[Recorded by Electronic Apparatus]
Tuesday, October 24, 1995
.0930 
[English]
The Chairman: I think we have a quorum. Mr. Wappel, welcome.
We have today Bill C-78, an act to provide and establish a program to enable certain persons to receive protection in relation to certain inquiries, investigations, or prosecutions.
The witnesses today are Mr. Wappel and a gentleman with him, who I believe is not going to be identified by the committee. We have your brief Mr. Wappel. Is it available in French?
Mr. Tom Wappel, MP (Scarborough West): Mr. Chairman, regretfully it is not. I was only able to prepare it recently and didn't have the staff or resources to translate it. Because the clerk only got it this morning, of course it would have been impossible for him to have translated it. I apologize to Madame Venne for that, but those are the circumstances.
The Chairman: I understand from just talking to the clerk that it will be translated and made available.
Mr. Wappel, you are well familiar with the procedures here, so please proceed.
Mr. Wappel: Thank you, Mr. Chairman. Congratulations on your election as chair.
The Chairman: Thank you very much.
.0935
Today, colleagues, I'd like to introduce the person to my right. He has a brief statement to make. Then I will make some comments and go through the material I have brought with me. Then we will be available for questions, as the committee sees fit.
We'll call the gentleman beside me ``John Doe''. The reason for this I'm sure he'll tell you, but basically he has had some experiences with the criminal justice system and in particular with the witness protection system as an informant.
He is the man who got me interested in this issue approximately four years ago when he came to my office. He described a situation I found interesting. It caused me to open a few doors only to find nothing but shadows. It then caused me to examine some of the legislation in the United States and put forward, in the last Parliament, a witness protection bill, which was examined by the then Solicitor General. I have put forward another bill in this Parliament, which has obviously received the approval of this Solicitor General. This Solicitor General then went on to instruct his staff to prepare a government bill, Bill C-78.
Because my bill was before the committee, I should let the committee know that last Wednesday I asked for the unanimous consent of the House to withdraw my bill and to withdraw it from the examination of this committee. That was given. That bill is now gone, it no longer exists, and we're dealing with Bill C-78. I did that because I support Bill C-78, and I'll talk about that in a moment.
Mr. Doe is the gentleman who really got me started on this, got me interested, got me involved, and kept on inquiring. I'm sure he was very frustrated at the length of time that these things seem to take, but he never gave up faith and he always inquired as to what was going on. He networked with people across the country on various justice issues to alert them to the issue of witness protection in Canada and some of the need for reform.
Without further ado, Mr. Chair, I wonder if I could ask Mr. Doe to address the committee.
Mr. John Doe (Individual Presentation): Mr. Chairman and committee members, first I want to thank you for accepting me here today as John Doe for the security of my family and myself.
I have to extend a wholehearted thank you to Mr. Wappel. I did bring to his attention the need for legislation for witness protection in Canada, but I brought it to the attention of many other individuals and they didn't take action. Mr. Wappel took immediate action. He gave commitments to follow through to do whatever he could, he's proven to be a man of integrity, and he is the man of the day and I believe the man of the hour today.
I would like to extend a personal thank you to the Honourable Herb Gray, who I believe has absorbed Mr. Wappel's work on legislation for witness protection, has refined it, and has continued the push and thrust to get this legislation forward and into law.
I'm very pleased. I feel very happy. I feel as though a light has been turned on in a dark, cold, leaky basement. Now that the light is on, the areas in need of repair for witness protection will become evident, and with everybody's contribution witness protection in Canada can only get better.
I have to extend a personal thank you to Prime Minister Jean Chrétien. Before he was Prime Minister I wrote a letter to him with my concerns about witness protection; the letter was acknowledged. Prime Minister Chrétien met with my lawyer, Mr. Richard Bosada, and agreed that witness protection in Canada was a very important issue. He said that his party would support witness protection; obviously his stamp of approval is on this as we are here today.
.0940
I have to extend a very wholehearted and personal thank you to a man who certain members of the RCMP have referred to as an honourable member and also, in some incidents, the conscience at different times of the RCMP. He is the co-chair and president of the Canadian Institute for Political Integrity. Glen E.P. Kealey has been instrumental in helping me emotionally and giving me guidance.
I have to thank my parents, not just for their emotional support, but it has also been a crusade that has lasted over four years. My family has donated over $50,000 to keep the push for legislation for witness protection going.
It's very important for me to thank Mrs. Debbie Mahaffy, Leslie Mahaffy's mother. I brought to her attention the need for legislation for witness protection in Canada. She literally took the bull by the horns. Wherever she went to do speeches she informed Canadians about the need for legislation for witness protection in Canada. She has put aside her personal feelings towards Karla Homolka in the sense that even at some point she realizes when Karla Homolka is released from prison she herself may need witness protection. In spite of that, she believes witness protection is an integral part of police work and Canadians need witness protection.
I have to extend a major thank you to the Miller family from New Waterford, Nova Scotia. Their case screams for witness protection. Their 17-year-old son was murdered by the New Waterford police and it was subsequently covered up by local police, local doctors and authorities. They put some of my problems into perspective. I hope I have a tomorrow and future, whereas their son, Clayton Miller, is not coming home. His case screams for justice.
I want to thank the media. Whenever I've spoken they've either called me David or Fred or, today, John Doe. I have to thank the Dini Petty Show. They disguised me when I was there. That's really where the crusade began. That was November 14, 1991.
Scott Robbins of CHUM FM was also instrumental in pushing the crusade forward for witness protection.
I have a lot of respect for the police. Most police officers are very hard working. They have a hard job. I'm not here to tarnish the RCMP or the regional police forces in any way. It's like any organization; there are rotten apples in the basket. I was unfortunate enough to run into some of the rotten apples instead of some of their better officers.
I want to touch on my story briefly so that you have an understanding of what I went through and why I'm here today. I originally approached the RCMP with information about a man who was trying to sell me brand-new Cadillacs for $6,000 a piece, counterfeit American money, and cocaine. I was not on charges at the time. I just thought I could help out. I felt it was like Crime Stoppers: give the RCMP a call, give them the information, they will be satisfied with this, and that will be the end of it. But the RCMP were not satisfied with just the information, they wanted what they called a personal introduction. I did not want to get involved because this individual was one of my uncle's best friends. At this point the RCMP officers assured me that if I would introduce one of their undercover operators directly to the target, this undercover operator would introduce a second undercover operator, who would introduce a third, and possibly one more, so that my role as the informant would be protected.
As the investigation unfolded it was learned that these men were directly connected with the bikers and with the Mafia in Brooklyn, New York. To make a long story short, instead of multiple introductions being done, the RCMP arrested everybody directly, and I was immediately exposed as a police informant.
I received numerous death threats. My car was set on fire. My house was set on fire. I approached the local RCMP for their help and protection. In hindsight I believe now their careers were on the line because there is police informer privilege. It's against the law to expose somebody as a police informant outside of a courtroom.
.0945
Instead of providing adequate protection for me, they gave me a mug shot of one of the bikers who threatened to kill me. They gave me falsified RCMP documents to say I had been arrested. They told me if anybody approached me or tried to give me a hard time, to show them the paperwork and tell them I had also been busted.
The mug shot and falsified paperwork amounted to a Mickey Mouse band-aid solution for protection that is obviously no protection. As the events unfolded, I was physically attacked. I was concerned about my safety all along, but after being physically attacked I was terrified. I was directed to the Commissioner of the RCMP in Ottawa. At the time it was Commissioner Norman Inkster.
The bottom line with the RCMP is that its officials offered me $20,000 and wanted me to sign a release to say they would not be responsible for me or my family in the future. That again is no protection, and I refused to sign their release.
I have had an opportunity to review the legislation that is being proposed for witness protection and am very pleased with what we have here. I have two areas of concern that I think the committee would be interested in, coming from a person who's under the gun as an exposed informant.
Clause 6 of the bill stipulates that an informant or witness would get into the program through recommendation from the local police forces. I am personally concerned that a safety net should be put forward for people like myself. I stepped forward, said I was exposed and needed help, but they didn't do anything to help me, so I obviously didn't get a recommendation from them. Maybe the chairman, as an example of the RCMP Public Complaints Commission, should have some authority to provide temporary protection while investigations are being carried out to look into allegations of being exposed or of wrongdoing.
My other concern involves clause 14, where the Commissioner of the RCMP is able to enter into arrangements with different government bodies to provide social insurance numbers, drivers licences and things like that. I'm very pleased with that, but my concern is about a past history in order to live a normal life at some point. In applying for a job you have to have a resumé with information about your past education and employment history. To live a normal life and purchase a home you have to apply for a mortgage. I'm wondering where the credit history will come from. Those are my two concerns.
In spite of my difficulties with the RCMP - again I believe it involved only a few bad apples in the basket - I want to thank the RCMP for its obvious cooperation in this legislation because it is going to have control of it and be a major contributor to it.
In closing, I'd again like to thank Mr. Wappel. It's incredible the number of people I approached with a cry for help, including former Prime Minister Brian Mulroney, former Justice Minister Kim Campbell, former Solicitor General Doug Lewis. All of my cries for help fell on deaf ears with them.
I also want to thank Lida Towstiak, who was working under their control at the time and received many calls from me. She was very patient and polite. I believe her hands were tied at the time. She's very competent and does an excellent job. It's my understanding that she has contributed to pushing this legislation further forward.
Mr. Wappel: My comments will be divided into three separate categories; hopefully all of them will be brief. First will be general comments, second will be specific comments on specific clauses, and third, I have drafted some amendments that I hope the committee will consider favourably.
.0950
First, I want to say that I agree with the general principles of Bill C-78, and I agree with the comments the Solicitor General made when he appeared before the committee last week. In particular, I want to single out four items he indicated that I think are in fact accurate and are reflected in the bill.
First, we will finally have, for the first time in this country, a statutory, legislative, legal base upon which to found the RCMP witness protection program. Of course, the program has been going on for quite some time, but without any legal authority, quite frankly. This troubles me, and this is something that Bill C-78 will give us.
He also stated, and I agree, that the bill will cause the system to operate more openly and effectively simply because it is legislation. There will be regulations promulgated. There will be a report to the House and hopefully some active role by this committee, which I'll talk about in a minute.
So along with the legislative, there will be the regulatory foundation. For example, the regulations will set out the nature of the protection agreement that the parties have to enter into so that there will be some consistency across the nation. There will be consistency in terms of contract and that sort of thing.
A complaints procedure has been set forward, and one of my amendments will deal with that to some degree. As the bill now sits there is a complaints procedure to the RCMP Public Complaints Commission.
Of course, one can argue about the efficacy of such a thing. One can argue about a number of items, and I have no doubt that witnesses will come before you and indicate that the RCMP shouldn't be running it, the commissioner shouldn't be running it, and it shouldn't be the complaints commission. But the RCMP is running it. The commissioner is running it. It has been running officially for well over ten years, if not longer, and I personally see no difficulty with the RCMP continuing to run an operation they have run since its inception.
With the added openness, with the requirement to report to the minister, with the requirement, as we'll see in a moment, that the commissioner accept the directives of the minister, and with the report to Parliament and the obvious scrutiny that the report is going to come under in this committee, there's no doubt that there is going to be more openness, more accountability, and less whimsical treatment behind closed doors, if I can put it that way.
That's the final point. One of the telling points that was not in my bill but that is in this bill is the parliamentary accountability and the ministerial accountability, if I could put it that way, to Parliament. In my view that is very important and will shed some light on a program that heretofore has been virtually secret, operating in the shadows, if you will.
It can't be completely open because we're protecting people. We're protecting their identities, often from vicious people who would think nothing of snuffing out the life of a witness or an informant. Nonetheless, there will be some scrutiny in terms of how much money is being spent, the kinds of witnesses who are being protected, and this sort of thing. I think it's very important that Parliament get involved on behalf of the people of Canada.
I also want to say that I don't think there can be any doubt as to the value of witness protection and informant protection in police work. There is no doubt that there are some cases that are absolutely impossible to solve without either witnesses coming forward who otherwise would fear for their lives or informants who come forward with information that would not otherwise be available. I'm talking about people inside organized crime, inside biker gangs, inside the Mafia, etc. These people would not come forward, in my view, if there were not such a program, and since there is, it might as well be legislated and it might as well be under the scrutiny of Parliament.
I'd like to refer you, if I might, to five different sections that I think are excellent and important.
.0955
Clause 10 provides a mechanism whereby if a person is refused admission to the witness protection program, at least there will be written reasons for that refusal. At least people will know. There will be some guidance. The forces that have asked that the person be brought into witness protection will know what the criteria were. Obviously there'll be a complaint mechanism. Should a witness's protection be terminated for one reason or another, the commissioner will be required to give written reasons for why the agreement was terminated.
I think this is critical, it's important, and it provides for a mechanism to ensure the decisions ultimately are made in the best interests of the protectee, of course, the best interests of Canada, and the best interests of crime prevention. So I applaud that clause in particular.
Mr. Doe made reference to clause 14. He indicated he thought it was good but it didn't go far enough. I'll leave his comments for your consideration. I just want to highlight that it is a good idea, in my view, to enter into agreements with other law enforcement agencies to be able to provide a national scope, to be able to help people to relocate across Canada. I think that is a laudable clause.
I note that the minister can also enter into reciprocal arrangements with foreign jurisdictions. This sometimes happens, because as we know, the world is becoming a smaller place. Crime respects no borders.
On clause 16, just to amplify, here is the annual report the commissioner must submit to the minister. Now, look; let's face facts. Because the RCMP was running this program, a report would have been submitted to the minister in any event, because the minister runs the RCMP, at least politically speaking. He is responsible for it. But now it's out in the open. For years nobody knew what was going on. Now everybody will know the minister has received a report.
Not only will we know. By subclause (2), the minister is mandatorily required to cause a copy of that report to be laid before the House of Commons. To me that is very important: not a summary of the report, and not an expurgated copy of the report, and not a ``may''; it's ``shall'' lay before the House. Obviously that report will then be available for scrutiny by members of Parliament, and in particular in this committee, with whatever questions one might want to ask.
It remains to be seen whether the questions will be answered. That will cause the further development of the legislation and possibly amendments, either in the regulations or in the legislation. This is new ground we're charting. Obviously it is going to take some time to see how things work out.
On clause 17, again, as I mentioned, the commissioner is required to give effect to the directions of the minister on general policy. One would assume that's a statement of the obvious. One would hope if a minister is giving directions to the people under him or her, those people will follow them. But here it's a requirement; a statutory requirement. There can be no doubt about it. It shows, in my view, the importance this legislation places on witness protection.
Finally, I think it's a very good idea in clause 20 to incorporate, insofar as it is legally possible, existing agreements within the ambit of this legislation. I personally don't like retroactive legislation, and in fact if this entire bill were retroactive I might have some problems with it. But in order to shelter existing agreements under the benefits this bill will undoubtedly give, clause 20 will give effect to that, and I think that is a good clause.
As good as the bill is, nothing is perfect. I'd like to refer to the hand-outs I've given to you.
First I would like to make a couple of comments. You'll note I've prepared a comparison of witness protection legislation in three jurisdictions: our country, the United States, and Australia. The United States has had legislated witness protection since the 1970s. Australia passed its act only last year. We're about to do the same in 1995.
.1000
I've been following what the witnesses have said and some of what the witnesses are likely to say who come before the committee. I'll only have one opportunity to say anything so I want to bring to your attention a couple of things.
Who runs the program? Well, Bill C-78 provides that the commissioner will run the program, which is simply continuing the current practice. In the United States it's the Attorney General. This, of course, is a political appointment. In Australia it's the commissioner of the Australian federal police. You might as well say it's the same thing as the RCMP.
In my bill, which may be mentioned, I had the minister as the person who would be running the program, but I should tell you that I expected the minister to delegate that authority and the obvious person to delegate it to would have been the Commissioner of the RCMP.
The purpose of my making the minister in charge was to have political accountability. That has now been taken care of sufficiently, in my view, by the requirement to table a report in the House of Commons and then appear before the committee to answer questions on the report. I see no significance in the fact that in my bill I put the minister, whereas it's the commissioner in Australia and the commissioner here.
Civil liability may also come up. I want to point out to you that in all three jurisdictions you cannot sue either the Crown or the Government of the United States, as the case may be. That was also in my bill.
I think there are very sound public policy reasons for doing so, chief among them the requirement that this be similar to CSIS, in a way, on a need to know basis, with some good accountability to Parliament, but not a completely open book, because we're in fact protecting people, protecting their identities, issuing them new documents and, indeed, if the committee agrees or if in regulations the drafters agree with John Doe, possibly even a false background in order to provide a resumé for a potential employer, with false - concocted is perhaps a better word - letters of reference.
This may in fact be needed because there's not much point in relocating somebody if they can't work and they're on the public dole for the rest of their lives. And yet, you can't often get a job in this country unless you have some previous experience and, hopefully, some positive recommendations.
So please remember that both in Australia and the United States there is no civil liability, there is no ability to sue the Crown, and that, of course, is continued. That was also in my bill and I agree with that completely. This provides integrity to the secrecy of the system and to the protection of witnesses.
I'll have something to say about disclosure in my amendments. I hope you will find there are some useful comparisons when you study the bill. One thing I want to talk about when I get to my amendments is what happens in an emergency situation where an instantaneous decision has to be made.
Currently, you will notice - this is on page 2 - that both the United States and Australia provide specifically for an emergency situation. Bill C-78 does not, and I have a proposed amendment for you to consider on that score. Otherwise, the bills are interestingly similar in many of their proposals.
One side note. Mr. Bodnar will know, but the non-lawyers among you will not understand perhaps the meaning of E. & O.E. at the bottom of the page. That simply stands for ``Errors and Omissions Excepted'', which is just my way of getting off the hook if I've made a mistake in any of those comparisons.
I don't claim to be an expert. I have read the material, I have compared it, but you never know, and the primary directive of a lawyer is to protect your own whatever.
The Chairman: No civil liability on your part, either.
Mr. Wappel: If I might specifically address the amendments that I would ask the committee respectfully to consider, they're contained on the last page of my handout.
Proposed amendment number 1. If I could direct your attention to clause 6, the amendment deals with paragraph (c) and says that the agreement must set out the type of protection to be provided and the obligations of the protectee. Well, I don't think that's right. I think the obligations of both parties to the contract should be set out. I would therefore recommend that someone on the committee substitute the words ``parties to it'' in place of the word ``protectee'' so that the obligations of the parties to the agreement would be set out. I think that's fairly self-evident.
.1005
I would add a subclause 6(2), which deals with the emergency situation. I've set it out there for you, but I think it's worthwhile for me to read it:
- Notwithstanding Subsection (1), the Commissioner may, in the case of an emergency,
temporarily admit to the Program, for not more than thirty days, a person who has not entered
into a protection agreement.
I understand the answer of the RCMP might be ``Don't worry about it because we're going to do this.'' But that, of course, begs the question because they're already doing witness protection anyway. We've got a statute dealing with witness protection. Why don't we ensure that there is a legal foundation for providing emergency witness protection or protectee protection and provide a finite time within which a decision has to be made? That's the purpose of that suggested amendment.
For the third one, I would refer you to clause 8. Clause 8 talks about some of the things that are going to be in the protection agreement. There is some wording in there that I would consider to possibly be ambiguous. I think it's very important because there may very well be circumstances where children are involved or where people who are being protected are moved across the country. There may be legal obligations; there may be a custody agreement; there may be separation agreements involved.
I think it's critical that there be a mandatory statutory requirement under which the protectee must advise the commissioner about such agreements so that the commissioner can take them into account and do the appropriate thing in the event that children are also located. As I see it here, there will be times when the protectee, for example, is a mother with children. Indeed, mothers called as I was working on this legislation and they have literally been uprooted from one area of the country to another with their children. There are all kinds of ramifications to that, including grandparents or whole family arrangements in which a wife and children suddenly disappear off the face of the earth and from the rest of the family. I think this has to be considered by the commissioner in making whatever arrangements need to be made.
The other thing is that I would hate to see a person avoid their legal responsibilities, suddenly disappearing after racking up $10,000 on their Visa and or American Express card, and be protected in that way. My amendment would require the protectee to specifically state to the commissioner all outstanding legal obligations. If the protectee did not, that would be grounds for voiding the agreement. So that's the purpose of the additional subparagraph 8(b)(v).
The fourth amendment would also be contained in clause 8 because it would be part of the protection agreement. I would be interested in any comments the department makes when they come back at the end, and I would hope they do so.
You will note that my proposed amendment 4 specifically requires that the agreement provide a mechanism for procedures to be followed in case of an alleged breach of its provisions. I would hope this is a way to keep it out of the public domain unless it's an absolute last resort. What I'm thinking of here is an alternate dispute resolution, the two parties agreeing to a third-party arbitrator, who, behind closed doors, could listen to the dispute between the commissioner on the one hand and the protectee on the other and provide a binding resolution. This is, of course, very common in private contracts, in commercial contracts, and would be a way of resolving the matter without having to go to the complaints committee.
.1010
It would simply be a matter of drafting a clause in the regulation that would be included in the protection agreement and would deal with disgruntled protectees, let's say, or a protectee who feels he or she has been hard done by, while in effect keeping the agreement and its terms secret. The protectee would know he or she is not, in effect, under the thumb of the commissioner. There would be a method of doing it without the dog biting the hand that feeds it. There would be a third-party arbitrator, if you will. So that's the reason I propose that this be put in as a mandatory clause in all protection agreements.
Amendment 5 deals with clause 11. This deals with what I think is a touchy subject: who can say or disclose what and under what circumstances.
The first comment I would make is that under clause 11, it is of course a very broad statement: ``no person shall disclose directly or indirectly'', etc. It seems to me that there should be some knowledge here. Obviously, if a person doesn't know he or she is disclosing information about the identity of a protectee, why should he or she suffer liability for it? It may be argued that this does not impose strict or absolute liability, but why have to argue it? If you put in the word ``knowingly'' before the word ``disclose'', then you clearly will have to have the appropriate intent to breach subclause (1) so that ``no person shall knowingly disclose directly or indirectly'', etc. That provides, in my view, the element of intent required to breach this section and be punished for it.
Subclause 11(2) deals with the situation in which a protectee decides to specifically reveal information about that protectee for his or her own reasons. Maybe he or she will write a book, go to the newspapers, or whatever the case may be. I don't know. But this section allows for this provided it does not endanger the safety of another protectee. That's fine. What it doesn't do is permit anyone else to disclose that information. For example, if a protectee wants to talk about something or write a book about something, he or she can do it under subclause 11(2), but arguably no one could publish it because they would be breaching subclause 11(1). A newspaper couldn't report on an item because it might be breaching subclause 11(1). That, to me, doesn't sound too logical.
So the proposed amendment that I would suggest would substitute the words that I've indicated at the bottom of my page. The subclause would read:
- Subsection (1) does not apply to a protectee or to any person who repeats the information
disclosed by the protectee, if the disclosure does not endanger the safety of another protectee.
With that, I conclude my formal remarks and thank you for your time and attention. I want to wish you well in your deliberations. I hope that some, if not all, of my amendments will find favour in one form or another with some or all of you. Of course, Mr. Doe and I are available for questions now if there are any.
The Chairman: Thank you, Mr. Wappel.
[Translation]
Ms Venne, you have ten minutes.
Ms Venne (Saint-Hubert): Mr. Chairman, I have a point of order. We were to finish at 10:30 and we were supposed to have 10 minutes each. In my opinion, we're finishing at a quarter to and that will be all, I imagine. That's all I want to knowing will we have 10 minutes for our questions?
.1015
[English]
The Chairman: Yes. I thought if we restricted it to five minutes, then it wouldn't be fair to these witnesses. So at least if each side got ten minutes -
[Translation]
Ms Venne: But that will be all.
[English]
The Chairman: - and then we'd run into the time of the others and -
Mrs. Venne: But that will be all - ten minutes?
The Chairman: Yes.
[Translation]
Ms Venne: Thank you. Good morning, Mr. Wappel and Mr. Doe.
Mr. Doe, you're not giving your real name. There's no problem, but we can still see you. This is an open meeting. We are not as far as I know in camera. That doesn't bother you?
[English]
Mr. Doe: Yes, it does. It bothers me wholeheartedly, but I felt it was the right thing to do, to come here before the committee and express my concerns.
It is like finding a rabid fox in your backyard and just shooing it into the neighbour's yard. People turn their backs, and when you turn your back, change is not made. So I did my best to take responsibility and to make sure that what happened to my family and myself will not happen to any other family out there that is good enough to step forward and help the police fight crime.
I did have a baseball cap and glasses, in a bag. Before we entered the committee room, Mr. Wappel's assistant, Peter Conroy, was good enough to scan the room for television cameras and the like. So I'm in your hands, and I hope you won't point me out if you ever see me again.
[Translation]
Ms Venne: Absolutely not!
Mr. Wappel, in your Bill C-206, in clause 7, there's a very elaborate protocol. The protocol in C-78 isn't as exhaustive. On the other hand, you're trying to improve it through your amendment no. 3 that I've just seen. Bill C-78 will be more in line with your bill if we carry your amendment no. 3 which actually corresponds to sub-clause (g) of your bill.
However, the protocol is still less exhaustive than what you have in your bill. I'd like to know if you find that the beneficiary's obligations are enough in Bill C-78.
[English]
Mr. Wappel: You're very perceptive, because the amendment is in fact paragraph (g) of my bill.
I was trained as a common-law lawyer, and a common-law lawyer's training is to try to think of everything that could possibly ever happen under the sun and provide for it in a contract.
My understanding of civil law is that this is not the case.
So I guess I could answer you by saying that in my clause 7 I tried to set out as many things as I could anticipate being required. The clause in the bill before us perhaps doesn't have everything in it - it will have one more thing if you accept my amendment - but there will be the power to make regulations, and I don't think that the place, necessarily, to draft a full and complete contract is in the legislation. If the legislation gives the skeletal form, then the regulations will put the flesh and muscle on the contract. I'm prepared to leave it at that, provided there are some broad outlines, and I think the broad outlines in clause 8, hopefully with my amendment, will be sufficient.
[Translation]
Ms Venne: Neither your bill nor Bill C-78 provide for the case of the co-accused. What happens with the co-accused who decides to testify against his accomplice? In your opinion, will he be able to be a beneficiary of the program?
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[English]
Mr. Wappel: Well, of course you would have to take things on a case-by-case basis. It would depend, I guess, on the seriousness of the crime, how difficult it would otherwise be to solve the crime, and what sort of protection is being sought. This bill doesn't deal with, for example, immunity from prosecution. It really deals, in fact, with the protection of witnesses and relocation.
There are numerous instances where people have committed certain crimes and the Crown - and we're not talking about the commissioner now - has decided that in order to prosecute the case...they're given immunity from prosecution for certain offences provided they give testimony. This bill would then permit, in certain circumstances, the commissioner to relocate those witnesses.
I think in particular of one case where a biker assassin - that's the only way I can describe him, and this was a few years back - was able to help in the break-up of a biker gang and the prosecution of a number of people for murder and all kinds of terrible things. My recollection is that person was not prosecuted for the murders he admitted to. He was relocated. I gather it was very seriously thought out by the authorities who made that decision, because otherwise there would have been no way to get at the gang. As they say, sometimes it takes a thief to catch a thief.
[Translation]
Ms Venne: Bill C-78 doesn't have any criteria for balancing out protection afforded society and advantages granted the beneficiaries. On the other hand, clause 4(2) of your bill puts the onus on the minister to evaluate what danger for the public might result from protecting a witness. That's not in Bill C-78. What's your opinion?
[English]
Mr. Wappel: Again, I thank you for having reviewed my bill carefully.
I would draw your attention to paragraph 7(b) of Bill C-78. Of course, clause 7 deals with the factors that need to be considered in determining whether a witness would be admitted to the program. Paragraph (b) provides that one of the factors to be considered is the danger to the community if the witness is admitted to the program, which in my view is another way of saying what I said in my bill. So I feel it is in there.
The Chairman: Mr. Ramsay, ten minutes.
Mr. Ramsay (Crowfoot): Mr. Wappel, it's nice to see you back with our committee.
Mr. Wappel: It's nice to be here.
Mr. Ramsay: I'd like to tell you that at least some of us on this committee miss you, and miss your participation in the committee.
I have some concerns I would like to address to you. I'd like to approach it from the bad-apple scenario John Doe has referred to. If a witness finds himself or herself in a position where their life is at stake, or at least their life is threatened, and they are under the direction of a police officer - one of these bad apples - do you not feel this gives that bad apple leverage - extraordinary leverage - to induce statements from the witness that the witness either doesn't want to give or is untruthful?
Let me tell you very quickly about a case that occurred in Alberta. A witness was charged with giving contradictory testimony. My understanding is the only defence against that is whether there was intent to mislead and whether or not there was coercion or inducement by a person or persons within or outside of the law enforcement agency to contradict testimony. The jury found that individual not guilty, which meant that they had accepted her defence that the individual peace officer had coerced and intimidated her for over 50 hours of interviewing and examination to give this original trial testimony, which she later recanted.
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Do you feel this could give extraordinary leverage for that kind of thing to occur? Perhaps Mr. Doe could respond to this too if he would like, because he's been in that kind of a situation, where not only his property but his life has been threatened. Does this not grant peace officers, the kind that he referred to as the bad apples in the basket, an extraordinary leverage to do this kind of thing?
Mr. Doe: Yes. I feel that when people are in a position where they feel their life is in great danger, they themselves become very desperate. It depends on the individual. Some individuals would be susceptible to agree with or cooperate with anything a bad apple would have to say. It would be like the individual is in their hands.
That was not the case in my case. My bad apples just washed their hands of me. I did not have to testify in the courtroom. Everybody involved in the investigations pleaded guilty.
But it could be a concern. It's like the Guy Paul Morin case; they pulled guys out of jail and had them testify against Guy Paul Morin, and obviously they were lying because Guy Paul Morin's an innocent man.
The bottom line is that it depends on the individual and it depends on the integrity of the police officers. Most police officers are honest and hard-working, but with some of them, their integrity is just not there.
Mr. Ramsay: In the case I referred to, there is no evidence to indicate that there was a lack of integrity on the part of the police officers. It's just that they thought the witness had evidence that apparently she did not have. They kept pressuring in the direction that the witness ultimately realized they wanted her to go and she went.
It not only refers to the bad apples, but it also refers to very zealous, competent, professional police officers who are, under the threat to a person's personal safety, able to get that individual to say things that are not the truth, as you've just mentioned in the Morin case.
Mr. Doe: Yes. In my case, on the credibility of the witness or the exposed informant, I have 42 volumes and over 6,000 pages to back up what I'm saying.
I understand your concern that if an individual is on the hot seat, they may say just about anything to get off that hot seat. When they take an oath in court, they're not to commit perjury, but laws are only as good as the people who enforce them and the people who abide by them. It's a concern, but hopefully it doesn't pop up too often, sir.
Mr. Wappel: Mr. Ramsay, could I just comment on your comments?
First of all, thank you for your comments. I miss the committee too. However, in this business, of course, nothing is forever. In order to come here, I had to give up the opportunity to grill some executives from the big three automakers. Believe me, it was a real toss-up as to whether I would come because I wanted to get them to answer some tough questions for a change.
I want to divorce this from witness protection as opposed to ordinary law enforcement and cutting deals and plea bargaining. As I understand it, clause 15 deals with which members of the force will be authorized to admit a person into the program. As I understand it, it will be a member of the force who has a rank no lower than chief superintendent.
That's pretty high. We're not talking about ordinary - and I don't use that in a pejorative way - rank and file officers sitting in a room for 50 hours twisting some informant's arm to get them to testify. This is a pretty sophisticated thing that has to be done, and it has to go to a fairly high level for a decision as to whether or not the person should be protected.
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I suppose one could argue they have to get to that point. The chief superintendent has to at least be aware of the case, and to that extent, there are always going to be saw-offs on how you were a police officer and I wasn't.
I can just imagine conversations like this: if you tell us who helped you, then we will recommend to the Crown that they do a little less on you and a little more on them.
You know better than I do how these things go, but they do go on, on a day-to-day basis.
In the same way, someone could say: well, look, we know you're in it up to here; if you help solve the crime, I'll put in a good word with respect to witness protection. Obviously, that is going to happen.
But I think these safeguards and the level of seniority required to get into the program will protect the integrity of the program, generally speaking. Of course, there will always be an exception that will eventually hit the papers.
Mr. Ramsay: Thank you. I have time for one more question, and of course I refer to the letter the committee has received from the Canadian Police Association. I will quickly read this to you:
- What we are extremely distressed to see, however, is the placement of that authority in the
exclusive hands of the RCMP with utterly inadequate external independent control of the
program. Added to this is the current lamentable state of absence of third party review of the
Commissioner's actions or decisions as they relate to Police Officers. This format, and what it
entails for witness and informer ``protection'' is a recipe for disaster.
Mr. Wappel: Mr. Ramsay, of course I respect the Canadian Police Association and its views, but I don't always agree with everything they say, and here is a case in point.
With great respect, I think there is a bit of RCMP paranoia coming out of that letter.
The program is already administered by the Commissioner of the RCMP. In my lifetime as a parliamentarian, we have seen the system open up. When I got here, nobody knew about it and nobody would talk about it. It was completely secret. All of a sudden, we know how much money goes into it and how many witnesses are being protected. I think this will open up just as CSIS has opened up.
I think it has to be run by somebody national. We are a federal government. We want to make sure that the criminal law, which is enforced nationally, provides for some way of helping witnesses nationally.
With the safeguards that are provided, who better, I ask, than the Commissioner of the RCMP, who is already doing it? There has to be a report to the minister. The minister has to report to the House of Commons. That report comes to this committee. There is an external procedure before the RCMP complaints commission, binding or not. We're quibbling at this point.
It is external, open and public, and in addition, if one were to take the recommendation that there be a binding dispute resolution mechanism as a contractual portion of every contract, that would be an additional safeguard against autocracy, if you will.
Mr. Ramsay: I have a minute left according to my watch, Mr. Chairman.
The Chairman: I use the digital one and you're half a minute over.
Mr. Ramsay: All right. Thank you.
The Chairman: Ms Phinney.
Ms Phinney (Hamilton Mountain): I have a lot of what I think are short questions. I don't know about the answers.
Mr. Wappel, has the minister commented on your amendments, or has anybody in the department seen and commented on your amendments?
Mr. Wappel: No. I thought it would be a nice surprise if I brought them today and showed them to the committee first.
Ms Phinney: These aren't points you have already spoken to them about that they've disagreed with. Are these things you thought up after -
Mr. Wappel: Some of them are reflected in my bill, as Madame Venne has already pointed out, and for one reason or another were omitted, either overtly or inadvertently. I don't know.
So I don't know what the department's position is. I hope they think most of them are reasonable.
Ms Phinney: Okay. I looked through it carefully, and I don't see the provisions to remove witnesses from the program if they commit a crime while under protection. Are there any comments about that? Could you comment about that situation?
Mr. Wappel: Well, I think that should be a given.
Ms Phinney: Is it in the bill?
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Mr. Wappel: I believe it is, but you have to give me a minute, because I don't know the thing entirely by heart.
Ms Phinney: I couldn't find it.
Mr. Wappel: Of course, if it isn't there, that should be one of the factors considered. If a person commits a crime while they're being protected, they should have it terminated.
It may be stated in an inverse way. In fact it is, in subparagraph 8(b)(iii). The agreement says they have to ``refrain from activities that constitute an offence against an Act of Parliament''. Obviously if you commit an offence against an act of Parliament, you have breached the terms of your contract and then the commissioner can take whatever action he or she wishes to take as a result of the breach, including abandoning the contract and thereby abandoning the protection.
Perhaps it's not stated directly, but it's certainly there, under subparagraph 8(b)(iii).
Ms Phinney: Aren't there circumstances where they're being protected from somebody because they've witnessed something that's very serious and maybe they've done something quite minor? Are there degrees in there, or is it just automatic? If you do something wrong, such as pick up an apple in a store, are you automatically off the program?
Mr. Wappel: No, because there's discretion allowed. If someone had witnessed a murder and had been relocated, and then for one reason or another were caught taking a candy bar from a drugstore, I think it would be a gross overreaction to throw them out of the program. On the other hand, it would be time for a very stern lecture and an indication that perhaps the next chocolate bar indeed would get them thrown out of the program.
Ms Phinney: So we're just understanding that there will be that understanding there.
Mr. Wappel: It would be one of the factors to take into account.
As with any separation agreement, not every breach will result in the other party enforcing the contract or tearing it up. That will depend on the case and the situation.
I think, for example, of how many separation agreements I drafted that provided that the accessing spouse was to show up at 8 o'clock at night and how irritating it was when they showed up at 9 o'clock at night, but that doesn't automatically result in a court application to deny access. If it's persistent, of course, it does.
Ms Phinney: The other witness talked about when, five years later, you're going to look for a job and you need a past history. How do you react to that comment? Do you think there should be something in here covering that?
Mr. Wappel: That is a very good point, and I think in a way I addressed it.
There's no doubt it's very difficult to relocate yourself employment-wise if you have no history. It is obviously not very helpful to you if you're relocated from Edmonton to London and the only way you can get a job is to provide your former employers' letters of reference, because they can be traced. So there would have to be a way whereby, as I said, false letters of reference would be provided.
I doubt that would be a big problem. If we're going to give them a new passport and a new SIN under a new name, I doubt it's going to be a big problem to put some reference on phoney letterhead that this person did a good job in their previous employ, in order to help them get employment.
Ms Phinney: They might need some training too. You didn't put that in your amendments. Where would you suggest we put that?
Mr. Wappel: If we were going to put it in, I would suggest it be in the section that deals with the ability to give a new identity, new identity documents and those sorts of things.
Ms Phinney: So this will come under the regulations?
Mr Wappel: I would think so. If you wanted to, you could put some specific comment in the bill that along with a new identity, a new passport and new identity documents, one could provide new employment or employment-related documents - some words to that effect - and then leave it to the regulations to help that out.
Ms Phinney: The study you did is very interesting; you have a very clear way of laying things out. I wish our research people would do this for a lot of things we're doing in committees.
Why did you pick only Australia and the United States?
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Mr. Wappel: As far as I know - and I haven't examined every country in the world - those are the ones that would have witness protection programs similar, in a common law vein, to the ones we're familiar with.
Ms Phinney: No other countries have it? I'd be surprised.
Mr. Wappel: Don't quote me on this, but I don't believe, for example, the United Kingdom has a witness protection program. I may be wrong. But I'm clearly aware of the United States one, which has been around the longest and therefore has a very clear track record, and I found it interesting that Australia last year passed legislation that in many respects - I hate to put it this way - mirrored C-206, in its former life back in the last Parliament, in March 1993, and in fact made a lot of improvements.
If you look at the Australian bill, I think it goes a little too far, because it attempts to micro-manage and to put in even more than I would put in, in terms of what should be in there and various things like that. I think we have to leave a lot of flexibility in the program, in the regulations, and in the report to Parliament.
Ms Phinney: Again, we've mentioned this at other meetings we've had, because you read novels and watch mystery movies. I would think the top forces in England - I don't know what their top police force is called; I forget -
Mr. Wappel: Scotland Yard?
Ms Phinney: Yes, and then there are a couple with the spies in them. Wouldn't they have a built-in system for that? They'd have to protect their sources of information.
Mr. Wappel: I would think it would be inconceivable that any sophisticated law enforcement system anywhere in the world wouldn't provide for this in one form or another. Whether or not it's statutory is another matter.
Ms Phinney: Yes, okay. I think that's all.
Mr. Knutson (Elgin - Norfolk): I was approached by a United Church minister who had counselled somebody who had gone into the program. They had a long series of complaints. One of them was that the fellow's wife was a nurse and it took a couple of years to get her proper nursing documentation and then a spot. So this issue of background can be more than just job references. It could be membership in a law society; the ability to practise law. It could be a whole bunch of things.
Anyway, they made the point that there needed to be an ombudsman within the program, or somebody who would act as an advocate for the witness, especially if the handler really fouled up. I wonder whether you've given any thought to that. It would be short of the more formalized arbitration system of complaint resolution.
Mr. Wappel: I am very wary of introducing any new bureaucracy, and I think an ombudsman, ombudsperson, whatever you want to call it, would introduce a new bureaucracy. I would suggest that would be an alternative if the system that has been set up in this bill is proven not to work. If all the checks and safeguards we've discussed this morning end up not doing the job, that might be the subject of an amendment. My own view would be that it's not necessary to put it in now.
The Chairman: Thank you, Mr. Wappel and the gentleman with you. As you are well aware, the minister complimented you on the introduction of your bill, which has caused some action in getting this bill before the House. Thank you again for appearing before the committee today.
Mr. Wappel: Thank you, Mr. Chairman.