Public Safety Committee on March 19th, 2013

[The Chair, Conservative, Kevin Sorenson]

Good morning, everyone. This is meeting number 76 of the Standing Committee on Public Safety and National Security, Tuesday, March 19, 2013. Today we are going to continue our study of Bill C-51 and its amendments to Canada's witness protection program.

In our first hour, we're pleased to have with us here today Mr. Yvon Dandurand, a criminologist with the School of Criminology and Criminal Justice at the University of Fraser Valley.

As well, if he is able to be here, we expect to have the president of the Canadian Association of Police Boards, Mr. Alok Mukherjee. He has appeared at this this committee before. We have a bit of winter happening outside as all of you know, but we expect him to be here shortly.

Perhaps we would then open with Mr. Dandurand.

Welcome. This is a rude awakening for you coming from Vancouver, but this is Ottawa. We look forward to your comments. If you'd be willing to take some questions at the end your presentation, that would be appreciated.

[Professor Yvon Dandurand, Criminologist, School of Criminology and Criminal Justice, University of the Fraser Valley, As an Individual]

Thank you very much.

Thank you for the opportunity to appear before your committee this morning. I really appreciate this because I think Bill C-51 will make it possible to increase the effectiveness of the federal witness protection program, as well as of the available provincial programs. I believe there is a consensus right now that the bill will significantly improve the existing legislation.

As some members of the committee may recall, I had the pleasure of making suggestions to the committee in 2008 when the committee was previously dealing with the witness protection issue. At that time, my suggestions were based on my own research, including the research I was doing for the Air India commission. At that time, I pointed to the importance of making some improvements to the existing program. I will go back to those suggestions this morning and compare them to what is included in Bill C-51. I think most of the suggestions that I made at the time are reflected in one way or another in Bill C-51. I say “one way or another” because, in some cases, the solutions proposed in the bill are not necessarily the ones that I had suggested. However, in most cases, they are still dealing with the problems that the committee and I identified at that time.

In 2008, I made a suggestion to the committee about the decision-making process for the admission of candidates to the federal program. I noted then that the Council of Europe considered that it was important to separate witness protection agencies from those responsible for investigations and prosecutions. I also felt it was important to do so in order to improve the decision-making process, to ensure objectivity and to better protect the rights of individuals. That is why, at the time, I suggested the creation of a more or less independent agency to manage the program. This committee also made similar suggestions or recommendations.

I see today that the government and the RCMP are proposing a different approach to address this need. Organizational changes are apparently in progress to ensure the centralized management of the program and more consistent management properly focused on witness protection. We learned that these organizational changes would be implemented fully this May. We also learned that a new admissions protocol has been developed and will be implemented. I am ready to believe that those changes will have the intended effects and address the pitfalls that were identified in 2008. However, I would be more likely to believe it if I was told that an independent evaluation of the changes will be carried out in the near future. For the time being, I will say that I am satisfied with the solution proposed, but we will have to wait and see if it is sufficient.

At the time, I also said that It was important to add an independent oversight mechanism to the witness protection program. Again, the government is proposing a modest solution, but I think it is a solution in the right direction. The plan is to set up an advisory committee for the witness protection program, a committee that would report to the commissioner or to his delegate. In my view, that is also a step in the right direction, but we still have to see in due course how that committee will operate and fulfill its duties.

I know that the committee has been looking into the costs of the program and whether existing resources are available to meet the growing needs of the program. I'm not in a position to say much about the resources that are available for the program, but I would assume that the amount of resources required is dictated in part by the growing need for the services that the program offers.

Unfortunately, it is very difficult to estimate the total need or demand for this kind of program. We know that slightly over a hundred candidates are considered every year. Potential candidates do not directly apply to the program; they are referred to it by a police organization—and will be by other security organizations if Bill C-51 remains as is.

We are told also that in fact very few people want to join the program. That may very well be true, as the committee can appreciate, because participation in the program for a witness is a hugely disruptive choice that a witness can make. However, there is no way to independently verify this assumption. We don't know, really, what the demand is, and given the secrecy that must accompany this program, it's very hard to know whether there's more of a demand than we currently know.

I have suggested in the past that, in existing protection programs, full protection tends to be extended to witnesses only in cases involving the most serious crimes, and not necessarily always in cases involving the most serious threats. This is because the logic behind such programs, given their cost and the need to establish priorities, is based primarily on the desire to facilitate the cooperation of the witness and not on the premise that the state has an obligation to protect all witnesses and that witnesses have a right to be protected.

I am well aware of the fact that section 7 of the present law identifies the factors that must be considered in determining whether a witness should be admitted to the federal program. However, the nature of the risk to the security of the witness is only one of the factors to be considered together with the costs involved, the value of the information or evidence given by the individual, the likelihood of the witness adjusting to the program, and other factors.

I would draw the attention of the committee to the fact that there is actually no publicly available data on how these criteria have been applied in the past. It is therefore quite difficult to determine how these criteria are being applied in practice and whether they actually serve the purpose they were intended to serve.

I understand that the RCMP is improving its own database on all cases considered for admission in the program. I hope this will lead to some independent analysis and further transparency in the way in which current decisions are made concerning candidates for admission into the program.

I think all of the changes proposed in Bill C-51 are going in the right direction, but I am still not sure how the RCMP proposes to measure the impact of these changes and determine whether they will achieve their goals. In 2008 I was advocating for independent research on the efficiency and effectiveness of the witness protection program and in the related areas of witness intimidation, the use of criminal informants, and accomplice testimony. I am not sure this kind of research will take place, but it definitely should.

In 2008 I suggested it was time to address the need for an effective complaint and redress mechanism for witnesses at risk and for protected witnesses who are endangered or whose rights may be abused as a result of poor witness protection practices.

I know that Bill C-42 will establish a new civilian complaint commission, and that amendments contained in that bill and in Bill C-51 will allow the commission access to the information it needs to perform its function. I am not aware of other measures that may have been taken to address that issue. I hope this committee will have a chance to look further into this aspect of the question.

There is another potential issue with Bill C-51 that may become problematic. I am referring to the new wording concerning the protection of information found in clause 12 of the bill, relating to section 11 of the law. Protection of information, as the committee can appreciate, is at the very heart of a witness protection program.

On the one hand, I am very pleased that the proposed amendments will enhance the safety of those who provide protection to program beneficiaries. That change was long overdue.

On the other hand, I am worried that the new section may negatively affect the situation and the rights of the beneficiaries themselves and perhaps render them more vulnerable.

The modified version of section 11 of the law contained in clause 12 of the bill provides only a limited exception for protectees from the prohibition against disclosure. I'm not sure how protectees will always be able to determine on their own whether something they may reveal directly or indirectly could result in “substantial harm”. I do not know either whether this new wording may prevent protectees from seeking legal advice about a formal complaint they may wish to make or some other decision they need to make concerning their own participation in the program.

It seems to me that the exception for protectees, as worded in clause 12 the bill, is narrower than what currently exists in the law. It should probably be formulated more broadly. However, I will admit that this is a complicated issue, and I sincerely wish that the committee will study it very carefully.

I will conclude my remarks, Mr. Chairman, with a reminder of the need for greater transparency in the management of witness protection activities and programs. I and others have argued that there is a fundamental imbalance between the rights of witnesses who can be compelled to testify and the rights of the state to demand that witnesses respond to summons and subpoenas, testify under oath, and tell the truth. The imbalance is particularly troubling when one considers that most of the decisions made about witnesses—the information or evidence they bring forward and whether or not they are compelled to testify—depends on police and prosecutorial discretion. This is why guidelines concerning these practices are important and why the careful monitoring of this somewhat obscure part of the criminal justice process is required.

It's also important to ensure that witnesses have access to legal advice and representation with respect to these decisions and the process that leads to them. I'm very pleased by the decision of the RCMP to offer the services of legal counsel to all candidates being considered for admission into the program. That is clearly a positive development. However, it would be important to know also what access protected witnesses have to legal advice or representation once they have been admitted into the program. For example, could they obtain legal advice without breaching their obligation to protect information if they are making a formal complaint against the RCMP or against its protection program?

Thank you very much for the opportunity to appear before you today. I look forward to answering any questions you may have.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Dandurand.

We welcome Mr. Mukherjee back. We're pleased to have you join us here today. My understanding is that you don't have a statement to give but you're here to answer questions. We appreciate that very much.

We will move into our first round of questions. We'll go to Mr. Norlock, please.

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

Thank you very much, Mr. Chair. And through you to the witnesses, thank you for appearing today.

I recall, Mr. Dandurand, your appearance before this committee in 2008, and some of your suggestions. I'm happy that the government has seen fit to incorporate them, although, to use your words, “rather lightly” in some respects, but then we don't get everything we want all the time.

At that time there were, as you may recall, a great many other suggestions, some of them not quite the same as yours. As a matter of fact I wouldn't say they were diametrically opposed, but they didn't necessarily go along the same path yours did. It's good to see that the current legislation goes down that path.

I was making some notes as you were speaking, and I printed the word “trust”. You were talking about the availability of counsel for the people in the program who may have some complaints. If I recall correctly, one of the reasons the committee was looking at the witness protection program was that there had been some issues surrounding the way some of the people protected were being treated. I believe, as a matter of fact I know, that this legislation covers some of that or neutralizes some of those problems.

When we heard from the RCMP witnesses, I believe some of the testimony indicated that there is an availability of counsel, and I think you mentioned that. So how much more...?

We live in a society where everybody runs around yelling and screaming about rights, rights, rights. But there's a huge responsibility living in a democracy, in a country that has the rule of law. Everyone is responsible, not just the state. The individual citizen is responsible for the function of our justice system and public safety. If you go back to the original function of police, it's that the people should police themselves. But in a modern society you have people who put on uniforms to do these jobs.

All that considered, for these great people who take their responsibilities seriously to give evidence for the state, because of the complexity and because of the danger that puts them in, the state now provides them with an opportunity to.... Because they've taken such a big stand, the state assumes a very expensive.... If I remember correctly, the average dollar figure per year is around $60,000 per witness—some more, some less.

I wonder if you could talk about the trust element, and then the responsibility element of the witness and how the state takes on this responsibility. And since we're dealing with BillC-51, does Bill C-51 strike the right balance? So far we have heard that generally it does.

[Prof. Yvon Dandurand]

Thank you for the question.

There is no doubt that the decision to testify or cooperate with the authorities is an important and difficult decision to make for many witnesses and informants, particularly because we're talking very often talking about crimes that involve very dangerous organizations. Therefore, it's a very difficult decision. It involves not only the witness himself or herself, but also the family, friends, and others. Clearly, when people have the courage to do that, for whatever reason, we have an obligation to protect them. The program does that, to a large extent.

We don't know how well it protects them, because there hasn't really been a whole lot of evaluation of what happens once people are in the program. That's part of the difficulty with this particular program. Out of necessity, it has to protect information, it has to hide what it's done, it has to hide its methods. But as a result, there is so little information available on what's really happening that sometimes it's like writing a blank cheque to the organizations responsible.

From time to time we hear complaints. There were some in 2008, and I'm sure there have been others since. But we don't know about the complaints that do not come forward. You have to imagine that it must be a very difficult thing for witnesses to lodge formal complaints when they perceive that their own security is dependent on their cooperation with the authorities.

I'm not suggesting for one moment that the RCMP or any police force is blackmailing witnesses, or anything of that nature, but psychologically, when you are really dependent on the protection extended to you by one of these programs, it's a very difficult decision to go forward and complain.

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

You mentioned the psychology of this. We heard from the RCMP that they do provide the services of psychologists to people who are considering going into the program, and not just those people but also their families. I would suggest to you that it is probably harder on their children, let alone their spouse, be it a man or woman, to have to change their life. It's not just the witness, but the family that has to do that. You can imagine if there were teenagers. I know that just moving for your job is hard enough on your family. As the RCMP testified, there is psychological help available. So that covers your concern.

Going back to 2008, the reason that precipitated the study by this committee.... And here I would suggest to you the result is BillC-51. There probably aren't a lot of complaints because the people administering this, the RCMP, know that if a program is to be of value and attract the kinds of people we need to have as witnesses, they need to make it so there won't be any complaints. In other words they cover most areas. Would you not agree with that?

[Prof. Yvon Dandurand]

I would definitely agree that the new provision of psychological support is absolutely important. It probably does address a lot of the concerns that have been expressed in the past, so that is a very positive development. It's not the same though, as a psychologist is not there to help someone assert their rights under the law. That was the point I was making. However, I believe this addition of psychological support and professional services is absolutely crucial.

[The Chair, Conservative, Kevin Sorenson]

Thank you. We've got to stop there. We'll move to Mr. Garrison, please, for seven minutes.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair, and thank you to both of you for being present this morning. Out of respect for other committee members, Mr. Dandurand, I won't ask you about your recent experience with gardening and cherry blossoms and other things that British Columbians are thinking about this morning.

I would like to go back to something you made a part of your presentation in 2008 and emphasized again today. I find it very interesting when you say that the criteria don't really focus on the right to be protected. Often it's the most serious crimes, rather than the most serious threats, that seem to be the criteria for determining who receives protection.

I know you've studied witness protection around the world. Can you tell us whether there's any difference from the criteria you've seen in other places?

[Prof. Yvon Dandurand]

There is not a whole lot of difference in terms of the criteria, but there is a growing recognition that witnesses and victims have a right to protection whether or not they're being useful—or very useful—to the system. This is perhaps not totally reflected in the law. I'm not suggesting it isn't reflected in practice, because I do not really know how those decisions are made case by case, but it's not totally reflected in the law.

The purpose of the program as it was first defined and continues to be defined in Bill C-51 is to help those who help the justice system, and not to help those who are in serious trouble because of their cooperation with the justice system.

I'm going to ask you a hypothetical question. What decision would be made under the criteria if someone is no longer required as a witness because the offender has been dealt with otherwise?

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

We know the witness protection program is very expensive. Did you look at other mechanisms for protecting witnesses other than the specific protection program? Are there lessons we could learn from other jurisdictions in terms of costs?

[Prof. Yvon Dandurand]

All jurisdictions rely on a witness protection program like this when they have one, but only as a last resort. So it's the tail end, the extreme of the continuum, of protection practices. That's not the one we should rely on all the time. This is one of the reasons I welcome the recent developments about cooperation with provincial programs, where sometimes all that is required is assistance in changing identity.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

On March 7, Mr. Mukherjee, we had a very good presentation from Micki Ruth; unfortunately voting cut us off from getting to ask any questions at that point. She made a number of recommendations on behalf of the Canadian Association of Police Boards. One of those dealt with the question of downloading costs onto the municipalities. I wonder if you would like to add to her statement on the impact of the costs of witness protection on municipal police forces in particular.

[Dr. Alok Mukherjee, President, Canadian Association of Police Boards]

Certainly. As a principle we have been saying that we shouldn't make laws that add to the costs of municipal policing. If we do, then we should make sure they're properly funded. That principle applies just as well to this legislation.

As my colleague said, we support the principle of the legislation. It's been a while coming and we're glad to see it. Our concern is that without sufficient funding available to municipal police services, we won't be able to take full advantage of the program.

It's an important program. In some jurisdictions the provinces have a bit of funding. Ontario does, for example. When that runs out we look to the federal funding.

Our conclusion has been that there needs to be more funding available than currently is the case. Without the availability of sufficient funding, our ability to take advantage of the program will be limited. In places like Toronto, that's a big problem because, as you know, we're dealing with serious violent crimes and often rely on witnesses from the community, not informants and others but witnesses from the community. Their needs may not be significant, as was mentioned. All they may need is a little bit of protection, but that requires that sufficient funding be available for us to be able to do it. That, for us, is a problem.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Would you say, then, that sometimes decisions are made on whether the program can be used or not based on the availability of funding?

[Dr. Alok Mukherjee]

That is correct.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

At what level are those decisions made?

[Dr. Alok Mukherjee]

They're being made at the police service level by the chief of police.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

How often would you say that happens in Toronto? Do you have any idea? Has this been surveyed by your board?

[Dr. Alok Mukherjee]

I think it's the same issue that Professor Dandurand mentioned: there has not been a full evaluation. Understanding the extent of the limitation is difficult, but I know it has been brought to the board's attention that this is an issue for us.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I have limited time. I'll go back to one of the other recommendations. Ms. Ruth talked about the independent oversight question, and Mr. Dandurand has raised that this morning. Can you explain the interest of the Canadian Association of Police Boards in this question?

[Dr. Alok Mukherjee]

I guess what Ms. Ruth was talking about is the fact that the RCMP has a significant role in investigation and that it administers the program as well. The sense is that separating the two functions might benefit the administration of the program and provide a measure of independent decision-making as to who gets the funding support. That is an important consideration for us.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I think there were a total of five recommendations we talked about. Some of those dealt with the designation of provincial programs. Do you feel that this bill actually has adequate measures? Do you know of municipalities that run their own witness protection programs?

[Dr. Alok Mukherjee]

We don't have numbers, but our association has been advised that there are areas where the municipalities are required to fund programs. We don't do that in Toronto because we have a provincial program. It has been brought to our attention that the ability of municipalities to fund programs is virtually non-existent.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll go back to Mrs. Bergen, please.