Public Safety Committee on Feb. 4th, 2008

[Sue Barnes, Liberal, London West, ON]

Okay.

I'm going to turn it over to my colleague.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Dandurand, thank you very much for your testimony here today.

I have a couple of questions.

In my area in Toronto, in Rexdale, we've had a lot of gun-related crime. The problem the police have is with witnesses coming forward. Many of these crimes are committed in broad daylight. There are clearly people who have witnessed what's gone on, but they're frightened to death, with good reason in many or most cases, to come forward. Even programs like Crime Stoppers or anonymous numbers aren't working.

I've heard from the Toronto police, who've argued that, yes, we need witness protection programs like the type we've been talking about, where people change identity and go to Florida or wherever. A lot of people who witness crimes might have their families in school. They have jobs and they enjoy the neighbourhood. They just wish there would be less crime in that area, and they'd like to come forward.

I've raised this before. I'm not a lawyer, and people argue that, well, under the rules of discovery for any person who would come forward, their identity would be revealed automatically. Are there any ways within the criminal judicial process that people could be encouraged to come forward, keep their anonymity, but stay in the community where they live?

[Yvon Dandurand]

Yes, there are, and what you are referring to is what some people sometimes refer to as low-level, community-wide intimidation. This has not yet received a lot of attention from law enforcement agencies, but they are beginning to try to come to grips with that particular problem. In the case of the Air India incident, clearly this was something that was revealed to be part of the difficulty police had in investigating that particular case. A lot of people were intimidated and worried about coming forward.

A witness protection program, such as the one managed by the RCMP, is an extreme measure, and in most cases these programs do not offer what people need. There are a whole range of measures, as I've said several times. So let me give you some idea.

There is low-level police protection, which is basically making sure that someone will respond to a call if there is a call from a house. There is also police presence in the community. There are even evidentiary measures. Other countries have looked at a number of measures, including delaying disclosure for a period of time. They do not prevent disclosure, but they delay disclosure until a certain time so as to give people an opportunity to take protective measures for the witnesses.

There are a range of things, including some that could be brought to the law. This is really what needs to happen and what we need to put in place, but this cannot be done just at the federal level. It basically has to be done in all communities. Police have to develop trust, work with the communities, develop the relationships, take seriously the information they get about people being threatened by organized crime groups, gangs, or whatever, and take measures. If you talk to people in various police forces, the problem is that they find that these things are very costly. Decisions of deployment and so on are based on different criteria, and this is not an area in which they place a lot of their resources.

I believe that there is a change in public attitudes and in police attitudes and practices. More and more people are understanding. If I can figure that out, and I'm not in law enforcement, I'm sure that some bright people in law enforcement have figured that out as well.

One good method to intervene against organized crime is to develop those relationships and protect people who want to come forward. The programs we have are so limited, when you look across the spectrum in Canada.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you.

It's an area I think we should explore more. In the traditional witness protection program, often these people are criminals themselves, and their credibility can be attacked later. For the honest citizen who wants to clean up the neighbourhood but is not prepared to be put at risk, we have to find some solutions. I appreciate your comments on that point.

[The Chair, Conservative, Garry Breitkreuz]

You're actually over time.

[Roy Cullen, Liberal, Etobicoke North, ON]

I'll come back on the next round.

[The Chair, Conservative, Garry Breitkreuz]

From the Bloc, we have Ms. Thi Lac, please.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Good afternoon, Mr. Dandurand. I'm very pleased to see you here today.

I am very pleased that special attention is being given to witness protection. I myself am involved in an organization called Info-Crime Québec which essentially seeks to protect the identity of people who report crime through a completely confidential phone line. In fact, it is volunteers and not police officers who take care of this phone line. In the past few years, we have seen an increase in the number of crimes reported. I don't like the connotation of the word "informant" but I often refer to "crime reporting".

My first question will be in this vein. Do you believe that a totally independent program would help increase the number of witnesses so as to support police investigations?

[Yvon Dandurand]

I think so, especially if it's an independent program that is accompanied by other measures for local police forces and communities. An independent program would always apply to the most stringent protection measures, but there's also a multitude of protection measures that can be handled by police forces and that can be offered insofar as these police forces make witness protection a priority.

I don't know if you'll allow me to digress. I don't want to take too much of your time. There's also another way to approach organized crime. And that is to confront this kind of intimidation by taking it seriously. One of the ways to prevent witness intimidation is to react very harshly in a practical way as soon as there is any intimidation. This wasn't done as often as it should have. We are aware of the fact that certain people were intimidated, but we tend to think that it's too difficult to investigate, that we won't come up with enough evidence and that it's too complicated and we go on to the next case. That's also very important. So we need an ongoing national program of local measures including some that can be taken by citizens' groups and non-governmental organizations, as well as an approach which takes all cases of witness intimidation, whatever they may be, very seriously.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Let's say that responsibility for witness protection comes under a completely independent and autonomous organization, and that this protection continues to be provided by police forces. If there were conflict between the two entities regarding the degree of protection to be afforded, how could that type of situation be resolved? There could be conflict if these two agencies are independent.

[Yvon Dandurand]

It could become a thorny issue, but if we brought together all the competent parties in the same room, I don't think it would be too difficult to come up with an agreed-upon protocol on the way to solve these differences of opinion. I'm supposing here that all such differences of opinion should always be resolved in favour of the witness. If one of the two groups has the impression that increased protection should be provided, that type of protection should be chosen and the witness should always be given the benefit of the doubt.

In reality, I don't think this would be very difficult. My knowledge is limited, because like you, to me this is a little black box within which I try to guess what's going on in this system. That said, to my knowledge, very little information is made public right now. I think that the conflicts that occasionally take place between police forces on the level of protection and so forth almost always involve a matter of cost. Ensuring protection costs a lot of money, and not everyone agrees on the need for that expenditure. If the question of cost and sufficient resources can be solved, many of these debates will cease to exist.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

In your report, you say: “Existing civilian oversight mechanisms must also be strengthened.” Could you explain what you mean by that statement?

[Yvon Dandurand]

As you heard during the testimony of Mr. Kennedy, who is part of the Commission for Public Complaints Against the RCMP, the current mechanism is insufficient and does not allow him to act in a very large number of cases. In other cases, there is very little information on which the investigation can be based. It is therefore necessary to strengthen this mechanism—that was my first opinion—or to create a new one. If we're dealing with a program which no longer comes under the RCMP, then we will need two mechanisms. The first should be able to examine the practices of the RCMP. The RCMP will have to participate in these programs, assess the cases, etc. The second mechanism will have to have oversight over the independent organization.

[The Chair, Conservative, Garry Breitkreuz]

We'll now go to Mr. Norlock, please.

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

I'd like to explore a little bit further some of the problems we've been talking about with previous witnesses and discussions in regard to the funding aspect. I think it goes beyond that. It's more important than always just the dollars. It's how you set up the framework.

At the beginning of your presentation you mentioned that there were international best practices that we might want to consider. Could you please list, in your opinion, the three or four best practices that you think should be incorporated into the Canadian program that aren't currently there, that are done better by other jurisdictions?

[Yvon Dandurand]

Let me start with a very positive one. I think we do very well in assessment of risk. The RCMP has acquired a competence there that is probably unique, or at least on par with the best.

On decision-making, we could learn from other jurisdictions in terms of the transparency of decisions and accountability for them.

On the rights of people who are denied right now, they really don't have a lot of recourse other than through the courts. But if they are in need of protection, it's very difficult for them to have access to it in practice. So these are two or three areas.

On the cost, it's not so much the cost but the management of the resources. If the resources are managed in a way so they are sort of comingled with other law enforcement resources, they are always competing with other priorities, whether it's to purchase more squad cars, meet the new collective agreement, or whatever. So it is very important that it's an autonomous budget that is returned to Treasury Board if it's not being used, because there's always the temptation to move those resources around. Sometimes when the resources are insufficient the pressure is on the managing organization--the RCMP in this case--to move resources from other areas. That has all kinds of consequences for law enforcement.

I'm not suggesting that the RCMP is taking resources away to do other things; it's just that basically all of the decisions that have cost implications--and I think by now all members of the committee know that those decisions have fairly significant cost implications, and even one case is expensive--are coloured by thinking around other priorities. What else could we do with this? We no longer need....

We've all heard stories in Canada--and I cannot confirm them, so please take them as no more than rumours--about people talking about entering witness protection or benefiting from some kind of protection from the police, when all of a sudden overnight they find themselves without any protection because the police lost interest in them, they're not prosecuting, they don't have enough evidence, or they found a better witness. People find themselves left in the lurch.

I cannot name cases for you, but people talk about those cases. I don't know how many there are, but the rumours are persistent. A number of people want to come forward and have come forward, but they find themselves really short-changed, not only by the RCMP witness protection program but by all law enforcement agencies, because the cost of offering protection is significant. Too many of those decisions are based on whether or not the particular individual in need of protection is required to obtain a conviction, and not on the basis of the significance of the threat that person is facing.

That person may be facing a major threat against his or her life, but the decision seems to be guided more by the fact that they don't need that person as a witness so they'll offer as little as they can in protection.

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

Thank you.

Going to the dollar aspect, the more I'm around this place, the more I see that it's obvious there's never enough. But there are some areas where you do have to expend resources and you do have to increase them, if necessary. I was very interested during your response to a previous question that you said sometimes it's about managing the resources that you have a little bit better. That being said, of course, the realities of the Canadian Constitution, the reality of this country the way it is, is that some people don't necessarily want to share things. They want control. So that leads me to think, what are some of the success stories? What would you say with regard to the idea that the RCMP have controls, but they also have some cost limitations?

Much of what you said, by the way, is alluded to in Mr. Brown's report concerning the RCMP, and I think you probably have read that by now. Because they're moving resources around, there's understaffing, etc.

So what I'd like to suggest and get your comments on is something like agriculture, let's say the provinces kick in 40% and the federal government 60% into a program that's run by an independent body in which there is both provincial and federal input and that each police force could have a member appointed to it, but it isn't really a police function.

Quite frankly, it appears to me--having a background in policing--that we begin to put so much responsibility on police forces that their core police functions begin to take a hit. I think this program might be one of the ways we could begin to shift those over to, say, the Department of Justice.

Could I have your response to my suggestions?

[Yvon Dandurand]

I will attempt it.

A long time ago I used to work for the Department of Justice, and worked with cost-sharing programs in the area of justice just long enough to know that all of those cost-sharing agreements are incredibly complicated to arrive at. Something around the lines you suggested is certainly possible. It would be different, of course, because in some provinces they already have the core of a witness protection program at the provincial level, so their approach to this would be somewhat different. There are other provinces that have mostly contract policing from the RCMP, so you would be in a situation where one side of the RCMP would be cooperating with the other side of the RCMP. But I don't think any of that is insurmountable.

When I was suggesting that a national program is required and that discussions are required among the provinces and between the provinces and the federal government, I had essentially something in mind along the lines of what you're suggesting. I think it is possible to do that.

I don't think it is a suggestion to say the federal government should pay for everything and therefore just leave it all with the RCMP. I don't think this is a good move, and I'll tell you why. It's not because I don't think the RCMP would do a good job. It's not anything about the RCMP. It's really because witness protection has got to be at the heart of the responsibility of all law enforcement agencies, and that's where it becomes difficult. Protection is one of their core duties, but the running of a very extreme program of protection and relocation may not really be a core duty. It's something that is different. Everything before that--from how they take information when someone calls in to how they protect someone as that person goes to trial--these are all things the police need to do and need to continue to do.

I'm trying to be careful here not to suggest that witness protection is somebody else's problem. Witness protection is primarily a law enforcement problem. But witness relocation, new identities, all of these programs are probably better done by a separate agency.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Your time is way over, so we'll go to Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

I'll share my time with Ms. Barnes.

Mr. Dandurand, we've had some testimony that would indicate that not all people are suited for the sorts of witness protection programs we've been referring to and that some kind of screening mechanism should be there to screen people.

Now, we've heard from the Ontario Provincial Police that they have delegated some responsibilities to the Toronto Police Service--and other services, I'm sure--so that they can respond right on the spot at the crime scene or during an investigation. I'd have to go back to my notes to recall exactly what they said, but my understanding of how it worked was that the police would be on a crime scene or doing an investigation, and someone might be forthcoming, and the police would make a commitment that they could get them into a witness protection program.

I think the way it works in practice is that the final sign-off has to come from the OPP; they have the authority. To give the credibility of the program to the police officers on the ground, there has to be some connection so that if they say they're going to get you into the program, they will. In practical terms, I suspect it's a fairly strong delegated authority.

How do you balance those two competing interests in the sense of the need to be able to be flexible on the ground with police and potential witnesses, and the reality, I suspect, that not all people are suited to this kind of program? How do you deal with that?

[Yvon Dandurand]

I hope you get the chance to ask the same question of Madame Boisvert, because she's really looked into this issue for the province of Quebec.

From my point of view, let me just say that first, yes, there are cases where there needs to be very a expeditious decision made, but the number of those cases tends to be exaggerated. It's never a matter of seconds.

The second thing is that in those cases where a decision has to be made quickly, it is usually sufficient for the police officer involved, or the commanding officer or whoever, to promise protection, not necessarily admission in a program, because there's a whole range of protection measures.

To promise protection is probably sufficient, right there on the spot. If it takes you 24 hours afterwards to.... You can act immediately. You can immediately protect that person. You can take that person, relocate that person, you can do a whole range of things immediately, right there on the spot.

Whether that person would qualify for a relocation program or a brand-new identity is a separate decision. There's no reason why it should take months to arrive at that decision. Even most experts in law enforcement will tell you that you need to do an assessment: the psychological assessment, the likelihood of success in the program. Is it someone who's going to be able to function under this? Is it at all possible, given the family relationship and all of those other things?

I think it's an argument that is valid, but sometimes exaggerated a little bit. It is usually sufficient for the police to say “We will protect you”. Even in the example you gave me, all that individual would have is the word of that one police officer. Whether the word is “You're in the program”, or “We'll look after you”, in both cases all that individual has is the promise of one individual police officer.

[Roy Cullen, Liberal, Etobicoke North, ON]

Good. Thank you.

[Sue Barnes, Liberal, London West, ON]

Mr. Cullen touched on this earlier: there are certain areas in this country where, for a lot of the gang and drug violence, there are a lot of children around. I'm not talking about the informant agent, I'm talking about innocent witnesses of serious things, maybe involved in some gang-related things, but people you wouldn't normally put in a witness protection program. Do you see a need for that right now because we're not getting the information forward, people are afraid to come forward?

Secondly, are you aware of any country that does a witness protection program for children?

[Yvon Dandurand]

There is a theoretical need, and that's why, in the paper I submitted, there was a line about this.

Yes, I believe there is a need to look into this, but in practice, it is very rare that law enforcement or prosecutors will want to rely on a child witness, for all kinds of reasons, including, basically, sympathy for the child, not wanting to put the child through that process. There might be exceptional situations where a decision is made that in terms of the risk to others or the nature of the case—for instance, if we were talking about a serious terrorist case—you might have to compel a child to be a witness or to have a child as a witness.

Part of the problem is that we haven't really worked out a whole lot of procedures when it comes to what you do with the rest of the family—issues of consent, all those other legal issues that deal with children.

As to the second part of your question, yes, most countries in Europe have provisions for witnesses who are children, but most of them actually do not rely on child witnesses, because it subjects them to such an ordeal. I mentioned earlier how hard it is for witnesses in general, for adults. It's even worse for children.

I did some work for the International Criminal Court when they were setting up the unit for witness protection, and I had a chance to review the situation with the tribunal for the former Yugoslavia. They had in their statute and rules of procedure an elaborate system for child witnesses, but in fact, they never called one. Why? Not because there were none. There were children who could have been witnesses, I'm told by the prosecutors, but the reason they did not is, first, they thought they would not necessarily be very reliable witnesses; and secondly, they really did not want to put children through that if there was any other way to build their case.

That said, maybe there's another thing that requires more attention than children who are witnesses, and that's children of witnesses. Very often the witness will have children, and the impact on those children can be quite severe. Again, to my knowledge, there has not been any research on what happens to those children, because there are very few of those. But those who have talked to witnesses know this is, in fact, one of the reasons that sometimes witnesses opt out of the program. It's because of the impact the program has on their spouses, or children, or relatives.

So that is an aspect. Again, in the absence of information on what really happens within those programs, it's very hard to know. I know even protection officers working in witness protection programs sometimes themselves complain about how little information they get from colleagues, because, again, that information doesn't move freely even within the network of protection agencies.

[Sue Barnes, Liberal, London West, ON]

We did get evidence, I think from the United Kingdom, that you can second a person into a department, the RCMP or the equivalent department, and let them do some data collection and conclusion, based on information that doesn't do identification.

It's really difficult, in our shoes, to recommend vast sums of money going forward to create potential new organizations or agencies, or whatever you want to do, when you have no real research on the efficacy of what's existing. But I also understand we're just hearing from one side of the equation right now, because we'll never actually talk to somebody in protection; we'll just get what's filtered to us through other people. So this is not the easiest task, but thank you very much.