Public Safety Committee on June 7th, 2007

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

Superintendent Ogden, will it go above you, or will you be the final reviewer of this report?

[C/Supt Derek R. Ogden]

No, I'll make the final decision on that.

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

Mr. Bird, in terms of pursuing this, if I understand your opinion of the act, even in the Young case, where an individual has committed a murder while a protectee, even under those circumstances the act prevents the commissioner from releasing information about his new identity.

[David Bird]

In my interpretation, yes, the commissioner has to follow the steps and has to be satisfied that the purpose, the reasons for that disclosure, fall within the intent of section 11 of the Witness Protection Program Act. In this case, the appropriate disclosures were made to the necessary police investigating authorities and court. They were aware of the background, and when rendering his decision in the court, the trial judge in the case we're talking about ruled that that information was not relevant for further disclosure and is subject to publication bans and confidentiality of orders with regard to the decisions.

Justice was done. The necessary disclosures are made in those cases to the appropriate authorities for the purposes of the investigation and prosecution of these offences, as well as the apprehension of individuals who may be at large. So you can be certain that the RCMP is very concerned about justice being done, and that where it is appropriate to give out that information they do, under the circumstances that require that there be limitations on further disclosure.

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

I understand this is not the case, but even in the situation of this case, if the commissioner terminated the protection given under the act, under those circumstances she would still not divulge information.

[David Bird]

That's absolutely correct. Sections 9 and 10 deal with termination. Termination, in fact, in my interpretation of the act, is not regarded as as serious a matter as the termination of a protectee from the witness protection program. It is not regarded as as serious a matter as the disclosure of the identity or location of a protectee. Terminating an individual simply stops the agreement and the obligations that the RCMP have with regard to further protection, but the person then retains their status as a former protectee, and former protectees' information is kept at exactly the same status as that of a protectee. So the same steps have to be afforded to a former protectee, with regard to disclosure, as are afforded to a protectee.

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

In terms of your opinion, have you taken into account that section 12 provides that the subsequent paragraphs 12(a) through (e) are really guidelines more than mandatory, because of the terminology being used: “should be disclosed” rather than “shall be disclosed”, “shall” being the stronger terminology that we use in drafting our legislation, rather than “should”, which is more of a directive, more of a guideline rather than something mandatory?

[David Bird]

I read section 12 as saying these factors shall be considered, and if they aren't considered--

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

But it doesn't say that.

[David Bird]

It says--and I will read it to you: “The following factors shall be considered in determining whether information about a person should be disclosed under section 11...”. Failure by the commissioner to do that would open the commissioner to judicial review.

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

Mr. Chair, given that the review of that report is not available today, I just want to be clear that I would like Superintendents Ogden and Busson back here next week, and at the end of the meeting I would want to address that point.

Those are all the questions I have for now.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We will now go over to the government side. I believe Mr. MacKenzie has some questions.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

Thanks to the members for being here today.

We had a witness before us earlier this week, and he has been outspoken about the shortcomings of the act. One of the things he wasn't aware of, it seems, is that the criminal record follows the individual. It doesn't specifically say that in the Witness Protection Program Act, but there is another act that obviously applies. Perhaps you could tell us why the criminal record follows the individual and not the name.

[C/Supt Derek R. Ogden]

I don't have specifics on the other act, and it's not just the criminal record that follows the person. It is the criminal history as well.

[Dave MacKenzie, Conservative, Oxford, ON]

It follows the person because in Canada we identify individuals by fingerprints that are taken under the Identification of Criminals Act.

[C/Supt Derek R. Ogden]

That's right. I have stayed familiar with some of the other testimony. The person's fingerprinting history obviously doesn't change from old identity to new identity. But what happens is that we house all the fingerprint records, so we have a system that will automatically make it so you can't tie the old name with the old fingerprints; they're automatically tied to the new identity. So if a person commits a criminal act while a protectee, the criminal record is still attached to that person, although it may not appear exactly as it did before, because sometimes there may be things in the criminal record for specific dates and locations that we may have to alter a little bit so we can protect the witness. But that will remain with that individual. If the person's fingerprints are found at the scene of a break and enter, they'll run those fingerprints, and those fingerprints will be attached to that new protectee. They don't have any advantage with their new identity when they go on to commit these further criminal offences.

[Dave MacKenzie, Conservative, Oxford, ON]

I probably didn't ask the question properly in the first part, but the real reason the criminal record stays with the individual is because the fingerprints don't change, even if the name changes.

[C/Supt Derek R. Ogden]

Yes, that's quite correct.

[Dave MacKenzie, Conservative, Oxford, ON]

That's fair, okay.

Mr. Bird, I think you indicated that in the Young case, and it's one of the interesting things I think I heard here this morning, it was not only the police; in this case, there was a judicial decision made. It was reviewed by a judge, who said the information should not be released.

[David Bird]

Yes, that's correct. My understanding, although I wasn't present at that hearing--the proceedings are sealed--is that this information was given about the background of Mr. Young, and the court ruled that it was not relevant to that proceeding.

[Dave MacKenzie, Conservative, Oxford, ON]

So where frequently the police are being criticized, in fact in that case--the one that is most frequently cited--it isn't just a police decision. That's the point. It has had additional review by a judge.

[David Bird]

Yes, the basic decision would be made by the commissioner that this is necessary for the investigation or prosecution of this offence. Hearings would then take place about the extent of the disclosure to the various accused and about the potential publication of that in public. All that was considered.

[Dave MacKenzie, Conservative, Oxford, ON]

The issue of location under subsection 11(1) came up the other day too. That section is dealing with both disclosure of information and change of identity and location. Is the reason the location is not to be disclosed so as not to identify a person who is under the protection of the plan?

[David Bird]

My interpretation of the reason for that provision is to prevent anyone who can link the two identities together from saying.... Even if they don't make the link of the identities, they link them to the new location, and that simply means that the people who are potential threats to that person would now know where to look. It would be as good as telling them the name of the person. And that's the reason why you have the double prohibition on those two types of information.

[Dave MacKenzie, Conservative, Oxford, ON]

Would you have an opinion on how defined location is? Is it a city or a province? Or is it anything?