Public Safety Committee on June 5th, 2007

[Barry Swadron]

Well, I was able to talk about one: that the individual should have a lawyer at the appropriate time, so that he or she knows what he or she is getting into. I think that should be mandatory, and it's not unknown to the law. Here you have the RCMP, or whatever organization, which has been doing this for years, and you have a vulnerable person who's never been involved, and you expect him or her to match them. They have it all over them. At least if that person had a lawyer who could say, watch what you're getting into—

[Sue Barnes, Liberal, London West, ON]

I get that.

I'm sorry, but we're in five-minute rounds and it limits my questioning. Thank you.

Last week we heard some testimony that suggested it would be a good idea to have a periodic parliamentary review of the act. Right now, you have the act, and really this it the first time since the implementation of the act that we've had any looking at this.

One of the periods suggested was a parliamentary review every five years. I'd like comments from both of you on whether you think that would be useful, also knowing that there are many things that we don't get to hear because of the secrecy involved in the program.

[Barry Swadron]

I think that every five years is better than 12, that's for sure, but there has to be meaningful information to you. You have to be able to get a good grasp of what's happening. In a lot of the testimony that I've read so far, I haven't read all of it, you're not given that information, and surely it's available somewhere. And I think the main culprit is the RCMP, because they're the ones who administer the act that you're looking at. They're the ones who are the operational force.

[Sue Barnes, Liberal, London West, ON]

We had a professor before us last week who was given special safeguards and was able to do a study of the program in Britain. But part of what you talked about, about having an independent study, is not possible, because in essence the act prevents the sharing of information and the contact among people. Do you think that inside either the justice or the public safety committee, if the government commissioned such a study, that could be a useful thing at this stage?

[Barry Swadron]

Absolutely. If you say you are going to review it on a five-year period basis, there should be a provision in there—and I'm not going to do it off the top of my head because that wouldn't be meaningful—that the information you require—And it's not catch as catch can, not that the RCMP said that they're going to do better next year and give you more information. I think that maybe this committee, if it decides it should recommend to Parliament that there be a five-year review, could at the same time say what type of statistical data should be available to you in order to do a meaningful review.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

[The Chair, Conservative, Garry Breitkreuz]

Ms. Barnes, unless you have a brief question, it's five minutes.

[Sue Barnes, Liberal, London West, ON]

I'll make just a brief comment, maybe.

Compared to other jurisdictions...we saw last week that we are ahead of a lot of jurisdictions. I think we're very grateful that we have a witness protection program. But really, there could be improvements here, and quite frankly, I think we need some independent materials that we can base our study on.

[Barry Swadron]

I would certainly support that.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll go over to the government side now. Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair. I have just a couple of things.

I think our witness last week actually only did a small study and it was only in Scotland. I don't think Britain has a plan, actually, and so it is interesting for us in Canada to know that we're that far ahead, where they haven't got a plan.

I was looking at the information that was provided to us by the professor last week, and he's done a comparison with a number of countries, including Australia, Mr. Bulmer, and it is particularly interesting that in Australia it is the Australian Federal Police that administer it, as it is here in Canada. Most of the countries seem to have a police agency, and there are very few that have an independent body. I'm not debating whether one is better than the other, but most countries have gotten into the same scenario as Canada, and most of the eligibility for protection is similar to Canada's. I think our original drafters deserve a great deal of credit for what they did a number of years ago, which is not to say we can't improve upon it.

But would this be what you found equally, that in most cases it is a police body that administers the plan?

[Tom Bulmer]

And I can hear the good arguments that this is the way it should remain.

[Dave MacKenzie, Conservative, Oxford, ON]

I'm not debating that. I'm just saying that is the way it is around the world in most countries.

[Tom Bulmer]

Yes, it appears to be.

I can tell you that the Australian Federal Police administers the main program, but each state has its own witness protection act, and they add and take away in a manner that confounds me, having read them. I can tell you their statutes are much thicker. They allow ministers of both the state and the federal government to have much more control to designate people who are allowed to know, so the ombudsman has to get secret clearance, but the ombudsman can review certain cases.

There's a far more sophisticated—in each of them—procedure for allowing courts to know that they are dealing with a protected person, to protect both the prosecution and the rights of the defence. They are worth review. They also allow for police officers to have their own separate identities in case they need protection. There are provisions for having temporary protective measures as opposed to entering into the program for a long period of time. There are appeal procedures for people who are expelled from the program. They seem to be fairly sophisticated.

To answer your question, this is from an Australian website. Following this case, I came across an Australian website on secrecy and privacy, and they basically have stated—if it's indeed true—that you're dealing with the Philippines, Australia, New Zealand, the United Kingdom, South Africa, and South America. Those are jurisdictions that all have witness protection programs.

The point I was trying to make earlier is that if you were to get together so that somebody wouldn't have to travel from Windsor to go to Detroit, and then spill the beans free of charge—And if the programs had more cooperation, you might find it useful that a Canadian was sent to Australia, an Australian was sent to Canada, and a Canadian was sent to America. But if there were an international treaty—as there is—or if you extended the legislation, as you've done in terms of child protection for sexual tourism, so that a Canadian commits a crime outside the country—

This is going to become more and more important with the Internet. Soon you'll be able to google pictures, and if you google a picture, you're going to be able to find this information. That's why I think the law should go to harm, as I've quoted, if you're bringing the security of the person or the security of the institution into danger. That should be the mens rea of section 11, rather than disclosure of a location that you can't define, or who the person is. It may be irrelevant or it may be innocent. And there must be an ability for enforcement internationally, because a lot of the problems that we have with the witness protection and relocation program are in dealing with international institutions. We're dealing with people who don't do crime just in Canada; they do crime in other countries.

So it's an international solution requiring international cooperation.

[Dave MacKenzie, Conservative, Oxford, ON]

I have just one more very short question for each. Even though there are issues, do you believe that the program is an effective program, even if we understand that you have individual issues with it?

[Barry Swadron]

I'll answer that.

First of all, I think that it's better to have a program, and it's better to have the legislation than not to have the legislation. I was particularly interested in reading the transcript of when you had three police officers before you, and you asked them about the effectiveness of the program, and two of them said that on a scale of 1 to 10, they would give an 8 or a 9. Well, that's from their perspective. I think that if we're looking at it from the perspective of my clients, they'd be hard pressed to give a 1 or a 2.

But let's put it this way. I see a lot of room for improvement. I'm glad we have the legislation. I support the legislation, but I also support a lot of amendments, and I think that it is you people who should be making the amendments based upon evidence you've heard before you. The trouble is, I don't think you've had enough evidence, or enough meaningful evidence.

I don't know how someone goes and studies the system in Scotland and says they're not as good as we are, or they're not as far ahead. How do we know where we stand when we can't get a grasp of exactly or essentially what's happening in Canada? Maybe we should have Canada and the program here studied rather than looking abroad. There is nothing wrong with looking abroad, but at least you need a benchmark of what's going on here.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Bulmer, do you have a brief response?

[Tom Bulmer]

It will be very brief.

I think we hope it is a good system, but how do we know? In fact, if you did have the ability to review, it could very well be that there would be accolades for the system and people would say that it's a wonderful system, it's the best system. But we don't know.

People say to me, “Well, your case is so unusual it could never happen again”. Okay, you prove it to me. In fact, Parliament has a responsibility to make sure that my case or a case like it ought not ever happen again.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We will now go over to Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you.

I just have a follow-up question, and again, it has to do with the testimony we had from the retired director from the U.S. Department of Justice. It's just that he was here last week.

With respect to the proportion of people who have criminal backgrounds, I can't remember, frankly, if the RCMP provided that information—perhaps they did, perhaps they didn't—but I just happen to remember that this retired gentleman from the U.S. Department of Justice talked about the 95%. I think Mr. Hawn, in the discussion, helped clarify that point.

But I'd like to come back again to the testimony of the gentleman from the U.S. Department of Justice where he indicated, it seems to me I recall, that the witness protection program had been very successful in terms of prosecutions. I think he threw out a pretty high success rate. Whether we heard from the RCMP on that score, I can't recall, but I'm sure the researchers will.

[A voice]

Yes, they said eight or nine out of ten.

[Roy Cullen, Liberal, Etobicoke North, ON]

The reason for my question and concern is that if these people generally have criminality in their background—and I acknowledge that some don't, but many of them do—I'm sure the defence lawyers would argue that they lack credibility or they can't be trusted. But obviously some judges in the United States haven't been swayed by that argument if their testimony is used to convict, and it sounds like the percentage of convictions is quite high.

Can you give me some context of that? What's going on there, where people come from backgrounds of high levels of criminality in many cases and their testimony is still relied upon by the courts?

[Barry Swadron]

I think sometimes their testimony is only part of it. Some don't even have to testify. They might have criminality and go and buy some drugs, etc., and then the authorities or the police get the evidence other ways so that the people plead guilty, in which case the testimony and the credibility of the protected criminal aren't even an issue. Sometimes the testimony is only one part of the case and the prosecution gets the other evidence otherwise.

And maybe it makes sense sometimes to recruit people who have been involved in crime because they're the easiest to recruit. You go to someone who is charged with a serious offence, who might draw 10 years in prison, and say, “Let's make a deal. We'll arrange for you to get one year in prison, and meanwhile you go out and infiltrate these other places.” And the other criminals who have known this person, who is a criminal, deal with them, and they are probably the likeliest person.

There are often people in prison who are informants, because their cellmates tell them what they did and they become informants as well.

And often the police don't have to rely on the testimony of the individual, but the information is there in order to get the conviction.

I think I would rely on what the police say, that from the point of view of getting their man or their woman, maybe they are successful. But the problem is that they often leave carnage behind the protected witnesses.

[Tom Bulmer]

To add, if any defence lawyer is going to challenge—“What did you get for this testimony?”—it goes straight to credibility. But the statutes I've reviewed in Australia actually have another mechanism for disclosure to other courts if a protectee, now having completed his testimony in one case, actually becomes a witness in a civil or criminal matter that's unrelated to his protection. The judge, at least, is told, so that he can advise the counsel that this man is a protectee and there may be issues with his credibility.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

I have a point of information for the committee, or a clarification.

Our research staff wants to make sure the committee understands that the U.S. statistics, the 90%, apply to those who are the main witnesses, not all of the family associated with them. They are the main witnesses, and 90% of them would have a criminal background. If you include all of those people in the witness protection program, it would not be fair to say 90% have criminal backgrounds.