Thank you, Mr. Chairman, and good afternoon.
I'm grateful to the committee for this opportunity to appear before you today and offer some comments on witness protection programs.
As members of this committee can fully appreciate, witness protection is especially important in the fight against organized crime and terrorism. This is because the close character of the groups involved in such conspiracies makes it particularly difficult to use traditional investigation methods.
I've had several opportunities to examine international best practices with respect to witness protection programs and also the use of informants and agents by law enforcement agencies, particularly in the context of the implementation of the United Nations Convention against Transnational Organized Crime, a convention that calls for these kinds of methods and for international cooperation in using informants and in protecting witnesses, and also recently on behalf of the commission of inquiry into the investigation of the bombing of Air India Flight 182.
However, let me say at the outset that the very nature of the problem of witness intimidation, which is what we're really trying to prevent, makes it a problem that is quite resistant to public scrutiny and research. I'm sure that this committee has already become quite acquainted with that particular problem as it was conducting its own review of the existing programs in Canada. There is, in fact, far too little systematic research on the practical, legal, and ethical issues that surface in relation to current witness protection practices in Canada and the related question of the use of informants and agents by law enforcement agencies.
I understand that the committee has already heard witnesses who have pointed at several of those issues. What is particularly lacking, as you might already appreciate, is good evaluative research on what works and on the efficacy of existing witness protection programs.
Please allow me to say a few words here, to start with, about the use of informants or agents and their protection.
The most frequent use of a witness protection program is for the protection of individuals who have acted as agents or informants for the police. Law enforcement authorities increasingly need to rely on the testimonies of co-defendants and accomplices willing to cooperate and provide evidence against former associates. In many instances, an attempt will be made by the police to turn an “informant” into an “agent”. The use of criminal informants and agents is generally considered essential to the successful prosecution and detection of various criminal conspiracies, because this is where these methods are the most useful. However, the practice is not without its own perils and pitfalls.
Furthermore, one must also remember that the reputation of the police as to its own ability to protect informants and witnesses affects the ability of the police to recruit people who can assist them. So it is crucial, really, to have very solid programs in order to have a chance to become effective at fighting organized crime in any criminal conspiracies. Failure to protect witnesses and agents can lead, of course, to a lack of trust in law enforcement, which itself will result in fewer informants coming forward and fewer witnesses making the decision to cooperate freely with the authorities, not just with the police but also with the prosecution during the trial. The recruitment and handling of informants and collaborators is, however, problematic in different ways, and so are some of the controversial methods that are sometimes used by law enforcement to compel criminals to cooperate.
In my view, there remains a need to provide a tighter framework for the management of informants and agents, in the form of guidelines, statutory regulations, or increased independent oversight of practices in that area.
I'll now move to a few comments about witness protection programs themselves.
We should all keep in mind that formal witness protection programs are only one measure within a broader range of measures that may be taken to protect witnesses or informants. These formal witness protection and relocation programs are at one extreme of that continuum of protection measures, but they are very costly—as you by now can appreciate—and quite difficult to manage.
There's a whole range of other protection measures that are available and should be emphasized, from procedural measures to regular low-level police protection measures.
What we are referring to oftentimes here as a witness program is what I will refer to as formal witness protection, because it's only one aspect of witness protection measures that can be taken by law enforcement.
Formal witness protection programs offer a way to safeguard the investigation, the criminal trial, and the security of the witnesses. Their main objective is to safeguard the lives and personal security of witnesses and collaborators of justice and people close to them. Witness protection programs are not some reward for the witnesses for cooperating with the authorities.
Ineffective protection measures can affect the outcome of prosecutions and trials, and affect public confidence in the efficacy and fairness of the courts. When we compare existing programs internationally, which I've had the chance to do, even though the information that is generally available to the public and to experts is quite limited, we find that existing protection programs in western countries do not differ from each other significantly in terms of the protection they offer. There are some small differences in terms of eligibility criteria, the administrative process for making decisions about who gets protection and what kind of protection, and the modalities of the program--how it operates. There are, however, significant differences among programs in terms of who is responsible for their operation. In many countries, witness protection is largely seen as a police function, as a police program, whereas in other countries the judiciary or other government agencies are called upon to play a key role.
In Canada, as you well know, the national witness protection program is seen primarily as a police program. Protection in existing programs, particularly those that are seen as police programs, tends to be extended only to witnesses in cases involving the most serious crimes and not necessarily always in cases involving the more serious threats.
One of the first criticisms that is oftentimes addressed to those witness protection programs that are primarily understood as police programs is that they offer the protection selectively based on what is useful for the police in attempting to obtain a conviction or advance a prosecution. It is not based necessarily on the needs of individuals in society who require the protection. So one may well find oneself in a situation where one is facing a serious threat but one is of no real value as a witness to the police. In those cases, protection is rarely forthcoming. And that is one of the major drawbacks of the idea of having a witness protection program that is conceived of as a police program.
In our country, at the federal level, the law gives the responsibility of managing the federal witness protection program to the Commissioner of the RCMP. As you know already, at the provincial level the situation varies.
A Council of Europe study of best practices in witness protection concluded that it is important to separate witness protection agencies from investigative and prosecutorial units with respect to personnel and organization. My understanding is that this is very much a point on which the debate is still ongoing in Canada, because clearly that is not the practice in Canada.
I think it is fair to say that whatever model one is deciding to support will have advantages and disadvantages. But I think it's also fair to say that if you were to consult most experts internationally in terms of best practices in witnesses protection, the consensus would be on the side of keeping witness protection programs operated separately from police functions.
Serious consideration should be given, in my view, to creating a national and autonomous witness protection program in Canada and of course providing it with adequate resources. In my view, a program that would be kept separate from normal police functions would offer greater protection to witnesses and would hopefully be more credible than current programs in the eyes of witnesses and potential witnesses and also other citizens who require protection from organized criminal groups or terrorist organizations.
The establishment of such a program would require addressing a number of practical, logistical, and communication issues, as well as securing the collaboration and participation of the provinces, the RCMP, and other Canadian police services.
Another point I would like to bring to the attention of the committee, Mr. Chairman, is the issue around the accountability for programs. In making the following comments I am not specifically targeting the federal program here in Canada under the responsibility of the RCMP, but talking more in general terms that are applicable, as well, to the Canadian situation.
Whether or not Canada eventually decides to create a separate agency to manage the federal witness protection program, or to institute a truly national witness protection program across the country, there is, in my view, an urgent need to elaborate and perhaps also legislate some clear national guidelines concerning the protection of witnesses and collaborators of justice. The roles, responsibilities, and obligations of the police in that area need to be more clearly defined. It is also time to address the need for an effective complaint-and-redress mechanism for witnesses at risk or for protected witnesses who are endangered and whose rights may be abused as a result of poor witness protection practices.
In this, Mr. Chairman, I would also include a category of people who are oftentimes neglected in the whole debate. They are the people who request protection but are denied. Oftentimes in agencies there will be accountability mechanisms for decisions concerning witnesses who have entered the program or decisions looking back retrospectively at decisions concerning individuals who later enter the program, but there is very little information on people who are denied access and on the reasons why they are denied access to the programs. We suspect at times that the decision is based largely on cost.
Effective means must be developed to make the agencies involved in witness protection more accountable for their decisions and practices. We all know that there are judicial reviews possible in those cases, but clearly if you are depending on a particular agency for your protection, and perhaps even for your own safety and security, the first thing that comes to your mind is not necessarily to go and start legal action against that particular agency. Clearly, witnesses are in a very vulnerable situation. Normal means of redress for them, even though they exist in practice or in theory, are difficult to access.
To conclude, Mr. Chairman and members of the committee, I would like to draw your attention to the general idea of the rights of witnesses. Most witness protection programs of 20 years or more tend to define this whole issue in terms of seeking the cooperation of a particular class of individuals who might advance a prosecution or provide police with necessary intelligence.
If you turn this problem around and realize that you're dealing with witnesses who also, like all other Canadian citizens, have rights, then you have to try to shed some light on a number of decisions that are made concerning individuals in the community who need protection. You have to place at the centre of all the initiatives that we take one basic concept, which is that first and foremost you protect people, and secondly you try to advance your case. I know this is a difficult concept to get hold of, but if we don't put the protection of all people at the centre of all our interventions against organized crime or terrorism, we are going to find ourselves in a lot of trouble.
In brief, I would submit, Mr. Chairman and members of the committee, that notwithstanding the legitimate legal, public safety, security, confidentiality, and privacy considerations that must equally be addressed, it is imperative that some greater transparency be introduced with respect to decisions that are made concerning witness protection, the denial of protection in certain cases, and the general use of informants and collaborators of justice. It is also important to ensure that witnesses and informants, as they make important decisions, also have access to legal advice and representation when necessary, with respect to these very difficult decisions they have to make.
Thank you.
