SECU Committee Report

Date: January 8, 2007

Subject: Ontario's Witness Protection Program

Synopsis: This practice memorandum sets out the procedure for Crown Counsel to follow when dealing with a witness who may require the temporary assistance of Ontario's Witness Protection Program. It also provides information about the program, the criteria for acceptance, and the administration of protective funding.

Table of Contents

1.             Criteria For Acceptance

2.             What The Program Provides

3.             Procedure For Making An Application

4.             Administration Of Protective Funding

5.             Interim Protective Assistance

Opinion/Advice:

All applications for admission to Ontario's Witness Protection Program must be made to the Ministry of the Attorney General, Crown Law Office - Criminal at 720 Bay Street, 10th Floor, Toronto, Ontario, M5G 2K1 (416-326-4600). Applications must be reviewed by a designated counsel in the Crown Law Office - Criminal, the Director of that Office and the Assistant Deputy Attorney General- Criminal Law, and must be approved by the Deputy Attorney General before any promises of acceptance into the program or of ongoing financial or protective assistance are made to the witness.

1. Criteria For Acceptance

The Witness Protection Program provides time-limited funding to assist in the protection, maintenance and relocation of a witness and/or family members where doing so is in the best interests of the administration of justice. Such an unusual measure may be appropriate where:

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a.       the life or health of the witness and/or family members is judged by the police to be in real danger as a result of the involvement of the witness in a prosecution;

b.      the case in which the witness is involved is a case of significance to the administration of justice; e.g. murder, robbery, serious crimes of violence, organized crime;

c.      the witness is cooperating with the police and has agreed to provide truthful testimony that is a key element of the Crown's case; and

d.      the witness's and/or his family members' circumstances (e.g. not incarcerated, no longer an undercover agent, etc.) and behaviour (e.g. ability and willingness to comply with program discipline) are such that the witness and/or family members are capable of benefiting from the program's protective measures without themselves posing a danger to the public while in the program.

2. What The Program Provides

The witness protection program does not provide long-term financial assistance. It is a temporary relocation and assistance program only. The program also does not provide rewards or benefits in return for testimony. In addition to security advice, the program may, depending on the circumstances of the witness and/or family members, provide such things as:

      a.      funding to cover the costs of relocation to a safe environment;

      b.      funding for temporary rent, utilities, food and maintenance;

      c.            assistance in obtaining social assistance benefits under the new name and in the new locale;

      d.      funding to cover the costs of specifically approved security measures;

      e.            where appropriate, funding to cover exceptional medical expenses including, where appropriate, psychological counselling;

      f.             where appropriate, assistance in changing names and obtaining new identification documents; and

      g.            where appropriate, funding for time-limited and specifically approved upgrades to employment skills or education.

Note: the Witness Protection Program does not pay for police costs such as overtime and ordinary travel expenses. Nor does it pay the travel and accommodation costs of a protected witness required to return to court to testify, which costs are the responsibility of the local Crown's office. Where claims for travel expenses for witness are submitted by an authorized witness protection officer, the local Crown's office should, for security reasons, not insist on the submission of travel or

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accommodation receipts or other routine expense documentation. In such cases, the police will retain such documentation in their own files.

3. Procedure For Making An Application

An application for assistance under the Witness Protection Program should not be sponsored and approved by the Crown Attorney or Assistant Crown Attorney who will be prosecuting the case in which the witness is expected to testify. The bulk of the paperwork associated with an application will be done by the assigned witness protection officer with the assistance of the investigators. On request of the witness protection officer, prosecuting counsel should arrange for a senior, independent Crown counsel to sponsor and approve the application on behalf of the local Crown Attorney's office. The roles of the prosecuting Crown counsel and the senior independent Crown counsel are distinct from one another.

The prosecuting Crown counsel should:

a.       Upon becoming aware that an application to the Witness Protection Program may be necessary, instruct the investigating officers to clearly advise the witness that:

·        The investigating officers have no authority to deal with witness protection matters and cannot make any promises or guarantees of acceptance into the program;

·        The Crown Attorney or Assistant Crown Attorney who prosecutes the case in which the witness is to testify likewise will not be involved in witness protection matters and will not discuss such issues with the witness except to the extent that such later becomes necessary in order to prepare the witness to testify;

·        Any decisions about the witness's acceptance into the Witness Protection Program and about the level or type of assistance the witness may be offered will be made by the Ministry of the Attorney General and not by the local police or prosecutors; and

·         Assuming this has not already happened, the witness will, at the appropriate time, be interviewed in depth by a witness protection officer.

b.      Sign the application provided by the witness protection officer confirming that the witness is willing and able to testify and that his or her anticipated testimony is a key element of the Crown's case. Ideally, this should only be done after the witness has given a sworn, videotaped statement to the police;

c.      Be aware that the witness protection officer will liaise with the investigating officer(s) to ensure that the witness is made available for court appearances and for any witness preparation interviews required by the prosecuting counsel. The responsibility for funding the witness's travel and maintenance for court

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appearances and preparation interviews rests with the local Crown's office just as it would with any other out-of-town witness;

d.      Obtain the disclosure material provided to the investigators by the witness protection officer and provide that disclosure to the defence. Standard witness protection practice requires the witness protection officer to provide the investigators with appropriate disclosure materials (edited for security reasons where necessary) relating to the witness's participation in the Witness Protection

I Program;

e.      The prosecuting Crown counsel must ensure that the investigators support the witness protection officers' efforts to manage the witness's protection and restrict their own dealings with the witness accordingly;

f.       The prosecuting Crown counsel must consult with the reviewing counsel at the Crown Law Office - Criminal if any additional or other issues relating to the witness's participation in the program arise during the course of the prosecution;

g.      On becoming aware that a prosecution witness is, has been or may become involved in any other witness protection program or similar process, immediately contact and consult with a reviewing counsel in the Crown Law Office - Criminal to ensure that the witness's treatment by that other program or process is compatible with the Ministry's own witness protection practices; and

h.      On request or as needed, keep the witness protection officer and reviewing counsel at the Crown Law Office - Criminal apprised of the status of the prosecution and of any developments which might have an impact on the witness or his safety.

The senior independent Crown counsel should:

a.      Meet with the investigators and become familiar with the details of the case and the role of the witness in the prosecution;

b.      When the witness has a lawyer, make it clear to that lawyer that any decision about the witness's acceptance into the Witness Protection Program, or about the level or type of assistance offered, will be made independently by the Ministry of the Attorney General based on the witness's security needs and is not a matter that can form part of any locally made plea or other arrangements involving the witness;

I Witness protection officers are trained not to discuss the case with protected witnesses and to instruct witnesses that they must abide by the same restriction. Accordingly, it will only be rarely that a witness protection officer is in possession of original information relevant to a prosecution. In those rare cases where the witness protection officer is, disclosure of any required information will be made to the investigators in edited form if necessary.

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c.      Ensure that the witness protection officers have all the information (e.g. synopsis of case, witness statements or videotapes, details of outstanding charges and any anticipated resolution) needed to complete the witness's application for admission to the Witness Protection Program;

d.      Instruct the investigating officers to cooperate with the witness protection officers and, in particular, to produce any threat assessment or other information the witness protection officers require;

e.       Consult with the reviewing counsel in the Crown Law Office - Criminal about any issues of concern that arise from a review of the application;

f.       Sign the completed application on behalf of the local Crown Attorney's Office.

By signing the application, the senior independent Crown indicates that he or she has independently assessed the proposed use of witness protection in respect of the witness and is of the opinion that, in all the circumstances (which circumstances include any plea arrangements or other advantages or benefits which have flowed or might flow either to the protected witness or to other witnesses in the case), said use is not contrary to the best interests of the administration of justice;

g.      The senior independent Crown counsel must ensure that the investigators support the witness protection officers' efforts to manage the witness's protection and restrict their own dealings with the witness accordingly; and

h.      Advise both the Crown Attorney and the Regional Director of Crown Operations of the application and keep them and reviewing counsel in the Crown Law Office - Criminal apprised of any developments capable of affecting the assessment made under step 6.

4. Administration Of Protective Funding

Once the application has been approved by the Ministry of the Attorney General and the witness has been accepted in the program, the following will typically occur:

a.       A standard Letter of Acknowledgement (describing the general nature of the financial and other assistance approved for the witness) will be drawn up by reviewing counsel in the Crown Law Office - Criminal and signed by the witness before any funds (interim protection assistance funds excepted) are disbursed by the police;

b.      The original of the Letter of Acknowledgement will be retained by the witness protection officer assigned to the case and will be made available to the prosecuting counsel in the event that it is required as an exhibit;

c.      Prosecuting counsel will be advised by letter from the Crown Law Office ­Criminal that the witness has been accepted into the program. The investigating

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officers will (on an ongoing basis if necessary) be provided by the witness protection officers with such details of the financial assistance given the witness and other relevant matters as are necessary to make the required disclosure to the defence;

d.      A cheque from the Ministry of the Attorney General, made payable to the designated witness protection officer, will be issued once the applicant has been approved. The witness protection officer will deposit the funds in a separate, interest-bearing account from which all witness protection payments as provided for in the Letter of Acknowledgement will be made; and

e.       The witness protection officer will provide an accounting of the funds to the Crown Law Office - Criminal as requested and will prepare and provide a final accounting at the end of the witness protection project.

5. Interim Protective Assistance

It is often the case in an investigation that the need for witness protection arises with little or no warning such that a witness is in need of immediate protection. In such emergency situations, police forces have funds available to carry out their responsibilities to the witness under the Police Services Act. Ontario's Witness Protection Program, upon the witness being accepted in the program and signing the Letter of Acknowledgement, will reimburse the police for all reasonable, interim protection expenses they have incurred. Again, this funding does not cover police overtime or travel expenses.

These interim protection measures may be used by police services on a temporary basis only. It is essential that the formal witness protection application be started at the earliest practical opportunity.

NOTE: In an emergency situation, outside of normal office hours or on weekends or holidays, a representative of the Crown Law Office - Criminal who is familiar with the Witness Protection Program, can be contacted through Ontario Provincial Police Headquarters - GHQ Duty N.C.O. at (705) 329-6950.

Attachments: None

Contact:

Crown Law Office - Criminal
416-326-4600

Signed by:

Paul Lindsay
Assistant Deputy Attorney General
Criminal Law Division

Practice Memoranda are not considered to be confidential and may be given to defence counsellor other interested persons, upon request.

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MANDATORY LANGUAGE

All applications for admission to the Witness Protection Program must be submitted to the Ministry of the Attorney General, Crown Law Office - Criminal at 720 Bay Street, 10th Floor, Toronto, Ontario, M5G 2K1 (416-326-4600).

Applications must be reviewed by a designated coordinator in the Crown Law Office - Criminal and the Assistant Deputy Attorney General - Criminal Law, and must be approved by the Deputy Attorney General before any promises of acceptance into the program or financial commitments are made to the witness.

The prosecuting Crown counsel and the senior independent Crown counsel must ensure that the investigators support the witness protection officers' efforts to manage the witness's protection and restrict their own dealings with the witness accordingly; and

The prosecuting Crown counsel must consult with the reviewing counsel at the Crown Law Office - Criminal if any additional or other issues relating to the witness's participation in the program arise during the course of the prosecution.