Public Safety Committee on June 5th, 2007

[The Chair, Conservative, Garry Breitkreuz]

Your time is up.

Do you have a brief response--a few seconds?

[Tom Bulmer]

You'd have to ask the RCMP how, but whether the sentencing judge in my case, for instance, knew of this person's past, I don't know.

My understanding is that the criminal record of the protectee is sealed and there's no way of getting hold of it. If a court is allowed to know that, it's beyond my experience.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Comartin is next.

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

Thank you, Mr. Chair.

Thank you, Mr. Bulmer and Mr. Swadron, for being with us.

As a result of the testimony the RCMP gave earlier in these hearings, we've had circulated a memo to, I assume, senior people in the RCMP, speaking specifically about the Young case. On the second page, the back page of the document, this statement is made: “Rules of admission to the WPP are clearly stipulated in the WPP Act and no exceptions are ever made. Processes are always followed to the letter of the Act.”

I'd ask both of you if that's been your experience. Mr. Swadron, perhaps you could start, since you've had more experiences with a number of cases.

I'll repeat: “Processes are always followed to the letter of the Act.”

[Barry Swadron]

Oh no, I don't think that's true. In respect of the interpretation of the act, I disagree with that memo. I think the RCMP is advised by the Department of Justice, but the Department of Justice isn't always right. It hasn't been my experience. I think that the RCMP has used flexibility.

Mind you, I've had some very bizarre cases. I've had cases in which the handler is alleged to have sexually assaulted the wife of a protectee, and the protectee ends up in psychological treatment, and that psychologist is arranged by the handler, and the handler is reading the psychological treatment notes of the protectee—so I don't find that at all.

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

Mr. Bulmer, do you have any comment?

[Tom Bulmer]

My friend was talking about innocent people earlier. I don't want to waste time, but I'll draw your attention to a case that supports what he had to say. It was a case called Franc v. Webb. That's a civil case out of the Supreme Court of British Columbia of 1998, a decision of Madam Justice Boyd.

Mr. Franc was a completely innocent protectee who sued the RCMP and won on breach of contract for representations they made in writing and verbally. He wanted to go to Australia, but they said that there was no method to get him to Australia. The statute seems to allow people to come here, but it doesn't look as though it is for export.

My case is a perfect example. I really concern myself when the RCMP have contacted me to warn me about the statute but have not really come to investigate or to ask me questions about what happened. This man infiltrated my office. This man hired people to follow RCMP police officers, and then came up with a conspiracy theory to murder a judge, a crown prosecutor, a defence lawyer, and one other individual. The police believed that. They made him a police agent. They made a sting operation to have my client arrested.

All of that was found to be bogus. He hired people to follow the police around. He completely made it up.

I defend people on a regular basis for obstruction when they tell the police officer an improper name when they're required to identify themselves in a proper fashion—

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

Mr. Bulmer, let me stop you, because I want to ask you a specific question along these lines.

They say in this report, and again I'm quoting, “It is important to note that at the time that this subject”—and they're referring to Young—“was entered into the Witness Protection program he did not have a criminal record”. I don't know if that's accurate, but they go on to say, “—nor was there any indication of any criminal wrongdoing.”

Do you agree with that finding?

[Tom Bulmer]

The Crown had to drop fairly serious charges because the RCMP had not told a judge that they had an internal memo from a polygraph expert saying that Mr. Young was incredible. They didn't give that to the judge who had issued the first warrant. Therefore, they had to stay some very serious charges.

The Vancouver detachment seemed to be telling the Victoria detachment to watch itself. There seemed to be a political struggle between the two at one point.

But I was never told when he was in the witness protection program. I don't know the date he entered. I have some knowledge of the date he became a police agent, which might be contemporaneous. But at that time, I was already, as a defence lawyer admittedly, raising concerns. After it was found out that he was an agent, and all the information came in, and then finally the judge—

Even if he was in the program, why didn't they kick him out? Maybe they did, but obviously not. They have to consider the risk of security to the witness--I don't know the level of threat they thought they had--the danger to the community if the witness is admitted to the program—they should have investigated; they would have learned something—the importance of the witness in the matter—doubtful—and the value of the information or evidence given—well, it turned out to be of no value whatsoever.

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

Mr. Swadron, I know you've handled a number of cases of individuals who were in the program and were dissatisfied with the way they were treated. Have any of those actually gone to court, and are there court decisions in terms of individuals not being properly taken care of under the act?

[Barry Swadron]

Let me say that of the number of cases I've had, I have been determined to take them to court. I have gone beyond the discovery stage, but it seems that at that point the RCMP or the provincial program gets really cold feet.

I've brought motions to get, for example, the RCMP witness protection handbook. They do have a handbook, and it's very extensive. And when I've asked for it, they've given me, say, sections A, B, and F, and I know there are other sections, so I've brought motions.

On one particular occasion, I remember, I brought a motion against the RCMP. The court said that they were required to produce other sections of the handbook, and lo and behold, there was a settlement about a week later so they didn't have to disclose everything.

We have some that are at the discovery stage now, and we're determined to go ahead. But for some reason, they fold at the last minute and there's a settlement, because they don't want to disclose their secrets.

[The Chair, Conservative, Garry Breitkreuz]

We'll have to come back to this.

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

It's important.

[The Chair, Conservative, Garry Breitkreuz]

Okay, but do it quickly.

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

On those settlements, has the RCMP required that you have non-disclosure clauses in them?

[Barry Swadron]

Yes, they have, in all cases.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

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

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair, and thank you to both our witnesses for appearing before the committee today.

Mr. Swadron, I'll just follow up on Mr. Comartin's comment. That's not an unusual situation, having non-disclosure in those kinds of cases, aside from this. Would that be a fair assessment?

[Barry Swadron]

[Inaudible--Editor]—usual that there is a gag order. When it doesn't involve witness protection, often it's on the question of there being no admission of liability on the part of the defendant, and there's a moratorium on talking about the quantum of the settlement. But I've never signed a settlement that said you can't speak about the case.

[Dave MacKenzie, Conservative, Oxford, ON]

Okay, thank you.

Mr. Bulmer, I think you indicated this, and I think Mr. Ménard asked about the situation with the criminal record. My understanding, from the witnesses who have appeared before us who we've talked with, is that the criminal record follows the individual, but not necessarily the name. Are you familiar with that?

[Tom Bulmer]

I'm not familiar with that. It's certainly a concern of mine. I'd really want to know if that's the case. I think that should be a reassurance. That should be something in the statute.

[Dave MacKenzie, Conservative, Oxford, ON]

Okay. I think, Mr. Swadron, you had a comment.

[Barry Swadron]

Yes, in all cases that I know of, the criminal record has followed the person. It would be terrible if a person built up a long criminal record and could get rid of it other than by pardons, and this is the usual thing.

Could you imagine working all your life, reaching age 60 and building up all your pension credits and changing your name, and all of a sudden you've lost your pension? Your SIN number is changed. All your CPP credits follow you, your child tax credits. The things that should follow you do follow you. That's what the RCMP is supposed to do. And they should, and they do, transfer the criminal record. It's essential.

[Dave MacKenzie, Conservative, Oxford, ON]

Even with a pardon, your record follows you if—

[Barry Swadron]

That's right. As a matter of fact, a person who gets a pardon has a longer criminal record because he's got everything that was there before and then another entry saying he was pardoned.