Public Safety Committee on June 7th, 2007

[David Bird]

We've had to grapple with that issue with respect to the meaning and intent of the section. The conclusion we've come to is that it has to be specific enough information that it would be reasonable that someone could locate the person without many problems. So a province, by itself, probably is not sufficient to say that it would be a criminal act and that with disclosure someone would indirectly or directly be able to find that person within a specific province.

It's all going to be assessed on a case-by-case basis as to what other information is involved that would lead the person to a specific location and would therefore put the person or their relatives, who also may be with them, and also other witnesses who may be there, at risk. So by definition, it's their families.

That is essentially an assessment that has to be made about all the circumstances of the information that is made available by someone who may be disclosing it.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you.

We've had witnesses who have given us a great deal of information, and some of it from other jurisdictions, in particular Mr. Shur, from the United States, who had some very good information for the committee. One of the differences was they operate their program in a different way because the makeup of the law enforcement community is also different in the United States.

One of the things in Canada we have is CPIC, which all police agencies utilize. Are you aware, in the United States, whether they have a similar computer program as we do in the Canadian police information system, where we can query a name across the country? Do their local police have a similar system in the United States?

[C/Supt Derek R. Ogden]

I'm not an expert in any way on the U.S. system; however, my understanding is there are a couple of main differences.

One, they become involved in a file much later in the process than what we do in Canada, and I can explain that if required; and two, they don't have the ability to do the same thing we do with the criminal records. In the criminal records, they don't have the ability, so the criminal records follow these people. What they have to do, on a case-by-case basis, is go back to the old identity and produce the criminal record. We're not required to do that because we have the ability to manage it nationally, so on a one-time basis.

[Dave MacKenzie, Conservative, Oxford, ON]

Correct me if I'm wrong, but in Canada the system, as I understand it, is that if any individual who enters into the program with his new identity is queried by a police agency anywhere in Canada, it will trigger something in your department to alert them that the police are dealing with the individual.

[C/Supt Derek R. Ogden]

Yes, we'll be aware. That's correct.

[Dave MacKenzie, Conservative, Oxford, ON]

And that perhaps is different from what some other countries would have, where they're not connected across the country, from police agency to police agency, to the source of their witness protection program?

[C/Supt Derek R. Ogden]

I believe that's a big difference, yes.

[Dave MacKenzie, Conservative, Oxford, ON]

How much time do we have?

[The Chair, Conservative, Garry Breitkreuz]

I'm trying to keep everybody about equal. You're just about out of time. Perhaps you have a brief supplementary.

[Dave MacKenzie, Conservative, Oxford, ON]

No, I'll ask it in the next round.

[The Chair, Conservative, Garry Breitkreuz]

Okay, thank you very much.

Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

Thank you to the witnesses.

I appreciate that you have to work within the legislative framework that's currently in front of you, but from the point of view of elected people, it seems to me that it's a Catch-22. If we would recommend changes to the legislation, we're only dealing with half a deck, because we don't know, really, exactly what happened and what needs to be changed to fix a problem, if indeed there is a systemic problem in the legislation.

This is going to be dumb question; perhaps I should know the answer to this. All the witnesses we've had to date from various jurisdictions talking about witness protection programs talk very clearly about the fact that if a witness who's under a protection commits a crime, they come out of the witness protection program. They lose their protection.

Now, you've mentioned that former protected people are also protected. I know you're not legislators, but why would it be in the public interest to protect a former protected person, someone who has committed...? I think Mr. Young has been convicted of murder, has he not, if I'm not mistaken? So why would it be in Canada's national interest to protect a person like that?

[C/Supt Derek R. Ogden]

When you look at the broad scope, I'm sure one of the first reasons they probably would consider is we want to encourage people to come into the program. So they would try to restrict disclosure as much as possible.

Number two, I think they've recognized there have to be some exceptions to disclosure, but when you look at the act it appears it's when we have to be proactive. So if a person has committed a criminal act--the investigation's ongoing--perhaps that person's using an old identity or a new identity and they're trying to make it across the border, then we have the ability to disclose. If it's a national security type of case, then we have the ability. If it's a case where there may be a miscarriage of justice, yes, then we can step in and disclose.

I can't speak to exactly what the intent of the act was, but I don't think it's very clear right now that they've identified any types of categories where you can say “Okay, now that person has committed X, from this point on you can disclose their identity.” I think it's also something they would have to very carefully consider. If a person's name is revealed--and they may very well be found guilty--there have been several cases in this country where there has then been a review and they've been exonerated. Now they're out in the public; now we've exposed them to danger. Is that a risk the government would want to take as well?

It's a very, very complicated question. I don't have a direct answer as to why exactly they wouldn't want that, but I do know that at this point I don't believe we have the authority to do that.

[Roy Cullen, Liberal, Etobicoke North, ON]

I understand. That's actually a good answer, but I'm not sure I'm totally convinced.

When someone goes into the witness protection program they agree to certain conditions. Has anyone ever said that if you commit a crime, even though it might be subject to appeal, you will come out of the witness protection program? Until you actually present the proposition that way we won't have any experience, perhaps, in how many takers there would be or not. But it seems to me most witnesses who go into this program seem to understand that if they commit a crime they might lose their protection.

Can I move to another question?

[C/Supt Derek R. Ogden]

If you don't mind, I would like to answer that.

We do have letters of acknowledgment with the protectees. We have protection agreements with them and we have training on our source witness protection course. It's documented through every step of the way that if you commit a criminal act, steps may be taken to terminate you. So they will be terminated from the program, but it would be a huge step to move from terminating someone from the program to revealing their identity in pubic, because then we may become the executioner at that point. We can say you've broken your agreement and we're not going to continue to give you this much money to live per month, or do these different steps whereby we provide further training in this different area, but it would be a huge step to all of a sudden say we are going to terminate you, and we wish you luck with this criminal organization, but your name is going to be in public.

[Roy Cullen, Liberal, Etobicoke North, ON]

I understand what you're saying. But as opposed to going out and publicly revealing the person's name and maybe briefing a committee of elected people in a confidential way.... I don't know, I don't pretend to have all the answers, but it seems to me we have a problem here, because we don't know what the problem really is and how to fix it if there is one.

I'd like to come back to this public interest test. I know you're not legislators, but it seems to me there could be a conflict between the public interest test--and how you define that is another thing--and the criteria that you don't want to be exposed to adverse consequences on the integrity of the program. It seems to me there could be a situation where the program is not working as well as it could and this might not be in the RCMP's interest. The RCMP might want to deal with that internally. And I'm sure that you're all upstanding people and good managers and you'll fix things if there's a problem, but if there's a public interest test that says that maybe it is people who are elected who are perhaps, without any disrespect, a better judge of what's in the public interest and better able to make the trade-off between any adverse consequences.... In other words, if the program is being criticized, maybe it's a good thing from the point of view of the public interest to deal with that in a fulsome way.

[C/Supt Derek R. Ogden]

I agree, I think the public interest is very important. And I do think it's important that the committee try to separate the difference between if we take on an agent or an informant and that doesn't work out and the actual administration of somebody when they're in the witness protection program. There's a huge difference in that, in that there are cases and there will continue to be cases where we work with agents and then things don't work out the way we would have wanted them to work. That's the nature of the beast. I think the committee would have full right to review those cases, just as they will be doing with our case out of British Columbia.

But from the point of view where we take that person on and expose them to that threat from the criminal organization, we as an organization have an absolute obligation to protect that person. So, yes, we may be duped in an investigation, absolutely, but from that point on, once we've exposed that person we have an obligation under that act to protect that person, and we have to follow it.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll now go over to the Bloc Québécois. Do you have any follow-up questions, Mr. Ménard, or Mr. Roy?

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

Something that concerns us in particular is that in one case, an individual who has committed murder in the past and was under the witness protection program committed another murder. I know it is difficult to try to prevent an offender from committing another crime or to determine whether or not he will commit one.

I also know that your program provides psychological services, that there can be psychological testing of sources when they join the program and that psychological support is provided to the witness, if he needs it, and to his family as well. But we cannot help but think, even though the act does not talk about this, that when the police assume responsibility for protecting a criminal who has killed in the past, even if it is in the public interest to provide this protection in order to convict other criminals even more dangerous than him, the police does not have the moral duty to ensure that the person will not reoffend and therefore it will not maintain a close enough relationship to the individual to try to prevent him from reoffending, even though this is difficult.

From the evidence we have heard, it seems that if any psychological support is offered, it is offered at the beginning of the process. However, once the individual seems to be reintegrated into a new type of life, he is left alone.

I would like to hear your comments on this, because I imagine this incident must have caused you as much concern as it causes us.

[C/Supt Derek R. Ogden]

Referring to the British Columbia case, which I understand you'll probably want to talk about once you have the report, this individual had not had any criminal convictions, wasn't on probation, wasn't on parole. From that point of view, there were no indicators that the person would go on to commit this serious crime.

From the point of view of whether we will face the challenge at some point of dealing with somebody who has committed a murder and would know that ahead of time and still be forced to perhaps take them into the program, certainly we will, and again, we have to try to weigh the risks and mitigate the risk to the communities. That, I think, is what the act speaks to. I'm not sure what the magic solution to that would be.

Concerning psychological testing, just to be clear—I don't want to mislead the committee—it's not to determine whether the person is going to go on to commit further criminal offences. We use it, and it's not mandatory, but we offer it to all protectees. We do it from the point of view of helping him reintegrate into society.

Do we have a set method of maintaining some sort of surveillance or tracking of these people on a continuous basis while they're in the community? We don't. To do that, I would think, would require a continual refreshing of resources in that area. As the act stands now, that is one gap in the act: that although all law enforcement agencies in the country have access to bring people in, when we deal with outside agencies, it's on a cost recovery basis.

If you are the chief of a small police force, but you have a witness who requires protection, this may really make it a difficult choice. They may decide to take some measures on their own: to move the person, not to obtain a secure name, and not to bring them in under the witness protection program.

That's one reason why I was saying that if there were a funded, integrated, national program, then all police agencies in the country would be treated equally, because we don't know where these protectees are going to come from.

But you make an excellent point.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Ménard, do you have a supplementary question? Go ahead, briefly.

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

Yes.

I understand that you are providing some reassurance about this particular case, but I also know that in Quebec, convictions were obtained against certain people involved in organized crime, in particular Mom Boucher, using testimony from people who had committed murder, who had been involved in the crimes themselves. One of these days, these people are going to get out of prison. I think they will come under the program: that must already have been negotiated. So there are some circumstances where you will be dealing with people who have killed others. We have to be able to reassure the public about the surveillance that will be put in place for them.

[C/Supt Derek R. Ogden]

I'm not aware of any cases in the national witness protection program that fit that scenario. There may be people in local programs, in provincial programs who fit that criterion, but as far as I know, we don't have anybody who would fit that criterion in the national program.

But I do concede that it could be a situation we could face down the road. And sure to heaven, someone attached to them 24 hours a day...I'm not sure what actions we would take.

[The Chair, Conservative, Garry Breitkreuz]

Okay, quickly.

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

I would like to know if you would have any objection if we had a system as in the United States, where a similar system is administered not by police forces but by a special commission.