Public Safety Committee on March 19th, 2013

[Dr. Alok Mukherjee]

Absolutely, and there are economical ones too.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

—but would there also be funding considerations, do you think, in terms of the costs perhaps being higher?

[Dr. Alok Mukherjee]

There are parts of the country from which relocation would be extremely expensive, and first nations services in those communities would not be able to afford it.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Thank you.

Mr. Dandurand, would you like to comment?

[Prof. Yvon Dandurand]

I would emphasize the point that was just made, which is that with any visible minority group, there are greater issues with relocation and change of identity, and there are also personal psychological challenges in terms of being cut off from your own cultural group and your own community. So it makes it more difficult.

I can't answer the question about access, but I do understand that it's much more difficult to offer effective protection, whether it's through the federal program or any other measures, in those particular cases, and I would agree with you that it is absolutely crucial that we find ways to offer that protection throughout the country, because that's the only way we can penetrate those organizations.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

So let me follow up with this question then, Mr. Dandurand. Could you expand on your thoughts about independent oversight and evaluation and particularly the importance of research? You talked about those briefly in your opening statement, and I think they might be critical, particularly for groups such as first nations. If we were to ask anyone in police services across Canada, including the RCMP, they probably wouldn't have a very good handle on what the needs are there.

So could you expand on your thoughts about independent oversight and in particular, research?

[Prof. Yvon Dandurand]

Thank you for the question.

There are two types of research. One is on the efficiency and effectiveness of the current program, but there is another type that was alluded to, which looks at the demand for that program. Every time these questions are brought before this committee or other fora, we are basically trading rumours, because we don't really know what the demand is, and it's very hard to put our finger on it. I know that the Air India commission, for instance, tried and did well but had a lot of difficulty getting information on this particular issue.

So research is absolutely important. Of course, you would expect an academic to tell you that, but this is one case in which research has real, practical applications that will support the integrity and efficiency of the program. So that's the kind of research I'm really advocating.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much. Our time is up for this first hour here.

We want to thank both of you for appearing and for your comments today.

We are going to suspend. The video conferences from Calgary and British Columbia are ready, I believe. So we will suspend long enough to allow our guests to leave, and we'll come back here in about 30 seconds.

I'll call this meeting back to order. This is the Standing Committee on Public Safety and National Security. We're continuing our study of Bill C-51 and its amendments to the Canadian witness protection program.

I want to let the committee know that we are going to take a few moments at the end of the hour to go to committee business. We'll go in camera very briefly, for just a couple of minutes, to deal with a budget.

We are pleased today to have appearing as an individual by video conference from Calgary, Alberta, Mr. John Charles Major, a retired judge of the Supreme Court of Canada.

Also appearing by video conference from Victoria, British Columbia, on behalf of the Government of British Columbia, we have Clayton Pecknold, assistant deputy minister and director of the Ministry of Justice, police services, policing and security programs branch.

I would invite both our guests to make brief opening statements before we proceed to questions from the members of Parliament on our committee. It is my understanding that our time with Justice Major is limited, and he will have to leave us around 10:20. So we'll begin with his comments.

Please begin, sir.

[John Major, C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual]

Thank you. It's a little earlier out here than it is down there, so you'll have to pardon me if I'm a little sleepy.

I don't have a great deal to say on the new legislation, because I was unaware until Friday of last week that I had been asked to appear.

I would say that when I conducted the Air India inquiry, we spent considerable time on witness protection. If you refer to volume 3 of that report, chapter 8, you'll see that we dealt with witness protection from pages 178 to 255, and we raised a number of questions. The circumstances there dealt with terrorists. There were conflicts between CSIS and the RCMP, and witness protection showed certain flaws. We had problems with ethnic identification. We had problems with one police force overseeing or undercutting the other—all in good faith but all counterproductive in that each thought it knew best how to solve the bombing.

I'm rushing a little because I know about the time, but I would suggest that the public perception of witness protection is that it protects the witnesses. They seem to forget that the essential ingredient to witness protection is protecting the public: to get vital witnesses to testify is a safeguard that the community deserves.

I would say that something you might consider is that in certain circumstances there are alternatives to witness protection, such as having witnesses testify behind screens for instance, having them testify in private, or, in certain circumstances, excluding the public from the testifying.

You will hear from Professor Dandurand, who has a number of suggestions with respect to witnesses not testifying in public. The only caution I would raise with respect to that is that some of the suggestions, while effective, might run into charter challenges and would not be sustainable.

One of the recommendations we made in the Air India report was that the RCMP should not be in charge of witness protection but rather that a senior official in the justice department should determine the eligibility of witnesses. We thought the RCMP was in a good position to administer the witness protection act, but it should not be the group that decided who would go into protection and who would not.

The one other matter I would raise in passing is that one size, with respect to the witness protection act, does not fit all. The circumstances of our society are such that we have to tailor our witness protection to the witness we are trying to protect. For instance, in the case of a juvenile, who makes a decision with respect to his going into witness protection? Is it the parents or is it the people in charge of witness protection?

There are exceptions, also, to getting witnesses to testify. As you know, ministers have a certain veto over proceedings. Crown prosecutors play a role in who is going to be called. The Supreme Court confirm their role and that of police-informer privilege.

I think you'll be interested in what Professor Dandurand has to say about hearing witnesses in private.

Finally, I would say there should be some mechanism to resolve disputes between witnesses and those in charge of the program. It's a difficult thing for some witnesses to be taken out of a society in which they're comfortable and placed in a witness protection system. For a number of reasons they sometimes don't fit into that particular environment. The RCMP in charge will sometimes be arbitrary in removing people. It would be useful if there were some resolution method whereby the witness and the people in charge of witness protection could resolve disputes rather than terminating the protection. Again, I refer you to what is said in our report on Air India.

I'm open for questions.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, sir.

Before we get to the questions we'll go to Mr. Pecknold in British Columbia. If he has an opening statement, then we'll take a round of questioning.

Mr. Pecknold.

[Clayton Pecknold, Assistant Deputy Minister and Director, Police Services, Policing and Security Programs Branch, British Columbia Ministry of Justice]

Good morning, and thank you, committee, for the opportunity to speak.

I will be brief. I'm sure you have some questions.

I'll restrict my remarks mostly to policing, which is my sphere of responsibility.

Just for the interest of the committee and to provide background, I hold two roles. I'm Assistant Deputy Minister of policing and security in British Columbia, but I'm also the director of police services for British Columbia. Within those responsibilities under the statute, it's my responsibility to superintend policing in British Columbia and ensure adequate and effective policing across the province, and I do this on behalf of the minister.

As you know, we are policed under contract in British Columbia. Our provincial police force is the RCMP under contract. We are the largest contract division in the country. As a result, approximately one-third of the RCMP are stationed in British Columbia. So we are, by definition, fully integrated with federal policing through the RCMP.

British Columbia does support a robust witness protection program. We see this as an effective tool for the protection of witnesses, and it's paramount for us in the fight against organized crime. You need only refer to events in British Columbia over recent years and some of the challenges we've had with on-street gang violence to see how important that is to British Columbians.

Based on our analysis, the amendments in Bill C-51 appear responsive to the specific needs of law enforcement in British Columbia and to the issues raised by our partners and stakeholders, including the broadening of the disclosure prohibition to include information on the program's methods for providing protection, extension of the emergency period beyond 90 days, and a process for voluntary termination.

We also support the adjustments to administrative processes under the federal program that will broaden the scope for who may be considered for protection. The proposed processes will better reflect the changing clientele of witnesses we have, including those associated with the increased prevalence of youth gang violence that now poses somewhat of a significant challenge for all of us across the country, I'm sure, but in British Columbia in particular in those agencies under municipal responsibility.

As the committee may know, British Columbia does not have provincial witness protection legislation. However, under an agreement reached in 2003, all police agencies in B.C. have operated under an integrated RCMP witness protection program. It's referred to as the Integrated Witness Protection Unit. This model has been successful in British Columbia. It integrates municipal witness protection programs into the present RCMP witness protection program. It increases the resources available to the program through secondments of municipal officers into the unit managed by the provincial force under the federal legislation and by the RCMP policy.

Like other jurisdictions, British Columbia has seen witnesses threatened, especially when organized crime is involved. Consequently, our view is that it's an effective and necessary tool that needs to be improved in British Columbia and modernized to ensure that it meets the needs of our very dynamic policing environment.

Within B.C. our anti-organized gang strategies are the responsibility of the Combined Forces Special Enforcement Unit of B.C. British Columbia funds that unit exclusively, but it's also integrated with federal policing resources. CFSEU-BC is specifically mandated to target, investigate, prosecute, disrupt, and dismantle gangs and individuals who pose a high risk to public safety. CFSEU-BC has informed us that the proposed changes to the act, especially the protections afforded in emergency situations, will be beneficial to their investigations.

Many CFSEU-BC witnesses are extremely difficult to handle, by nature of their violent and criminal behaviour. Providing the commissioner with an additional 90 days in cases of an emergency provides more appropriate timeframes that will tend to improve the management of these key witnesses, often in very dynamic investigations. Often, as you may know, witnesses involved in organized crime, after cooperating with investigators, will go underground as it were and become difficult to locate for further interviews and for the purposes of supporting the prosecution. CFSEU informs us that they believe the proposed amendments will support improvements to the re-engagement of such witnesses.

From the perspective of the Province of British Columbia, providing modern protective measures, while challenging, is especially challenging with gang-affiliated youth, and that will require some different handling with respect to the program. We also think that the changes the RCMP will be implementing around procedures with respect to psychologists and other professional services will support a more integrated program in British Columbia and take into account the needs of the protectee.

We also will be interested to watch the organizational changes that will take place within the RCMP, once, and assuming, the bill is passed. I would add parenthetically that under the new provincial police service agreements that we have with the federal government to provide RCMP contract services, the provinces that contract have a much more involved oversight with respect to RCMP programs. We'll be looking very carefully to make sure not only that the program meets provincial policing priorities but also that it is integrated well with national priorities. We'll be working closely with the RCMP to make sure that works.

Finally, I'd add that we're pleased to see there's a certain amount of flexibility so we can design our program to meet the needs of British Columbians but still leverage the national efficiencies and effectiveness of the national program.

Those are my comments. Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Pecknold and Mr. Major.

We'll move into our first round of questioning, and we'll go to Mr. Leef, please, for seven minutes.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Mr. Chair.

Thank you to both of our witnesses.

Mr. Pecknold, you mentioned in your opening remarks that you were pleased to see a broadening of the scope of who would be admitted into the witness protection program, and you particularly touched on the folks involved in youth gang violence.

I'm wondering if you can recall a time in your province where anybody has been denied access to the witness protection program based on the type of crime they've been involved in.

[Clayton Pecknold]

Unfortunately, I probably couldn't answer that question definitively. I don't have that degree of intimate knowledge of the program's running day to day. It has not been brought to my attention that there have been any specific circumstances or challenges with respect to youth, but that doesn't mean there haven't been cases where persons haven't been admitted to the program for whatever reason.

I'm sorry, but I just don't have that level of specific knowledge of the program.

[Ryan Leef, Conservative, Yukon, YT]

Okay. Fair enough.

You did mention some of the organizational changes that the RCMP talked about here in committee when they testified not too long ago in respect to their administering of the program. In particular, some of those were around the oversight of admissions and trying to separate the investigative interests from the main objective of protecting witnesses. Of course, as Judge Major accurately pointed out, public safety is obviously a defining concern for this bit of legislation as law.

Could you to touch on what you see as the key elements of those organizational changes from B.C.'s perspective? How will those changes serve to enhance the operations of the witness protection program, where you have competing investigative interests in a very close proximity with the vast array of municipal police forces there, particularly in the Lower Mainland? I would see B.C. and the Lower Mainland being fairly unique to Canada in terms of the number municipal police there in such a compressed area and representing such a large volume of people.

Could you touch on how you see the organizational changes being beneficial to that region and which ones are most significant, in your opinion?

[Clayton Pecknold]

Thank you.

You're correct in your assessment of the somewhat complex policing structure that we have in British Columbia, in particular in the Lower Mainland. It's certainly been commented on from a number of perspectives. The rationale for moving the former program into an integrated fashion with the RCMP within the province was to somewhat break down any potential silos and create some synergies between the independent or municipal police forces and the RCMP jurisdictions.

We've had some success with that. Under the prior program, it was administered more or less through this office on a somewhat ad hoc basis, depending on the situations and upon request of the municipal agencies. By moving it into an integrated model with the RCMP under the present legislation, we created what we saw as a more consistent approach to witness protection across the jurisdictions.

I think this legislation allows us to take that model somewhat further. It allows us the potential to standardize somewhat both witness management and witness protection in these files throughout British Columbia.

I'd add that the recent report by Mr. Oppal from the missing women inquiry has added a certain amount of impetus for us to standardize and harmonize our response to major crimes and serious crime. Indeed, the legislature of British Columbia amended the police act to allow the director of police services to create binding standards with respect to complex and major crime to ensure that level of consistency both across municipal police agencies and the provincial police force.

We see this act as complementary to the creation of those standards and a standardized approach to our response to organized crime and complex and major crime.

[Ryan Leef, Conservative, Yukon, YT]

Thank you for that.

Judge, I went through the bill itself, and it looks as though most of the recommendations in the Air India inquiry are reflected in Bill C-51 in some form or fashion, probably with the exception of having the Department of Justice completely take over the task of determining the independent oversight. It was really, I think, a decision that the RCMP was better positioned to decide whether the witnesses should be admitted to the program and to what extent those protective measures were required.

But at committee, the RCMP testified that they felt they were making those organizational operational changes to really take away or remove the investigative interest from the decision-making aspect of the witness protection program itself. So there is, in their mind, going to be a clear division between what the investigation wants to achieve and what the ultimate program goal is to achieve, which is public safety and witness safety.

Do you think that is a reasonable compromise and that it will be effective in light of the recommendations of the Air India inquiry?

[The Chair, Conservative, Kevin Sorenson]

Judge Major.

[John Major]

I don't think there's any one solution that's perfect. What you suggest is an improvement over what we experienced in reviewing witness protection in the Air India inquiry.

To the extent that some division of the RCMP can remain independent of the enforcement so that they can objectively reach a decision, I can't quarrel with that if that's done effectively. It seemed more likely the independence, not in the operation of the witness protection.... We were quite content to see the RCMP run it. It was a matter of who was going to be eligible for it.

There was some suggestion that on certain occasions the RCMP use the entrance to the witness protection as a threat of some sort, raising doubt as to whether or not the witness was really coerced or as reliable as he could be as a result of that. Some people will do anything, perhaps, to get into witness protection, and we thought that having an independent person passing on eligibility, letting the RCMP run the program, would be the solution.

What you suggest may well serve the same purpose. I have no magic bullet.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Judge.

Now we'll go to Mr. Garrison, please, for seven minutes.

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

Thank you very much, Mr. Chair. I'd like to start with a question for Mr. Justice Major, following up on Mr. Leef's question.

In your Air India inquiry report, one of your major recommendations was that there be a national security witness protection coordinator. Do you feel that the issues of witness protection and national security would still require this independent national security coordinator to make those admissibility decisions?

[John Major]

As long as the difficulty we experienced is recognized, I'm not here to say that a suggestion that we made is the only one. What the program lacked in our view was independence in assessing who was eligible for witness protection. In certain cases, it was used by particular officers of the RCMP as a threat: if you cooperate, you get into witness protection, if you don't, you won't. We were somewhat concerned that the investigating officers had that power.

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

Thank you.

We just had testimony from Professor Dandurand from the University of the Fraser Valley about the criteria. He raised the interesting point that the criteria seemed to focus more on the usefulness of testimony than the right to protection of all the witnesses, and that there was a tendency to offer witness protection only in the most serious cases. Did you find that problem in national security cases?

[John Major]

I can't identify that particularly as a problem. I defer to Professor Dandurand, who was a witness at our inquiry and is very knowledgeable on the subject. So I can't quarrel with anything he said. It's just that I come back to the independence required in certain cases as to who should or should not go into witness protection.

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

Thank you, Justice Major.

I want to turn to Mr. Pecknold.

We've had a lot of discussions around the table about the impact of this legislation on the question of funding. We definitely heard from the RCMP that they feel they have adequate funding. We've had the question raised about whether provinces and municipalities have costs that are billed back to them that make it problematic for them to use the witness protection program.

So I guess I'm asking on behalf of both the province and the municipalities. Do you see this question of billing back as some kind of a restriction on the ability to make full use of the witness protection program?