Yes. Thank you.
I would direct your attention to section 11 of the Witness Protection Program Act. That is the one that makes it an offence to knowingly disclose the identity or information about the location of a protectee or former protectee. The exceptions in it are set out so that the RCMP commissioner herself could only disclose information that's not permitted, by virtue of that section, which deals with the administration of the Witness Protection Program Act—actually, steps that would be taken to provide protection to the protectee, which would have to be done to provide it.... Where information is going to be disclosed that is potentially outside that mandate, that would put the protectee or another witness at risk or affect the integrity of the program, the commissioner must go through a series of considerations and steps.
The information in section 12 has to be provided to the commissioner before the commissioner can personally make a decision. The first question in section 12 is, “What are the reasons for the disclosure?” The authority has to relate to the exceptions in subsection 11(3) of the Witness Protection Program Act, which allows the commissioner to disclose it with the consent—that's a case where it's possible that the protectee or former protectee may consent to it.
If there's no consent, then you are into paragraph 11(3)(b), where you may have the protectee acting in a manner that results in disclosure. That's a question of the protectee's behaviour. An example of that may be where they become involved a criminal offence and it has come out as a result of that and there being a further requirement for information to be disclosed about that person.
It doesn't really make much difference whether it is that or the other exceptions in the public interest in paragraph 11(3)(c) that apply, where there's a public interest to be considered. There are examples of those public interests there. It's not limited to those, because it says “such as”, but the commissioner has to be concerned that it is in the public interest.
Both paragraphs 11(3)(b) and 11(3)(c) require that all the procedural steps be taken to allow the commissioner, in subsection 11(5), to also make sure that the person has a reasonable opportunity to make representations concerning the matter.
So there are a number of procedural steps that have to be taken as well—I would bring that to your attention—before the commissioner could exercise any public interest or determine that the person has acted in a way that results in disclosure.
Following in section 12, in paragraph (b), the commissioner must consider the danger or adverse consequences of the disclosure in relation to the person and the integrity of the program. There has to be some consideration of that.
There has to be, in paragraph 12(c), a consideration of “the likelihood that the information will be used solely for the purpose for which the disclosure is made”, which is an obvious intent of Parliament to take steps to make disclosure only to persons who would have a direct interest, and there must be some consideration of trying to limit the further disclosure of the information.
Section 12 in paragraph (d) requires the commissioner to consider “whether the need for the disclosure can be effectively met by another means”.
Finally, in paragraph (e) of section 12, there has to be a consideration of “whether there are effective means available to prevent further disclosure of the information”.
So the commissioner starts with those obligations, then goes back to the reasons, which are going to be before the commissioner, that would convince her that it's in the public interest.
Assuming the notice is given to the affected person--either a protectee or a former protectee--that person has the right to a hearing. The commissioner must consider those representations and finally make a decision. That decision would be a decision of a federal body, which means the commissioner's decision would be reviewable in Federal Court. The grounds of judicial review for a decision of a federal body or board is in the Federal Courts Act.
The grounds for judicial review in relation to that person would be similar: the commissioner acted without jurisdiction; the commissioner failed to observe a principle of natural justice--and I believe you heard evidence about that in another matter; he or she erred in law in making a decision with respect to the order; he or she based the decision on an erroneous finding of fact, or acted in a perverse or capricious way with regard to the material before him or her. The other grounds are that the commissioner acted or failed to act by reason of fraud or perjured evidence; and finally, that the commissioner acted in any other way that was contrary to law.
With respect to the identity or location of a protectee, in my view there is a high onus on the commissioner with respect to determining that something is in the public interest to disclose. The commissioner cannot delegate that decision. It's related to the commissioner, personally. Parliament obviously intended for this to be at the highest level of the RCMP. The commissioner must address his or her mind to all of these factors, follow all of these rules, and follow these procedural safeguards before coming to the conclusion that disclosure is in the public interest.
In my view, Parliament has set up the Witness Protection Program Act to protect the protectee and former protectees from disclosure by the police, except in the most serious cases. Before such steps are taken, the primary consideration must be for the benefit of people in the witness protection program, security of their lives and those related to them.
