Public Safety Committee on June 7th, 2007

[Sue Barnes, Liberal, London West, ON]

I take it you're talking about agencies that are only dealing with criminal actions. What about civil procedures? What about somebody who's trying to bring a civil action for wrongful death?

[David Bird]

I'm not aware of any case where that has happened in a civil proceeding. There have been many cases where people who have approached the RCMP with respect to people they knew or who were in the program and asked for service by the police on that person who has been affected. They have been able to commence civil actions without any prejudice to the fact that the person was in the witness protection program.

[Sue Barnes, Liberal, London West, ON]

Mr. Ogden, what if we had a boilerplate clause in every initial agreement? For instance, if you enter a program, it's clearly stated that you will not be protected, your identity will not be protected, you will put it at risk, and whoever accompanies you will be put at risk if you commit murder, if you commit a serious personal injury in this country. What if that were one of the entry clauses? Wouldn't that at least act as some sort of deterrent?

[C/Supt Derek R. Ogden]

You mean if the act were changed, and they put that in the act as a guideline?

[Sue Barnes, Liberal, London West, ON]

No, I don't think the act specifies what your boilerplate agreements are with your protectees, but you could put that in there. You'd create the conditions that are part of the agreement between the protectee and the law enforcement.

[C/Supt Derek R. Ogden]

But I'm guided by the act. I don't see any way I'd be allowed to draft something that would go outside the act and go against the act, because--

[Sue Barnes, Liberal, London West, ON]

Thank you, Mr. Ogden; my time is short.

Mr. Bird, I'd like to hear you on that.

[David Bird]

I would agree with that assessment. The RCMP could not contract with an individual outside of the legal protections that Parliament has imposed upon someone in the witness protection program. In those cases, that person should never be in the witness protection program. Once the person has a status of a protectee, then they have all the legal protections.

I'd like to go back to an earlier question by Mr. Cullen, on why Parliament would conceive of such a scheme where, even though someone commits a serious offence, that information about their former identity should not be made public. I think if you were to have counsel here for the people who may be in that position, they could give you a number of arguments. One argument we are getting is that these persons in their former identity assisted the police. They were good citizens and witnesses in a proceeding. If you were to let them know later that because of some action by the police against them in some other proceeding, where they're charged with an offence, at some point in the proceedings that information would become public, and all the people who were after them....

Even if they're sentenced in jail, they would now be regarded as an informant, a rat, and would be subject to another punishment with regard to any other punishment the courts may have imposed upon them with regard to subsequent criminal activity that they maybe know--

[The Chair, Conservative, Garry Breitkreuz]

Okay, thank you. I think that's pretty obvious, the problems there.

You're way over your time, Ms. Barnes.

Mr. Norlock, please

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I'd like to go back, chief, to one of the previous questions. I think it was Mr. Ménard who mentioned Mr. Shur and the placement of the administration of the program from the police into civilian hands.

Just to assist you, and I don't think I'm wrong here, but in the U.S. model, a civilian body determines who should or who should not be in the program, but it is the U.S. marshals who physically move the person and their family or the persons around. That's my understanding.

Mr. Shur from the U.S. seemed to indicate that Canada's program was a very good program, but because of the civilian oversight of the program, it took it out of the hands of the police and we seem to be, in this country, in this Parliament, in this specific time in the history of our Parliament, in our relationship with our national police force, in a time when everything you do as an organization will be under scrutiny because of certain other things that are occurring. That theme is now in this body.

You're here today particularly because of one instance in the entire program that some people are manipulating or trying to manipulate and are saying a whole lot of things are wrong with the program. No program, because we deal in human beings, and because doctors practise their trade and lawyers practise their trade, policemen aren't permitted to practise their trade.... We haven't said policemen practise law enforcement; we say policemen do law enforcement. Why you don't practise it is because the lawmakers of this country practise making laws. So I guess we're practising now by looking at the law and looking at what you do and how you do it, in order to determine, do we have one of the best programs in the world?

I'm going to make a very polite suggestion, as I made to a previous commissioner: that we from time to time need to--and I think as parliamentarians that's what we're doing here today--look at what we do in terms of best practices, and what other organizations do. I am quite certain the RCMP has a distinct ability to be able to go to the public safety minister and say this program may not be.... Here are some suggestions we have as to how to change them.

I think if there was that ebb and flow and seemed to have and be seen by the public.... Because what we're doing here is we need to make sure the public has faith, not only in our ability as legislators that we're doing our job, but that the people who are tasked with enforcing the law and making these programs work are doing so in an open way instead of in an opaque way.

My question is, would you not think it advisable that the RCMP look at the U.S. model, which may or may not be better than ours, but at least look at it, in terms of could it be.... And this body, they work within the RCMP, this civilian body may use you to do the physical part of it, but make the determination. Do you think that would be a worthy exercise?

[C/Supt Derek R. Ogden]

You raised a number of points.

One thing I think we need to make clear is that when we run into a case in which we deal with a person who becomes an agent and we realize later that this agent didn't provide the best information, once we've exposed that agent to the criminal element, it's very clear that we absolutely have an obligation to protect that witness. I think most people would agree with that.

Second, there's been some talk that if the person doesn't provide the evidence we would expect in court, maybe we should walk away and terminate from that person. I don't agree with that position at all. It would mean we would basically extort that witness. We would tell them to go in; they'd know what they've got to say, and they'd have to make sure the court knows exactly our point of view, and if they don't do everything we expect--basically extorting them--then we'll terminate them from the program. I say that when we bring somebody in and it doesn't work out, we still have our obligation.

On the comparison to the U.S. system, the one thing I think is an advantage, a best practice in Canada, is that we're involved at the early stage. What I mean is that when an agency wants to bring somebody in as an agent and expose them to that threat, we go in with source witness protection coordinators. We interview and assess, and we advise the investigative team at that point as to whether we should continue with this or we shouldn't. If we don't do it that way, then we'd use the person all the way through, expose them to the risk, and then decide whether we should or should not take them on, and that's exactly what the U.S. model is.

In the U.S.model they will have people providing information and they'll expose them to that threat. They'll obviously house them in hotels and wait while they're in a temporary position, but they'll expose them to that threat. Then they'll go before the U.S. witness protection program system to say yea or nay to taking them in. At that point the witness is really left out in the cold. That witness is at the mercy of whatever agency decided to expose them to the criminal element and at the mercy of whatever type of side agreement they can negotiate--perhaps money to go somewhere else.

On your point about civilian oversight, I think that whatever system the government decides we should have, we should make sure that the process is done at a very early stage. I would hate to see a system in which we add more red tape and make it more complicated for agencies to be able to use the act. If we make it too complicated, a lot of police forces in Canada are just going to step away from it and say they'll risk-manage it and do it on their own. There's got to be a real balance there.

On the act side, I think we do a relatively good job, but from the point of view of Parliament, I can understand exactly why you would like to have a clear view of what really goes on behind that curtain. I'm not sure what mechanism could be put in place. Perhaps the act could be amended in such a manner that periodically people could be allowed to actually examine cases and follow them through.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I'll stop you there, because you've just hit my second question. That's one of the recommendations I believe Mr. Shur had.

I'm not going to the British model, because quite frankly ours is far superior to theirs, and we shouldn't waste any time talking or thinking about it. I think that because of our proximity to the United States and the societal relationships we have, we bear some of the same burdens from a law enforcement perspective.

It's very dangerous, I suppose, to ask the policemen this, but we're seriously thinking about a need for a periodic review of the program so that parliamentarians can feel better about it and so that we can have our constituents and Canada feel better about the program, in that it is working as we anticipated it should because we in fact made the law that made it work.

Could I have your thoughts on, first, a periodic review--my thinking is every three or five years--and then on a civilian oversight body? I think you addressed this, but succinctly give us your thoughts on a civilian oversight body that actually decides who should or shouldn't be in the program--or maybe, again, this periodic review should be a civilian body that examines that.

[C/Supt Derek R. Ogden]

As far as a review of the act is concerned, I think it's a good idea. I think it's a good idea that you come together and you ask questions, because it's a complicated act, and it's not well understood because most people aren't exposed to it on a regular basis. I think it's good to look at the act and say we've run with the act for a five-year time period, let's get together, have a look to see how it's working and if we have to make some changes. I think that's 100% the right way to go.

[The Chair, Conservative, Garry Breitkreuz]

Okay. I thought it was a good question. That's why I gave you extra time.

Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

I'd like to come back to this public interest test, and I guess that's a test that's used by the commissioner to decide whether or not information will be divulged. I know you can't speak for the commissioner necessarily, and that would be her decision.

If by revealing information it could lead to enhancements in the transparency and the accountability of the program, surely that would be an argument to say that such disclosure might be in the public interest, would you not say?

[C/Supt Derek R. Ogden]

I'm not sure how to answer that. When the facts of the case out of British Columbia are examined, everybody will have a much better understanding of what happened at that point, and clearly in that investigation there were mistakes made. We'll lay that out and say here are the areas where we could have done a better job.

I don't know that there would be any advantage, but I speak only because I know both sides of the file and have seen what went on from the point the person entered the program onward. I am aware of how that case was handled, and I can't imagine any way that we could have possibly prevented what happened in that case.

[Roy Cullen, Liberal, Etobicoke North, ON]

Yes. It's interesting that you know that.

[C/Supt Derek R. Ogden]

I see your point of view.

[Roy Cullen, Liberal, Etobicoke North, ON]

I'm sure everyone around the table has great confidence in the RCMP, notwithstanding some of the current challenges. I think your point is a good one, that the witness protection program, I'm sure, has many success stories. We have to be careful to not just focus on the mistakes, because we all make mistakes as humans, and things can happen. Nonetheless, that's what we're studying here today.

In terms of the public interest, are there any developed public interest criteria that the commissioner would use, any regulations or guidelines, or would the commissioner use her own judgment of what would be in the public interest?

[C/Supt Derek R. Ogden]

The act doesn't provide an exhaustive list of what some of the examples are, but in my personal interpretation—and I'm not a lawyer, I'm a police officer—it seems to me that the act is trying to guide the police that when you have to be proactive, when the investigation is ongoing, when you have to either capture somebody or do something to further that investigation, and you have to make a disclosure, then bring that information to the commissioner so that we can legally make that disclosure. I don't see anything that would indicate, once the person is captured, in custody, convicted, that it's almost like a sanction that you could say okay, now we're going to release that name. I don't see it there.

[Roy Cullen, Liberal, Etobicoke North, ON]

You would be concerned, of course, regarding this question of the integrity of the program, that in future, people who might want to participate in the program might have learned about the fact that the commissioner, in a particular case, decided it was in the public interest to disclose the identity, and that might jeopardize the usefulness of the program. With many of these witnesses, it's not just them making these choices; they have pretty qualified lawyers who are working with them, and they know the ins and outs of the program.

If a person is in the witness protection program and let's say is convicted of murder, there's a process, as you say, of taking them out of the witness protection program, and there are appeal processes. But let's say that person, for example, was incarcerated in a jail—hopefully if they are convicted of murder that's where they would be--and let's say, under the witness protection program, they had certain relatives who were also protected, or they had various arrangements. Obviously, the person would be in a prison, and their well-being would be.... They'd be fed and they'd be taken care of in prison, so they're not receiving any financial contribution from the Government of Canada other than the fact that they're incarcerated in a prison. But let's say they had other arrangements for relatives and other expenses that the RCMP had committed to. Would those continue while this person was incarcerated?

[C/Supt Derek R. Ogden]

It would be case by case, but I suspect they do.

There are times when we'll have multiple people under one file on a protection agreement. One or two individuals may not work out and we have to do a termination. In those cases we'll move those people one more time. They will have a secure identification, a name change, so they're not in danger of the person who has shown they're not going to abide by the rules of the program. That person can't reveal their identification. We do that most often when their spouse or children are involved.

[Roy Cullen, Liberal, Etobicoke North, ON]

So with this person who let's say committed murder, if it was a decision of the RCMP that this person come off the witness protection program after the process and appeals, would that mean his extended family, or these other persons, if they are part of the program, would automatically come off, as well?

[C/Supt Derek R. Ogden]

No. They would most likely stay in.

[Roy Cullen, Liberal, Etobicoke North, ON]

They would most likely stay on. I see. I suppose the rationale would be that they haven't committed any crimes themselves.