quebec, I think that people would easily recognize the identity of an individual as soon as they were told what kind of crime the person had committed.

I do not understand this part of your suggestions. However, I know that you have studied the matter extensively, that you have looked at what is done elsewhere and you have specific suggestions to offer us for improving the law. I assure you, Mr. Bulmer, that I would be very happy to receive them in writing.

[Tom Bulmer]

I don't think I've made myself clear. The reason I said that these people are in your community and they live next door to you is not so that the RCMP will go banging on a door saying there is somebody in your neighbourhood you should know about. I made that point only to emphasize the huge responsibility they have to protect you, to protect your families, when they put somebody next door to you who is a dangerous person. It's not that you're ever going to be told, but how much supervision do they have on these people? If this person has known character traits that make him a dangerous individual, do they just put him next door to you and walk away and say, “Enjoy your new life”?

If they recommit, I would really like to see that the sentencing judges know that this person isn't a first-time offender, that the sentencing judge knows this person has a criminal past.

To better answer your question, I can't help you with the French analysis, and maybe it is clearer, but everyone should be able to know what the law is. That ignorance of the law is no excuse is a bit of a catch phrase, but you should be able to find out what the law is.

Subsection 11(1) in English says: “Subject to this section, no person shall knowingly disclose, directly or indirectly, information about the location or a change of identity of a protectee or former protectee.” That's not very good English. What does “location” mean? If I say he's in Ontario, am I giving away his location? If he's outside this building, have I given away his location? If he's moved down the street, have I given away his location? When do I give away his location?

If I wander down the streets of Toronto and I go home and tell a family member, “You won't believe who I passed on the street. Remember that big case you saw in the newspaper?”, have I committed an offence?

I don't like this wording much better, but at least in the Witness Protection Act of the State of Queensland—I can tell you that there is a federal act and each state has its own state act, and they almost conflict, so I can't really help you on how the regime works down there. But these statutes do a lot of other things. They allow for disclosure for the purposes of the administration of the act. Your act doesn't.

When the RCMP man told me that my guy was in the witness protection program, I don't see the enabling legislation that he was allowed to tell me that. I don't see in your legislation one cop being able to tell another cop. In other legislation, disclosure for certain purposes of the administration of the act is allowed, but it doesn't seem to be in this statute. In Australia, under the Queensland one but not some of the others, it is an offence where a person must not knowingly, directly or indirectly, disclose or record information about a relevant person as to the witness protection program that may threaten the security of a relevant person or the integrity of the program or other witness protection activities of the commission.

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

I am sorry to interrupt you, Mr. Bulmer, but you have spoken for a long time, and I would like to ask you at least one other question.

You raise a point that I find very intriguing. If one of those witnesses commits a crime, his or her fingerprints will be taken when the charge is laid. From what I know, none of those witnesses have their fingerprints changed, is that right?

So we will know who has committed other crimes in the past. You seem to be saying that if this person commits another crime, the judge will not know what other crimes the person has committed in the past. It seems to me that with the fingerprint system we have, the judge will know. The judge will know that the person has committed other crimes under a different name.

Is that not how things work?

[Tom Bulmer]

You'll have to ask the RCMP that.

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

I practised criminal law for 30 years and I saw that quite often.

[Tom Bulmer]

That's beyond my experience. If it's within your experience—

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

This is one of the problems that came to my mind as I was listening to you, Mr. Bulmer. You see the considerable dangers in applying this law. There are things about which you are perfectly correct. This law could and should be better drafted. There should be a provision that lets us disclose the person's location, or name, for the purposes of the administration of justice. I think that this is an obvious improvement that could be made. I am trying to understand your solutions and your fears.

Have the fears you are telling us about and the extreme cases you are afraid of happened in the past?

Do you know of actual cases that illustrate the dangers you are telling us about?